exhibit101fourthamendeda






    Exhibit 10.1    EXECUTION COPY        FOURTH AMENDED AND RESTATED CREDIT AGREEMENT  dated as of  October 27, 2021  among  MATERION CORPORATION  MATERION NETHERLANDS B.V.  The Other Foreign Subsidiary Borrowers Party Hereto  The Lenders Party Hereto  JPMORGAN CHASE BANK, N.A.  as Administrative Agent  WELLS FARGO BANK, NATIONAL ASSOCIATION  and  BANK OF AMERICA, N.A.  as Co-Syndication Agents  KEYBANK NATIONAL ASSOCIATION  as Documentation Agent    _____________________________________  JPMORGAN CHASE BANK, N.A.,  WELLS FARGO SECURITIES, LLC and BofA SECURITIES, INC.  as Joint Bookrunners and Joint Lead Arrangers      





 






  TABLE OF CONTENTS  Page  ARTICLE I Definitions ................................................................................................................................ 1  SECTION 1.01. Defined Terms ................................................................................................................ 1  SECTION 1.02. Classification of Loans and Borrowings ....................................................................... 45  SECTION 1.03. Terms Generally............................................................................................................ 46  SECTION 1.04. Accounting Terms; GAAP ............................................................................................ 46  SECTION 1.05. Amendment and Restatement of the Existing Credit Agreement ................................. 47  SECTION 1.06. Interest Rates; LIBOR Notification .............................................................................. 47  SECTION 1.07. Divisions ....................................................................................................................... 48  SECTION 1.08. Pro Forma Adjustments for Acquisitions and Dispositions .......................................... 48  SECTION 1.09. Certain Calculations ...................................................................................................... 48  SECTION 1.10. Exchange Rates; Currency Equivalents ........................................................................ 48  ARTICLE II The Credits ............................................................................................................................ 49  SECTION 2.01. Commitments ................................................................................................................ 49  SECTION 2.02. Loans and Borrowings .................................................................................................. 50  SECTION 2.03. Requests for Borrowings ............................................................................................... 51  SECTION 2.04. Determination of Dollar Amounts ................................................................................ 52  SECTION 2.05. Swingline Loans............................................................................................................ 52  SECTION 2.06. Letters of Credit ............................................................................................................ 53  SECTION 2.07. Funding of Borrowings ................................................................................................. 59  SECTION 2.08. Interest Elections ........................................................................................................... 59  SECTION 2.09. Termination and Reduction of Commitments ............................................................... 61  SECTION 2.10. Repayment and Amortization of Loans; Evidence of Debt .......................................... 61  SECTION 2.11. Prepayment of Loans .................................................................................................... 62  SECTION 2.12. Fees ............................................................................................................................... 64  SECTION 2.13. Interest .......................................................................................................................... 65  SECTION 2.14. Alternate Rate of Interest .............................................................................................. 66  SECTION 2.15. Increased Costs ............................................................................................................. 69  SECTION 2.16. Break Funding Payments .............................................................................................. 71  SECTION 2.17. Taxes ............................................................................................................................. 72  SECTION 2.18. Payments Generally; Allocation of Proceeds; Pro Rata Treatment; Sharing of  Set-offs .......................................................................................................................... 75  SECTION 2.19. Mitigation Obligations; Replacement of Lenders ......................................................... 77  SECTION 2.20. Expansion Option.......................................................................................................... 78  SECTION 2.21. Market Disruption ......................................................................................................... 80  SECTION 2.22. Judgment Currency ....................................................................................................... 81  SECTION 2.23. Designation of Foreign Subsidiary Borrowers .............................................................. 81  SECTION 2.24. Defaulting Lenders ........................................................................................................ 82  SECTION 2.25. Extension of Maturity Date. .......................................................................................... 84  ARTICLE III Representations and Warranties ........................................................................................... 86  SECTION 3.01. Organization; Powers; Subsidiaries .............................................................................. 86  SECTION 3.02. Authorization; Enforceability ....................................................................................... 86  SECTION 3.03. Governmental Approvals; No Conflicts ....................................................................... 87  





 






Table of Contents  (continued)  Page  ii  SECTION 3.04. Financial Condition; No Material Adverse Change ...................................................... 87  SECTION 3.05. Properties ...................................................................................................................... 87  SECTION 3.06. Litigation and Environmental Matters .......................................................................... 87  SECTION 3.07. Compliance with Laws ................................................................................................. 88  SECTION 3.08. Investment Company Status ......................................................................................... 88  SECTION 3.09. Taxes ............................................................................................................................. 88  SECTION 3.10. ERISA ........................................................................................................................... 88  SECTION 3.11. Disclosure ..................................................................................................................... 88  SECTION 3.12. Federal Reserve Regulations ......................................................................................... 88  SECTION 3.13. [Intentionally Omitted] ................................................................................................. 88  SECTION 3.14. No Default ..................................................................................................................... 88  SECTION 3.15. [Intentionally Omitted] ................................................................................................. 89  SECTION 3.16. Solvency ........................................................................................................................ 89  SECTION 3.17. Insurance ....................................................................................................................... 89  SECTION 3.18. Security Interest in Collateral ....................................................................................... 89  SECTION 3.19. Anti-Corruption Laws and Sanctions ............................................................................ 89  SECTION 3.20. Affected Financial Institutions ...................................................................................... 90  SECTION 3.21. Dutch Fiscal Unity ........................................................................................................ 90  SECTION 3.22. Residency for Tax Purposes .......................................................................................... 90  ARTICLE IV Conditions ............................................................................................................................ 90  SECTION 4.01. Effective Date ............................................................................................................... 90  SECTION 4.02. Closing Date.................................................................................................................. 91  SECTION 4.03. Each Credit Event ......................................................................................................... 94  SECTION 4.04. Designation of a Foreign Subsidiary Borrower ............................................................ 94  ARTICLE V Affirmative Covenants .......................................................................................................... 95  SECTION 5.01. Financial Statements and Other Information ................................................................ 95  SECTION 5.02. Notices of Material Events ............................................................................................ 96  SECTION 5.03. Existence; Conduct of Business .................................................................................... 97  SECTION 5.04. Payment of Obligations ................................................................................................. 97  SECTION 5.05. Maintenance of Properties; Insurance ........................................................................... 97  SECTION 5.06. Books and Records; Inspection Rights ......................................................................... 98  SECTION 5.07. Compliance with Laws and Material Contractual Obligations ..................................... 98  SECTION 5.08. Use of Proceeds............................................................................................................. 98  SECTION 5.09. Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances ............... 99  SECTION 5.10. Fiscal Unity for Dutch Tax Purposes .......................................................................... 101  SECTION 5.11. Allocation of Tax Losses and Interest Expenses ........................................................ 101  SECTION 5.12. Residency for Tax Purposes ........................................................................................ 101  SECTION 5.13. Post-Closing Matters ................................................................................................... 101  ARTICLE VI Negative Covenants ........................................................................................................... 101  SECTION 6.01. Indebtedness ................................................................................................................ 102  SECTION 6.02. Liens ............................................................................................................................ 104  SECTION 6.03. Fundamental Changes and Asset Sales ....................................................................... 107  SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions .................................... 109  





 






Table of Contents  (continued)  Page  iii  SECTION 6.05. Swap Agreements ....................................................................................................... 111  SECTION 6.06. Transactions with Affiliates ........................................................................................ 111  SECTION 6.07. Restricted Payments .................................................................................................... 111  SECTION 6.08. Restrictive Agreements ............................................................................................... 112  SECTION 6.09. Subordinated Indebtedness and Amendments to Subordinated Indebtedness  Documents .................................................................................................................. 112  SECTION 6.10. Sale and Leaseback Transactions ................................................................................ 112  SECTION 6.11. Financial Covenants .................................................................................................... 113  ARTICLE VII Events of Default .............................................................................................................. 113  SECTION 7.01. Events of Default ........................................................................................................ 113  SECTION 7.02. Remedies Upon an Event of Default ........................................................................... 115  ARTICLE VIII The Administrative Agent ............................................................................................... 117  SECTION 8.01. Authorization and Action. ........................................................................................... 117  SECTION 8.02. Administrative Agent’s Reliance, Indemnification, Etc ............................................. 119  SECTION 8.03. Posting of Communications ........................................................................................ 120  SECTION 8.04. The Administrative Agent Individually ...................................................................... 122  SECTION 8.05. Successor Administrative Agent ................................................................................. 122  SECTION 8.06. Acknowledgements of Lenders and Issuing Bank ...................................................... 123  SECTION 8.07. Collateral Matters ........................................................................................................ 124  SECTION 8.08. Credit Bidding ............................................................................................................. 126  SECTION 8.09. Certain ERISA Matters ............................................................................................... 127  SECTION 8.10. Certain Foreign Pledge Matters .................................................................................. 128  ARTICLE IX Miscellaneous .................................................................................................................... 128  SECTION 9.01. Notices ........................................................................................................................ 128  SECTION 9.02. Waivers; Amendments ................................................................................................ 130  SECTION 9.03. Expenses; Limitation of Liability; Indemnity ............................................................. 132  SECTION 9.04. Successors and Assigns ............................................................................................... 134  SECTION 9.05. Survival ....................................................................................................................... 139  SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution ................................. 140  SECTION 9.07. Severability ................................................................................................................. 141  SECTION 9.08. Right of Setoff............................................................................................................. 141  SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process ..................................... 141  SECTION 9.10. WAIVER OF JURY TRIAL ....................................................................................... 142  SECTION 9.11. Headings ..................................................................................................................... 143  SECTION 9.12. Confidentiality ............................................................................................................ 143  SECTION 9.13. USA PATRIOT Act .................................................................................................... 144  SECTION 9.14. Appointment for Perfection ........................................................................................ 144  SECTION 9.15. Interest Rate Limitation .............................................................................................. 144  SECTION 9.16. No Advisory or Fiduciary Responsibility ................................................................... 144  SECTION 9.17. Attorney Representation ............................................................................................. 145  SECTION 9.18. Acknowledgement and Consent to Bail-In of Affected Financial Institutions ........... 145  SECTION 9.19. Acknowledgement Regarding Any Supported QFCs ................................................. 146  SECTION 9.20. Releases of Subsidiary Guarantors. ............................................................................ 146  





 






Table of Contents  (continued)  Page  iv  ARTICLE X Company Guarantee ............................................................................................................ 147  





 






Table of Contents  (continued)  Page  v  SCHEDULES:  Schedule 2.01 – Commitments  Schedule 2.06 – Existing Letters of Credit  Schedule 3.01 – Subsidiaries  Schedule 6.01 – Existing Indebtedness  Schedule 6.02 – Existing Liens  Schedule 6.04 – Existing Investments  EXHIBITS:  Exhibit A  – Form of Assignment and Assumption  Exhibit B  – Form of Solvency Certificate  Exhibit C  – Form of Increasing Lender Supplement  Exhibit D  – Form of Augmenting Lender Supplement  Exhibit E  – List of Closing Documents  Exhibit F-1  – Form of Borrowing Subsidiary Agreement  Exhibit F-2  – Form of Borrowing Subsidiary Termination  Exhibit G-1 – Form of Borrowing Request  Exhibit G-2 – Form of Interest Election Request  Exhibit H-1 – Form of Revolving Loan Note  Exhibit H-2  – Form of Term Loan Note  Exhibit I-1  – Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships)  Exhibit I-2  – Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships)  Exhibit I-3  – Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships)  Exhibit I-4  – Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships)    





 






  FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”)  dated as of October 27, 2021 among MATERION CORPORATION, MATERION NETHERLANDS B.V.,  the other FOREIGN SUBSIDIARY BORROWERS from time to time party hereto, the LENDERS from  time to time party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, WELLS FARGO  BANK, NATIONAL ASSOCIATION and BANK OF AMERICA, N.A., as Co-Syndication Agents and  KEYBANK NATIONAL ASSOCIATION, as Documentation Agent.  WHEREAS, the Company, the Foreign Subsidiary Borrowers party thereto, the lenders  party thereto and JPMorgan Chase Bank, N.A., as administrative agent thereunder, are currently party to  the Third Amended and Restated Credit Agreement, dated as of September 24, 2019 (as amended,  supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”).  WHEREAS, the Company, the Foreign Subsidiary Borrowers, the Lenders and the  Administrative Agent have agreed to enter into this Agreement in order to (i) amend and restate the Existing  Credit Agreement in its entirety, (ii) re-evidence the “Obligations” under, and as defined in, the Existing  Credit Agreement, which shall constitute “Obligations” hereunder and be repayable in accordance with the  terms of this Agreement, and (iii) set forth the terms and conditions under which the Lenders will, from  time to time, make loans and extend other financial accommodations to or for the benefit of the Borrowers.  WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a  novation of the obligations and liabilities of the parties under the Existing Credit Agreement or be deemed  to evidence or constitute full repayment of such obligations and liabilities, but that this Agreement amend  and restate in its entirety the Existing Credit Agreement and re-evidence the obligations and liabilities of  the Company and the other Loan Parties outstanding thereunder, which shall be payable in accordance with  the terms hereof.  WHEREAS, it is also the intent of the Company and the other Loan Parties to confirm that  all obligations under the applicable “Loan Documents” (as referred to and defined in the Existing Credit  Agreement) shall continue in full force and effect as modified or restated by the Loan Documents (as  referred to and defined herein) and that, from and after the Effective Date, all references to the “Credit  Agreement” contained in any such existing “Loan Documents” shall be deemed to refer to this Agreement.  NOW, THEREFORE, in consideration of the premises and the mutual covenants contained  herein, the parties hereto agree that the Existing Credit Agreement is hereby amended and restated as  follows:  ARTICLE I    Definitions  SECTION 1.01. Defined Terms.  As used in this Agreement, the following terms have  the meanings specified below:  “ABR” when used in reference to any Loan or Borrowing, refers to such Loan, or the Loans  comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base Rate.  “Acquisition” means any transaction, or any series of related transactions, consummated  on or after the Effective Date, by which the Company or any Subsidiary (a) acquires any going business or  all or substantially all of the assets of any Person, whether through purchase of assets, merger or otherwise  or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of  transactions) at least a majority (in number of votes) of the Equity Interests of a Person which has ordinary  





 






  2  voting power for the election of directors or other similar management personnel of a Person (other than  Equity Interests having such power only by reason of the happening of a contingency) or a majority of the  outstanding Equity Interests of a Person.  “Additional Commitment Lender” is defined in Section 2.25(d).  “Adjusted EURIBO Rate” means, with respect to any Eurocurrency Borrowing  denominated in euro for any Interest Period, an interest rate per annum equal to (a)  the EURIBO Rate for  such Interest Period multiplied by (b) the Statutory Reserve Rate.  “Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated  in Dollars for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next  1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve  Rate.  “Adjusted TIBO Rate” means, with respect to any Eurocurrency Borrowing denominated  in Japanese Yen for any Interest Period, an interest rate per annum equal to (a) the TIBO Rate for such  Interest Period multiplied by (b) the Statutory Reserve Rate.  “Administrative Agent” means JPMorgan Chase Bank, N.A. (including its branches and  affiliates), in its capacity as administrative agent for the Lenders hereunder.  “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied  by the Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.  “Affected Foreign Subsidiary” means (a) any Foreign Subsidiary organized under the laws  of a jurisdiction other than the Netherlands and (b) any Foreign Subsidiary Holding Company.  “Affiliate” means, with respect to a specified Person, another Person that directly, or  indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control  with the Person specified.  “Agreed Currencies” means (i) Dollars, (ii) euro, (iii) Pounds Sterling, (iv) Japanese Yen,  (v) Swiss Francs and (vi) any other currency (x) that is a lawful currency (other than Dollars) that is readily  available and freely transferable and convertible into Dollars and (y) that is agreed to by the Administrative  Agent and each of the Revolving Lenders.  “Agreement” has the meaning assigned to such term in the introductory paragraph.  “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the  Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1⁄2 of 1% and (c) the  Adjusted LIBO Rate for a one month Interest Period in Dollars on such day (or if such day is not a Business  Day, the immediately preceding Business Day) plus 1%; provided that for the purpose of this definition,  the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate  is not available for such one month Interest Period, the LIBO Interpolated Rate) at approximately 11:00 a.m.  London time on such day.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the  NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such  change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively.  If the Alternate Base  





 






  3  Rate is being used as an alternate rate of interest pursuant to Section 2.14 (for the avoidance of doubt, only  until the Benchmark Replacement has been determined pursuant to Section 2.14(b)), then the Alternate  Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to  clause (c) above.  For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the  foregoing would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.  “Ancillary Document” has the meaning assigned to such term in Section 9.06.  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction  applicable to the Company or its Subsidiaries from time to time concerning or relating to bribery or  corruption.  “Applicable Party” has the meaning assigned to such term in Section 8.03(c).  “Applicable Percentage” means, with respect to any Lender, (a) with respect to Revolving  Loans, LC Exposure or Swingline Loans, the percentage equal to a fraction the numerator of which is such  Lender’s Revolving Commitment and the denominator of which is the aggregate Revolving Commitments  of all Revolving Lenders (if the Revolving Commitments have terminated or expired, the Applicable  Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving  effect to any assignments) and (b) with respect to the Term Loans, (i) at any time prior to advancing the  Term Loans, a percentage equal to a fraction the numerator of which is such Lender’s Term Loan  Commitment and the denominator of which is the aggregate Term Loan Commitments of all Term Lenders  and (ii) at any time after advancing the Term Loans, a percentage equal to a fraction the numerator of which  is such Lender’s outstanding principal amount of the Term Loans and the denominator of which is the  aggregate outstanding principal amount of the Term Loans of all Term Lenders; provided that , in the case  of each of the foregoing clauses (a) and (b), in the case of Section 2.24 when a Defaulting Lender shall  exist, any such Defaulting Lender’s Revolving Commitment and/or Term Loan Commitment, as applicable,  shall be disregarded in the calculation.  “Applicable Pledge Percentage” means 100%, but 65% in the case of a pledge by the  Company or any Domestic Subsidiary of its Equity Interests in a Foreign Subsidiary or Foreign Subsidiary  Holding Company.  “Applicable Rate” means, for any day, with respect to commitment fees payable hereunder,  any Eurocurrency Loan, any ABR Loan, any RFR Loan or any CBR Loan, as the case may be, the  applicable rate per annum set forth below under the caption “Commitment Fee Rate”, “Eurocurrency  Spread”, “RFR Spread / CBR Spread” or “ABR Spread”, as the case may be, based upon the Leverage  Ratio applicable on such date:   Leverage Ratio: Commitment  Fee Rate  Eurocurrency  Spread  RFR Spread /  CBR Spread  ABR Spread  Category 1: ≤ 2.00 to 1.00 0.15% 1.25% 1.25% 0.25%  Category 2: > 2.00 to 1.00 but  ≤ 2.50 to 1.00  0.20% 1.50% 1.50% 0.50%  Category 3: > 2.50 to 1.00 but   ≤ 3.00 to 1.00  0.275% 1.75% 1.75% 0.75%  





 






  4  Category 4: > 3.00 to 1.00 but   ≤ 3.50 to 1.00  0.35% 2.00% 2.00% 1.00%  Category 5: > 3.50 to 1.00 0.40% 2.25% 2.25% 1.25%    For purposes of the foregoing,   (i) if at any time the Company fails to deliver the Financials on or before the date the  Financials are due pursuant to Section 5.01, Category 5 shall be deemed applicable for the period  commencing three (3) Business Days after the required date of delivery and ending on the date  which is three (3) Business Days after the Financials are actually delivered, after which the  Category shall be determined in accordance with the table above as applicable;  (ii) adjustments, if any, to the Category then in effect shall be effective three (3) Business  Days after the Administrative Agent has received the applicable Financials (it being understood  and agreed that each change in Category shall apply during the period commencing on the effective  date of such change and ending on the date immediately preceding the effective date of the next  such change); and  (iii) notwithstanding the foregoing, Category 4 shall be deemed to be applicable until the  Administrative Agent’s receipt of the applicable Financials for the Company’s first full Fiscal  Quarter ending after the Effective Date (unless such Financials demonstrate that Category 5 should  have been applicable during such period, in which case such other Category shall be deemed to be  applicable during such period) and adjustments to the Category then in effect shall thereafter be  effected in accordance with the preceding paragraphs.  “Applicable Time” means, with respect to any Borrowings and payments in any Foreign  Currency, the local time in the place of settlement for such Foreign Currency as may be reasonably  determined by the Administrative Agent or the Issuing Bank, as the case may be, to be necessary for timely  settlement on the relevant date in accordance with normal banking procedures in the place of payment.  “Approved Electronic Platform” has the meaning assigned to such term in Section 8.03(a).  “Approved Fund” has the meaning assigned to such term in Section 9.04(b).  “Arranger” means each of JPMorgan Chase Bank, N.A., Wells Fargo Securities, LLC and  BofA Securities, Inc. in its capacity as a joint bookrunner and joint lead arranger hereunder.  “Assignment and Assumption” means an assignment and assumption agreement entered  into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),  and accepted by the Administrative Agent, substantially in the form of Exhibit A or any other form  (including electronic records generated by the use of an electronic platform) approved by the Administrative  Agent.  “Augmenting Lender” has the meaning assigned to such term in Section 2.20.  “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark for any Agreed Currency, as applicable, any tenor for such Benchmark (or component  thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof),  as applicable, that is or may be used for determining the length of an Interest Period for any term rate or  





 






  5  otherwise, for determining any frequency of making payments of interest calculated pursuant to this  Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark  that is then-removed from the definition of “Interest Period” pursuant to clause (f) of Section 2.14.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union,  the implementing law, regulation, rule or requirement for such EEA Member Country from time to time  which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part  I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation  or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment  firms or other financial institutions or their affiliates (other than through liquidation, administration or other  insolvency proceedings).  “Banking Services” means each and any of the following bank services provided to the  Company or any Subsidiary by any Lender or any of its Affiliates:  (a) credit cards for commercial  customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored value  cards, (c) merchant processing services and (d) treasury management services (including, without  limitation, controlled disbursement, automated clearinghouse transactions, return items, any direct debit  scheme or arrangement, overdrafts and interstate depository network services).  “Banking Services Agreement” means any agreement entered into by the Company or any  Subsidiary in connection with Banking Services.  “Banking Services Obligations” means any and all obligations of the Company or any  Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or  acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in  connection with Banking Services.  “Beryllium Contracts” means any and all agreements or other arrangements (however  styled) for the purchase, procurement or other acquisition of Beryllium, in whatever form (including,  without limitation, Beryl ore, Copper Beryllium Master Alloy, Vacuum Cast Beryllium Ingot, and Vacuum  Hot Pressed Beryllium Billet), entered into from time to time by the Company or any Subsidiary, but only  to the extent that the Dollar Amount of any Indebtedness related thereto does not exceed $20,000,000 during  any consecutive 12-month period.  “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as  now and hereafter in effect, or any successor statute.  “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject  of a voluntary or involuntary bankruptcy or insolvency proceeding, or has had a receiver, conservator,  trustee, administrator, custodian, assignee for the benefit of creditors, restructuring officer  (herstructureringsdeskundige) or similar Person charged with the reorganization or liquidation of its  business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any  action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding  or appointment or has had any order for relief in such proceeding entered in respect thereof; provided that  a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any  ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such  ownership interest results in or provides such Person with immunity from the jurisdiction of courts within  





 






  6  the United States or from the enforcement of judgments or writs of attachment on its assets or permits such  Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any  contracts or agreements made by such Person.  “Benchmark” means, initially, with respect to any (i) RFR Loan in any Agreed Currency,  the applicable Relevant Rate for such Agreed Currency or (ii) Eurocurrency Loan, the Relevant Rate for  such Agreed Currency; provided that if a Benchmark Transition Event, a Term SOFR Transition Event, an  Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark  Replacement Date have occurred with respect to the applicable Relevant Rate or the then-current  Benchmark for such Agreed Currency, then “Benchmark” means the applicable Benchmark Replacement  to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause  (b) or clause (c) of Section 2.14.  “Benchmark Replacement” means, for any Available Tenor, the first alternative set forth  in the order below that can be determined by the Administrative Agent for the applicable Benchmark  Replacement Date; provided that, in the case of any Loan denominated in a Foreign Currency or in the case  of an Other Benchmark Rate Election, “Benchmark Replacement” means the alternative set forth in (3)  below:  (1) in the case of any Loan denominated in Dollars, the sum of: (a) Term SOFR and  (b) the related Benchmark Replacement Adjustment;  (2) in the case of any Loan denominated in Dollars, the sum of: (a) Daily Simple SOFR  and (b) the related Benchmark Replacement Adjustment;  (3) the sum of: (a) the alternate benchmark rate that has been selected by the  Administrative Agent and the Company as the replacement for the then-current Benchmark for the  applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation  of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant  Governmental Body or (ii) any evolving or then-prevailing market convention for determining a  benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities  denominated in the applicable Agreed Currency at such time in the United States and (b) the related  Benchmark Replacement Adjustment;  provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is  displayed on a screen or other information service that publishes such rate from time to time as selected by  the Administrative Agent in its reasonable discretion; provided further that, in the case of clause (3), when  such clause is used to determine the Benchmark Replacement in connection with the occurrence of an Other  Benchmark Rate Election, the alternate benchmark rate selected by the Administrative Agent and the  Company shall be the term benchmark rate that is used in lieu of a LIBOR-based rate in the relevant other  Dollar-denominated syndicated credit facilities; provided further that, notwithstanding anything to the  contrary in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition  Event, and the delivery of a Term SOFR Notice,  on the applicable Benchmark Replacement Date the  “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the  related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first  proviso above).  If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would  be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this  Agreement and the other Loan Documents.  





 






  7  “Benchmark Replacement Adjustment” means, with respect to any replacement of the  then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period  and Available Tenor for any setting of such Unadjusted Benchmark Replacement:  (1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,”  the first alternative set forth in the order below that can be determined by the Administrative Agent:  (a) the spread adjustment, or method for calculating or determining such  spread adjustment, (which may be a positive or negative value or zero) as of the Reference  Time such Benchmark Replacement is first set for such Interest Period that has been  selected or recommended by the Relevant Governmental Body for the replacement of such  Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable  Corresponding Tenor;  (b) the spread adjustment (which may be a positive or negative value or zero)  as of the Reference Time such Benchmark Replacement is first set for such Interest Period  that would apply to the fallback rate for a derivative transaction referencing the ISDA  Definitions to be effective upon an index cessation event with respect to such Benchmark  for the applicable Corresponding Tenor; and  (2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the  spread adjustment, or method for calculating or determining such spread adjustment, (which may  be a positive or negative value or zero) that has been selected by the Administrative Agent and the  Company for the applicable Corresponding Tenor giving due consideration to (i) any selection or  recommendation of a spread adjustment, or method for calculating or determining such spread  adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark  Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date  and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment,  or method for calculating or determining such spread adjustment, for the replacement of such  Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities  denominated in the applicable Agreed Currency at such time in the United States;  provided that, in the case of clause (1) above, such adjustment is displayed on a screen or  other information service that publishes such Benchmark Replacement Adjustment from time to time as  selected by the Administrative Agent in its reasonable discretion.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the definition of  “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and  frequency of determining rates and making payments of interest, timing of borrowing requests or  prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage  provisions, and other technical, administrative or operational matters) that the Administrative Agent decides  may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to  permit the administration thereof by the Administrative Agent in a manner substantially consistent with  market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice  is not administratively feasible or if the Administrative Agent determines that no market practice for the  administration of such Benchmark Replacement exists, in such other manner of administration as the  Administrative Agent decides is reasonably necessary in connection with the administration of this  Agreement and the other Loan Documents).  





 






  8  “Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to  occur of the following events with respect to such then-current Benchmark:   (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,”  the later of (a) the date of the public statement or publication of information referenced therein and  (b) the date on which the administrator of such Benchmark (or the published component used in  the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such  Benchmark (or such component thereof);  (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the  first date on which such Benchmark (or the published component used in the calculation thereof)  has been determined and announced by the regulatory supervisor for the administrator of such  Benchmark (or such component thereof) to be no longer representative; provided, that such non- representativeness will be determined by reference to the most recent statement or publication  referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such  component thereof) continues to be provided on such date;  (3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after  the date a Term SOFR Notice is provided to the Lenders and the Company pursuant to Section  2.14(c); or  (4) in the case of an Early Opt-in Election or an Other Benchmark Rate Election, the  sixth (6th) Business Day after the date notice of such Early Opt-in Election or Other Benchmark  Rate Election, as applicable, is provided to the Lenders, so long as the Administrative Agent has  not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice  of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided to the  Lenders, written notice of objection to such Early Opt-in Election or Other Benchmark Rate  Election, as applicable, from Lenders comprising the Required Lenders.  For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date  occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the  Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such  determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of  clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set  forth therein with respect to all then-current Available Tenors of such Benchmark (or the published  component used in the calculation thereof).  “Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of  one or more of the following events with respect to such then-current Benchmark:   (1) a public statement or publication of information by or on behalf of the  administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that such administrator has ceased or will cease to provide all Available Tenors of such  Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of  such statement or publication, there is no successor administrator that will continue to provide any  Available Tenor of such Benchmark (or such component thereof);  (2) a public statement or publication of information by the regulatory supervisor for  the administrator of such Benchmark (or the published component used in the calculation thereof),  the Board, the NYFRB, the central bank for the Agreed Currency applicable to such Benchmark,  an insolvency official with jurisdiction over the administrator for such Benchmark (or such  





 






  9  component), a resolution authority with jurisdiction over the administrator for such Benchmark (or  such component) or a court or an entity with similar insolvency or resolution authority over the  administrator for such Benchmark (or such component), in each case which states that the  administrator of such Benchmark (or such component) has ceased or will cease to provide all  Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely;  provided that, at the time of such statement or publication, there is no successor administrator that  will continue to provide any Available Tenor of such Benchmark (or such component thereof); or  (3) a public statement or publication of information by the regulatory supervisor for  the administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that all Available Tenors of such Benchmark (or such component thereof) are no  longer, or as of a specified future date will no longer be, representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have  occurred with respect to any Benchmark if a public statement or publication of information set forth above  has occurred with respect to each then-current Available Tenor of such Benchmark (or the published  component used in the calculation thereof).  “Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if  any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that  definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current  Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14 and  (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all  purposes hereunder and under any Loan Document in accordance with Section 2.14.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership  or control as required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of  ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which  Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset  Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any  such “employee benefit plan” or “plan”.  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  “Blocking Regulation” means Council Regulation (EC) 2271/96.  “Board” means the Board of Governors of the Federal Reserve System of the United States  of America.  “Borrower” means the Company or any Foreign Subsidiary Borrower.  “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued  on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect,  (b) a Term Loan of the same Type, made, converted or continued on the same date and, in the case of  Eurocurrency Loans, as to which a single Interest Period is in effect or (c) a Swingline Loan.  





 






  10  “Borrowing Request” means a request by any Borrower for a Borrowing in accordance  with Section 2.03, which shall be substantially in the form attached hereto as Exhibit G-1 or any other form  approved by the Administrative Agent.  “Borrowing Subsidiary Agreement” means a Borrowing Subsidiary Agreement  substantially in the form of Exhibit F-1 or any other form approved by the Administrative Agent.  “Borrowing Subsidiary Termination” means a Borrowing Subsidiary Termination  substantially in the form of Exhibit F-2 or any other form approved by the Administrative Agent.  “Business Day” means any day (other than a Saturday or a Sunday) on which banks are  open for business in New York City or Chicago; provided that, (i) in relation to Loans denominated in  Pounds Sterling and the calculation or computation of LIBOR, any day (other than a Saturday or a Sunday)  on which banks are open for business in London, (ii) in relation to Loans denominated in euro and in relation  to the calculation or computation of EURIBOR, any day which is a TARGET Day, (iii) in relation to Loans  denominated in Japanese Yen and in relation to the calculation or computation of TIBOR, any day (other  than a Saturday or a Sunday) on which banks are open for business in Japan and (iv) in relation to RFR  Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR  Loan, or any other dealings in the applicable Agreed Currency of such RFR Loan, any such day that is only  an RFR Business Day.  “Capitalized Lease” of a Person means any lease of Property by such Person as lessee  which would be capitalized on a balance sheet of such Person prepared in accordance with GAAP; provided,  that notwithstanding the foregoing, for purposes of this Agreement, any lease (or similar arrangement) that  would constitute an “operating lease” under GAAP as in effect on December 31, 2015 (or would have  constituted an “operating lease” had such lease or similar arrangement been in effect on such date) shall  constitute an “operating lease” hereunder.  “Capitalized Lease Obligations” of a Person means the aggregate amount of the obligations  of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such  Person prepared in accordance with GAAP; provided, that notwithstanding the foregoing, for purposes of  this Agreement, any lease (or similar arrangement) that would constitute an “operating lease” under GAAP  as in effect on December 31, 2015 (or would have constituted an “operating lease” had such lease or similar  arrangement been in effect on such date) shall constitute an “operating lease” hereunder and the obligations  thereunder shall not constitute Capitalized Lease Obligations.  “Cash Equivalent Investments” means (a) direct obligations of, or fully guaranteed by, the  U.S. maturing within one year from the date of acquisition thereof, (b) commercial paper rated A-1 or better  by S&P or P-1 or better by Moody’s, (c) demand deposit accounts maintained in the ordinary course of  business, (d) certificates of deposit issued by, bankers’ acceptances of, and time deposits with, any Lender  or any commercial bank (whether domestic or foreign) having capital and surplus in excess of  $100,000,000, and money market deposit accounts issued or offered by any such Person and (e) in the case  of any Foreign Subsidiary, any other investments that are similar to the foregoing, are of comparable credit  quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash  management purposes or approved by the Administrative Agent.  “CBR Loan” means a Loan that bears interest at a rate determined by reference to the  Central Bank Rate.  “Central Bank Rate” means, (A) the greater of (i) for any Loan denominated in (a) Pounds  Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England  





 






  11  (or any successor thereto) from time to time, (b) euro, one of the following three rates as may be selected  by the Administrative Agent: (1) the fixed rate for the main refinancing operations of the European Central  Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main  refinancing operations of the European Central Bank (or any successor thereto), each as published by the  European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending  facility of the European Central Bank (or any successor thereto), as published by the European Central  Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility of the central  banking system of the Participating Member States, as published by the European Central Bank (or any  successor thereto) from time to time, (c) Japanese Yen, the “short-term prime rate” as publicly announced  by the Bank of Japan (or any successor thereto) from time to time, (d) Swiss Francs, the policy rate of the  Swiss National Bank (or any successor thereto) as published by the Swiss National Bank (or any successor  thereto) from time to time and (e) any other Foreign Currency, a central bank rate as reasonably determined  by the Administrative Agent in its reasonable discretion and (ii) 0%; plus (B) the applicable Central Bank  Rate Adjustment.  “Central Bank Rate Adjustment” means for any Loan denominated in (a) Pounds Sterling,  a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of  SONIA for the last five (5) RFR Business Days for which SONIA was available (excluding, from such  averaging, the highest and the lowest SONIA applicable during such period of five (5) RFR Business Days)  minus (ii) the Central Bank Rate in respect of Pounds Sterling on the last RFR Business Day in such period,  (b) euro, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average  of the EURIBO Rate for the last five (5) Business Days for which the EURIBO Screen Rate was available  (excluding, from such averaging, the highest and the lowest EURIBO Rate applicable during such period  of five (5) Business Days) minus (ii) the Central Bank Rate in respect of euro on the last Business Day in  such period, (c) Japanese Yen, a rate equal to the difference (which may be a positive or negative value or  zero) of (i) the average of the TIBO Rate for the last five (5) Business Days for which the TIBO Screen  Rate was available (excluding, from such averaging, the highest and the lowest TIBO Rate applicable  during such period of five (5) Business Days) minus (ii) the Central Bank Rate in respect of Japanese Yen  on the last Business Day in such period, (d) Swiss Francs, a rate equal to the difference (which may be a  positive or negative value or zero) of (i) the average of SARON for the last five (5) RFR Business Days for  which SARON was available (excluding, from such averaging, the highest and the lowest SARON  applicable during such period of five (5) RFR Business Days) minus (ii) the Central Bank Rate in respect  of Swiss Francs on the last RFR Business Day in such period and (e) any other Foreign Currency determined  after the Effective Date, an adjustment as reasonably determined by the Administrative Agent in its  reasonable discretion.  For purposes of this definition, (x) the term Central Bank Rate shall be determined  disregarding clause (B) of the definition of such term and (y) each of the EURIBO Rate and the TIBO Rate  on any day shall be based on the EURIBO Screen Rate or the TIBO Screen Rate, as applicable, on such  day at approximately the time referred to in the definition of such term for deposits in the applicable Agreed  Currency for a maturity of one month (or, in the event the EURIBO Screen Rate or the TIBO Screen Rate,  as applicable, for deposits in the applicable Agreed Currency is not available for such maturity of one  month, shall be based on the EURIBO Interpolated Rate or the TIBO Interpolated Rate, as applicable, as  of such time); provided that if such rate shall be less than zero, such rate shall be deemed to be zero.  “Change in Control” means (a) the acquisition of ownership, directly or indirectly,  beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of  1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing  more than 20% of the aggregate ordinary voting power represented by the issued and outstanding Equity  Interests of the Company; (b) occupation of a majority of the seats (other than vacant seats) on the board of  directors of the Company by Persons who were neither (i) nominated by the board of directors of the  Company nor (ii) appointed by directors so nominated; or (c) the occurrence of a change in control, or other  similar provision, as defined in any agreement or instrument evidencing any Material Indebtedness  





 






  12  (triggering a default or mandatory prepayment, which default or mandatory prepayment has not been  waived in writing).  “Change in Law” means the occurrence, after the date of this Agreement (or with respect  to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following:  (a) the  adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation  or treaty or in the administration, interpretation, implementation or application thereof by any  Governmental Authority, or (c) compliance by any Lender or Issuing Bank (or, for purposes of Section  2.15(b), by any lending office of such Lender or by such Lender’s or Issuing Bank’s holding company, if  any), with any request, rules, guideline, requirement or directive (whether or not having the force of law)  by any Governmental Authority; provided however, that notwithstanding anything herein to the contrary,  (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines,  requirements and directives thereunder, issued in connection therewith or in implementation thereof, and  (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International  Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the  United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be  deemed to be a “Change in Law” regardless of the date enacted, adopted, issued or implemented.  “Charges” has the meaning assigned to such term in Section 9.15.  “Class” (a) when used in reference to any Loan or Borrowing, refers to whether such Loan,  or the Loans comprising such Borrowing, are Revolving Loans, Swingline Loans, Term Loans or  Incremental Term Loans, (b) when used in reference to Lenders, refers to whether such Lenders have a  Loan or Commitment with respect to a particular Class of Loans or Commitments and (c) when used in  reference to Commitments, refers to whether such Commitments are Revolving Commitments, Term Loan  Commitments, commitments in respect of Incremental Term Loans or Incremental Revolving  Commitments.  “Code” means the Internal Revenue Code of 1986, as amended from time to time.  “Collateral” means any and all property owned, leased or operated by a Person covered by  the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter  acquired, that may at any time be or become subject to a security interest or Lien in favor of the  Administrative Agent, on behalf of itself and the Holders of Secured Obligations as required under Section  5.09, to secure the Secured Obligations; provided that Collateral shall not include any Excluded Assets.  “Collateral Documents” means, collectively, the Domestic Collateral Documents, the  Dutch Collateral Documents and any other agreements, instruments and documents executed in connection  with this Agreement that are intended to create, perfect or evidence Liens to secure the Secured Obligations.  “Commitment” means, (a) the Revolving Commitments, the Term Loan Commitments and  any commitments in respect of Incremental Facilities, as applicable, and (b) with respect to each Lender,  the sum of such Lender’s Revolving Commitment, Term Loan Commitment and commitments in respect  of Incremental Facilities.  The initial amount of each Lender’s Commitment is set forth on Schedule 2.01,  or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such  Lender shall have assumed its Commitment, as applicable.  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),  as amended from time to time, and any successor statute.  





 






  13  “Communications” means, collectively, any notice, demand, communication, information,  document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or  the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or the  Issuing Bank by means of electronic communications pursuant to Section 8.03, including through an  Approved Electronic Platform.  “Company” means Materion Corporation, an Ohio corporation.  “Computation Date” is defined in Section 2.04.  “Consolidated EBITDA” means, with reference to any period, Consolidated Net Income  for such period plus, to the extent deducted from revenues in determining Consolidated Net Income for  such period, (a) Consolidated Interest Expense, (b) Consolidated Tax Expense, (c) depreciation,  (d) amortization, (e) depletion expense and (f) nonrecurring losses incurred other than in the ordinary  course of business, minus, to the extent included in Consolidated Net Income for such period, nonrecurring  gains realized other than in the ordinary course of business, all calculated for the Company and its  Subsidiaries on a consolidated basis.    “Consolidated First Lien Debt” means, as of any date of determination, without  duplication, the aggregate principal amount of Consolidated Funded Debt outstanding on such date that is  secured by a Lien on any asset or property of the Company or any Subsidiary that is senior or pari passu to  the Liens securing the Obligations.  “Consolidated Funded Debt” means all Indebtedness for borrowed money and Capitalized  Leases, including, without limitation, current, long-term and Subordinated Indebtedness, for the Company  and its Subsidiaries on a consolidated basis; provided that, for purposes of this definition, obligations under  the following will not be considered in calculating Consolidated Funded Debt:  (a) obligations under Swap  Agreements, (b) Permitted Precious Metals Agreements (up to a maximum outstanding amount of  $600,000,000), (c) the Beryllium Contracts, and (d) Indebtedness under any Sale and Leaseback  Transaction.  “Consolidated Interest Expense” means, with reference to any period, the interest expense  of the Company and its Subsidiaries calculated on a consolidated basis for such period (but not including  any up-front fees paid in connection with this Agreement); provided, that notwithstanding the foregoing,  for purposes of this Agreement, any lease (or similar arrangement) that would constitute an “operating  lease” under GAAP as in effect on December 31, 2015 (or would have constituted an “operating lease” had  such lease or similar arrangement been in effect on such date) shall constitute an “operating lease”  hereunder and any payments owed thereunder shall not constitute or be included in interest expense.  “Consolidated Net Income” means, with reference to any period, the net income (or loss)  of the Company and its Subsidiaries calculated on a consolidated basis for such period.  “Consolidated Net Worth” means, on any date, all amounts that would be included under  stockholders’ equity on a consolidated balance sheet of the Company and its consolidated Subsidiaries, as  determined on a consolidated basis in accordance with GAAP.  “Consolidated Tax Expense” means, with reference to any period, the tax expense of the  Company and its Subsidiaries calculated on a consolidated basis for such period.  





 






  14  “Consolidated Total Assets” means, as of the date of any determination thereof, total assets  of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated basis as of  such date.  “Contingent Obligation” of a Person means any agreement, undertaking or arrangement by  which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the  payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other  Person, or agrees to maintain the net worth or working capital or other financial condition of any other  Person, or otherwise assures any creditor of such other Person against loss, including, without limitation,  any comfort letter, operating agreement, take or pay contract or the obligations of any such Person as  general partner of a partnership with respect to the liabilities of the partnership.  “Control” means the possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of a Person, whether through the ability to exercise voting power,  by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.  “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a  tenor (including overnight) or an interest payment period having approximately the same length  (disregarding business day adjustment) as such Available Tenor.  “Co-Syndication Agent” means each of Wells Fargo Bank, National Association and Bank  of America, N.A. in its capacity as co-syndication agent for the credit facilities evidenced by this  Agreement.  “Country Risk Event”  means:  (i) any law or action by any Governmental Authority in any Borrower’s or Letter of  Credit beneficiary’s country which has the effect of:  (a) changing the obligations under the relevant Letter of Credit, this  Agreement or any of the other Loan Documents as originally agreed or otherwise creating  any additional liability, cost or expense to the Issuing Bank, the Lenders or the  Administrative Agent,  (b) changing the ownership or control by such Borrower or Letter of Credit  beneficiary of its business, or  (c) preventing or restricting the conversion into or transfer of the applicable  Agreed Currency;  (ii) force majeure; or  (iii) any similar event  which, in relation to (i), (ii) and (iii), directly or indirectly, prevents or restricts the payment or transfer of  any amounts owing under the relevant Letter of Credit in the applicable Agreed Currency to the  Administrative Agent or the Issuing Bank and freely available to the Administrative Agent or the Issuing  Bank.  “Covered Entity” means any of the following:  





 






  15  (i) a “covered entity” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 252.82(b);  (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 47.3(b); or  (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 382.2(b).  “Covered Party” has the meaning assigned to it in Section 9.19.  “Credit Event” means a Borrowing, the issuance, amendment or extension of a Letter of  Credit, an LC Disbursement or any of the foregoing.  “Credit Exposure” means, as to any Lender at any time, the sum of (a) such Lender’s  Revolving Credit Exposure at such time, plus (b) an amount equal to the aggregate principal amount of its  Term Loans outstanding at such time.  “Credit Party” means the Administrative Agent, the Issuing Bank, the Swingline Lender or  any other Lender.  “CRR” means the Regulation (EU) No 575/2013 of the European Parliament and of the  Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and  amending Regulation (EU) No 648/2012.  “Daily Simple RFR” means, for any day (an “RFR Interest Day”), an interest rate per  annum equal to the greater of (a) for any RFR Loan denominated in (i) Pounds Sterling, SONIA for the day  that is five (5) RFR Business Days prior to (A) if such RFR Interest Day is a RFR Business Day, such RFR  Interest Day or (B) if such RFR Interest Day is not a RFR Business Day, the RFR Business Day immediately  preceding such RFR Interest Day and (ii) Swiss Francs, SARON for the day that is five (5) RFR Business  Days prior to (A) if such RFR Interest Day is a RFR Business Day, such RFR Interest Day or (B) if such  RFR Interest Day is not a RFR Business Day, the RFR Business Day immediately preceding such RFR  Interest Day and (b) 0%.  Any change in Daily Simple RFR due to a change in the applicable RFR shall be  effective from and including the effective date of such change in the RFR without notice to the Company.  “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which  may include a lookback) being established by the Administrative Agent in accordance with the conventions  for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple  SOFR” for business loans; provided that, if the Administrative Agent decides that any such convention is  not administratively feasible for the Administrative Agent, then the Administrative Agent may establish  another convention in its reasonable discretion.  “Default” means any event or condition which constitutes an Event of Default or which  upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.  “Default Right” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days  of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its  participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount  





 






  16  required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the  Administrative Agent in writing that such failure is the result of such Lender’s good faith determination  that a condition precedent to funding (specifically identified and including the particular default, if any) has  not been satisfied, (b) has notified the Company or any Credit Party in writing, or has made a public  statement to the effect, that it does not intend or expect to comply with any of its funding obligations under  this Agreement (unless such writing or public statement indicates that such position is based on such  Lender’s good faith determination that a condition precedent (specifically identified and including the  particular default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under  other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after  request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer  of such Lender that it will comply with its obligations (and is financially able to meet such obligations as  of the date of certification) to fund prospective Loans and participations in then outstanding Letters of  Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting  Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and  substance satisfactory to it and the Administrative Agent, or (d) has become the subject of (i) a Bankruptcy  Event or (ii) a Bail-In Action.  “Disqualified Institution” means (a) any entity specifically designated by the Company as  a “Disqualified Institution” in writing and delivered to the Administrative Agent in accordance with Section  9.01 prior to the Effective Date, (b) any other entity that is reasonably determined by the Company to be a  competitor of the Company or its Subsidiaries and which is specifically identified in a written supplement  to the list of “Disqualified Institutions”, which supplement shall become effective three (3) Business Days  after delivery thereof to the Administrative Agent and the Lenders in accordance with Section 9.01 and  (c) in the case of the foregoing clauses (a) and (b), any of such entities’ Affiliates to the extent such  Affiliates (x) are clearly identifiable as Affiliates of such entities based solely on the similarity of such  Affiliates’ and such entities’ names and (y) are not bona fide debt investment funds.  It is understood and  agreed that (i) any supplement to the list of Persons that are Disqualified Institutions contemplated by the  foregoing clause (b) shall not apply retroactively to disqualify any Persons that have previously acquired  an assignment or participation interest in the Loans (but solely with respect to such Loans), (ii) the  Administrative Agent shall have no responsibility or liability to determine or monitor whether any Lender  or potential Lender is a Disqualified Institution, (iii) the Company’s failure to deliver such list (or  supplement thereto) in accordance with Section 9.01 shall render such list (or supplement) not received and  not effective and (iv) “Disqualified Institution” shall exclude any Person that the Company has designated  as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from  time to time in accordance with Section 9.01.  “Documentation Agent” means KeyBank National Association in its capacity as  documentation agent for the credit facilities evidenced by this Agreement.  “Dollar Amount” of any amount of any currency means, at the time of determination  thereof, (a) if such amount is expressed in Dollars, such amount, (b) if such amount is expressed in a Foreign  Currency, the equivalent of such amount in Dollars determined by using the rate of exchange for the  purchase of Dollars with such Foreign Currency last provided (either by publication or otherwise provided  to the Administrative Agent) by the applicable Reuters source on the Business Day (New York City time)  immediately preceding the date of determination or if such service ceases to be available or ceases to  provide a rate of exchange for the purchase of Dollars with such Foreign Currency, as provided by such  other publicly available information service which provides that rate of exchange at such time in place of  Reuters chosen by the Administrative Agent in its sole discretion (or if such service ceases to be available  or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as determined by the  Administrative Agent using any method of determination it deems appropriate in its sole discretion) and (c)  if such amount is denominated in any other currency, the equivalent of such amount in Dollars as  





 






  17  determined by the Administrative Agent using any method of determination it deems appropriate in its  reasonable discretion.  “Dollars” or “$” refers to lawful money of the United States of America.  “Domestic Collateral Documents” means, collectively, the Domestic Security Agreement,  the Mortgages and all other agreements, instruments and documents entered into by any Domestic Loan  Party in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the  Secured Obligations.  “Domestic Loan Party” means the Company and each Domestic Subsidiary Guarantor.  “Domestic Security Agreement” means that certain Fourth Amended and Restated Pledge  and Security Agreement (including any and all supplements thereto), dated as of the Effective Date,  between the Domestic Loan Parties and the Administrative Agent, for the benefit of the Administrative  Agent and the other Holders of Secured Obligations, and any other pledge or security agreement entered  into, after the date of this Agreement by any other Domestic Loan Party (as required by this Agreement or  any other Loan Document), or any other Person, as the same may be amended, restated or otherwise  modified from time to time.  “Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction  located in the United States of America.  “Domestic Subsidiary Guarantor” means each Wholly-Owned Material Domestic  Subsidiary (other than Foreign Subsidiary Holding Companies) that is party to the Subsidiary Guaranty and  the Domestic Security Agreement (in each case including pursuant to a joinder or supplement thereto).  “DQ List” has the meaning assigned to such term in Section 9.04(e)(iv).  “Dutch Borrower” means Materion Netherlands B.V. (f/k/a Materion Advanced Materials  Technologies and Services Netherlands B.V.), a besloten vennootschap met beperkte aansprakelijkheid  incorporated under the laws of the Netherlands having its corporate seat (statutaire zetel) in Amsterdam,  the Netherlands.  “Dutch Collateral Documents” means each pledge agreement, security agreement,  mortgage or other collateral agreement that is entered into by any Dutch Subsidiary Guarantor in favor of  the Administrative Agent, in each case, in form and substance reasonably satisfactory to the Administrative  Agent and entered into pursuant to the terms of this Agreement or any other Loan Document (including  Section 5.09).  “Dutch Financial Supervision Act” means the Dutch Financial Supervision Act (Wet op  het financieel toezicht), as amended from time to time.  “Dutch Loan Party” means any Loan Party established under the laws of the Netherlands.  “Dutch Non-Public Lender” means: (i) until the publication of an interpretation of “public”  as referred to in the CRR by the competent authority/ies:  an entity which (x) assumes existing rights and/or  obligations vis-à-vis a Borrower organized under the laws of the Netherlands, the value of which is at least  €100,000 (or its equivalent in another currency), (y) provides repayable funds for an initial amount of at  least €100,000 (or its equivalent in another currency) or (z) otherwise qualifies as not forming part of the  public; and (ii) as soon as the interpretation of the term “public” as referred to in the CRR has been published  





 






  18  by the relevant authority/ies: an entity which is not considered to form part of the public on the basis of  such interpretation.  “Dutch Security Agreements” means, collectively, (i) the Dutch Share Pledge – Junior  Priority and the Dutch Share Pledge – Senior Priority and (ii) any other pledge agreement or mortgage  agreement that is governed by Dutch law and that is entered into by any Loan Party in favor of the  Administrative Agent, in each case, in form and substance reasonably satisfactory to the Administrative  Agent and entered into pursuant to the terms of this Agreement or any other Loan Document (including  Section 5.09).  “Dutch Share Pledge – Junior Priority” means the Dutch law governed deed of pledge on  shares in the capital of the Dutch Borrower, dated 29 November 2007 and made among Materion Advanced  Materials Technologies and Services Inc. (formerly known as William Advanced Materials Inc.) as pledgor,  the Administrative Agent as pledgee and the Dutch Borrower as company.  “Dutch Share Pledge – Senior Priority” means the Dutch law governed deed of pledge on  shares in the capital of the Dutch Borrower, dated as of the Effective Date and made among Materion  Advanced Materials Technologies and Services Inc. as pledgor, the Administrative Agent as pledgee and  the Dutch Borrower as company.  “Dutch Subsidiary” means any Subsidiary established under the laws of the Netherlands.  “Dutch Subsidiary Guarantor” means each Wholly-Owned Material Dutch Subsidiary that  is party to the Subsidiary Guaranty and certain Dutch Collateral Documents (in each case including pursuant  to a joinder or supplement thereto).  “Early Opt-in Election” means, if the then current Benchmark with respect to Dollars is  the LIBO Rate, the occurrence of:  (1) a notification by the Administrative Agent to (or the request by the Company to  the Administrative Agent to notify) each of the other parties hereto that at least five (5) currently  outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of  amendment or as originally executed) a SOFR-based rate (including SOFR, Term SOFR or any  other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are  identified in such notice and are publicly available for review), and  (2) the joint election by the Administrative Agent and the Company to trigger a  fallback from the LIBO Rate and the provision, as applicable, by the Administrative Agent of  written notice of such election to the Company and the Lenders.  “ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the  Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by  the Commodity Futures Trading Commission and/or the SEC.  “EEA Financial Institution” means (a) any credit institution or investment firm established  in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any  entity established in an EEA Member Country which is a parent of an institution described in clause (a) of  this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary  of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision  with its parent.  





 






  19  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any Person  entrusted with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any EEA Financial Institution.  “Effective Date” means the date on which the conditions specified in Section 4.01 are  satisfied (or waived in accordance with Section 9.02).  “Electronic Signature” means an electronic sound, symbol, or process attached to, or  associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or  accept such contract or record.  “Eligible Foreign Subsidiary” means any Foreign Subsidiary that is approved from time to  time by the Administrative Agent and each of the Lenders, which approval shall not be unreasonably  withheld.  “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,  decrees, judgments, injunctions or binding agreements issued, promulgated or entered into by any  Governmental Authority, relating in any way to (i) the environment, (ii) preservation or reclamation of  natural resources, (iii) the management, release or threatened release of any Hazardous Material or (iv)  health and safety matters.  “Environmental Liability” means any liability, contingent or otherwise (including any  liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company  or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental  Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous  Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous  Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to  which liability is assumed or imposed with respect to any of the foregoing.  “Equity Interests” means shares of capital stock, partnership interests, membership  interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in  a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any  such equity interest.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from  time to time, and the rules and regulations promulgated thereunder.  “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together  with the Company, is treated as a single employer under Section 414(b) or (c) of the Code or Section  4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated  as a single employer under Section 414 of the Code.  “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or  the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice  period is waived); (b) the failure to satisfy the “minimum funding standard” (as defined in Section 412 of  the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the  Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with  respect to any Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any liability under  





 






  20  Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Company or any ERISA  Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan  or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Company or any of its  ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Company or  any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Company or any  ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Company or any ERISA  Affiliate of any notice, concerning the imposition upon the Company or any of its ERISA Affiliates of  Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in  reorganization, within the meaning of Title IV of ERISA.  “EU” means the European Union.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor Person), as in effect from time to time.  “EURIBO Interpolated Rate” means, at any time, with respect to any Eurocurrency  Borrowing denominated in euro and for any Interest Period, the rate per annum determined by the  Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be  equal to the rate that results from interpolating on a linear basis between: (a) the EURIBO Screen Rate for  the longest Interest Period (for which the EURIBO Screen Rate is available for euro) that is shorter than  the Impacted EURIBO Rate Interest Period; and (b) the EURIBO Screen Rate for the shortest Interest  Period (for which the EURIBO Screen Rate is available for euro) that exceeds the Impacted EURIBO Rate  Interest Period, in each case, at such time; provided that, if any EURIBO Interpolated Rate as so determined  would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.  “EURIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in euro  and for any Interest Period, the EURIBO Screen Rate at approximately 11:00 a.m., Brussels time, two (2)  TARGET Days prior to the commencement of such Interest Period; provided that, if the EURIBO Screen  Rate shall not be available at such time for such Interest Period (an “Impacted EURIBO Rate Interest  Period”) with respect to euro then the EURIBO Rate shall be the EURIBO Interpolated Rate.  “EURIBO Screen Rate” means, for any day and time, with respect to any Eurocurrency  Borrowing denominated in euro and for any Interest Period, the euro interbank offered rate administered  by the European Money Markets Institute (or any other person which takes over the administration of such  rate) for euro for the relevant period displayed (before any correction, recalculation or republication by the  administrator) on page EURIBOR01 of the Reuters screen (or any replacement Reuters page which displays  that rate) or on the appropriate page of such other information service which publishes that rate from time  to time in place of Reuters.  If such page or service ceases to be available, the Administrative Agent may  specify another page or service displaying the relevant rate after consultation with the Company.  If the  EURIBO Screen Rate as so determined would be less than zero, such rate shall be deemed to be zero for  the purposes of this Agreement.  “EURIBOR” has the meaning assigned to such term in Section 1.06.  “euro” and/or “€” means the single currency of the Participating Member States.  “Eurocurrency” when used in reference to a currency means an Agreed Currency and,  when used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such  Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate, the Adjusted  EURIBO Rate or the Adjusted TIBO Rate.  





 






  21  “Eurocurrency Payment Office” of the Administrative Agent means, for each Foreign  Currency, the office, branch, affiliate or correspondent bank of the Administrative Agent for such currency  as specified from time to time by the Administrative Agent to the Company and each Lender.  “Event of Default” has the meaning assigned to such term in Section 7.01.  “Excluded Assets” means: (i) any fee-owned real property that is not real mining Property  and all leasehold interests in real property, (ii) any “intent-to-use” application for registration of a trademark  filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of  Use” pursuant to Section 1(d) of the Lanham Act of an “Amendment to Allege Use” pursuant to Section  1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that and solely during the period,  if any, in which, the grant of a security interest therein would impair the validity or enforceability of any  registration that issues from such intent-to-use application under applicable federal law, (iii) assets in  respect of which pledges and security interests are prohibited by applicable U.S. law, rule or regulation or  agreements with any U.S. governmental authority (other than to the extent that such prohibition would be  rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the  UCC of any relevant jurisdiction or any other applicable law); provided that, immediately upon the  ineffectiveness, lapse or termination of any such prohibitions, such assets shall automatically cease to  constitute Excluded Assets, (iv) equity interests in any entity (other than Wholly-Owned Subsidiaries) to  the extent pledges thereof are not permitted by customary terms in such entity’s organizational or joint  venture documents (unless any such restriction would be rendered ineffective pursuant to Sections 9-406,  9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant jurisdiction or any other  applicable law), (v) assets subject to certificates of title (other than motor vehicles subject to certificates of  title, provided that perfection of security interests in such motor vehicles shall be limited to the filing of  UCC financing statements), letter of credit rights (other than to the extent the security interest in such letter  of credit right may be perfected by the filing of UCC financing statements) with a value of less than  $1,000,000 and commercial tort claims with a value of less than $1,000,000, (vi) any lease, license or other  agreement or any property subject to a purchase money security interest or similar arrangement to the extent  that a grant of a security interest therein would violate or invalidate such lease, license or agreement or  purchase money arrangement or create a right of termination in favor of any other party thereto (other than  the Company or a Subsidiary Guarantor) (other than (1) proceeds and receivables thereof, the assignment  of which is expressly deemed effective under the UCC notwithstanding such prohibition, (2) to the extent  that any such term has been waived or (3) to the extent that any such term would be rendered ineffective  pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant  jurisdiction or any other applicable law); provided that, immediately upon the ineffectiveness, lapse or  termination of any such term, such assets shall automatically cease to constitute Excluded Assets, (vii) trust  accounts, payroll accounts, custodial accounts, escrow accounts and other similar deposit or securities  accounts, and deposit or securities accounts having a balance of less than $250,000 individually, and less  than $1,000,000 in the aggregate for all such accounts, (viii) Precious Metals and (ix) those assets as to  which the Administrative Agent and the Company reasonably agree that the cost of obtaining such a security  interest or perfection thereof are excessive in relation to the benefit to the Lenders of the security to be  afforded thereby.  Notwithstanding the foregoing, Excluded Assets shall not include any proceeds, products,  substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or  replacements would otherwise constitute Excluded Assets).  “Excluded Swap Obligation” means, with respect to any Loan Party, any Specified Swap  Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by  such Loan Party of a security interest to secure, such Specified Swap Obligation (or any Guarantee thereof)  is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity  Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such  Loan Party’s failure for any reason to constitute an ECP at the time the Guarantee of such Loan Party or  





 






  22  the grant of such security interest becomes or would become effective with respect to such Specified Swap  Obligation.  If a Specified Swap Obligation arises under a master agreement governing more than one swap,  such exclusion shall apply only to the portion of such Specified Swap Obligation that is attributable to  swaps for which such Guarantee or security interest is or becomes illegal.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to a  Recipient or required to be withheld or deducted from a payment to a Recipient, (a) income or franchise  Taxes imposed on (or measured by) its net income (however denominated) (i) by the United States of  America or any other Governmental Authority, including the jurisdiction under the laws of which such  Recipient is organized (or any political subdivision thereof) or in which its principal office is located or, in  the case of any Lender, in which its applicable lending office is located or (ii) that are Other Connection  Taxes, (b) any branch profits taxes imposed by the United States of America or any other jurisdiction  described in clause (a) above, (c) in the case of a Lender (other than an assignee pursuant to a request by  the Company under Section 2.19(b)), any withholding Tax that is imposed on amounts payable to such  Lender resulting from any law in effect on the date such Lender becomes a party to this Agreement (or  designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled,  at the time of designation of a new lending office (or assignment), to receive additional amounts from the  Company with respect to such withholding Tax pursuant to Section 2.17(a), (d) Taxes attributable to such  Recipient’s failure to comply with Section 2.17(e) or (h), and (e) any Taxes imposed under FATCA.  “Existing Credit Agreement” is defined in the recitals hereof.  “Existing Letters of Credit” is defined in Section 2.06(a).  “Existing Loans” is defined in Section 2.01.  “Existing Maturity Date” is defined in Section 2.25(a).  “Extending Lender” is defined in Section 2.25(b).  “Extension Date” is defined in Section 2.25(a).  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement  (or any amended or successor version that is substantively comparable and not materially more onerous to  comply with), any current or future regulations or official interpretations thereof, any agreement entered  into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices  adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental  Authorities and implementing such Sections of the Code.  “FCA” has the meaning assigned to such term in Section 1.06.  “Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB  based on such day’s federal funds transactions by depositary institutions, as determined in such manner as  shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding  Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective  Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this  Agreement.  “Financial Officer” means the chief financial officer, principal accounting officer, treasurer  or controller of the Company.  





 






  23  “Financials” means the annual or quarterly financial statements, and accompanying  certificates and other documents, of the Company and its Subsidiaries required to be delivered pursuant to  Section 5.01(a) or 5.01(b).    “First Lien Leverage Ratio” means, the ratio, determined as of the end of each Fiscal  Quarter of the Company of (a)(x) Consolidated First Lien Debt minus (y) Qualified Cash to  (b) Consolidated EBITDA for the then most-recently ended four Fiscal Quarters.  “First Tier Foreign Subsidiary” means each Foreign Subsidiary with respect to which any  one or more of the Company and its Domestic Subsidiaries directly owns or Controls more than 50% of  such Foreign Subsidiary’s issued and outstanding Equity Interests.  “Fiscal Quarter” means any of the quarterly accounting periods of the Company.  “Fiscal Year” means any of the annual accounting periods of the Company ending on  December 31 of each year.  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of  the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise)  with respect to the LIBO Rate, the EURIBO Rate, the TIBO Rate or each Daily Simple RFR, as applicable.  “Foreign Currencies” means Agreed Currencies other than Dollars.  “Foreign Currency LC Exposure” means, at any time, the sum of (a) the Dollar Amount of  the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at such  time plus (b) the aggregate principal Dollar Amount of all LC Disbursements in respect of Foreign Currency  Letters of Credit that have not yet been reimbursed at such time.  “Foreign Currency Letter of Credit” means a Letter of Credit denominated in a Foreign  Currency.  “Foreign Currency Sublimit” means $30,000,000.  “Foreign Lender” means (a) if the applicable Borrower is a U.S. Person, a Lender that is  not a U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender that is resident or  organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax  purposes.  “Foreign Secured Obligations” means all Obligations of the Foreign Subsidiary Borrowers  under this Agreement.  “Foreign Subsidiary” means any Subsidiary which is not a Domestic Subsidiary.  “Foreign Subsidiary Borrower” means (i) the Dutch Borrower and (ii) any other Eligible  Foreign Subsidiary that becomes a Foreign Subsidiary Borrower pursuant to Section 2.23 and that has not  ceased to be a Foreign Subsidiary Borrower pursuant to such Section.  “Foreign Subsidiary Borrower Sublimit” means $30,000,000.  





 






  24  “Foreign Subsidiary Holding Company” means any Domestic Subsidiary substantially all  of the assets of which consist of Equity Interests (or Equity Interests and Indebtedness) of any Foreign  Subsidiary.  “GAAP” means generally accepted accounting principles in the United States of America.  “Governmental Authority” means the government of the United States of America, any  other nation or any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,  judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.  “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or  otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness  or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly,  and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply  funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance  or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property,  securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the  payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition  or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other  obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support  such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for  collection or deposit in the ordinary course of business.  “Hazardous Materials” means all explosive or radioactive substances or wastes and all  hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates,  asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical  wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.  “Holders of Secured Obligations” means the holders of the Secured Obligations from time  to time and shall include (i) each Lender and the Issuing Bank in respect of its Loans and LC Exposure  respectively, (ii) the Administrative Agent, the Issuing Bank and the Lenders in respect of all other present  and future obligations and liabilities of the Company and each Subsidiary of every type and description  arising under or in connection with this Agreement or any other Loan Document, (iii) each Lender and  affiliate of such Lender in respect of Swap Agreements and Banking Services Agreements entered into with  such Person by the Company or any Subsidiary, (iv) each indemnified party under Section 9.03 in respect  of the obligations and liabilities of the Borrowers to such Person hereunder and under the other Loan  Documents, and (v) their respective successors and (in the case of a Lender, permitted) transferees and  assigns.  “Hostile Acquisition” means (a) the Acquisition of the Equity Interests of a Person through  a tender offer or similar solicitation of the owners of such Equity Interests which has not been approved  (prior to such Acquisition) by the board of directors (or any other applicable governing body) of such Person  or by similar action if such Person is not a corporation and (b) any such Acquisition as to which such  approval has been withdrawn.  “Impacted EURIBO Rate Interest Period” has the meaning assigned to such term in the  definition of “EURIBO Rate”.  “Impacted LIBO Rate Interest Period” has the meaning assigned to such term in the  definition of “LIBO Rate”.  





 






  25  “Impacted TIBO Rate Interest Period” has the meaning assigned to such term in the  definition of “TIBO Rate”.  “Increasing Lender” has the meaning assigned to such term in Section 2.20.  “Incremental Facilities” has the meaning assigned to such term in Section 2.20.  “Incremental Revolving Commitment” has the meaning assigned to such term in Section  2.20.  “Incremental Term Loan” has the meaning assigned to such term in Section 2.20.  “Incremental Term Loan Amendment” has the meaning assigned to such term in  Section 2.20.  “Indebtedness” of a Person means, without duplication, such Person’s (a) obligations for  borrowed money, (b) obligations representing the deferred purchase price of Property or services (other  than accounts payable arising in the ordinary course of such Person’s business payable on terms customary  in the trade), (c) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or  production from Property now or hereafter owned or acquired by such Person, (d) obligations which are  evidenced by notes, acceptances, or other similar instruments, (e) obligations of such Person to purchase  securities or other Property arising out of or in connection with the sale of the same or substantially similar  securities or Property or any other Off-Balance Sheet Liabilities, (f) Capitalized Lease Obligations,  (g) Contingent Obligations for which the underlying transaction constitutes Indebtedness under this  definition, (h) the stated face amount of all letters of credit or bankers’ acceptances issued for the account  of such Person and, without duplication, all reimbursement obligations with respect to such issued letters  of credit, (i) any and all obligations, contingent or otherwise, whether now existing or hereafter arising,  under or in connection with Swap Agreements, including, without limitation, Net Mark-to-Market  Exposure, and (j) obligations of such Person under any Sale and Leaseback Transaction.  “Indemnified Taxes” means Taxes that are imposed on or with respect to any payment  made by a Loan Party hereunder or any other Loan Document other than Excluded Taxes or Other Taxes.  “Indemnitee” has the meaning assigned to such term in Section 9.03(c).  “Ineligible Institution” has the meaning assigned to such term in Section 9.04(b).  “Information” has the meaning assigned to such term in Section 9.12.  “Information Memorandum” means the Confidential Information Memorandum dated  September 2021 relating to the Company and the Transactions.  “Insolvency Regulation” shall mean the Regulation EU 2015/848 of the European  Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).  “Intercreditor Agreements” means (a) that certain Second Amended and Restated  Intercreditor Agreement dated as of August 27, 2019 by and between the Administrative Agent, on behalf  of itself and the Lenders, and Bank of Montreal, on behalf of itself and as collateral agent on behalf of other  consignors of Precious Metal and (b) every other intercreditor agreement related to the Loans entered into  by the Administrative Agent, on behalf of itself and the other Lenders, on or after the Effective Date, in  each case, as amended, restated, supplemented or otherwise modified from time to time.  





 






  26  “Interest Coverage Ratio” means, the ratio, determined as of the end of each Fiscal Quarter  of the Company for the then most-recently ended four Fiscal Quarters of (a) Consolidated EBITDA to  (b) Consolidated Interest Expense.  “Interest Election Request” means a request by the applicable Borrower to convert or  continue a Borrowing in accordance with Section 2.08, which shall be substantially in the form attached  hereto as Exhibit G-2 or any other form approved by the Administrative Agent.  “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline  Loan), the last day of each March, June, September and December and the applicable Maturity Date,  (b) with respect to any RFR Loan, each date that is on the numerically corresponding day in each calendar  month that is one month after the Borrowing of such RFR Loan (or, if there is no such numerically  corresponding day in such month, then the last day of such month) and the applicable Maturity Date,  (c) with respect to any Eurocurrency Loan, the last day of each Interest Period applicable to the Borrowing  of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more  than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of  three months’ duration after the first day of such Interest Period and the applicable Maturity Date and  (d) with respect to any Swingline Loan, the day that such Loan is required to be repaid and the Revolving  Credit Maturity Date.  “Interest Period” means with respect to any Eurocurrency Borrowing, the period  commencing on the date of such Borrowing and ending on the numerically corresponding day in the  calendar month that is one, three or six months thereafter (in each case, subject to the availability for the  Benchmark applicable to the relevant Loan or Commitment for any Agreed Currency), as the applicable  Borrower (or the Company on behalf of the applicable Borrower) may elect; provided, that (i) if any Interest  Period would end on a day other than a Business Day, such Interest Period shall be extended to the next  succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month,  in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period  pertaining to a Eurocurrency Borrowing that commences on the last Business Day of a calendar month (or  on a day for which there is no numerically corresponding day in the last calendar month of such Interest  Period) shall end on the last Business Day of the last calendar month of such Interest Period and (iii) no  tenor that has been removed from this definition (and not reinstated) pursuant to Section 2.14(f) shall be  available for specification in such Borrowing Request or Interest Election Request.  For purposes hereof,  the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be  the effective date of the most recent conversion or continuation of such Borrowing.  “Investment” means, as to any Person, any direct or indirect acquisition or investment by  such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person,  or (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase  or other acquisition of any other Indebtedness or equity participation or interest in, another Person,  including any partnership or joint venture interest in such other Person and any arrangement pursuant to  which such investing Person Guarantees Indebtedness of such other Person, but excluding any Acquisition.  “IRS” means the United States Internal Revenue Service.  “ISDA Definitions” means the 2006 ISDA Definitions published by the International  Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time  to time, or any successor definitional booklet for interest rate derivatives published from time to time by  the International Swaps and Derivatives Association, Inc. or such successor thereto.  





 






  27  “Issuing Bank” means JPMorgan Chase Bank, N.A., in its capacity as the issuer of Letters  of Credit hereunder, and its successors in such capacity as provided in Section 2.06(i).  The Issuing Bank  may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing  Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of  Credit issued by such Affiliate.  “Japanese Yen” and/or “JPY” means the lawful currency of Japan.  “LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).  “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of  Credit.  “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn Dollar Amount  of all outstanding Letters of Credit at such time plus (b) the aggregate Dollar Amount of all LC  Disbursements that have not yet been reimbursed by or on behalf of the Company at such time.  The LC  Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure  at such time.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has  expired by its terms but any amount may still be drawn thereunder by reason of the operation of  Article 29(a) of the Uniform Customs and Practice for Documentary Credits, International Chamber of  Commerce Publication No. 600 (or such later version thereof as may be in effect at the applicable time) or  Rule 3.13 or Rule 3.14 of the International Standby Practices, International Chamber of Commerce  Publication No. 590 (or such later version thereof as may be in effect at the applicable time) or similar terms  of the Letter of Credit itself, or if compliant documents have been presented but not yet honored, such Letter  of Credit shall be deemed to be “outstanding” and “undrawn” in the amount so remaining available to be  paid, and the obligations of the Borrowers and each Revolving Lender shall remain in full force and effect  until the Issuing Bank and the Revolving Lenders shall have no further obligations to make any payments  or disbursements under any circumstances with respect to any Letter of Credit.  “Lender Notice Date” is defined in Section 2.25(b).  “Lender Parent” means, with respect to any Lender, any Person as to which such Lender  is, directly or indirectly, a subsidiary.  “Lender-Related Person” has the meaning assigned to such term in Section 9.03(b).  “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have  become a Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and Assumption or  otherwise, other than any such Person that ceases to be a party hereto pursuant to an Assignment and  Assumption or otherwise.  Unless the context otherwise requires, the term “Lenders” includes the Swingline  Lender and the Issuing Bank.  “Letter of Credit” means any letter of credit issued pursuant to this Agreement and shall  include each Existing Letter of Credit.  “Letter of Credit Agreement” has the meaning assigned to such term in Section 2.06(b).  “Leverage Ratio” means, the ratio, determined as of the end of each Fiscal Quarter of the  Company of (a)(x) Consolidated Funded Debt minus (y) Qualified Cash to (b) Consolidated EBITDA for  the then most-recently ended four Fiscal Quarters.  





 






  28  “Liabilities” means any losses, claims (including intraparty claims), demands, damages or  liabilities of any kind.  “LIBO Interpolated Rate” means, at any time, with respect to any Eurocurrency Borrowing  denominated in Dollars and for any Interest Period, the rate per annum determined by the Administrative  Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate  that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest Interest  Period (for which the LIBO Screen Rate is available for Dollars) that is shorter than the Impacted LIBO  Rate Interest Period; and (b) the LIBO Screen Rate for the shortest Interest Period (for which the LIBO  Screen Rate is available for Dollars) that exceeds the Impacted LIBO Rate Interest Period, in each case, at  such time; provided that if any LIBO Interpolated Rate as so determined would be less than zero, such rate  shall be deemed to be zero for the purposes of this Agreement.  “LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in Dollars  and for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two (2)  Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate  shall not be available at such time for such Interest Period (an “Impacted LIBO Rate Interest Period”) with  respect to Dollars then the LIBO Rate shall be the LIBO Interpolated Rate.  “LIBO Screen Rate” means, for any day and time, with respect to any Eurocurrency  Borrowing denominated in Dollars and for any Interest Period, the London interbank offered rate as  administered by ICE Benchmark Administration (or any other Person that takes over the administration of  such rate) for Dollars for a period equal in length to such Interest Period as displayed on such day and time  on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate  does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays  such rate, or on the appropriate page of such other information service that publishes such rate from time  to time as selected by the Administrative Agent in its reasonable discretion); provided that if the LIBO  Screen Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes  of this Agreement.  “LIBOR” has the meaning assigned to such term in Section 1.06.  “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,  hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor  or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing  lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in  the case of securities, any purchase option, call or similar right of a third party with respect to such  securities.  “Limited Conditionality Acquisition” means any Acquisition permitted under Section  6.04(g) for which the Company has determined, in good faith, that limited conditionality is reasonably  necessary or desirable.  “Limited Conditionality Acquisition Agreement” means, with respect to any Limited  Conditionality Acquisition, the definitive acquisition documentation in respect thereof.  “Loan Documents” means this Agreement, each Borrowing Subsidiary Agreement, each  Borrowing Subsidiary Termination, any promissory notes issued pursuant to Section 2.10(f) of this  Agreement, any Letter of Credit applications, any Letter of Credit Agreement, the Collateral Documents,  the Subsidiary Guaranty, and all other agreements, instruments, documents and certificates identified in  Section 4.01 executed and delivered to, or in favor of, the Administrative Agent or any Lenders and  





 






  29  including all other pledges, powers of attorney, consents, assignments, contracts, notices, letter of credit  agreements, intercreditor agreements and all other written matter whether heretofore, now or hereafter  executed by or on behalf of any Loan Party and delivered to the Administrative Agent or any Lender in  connection with this Agreement or the transactions contemplated hereby, excluding any Banking Services  Agreement or Swap Agreement.  Any reference in this Agreement or any other Loan Document to a Loan  Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements,  supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as  the same may be in effect at any and all times such reference becomes operative.  “Loan Parties” means, collectively, the Borrowers and the Subsidiary Guarantors.  “Loans” means the loans made by the Lenders to the Borrowers pursuant to this  Agreement.  “Local Time” means (i) Chicago time in the case of a Loan, Borrowing or LC  Disbursement denominated in Dollars and (ii) local time in the case of a Loan, Borrowing or LC  Disbursement denominated in a Foreign Currency (it being understood that such local time shall mean  (a) London, England time with respect to any Foreign Currency (other than euro, Japanese Yen and Swiss  Francs), (b) Brussels, Belgium time with respect to euro, (c) Tokyo, Japan time with respect to Japanese  Yen and (d) Zurich, Switzerland time with respect to Swiss Francs, in each case of the foregoing clauses  (a), (b), (c) and (d), unless otherwise notified by the Administrative Agent).  “Long Term Debt” means any Indebtedness that, in accordance with GAAP, constitutes  (or, when incurred, constituted) a long-term liability.  “Margin Stock” means margin stock within the meaning of Regulations T, U and X, as  applicable.  “Material Adverse Effect” means a material adverse effect on (a) the business, assets,  property or financial condition of the Company and the Subsidiaries taken as a whole, (b) the ability of the  Loan Parties to perform any of their material obligations under the Loan Documents or (c) the validity or  enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the  Administrative Agent and the Lenders thereunder.  “Material Domestic Subsidiary” means each Domestic Subsidiary that is a Material  Subsidiary.  “Material Dutch Subsidiary” means each Dutch Subsidiary that is a Material Subsidiary.  “Material Indebtedness” means any Indebtedness (other than the Loans and Letters of  Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Company  and its Subsidiaries in an aggregate principal amount exceeding $20,000,000 (or the equivalent thereof in  currencies other than Dollars).  For purposes of determining Material Indebtedness, the “principal amount”  of the obligations of the Company or any Subsidiary in respect of any Swap Agreement at any time shall  be the maximum aggregate amount (giving effect to any netting agreements) that the Company or such  Subsidiary would be required to pay if such Swap Agreement were terminated at such time.  “Material Subsidiary” means each Subsidiary (i) which, as of the most recent Fiscal  Quarter of the Company, for the period of four consecutive Fiscal Quarters then ended, for which financial  statements have been delivered pursuant to Section 5.01, contributed greater than ten percent (10%) of the  Company’s Consolidated EBITDA for such period or (ii) which contributed greater than ten percent (10%)  





 






  30  of the Company’s Consolidated Total Assets as of such date; provided that, if at any time the aggregate  amount of the Company’s Consolidated EBITDA or Company’s Consolidated Total Assets attributable to  Subsidiaries (other than Affected Foreign Subsidiaries) that are not Subsidiary Guarantors exceeds twenty  percent (20%) of the Company’s Consolidated EBITDA for any such period or twenty percent (20%) of  the Company’s Consolidated Total Assets as of the end of any such Fiscal Quarter, the Company (or, in the  event the Company has failed to do so within ten days, the Administrative Agent) shall designate sufficient  Subsidiaries (other than Affected Foreign Subsidiaries) as “Material Subsidiaries” to eliminate such excess,  and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Subsidiaries.  “Maturity Date” means the Revolving Credit Maturity Date or the Term Loan Maturity  Date, as the case may be.  “Maximum Rate” is defined in Section 9.15.  “Moody’s” means Moody’s Investors Service, Inc.  “Mortgage” means each mortgage, deed of trust or other agreement which conveys or  evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the  Holders of Secured Obligations, on real property of a Loan Party, including any amendment, restatement,  modification or supplement thereto.  “Mortgage Instruments” means such title reports, ALTA title insurance policies (with  endorsements), evidence of zoning compliance, property insurance, flood certifications and flood  insurance, opinions of counsel, ALTA surveys, appraisals (and, if applicable FEMA form  acknowledgements of insurance), environmental assessments and reports, mortgage tax affidavits and  declarations and other similar information and related certifications as are reasonably requested by, and in  form and substance reasonably acceptable to, the Administrative Agent from time to time.  “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of  ERISA.  “Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the  excess (if any) of all unrealized losses over all unrealized profits of such Person arising from Swap  Agreements.  As used in this definition, “unrealized losses” means the fair market value of the cost to such  Person of replacing such Swap Agreement as of the date of determination (assuming the Swap Agreement  were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain to  such Person of replacing such Swap Agreement as of the date of determination (assuming such Swap  Agreement were to be terminated as of that date).  “New Money Credit Event” means with respect to the Issuing Bank, any increase (directly  or indirectly) in the Issuing Bank’s exposure (whether by way of additional credit or banking facilities or  otherwise, including as part of a restructuring) to any Borrower or any Governmental Authority in any  Borrower’s or any applicable Letter of Credit beneficiary’s country occurring by reason of (i) any law,  action or requirement of any Governmental Authority in such Borrower’s or such Letter of Credit  beneficiary’s country, or (ii) any request in respect of external indebtedness of borrowers in such  Borrower’s or such Letter of Credit beneficiary’s country applicable to banks generally which conduct  business with such borrowers, in each case to the extent calculated by reference to the aggregate Revolving  Credit Exposures outstanding prior to such increase.  “Net Proceeds” means, with respect to any event, (a) the cash proceeds received in respect  of such event including (i) any cash received in respect of any non-cash proceeds (including any cash  





 






  31  payments received by way of deferred payment of principal pursuant to a note or installment receivable or  purchase price adjustment receivable or otherwise, but excluding any interest payments), but only as and  when received, (ii) in the case of a casualty, insurance proceeds, but only as and when received and (iii) in  the case of a condemnation or similar event, condemnation awards and similar payments, but only as and  when received, net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid to third parties  (other than Affiliates) in connection with such event, (ii) in the case of a sale, transfer or other disposition  of an asset (including pursuant to a casualty or a condemnation or similar proceeding), the amount of all  payments required to be made as a result of such event to repay Indebtedness (other than Loans) secured  by such asset or otherwise subject to mandatory prepayment as a result of such event and (iii) the amount  of all taxes paid (or reasonably estimated to be payable) and the amount of any reserves established to fund  contingent liabilities reasonably estimated to be payable, in each case that are attributable to such event (as  determined reasonably and in good faith by a Financial Officer).  “Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(e).  “Non-Extending Lender” is defined in Section 2.25(b).  “NYFRB” means the Federal Reserve Bank of New York.  “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in  effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is  not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are  published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds  transaction quoted at 11:00 a.m., New York City time, on such day received by the Administrative Agent  from a federal funds broker of recognized standing selected by it; provided, further, that if any of the  aforesaid rates as so determined would be less than zero, such rate shall be deemed to be zero for purposes  of this Agreement.  “NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or  any successor source.  “Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans,  all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other  obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy,  insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such  proceeding), obligations and liabilities of the Loan Parties to any of the Lenders, the Administrative Agent,  the Issuing Bank or any indemnified party, individually or collectively, existing on the Effective Date or  arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured,  liquidated or unliquidated, secured or unsecured, in each case, arising by contract, operation of law or  otherwise, arising or incurred under this Agreement or any of the other Loan Documents or in respect of  any of the Loans made or reimbursement or other obligations incurred or any of the Letters of Credit or  other instruments at any time evidencing any thereof.  “OFAC” means the Office of Foreign Assets Control of the U.S. Department of the  Treasury.  “Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or liability  of such Person with respect to accounts or notes receivable sold by such Person, (b) any indebtedness,  liability or obligation under any Sale and Leaseback Transaction to which such Person is a party which is  not a Capitalized Lease, (c) any indebtedness, liability or obligation under any so-called “synthetic lease”  transaction entered into by such Person, or (d) any indebtedness, liability or obligation arising with respect  





 






  32  to any other transaction to which such Person is a party which is the functional equivalent of or takes the  place of borrowing but which does not constitute a liability on the balance sheets of such Person, but  excluding obligations with respect to Operating Leases.  “Omega” means H.C. Starck Inc., a Delaware corporation.  “Omega Acquisition” means the acquisition, directly or indirectly, of all of the outstanding  Equity Interests of Omega by the Company pursuant to the Omega Purchase Agreement.  “Omega Closing Date” means the date on which the conditions specified in Section 4.02  are satisfied (or waived in accordance with Section 9.02).  “Omega Closing Date Commitments” means the Term Loan Commitments and the Omega  Closing Date Revolving Commitments.  “Omega Closing Date Limited Conditionality Provision” means that, to the extent any  Collateral (including the grant or perfection of any security interest therein) is not or cannot be provided by  the Omega Closing Date (other than the grant and perfection of security interests in (x) assets with respect  to which a Lien may be perfected solely by the filing of a financing statement under the UCC or (y)  certificated Equity Interests of each Wholly-Owned Material Domestic Subsidiary of the Company to the  extent constituting Collateral (other than Omega or any of its Subsidiaries) with respect to which a Lien  may be perfected by the delivery of certificates representing such Equity Interests) after the Company’s use  of commercially reasonable efforts to do so without undue burden or expense, then the provision and  perfection of such Collateral shall not constitute a condition precedent to the availability and funding of the  Omega Closing Date Loans on the Omega Closing Date and, notwithstanding any provisions set forth in  Section 5.09 to the contrary, such Collateral shall not be required to be provided or perfected until the forty- fifth (45th) day (in the case of the delivery of certificated Equity Interests) and otherwise the ninetieth (90th)  day following the Omega Closing Date (or, in each case, such later date as may be agreed upon by the  Administrative Agent in its reasonable discretion).  “Omega Closing Date Loans” means the Term Loans and the Omega Closing Date  Revolving Loans.  “Omega Closing Date Revolving Commitments” means Revolving Commitments in an  amount up to the sum of (a) $100,000,000 plus (b) the amount of any Revolving Credit Exposure on the  Omega Closing Date immediately prior to giving effect to the Omega Closing Date Revolving Loans;  provided that at no time shall the Revolving Credit Exposure of any Revolving Lender exceed its Revolving  Commitment.  “Omega Closing Date Revolving Loans” means Revolving Loans to be made by the  Revolving Lenders on the Omega Closing Date in an amount not to exceed $100,000,000.  “Omega Closing Date Transaction Costs” means any fees or expenses incurred or paid by  the Company or any Subsidiary in connection with the Omega Closing Date Transactions, this Agreement  and the other Loan Documents and the transactions contemplated hereby and thereby.  “Omega Closing Date Transactions” means, collectively, (a) the borrowing of Omega  Closing Date Loans and the use of proceeds thereof, (b) the consummation of the Omega Acquisition and  the other transactions contemplated by the Omega Purchase Agreement, (c) the refinancing of certain  Indebtedness of Omega and its Subsidiaries on the Omega Closing Date, (d) the consummation of any other  





 






  33  transactions in connection with the foregoing and (e) the payment of the fees, costs and expenses incurred  in connection with any of the foregoing.  “Omega Dispositions” means any filings or other actions required under local law to be  made on a post-closing basis to complete the disposition of assets on or prior to the Omega Closing Date  to effect the Reorganization (as defined in the Omega Purchase Agreement), which filings or other actions  cannot be completed by the Omega Closing Date.  “Omega Purchase Agreement” means the Share Purchase Agreement, dated as of  September 19, 2021, by and among the Company, HCST Hungary Holding Vagyonkezelő Korlátolt  Felelősségű Társaság as Seller and certain other parties thereto.  “Omega Purchase Agreement Representations” means such of the representations made by  or on behalf of or with respect to Omega in the Omega Purchase Agreement as are material to the interests  of the Lenders in their capacities as such, but only to the extent that the Company (or any of its Subsidiaries  or Affiliates) has the right to terminate the Company’s (or any of its Subsidiaries’ or Affiliates’) obligations  under the Omega Purchase Agreement or decline to consummate the Omega Acquisition as a result of a  breach of such representations in the Omega Purchase Agreement.  “Operating Lease” of a Person means any lease of Property other than a Capitalized Lease.  “Other Benchmark Rate Election” means, with respect to any Loan denominated in  Dollars, if the then-current Benchmark is the LIBO Rate, the occurrence of:   (a) a request by the Company to the Administrative Agent to notify each of the other parties  hereto that, at the determination of the Company, Dollar-denominated syndicated credit facilities at such  time contain (as a result of amendment or as originally executed), in lieu of a LIBOR-based rate, a term  benchmark rate as a benchmark rate, and   (b) the Administrative Agent, in its sole discretion, and the Company jointly elect to trigger  a fallback from the LIBO Rate and the provision, as applicable, by the Administrative Agent of written  notice of such election to the Company and the Lenders.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result  of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other  than connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in any  other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan,  Letter of Credit or Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery,  performance, enforcement or registration of, from the receipt or perfection of a security interest under, or  otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes  imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).  “Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight  federal funds and overnight eurodollar borrowings by U.S.-managed banking offices of depository  institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website  from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank  funding rate.  





 






  34  “Overnight Rate” means, for any day, (a) with respect to any amount denominated in  Dollars, the NYFRB Rate and (b) with respect to any amount denominated in a Foreign Currency, an  overnight rate determined by the Administrative Agent or the Issuing Bank, as the case may be, in  accordance with banking industry rules on interbank compensation.  “Participant” has the meaning set forth in Section 9.04.  “Participant Register” has the meaning assigned to such term in Section 9.04(c)(ii).  “Participating Member State” means any member state of the European Union that adopts  or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating  to economic and monetary union.  “Patriot Act” means the USA PATRIOT Act of 2001.  “Payment” has the meaning assigned to such term in Section 8.06(c).  “Payment Notice” has the meaning assigned to such term in Section 8.06(c).  “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in  ERISA and any successor entity performing similar functions.  “Permitted Liens” is defined in Section 6.02.  “Permitted Precious Metals Agreements” means precious metals agreements and  arrangements (whether styled as debt, a lease, a consignment or otherwise) entered into from time to time  by the Company or any Subsidiary, but only to the extent that the aggregate Dollar Amount of the precious  metals outstanding thereunder does not exceed $600,000,000.  For purposes of this definition, “precious  metals” shall include, without limitation, gold, silver, platinum, palladium, rhodium and copper (even  though copper is not generally deemed to be a precious metal).  “Person” means any natural person, corporation, limited liability company, trust, joint  venture, association, company, partnership, Governmental Authority or other entity.  “Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject  to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect  of which the Company or any ERISA Affiliate is (or, if such plan were terminated, would under  Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.  “Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section  3(42) of ERISA, as amended from time to time.  “Pledge Subsidiary” means (i) each Domestic Subsidiary which is a Material Subsidiary  and (ii) each First Tier Foreign Subsidiary which is a Material Subsidiary.  “Pounds Sterling” means the lawful currency of the United Kingdom.  “Prepayment Event” means:  (a) any sale, transfer or other disposition of any property or asset of the Company or any  Subsidiary pursuant to Section 6.03(a)(iv)(D) resulting in the receipt of Net Proceeds in excess of  $10,000,000; or  





 






  35  (b) any casualty or other insured damage to, or any taking under power of eminent domain  or by condemnation or similar proceeding of, any property or asset of the Company or any Subsidiary  resulting in the receipt of Net Proceeds in excess of $10,000,000; or  (c) the incurrence by the Company or any Subsidiary of any Indebtedness (other than  Loans), other than Indebtedness permitted under Section 6.01 or permitted by the Required Lenders  pursuant to Section 9.02.  “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime  Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest  rate published by the Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as  the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as  reasonably determined by the Administrative Agent) or any similar release by the Board (as reasonably  determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and  including the date such change is publicly announced or quoted as being effective.  “Precious Metals” means precious metal and copper, any and all inventory or work-in- process that contains precious metal  or copper and any proceeds of the foregoing.  “Pro Forma Basis” means, with respect to any event, that the Company is in compliance to  the reasonable satisfaction of the Administrative Agent on a pro forma basis with the applicable covenant,  calculation or requirement herein recomputed as if the event with respect to which compliance on a  Pro Forma Basis is being tested had occurred on the first day of the four Fiscal Quarter period most recently  ended on or prior to such date and for which financial statements have been delivered pursuant to  Section 5.01. “Pro Forma” shall have a correlative meaning.  “Property” of a Person means any and all property, whether real, personal, tangible,  intangible, or mixed, of such Person; other assets owned by such Person; and to the extent of such Person’s  interest therein, other assets leased or operated by such Person.  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  “QFC Credit Support” has the meaning assigned to it in Section 9.19.  “Qualified Cash” means, at any time the same is to be determined, unrestricted and  unencumbered (other than Liens permitted under clauses (a), (b), (f), (t), (u)(i) and (u)(ii) of Section 6.02)  cash, and Cash Equivalent Investments, of the Company or any Subsidiary as reflected on the most recent  consolidated balance sheet of the Company and its Subsidiaries in each case at such time; provided that  Qualified Cash shall not exceed $25,000,000.  “Recipient” means (a) the Administrative Agent, (b) any Lender or (c) any Issuing Bank,  as applicable.  “Reference Time” with respect to any setting of the then-current Benchmark means (i) if  such Benchmark is the LIBO Rate, 11:00 a.m., London time, on the day that is two (2) London banking  days preceding the date of such setting, (ii) if such Benchmark is the EURIBO Rate, 11:00 a.m., Brussels  time two (2) TARGET Days preceding the date of such setting, (iii) if such Benchmark is the TIBO Rate,  





 






  36  11:00 a.m., Japan time two (2) Business Days preceding the date of such setting, (iv) if the RFR for such  Benchmark is SONIA, then five (5) Business Days prior to such setting, (v) if the RFR for such Benchmark  is SARON, then five (5) Business Days prior to such setting or (vi) if such Benchmark is none of the LIBO  Rate, the EURIBO Rate, the TIBO Rate, SONIA or SARON, the time determined by the Administrative  Agent in its reasonable discretion.  “Register” has the meaning set forth in Section 9.04.  “Regulation T” means Regulation T of the Board, as in effect from time to time and all  official rulings and interpretations thereunder or thereof.  “Regulation U” means Regulation U of the Board, as in effect from time to time and all  official rulings and interpretations thereunder or thereof.  “Regulation X” means Regulation X of the Board, as in effect from time to time and all  official rulings and interpretations thereunder or thereof.  “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and  the respective directors, officers, employees, agents and advisors of such Person and such Person’s  Affiliates.  “Relevant Governmental Body” shall mean (i) with respect to a Benchmark Replacement  in respect of Loans denominated in Dollars, the Board and/or the NYFRB, or a committee officially  endorsed or convened by the Board and/or the NYFRB or, in each case, any successor thereto, (ii) with  respect to a Benchmark Replacement in respect of Loans denominated in Pounds Sterling, the Bank of  England, or a committee officially endorsed or convened by the Bank of England or, in each case, any  successor thereto, (iii) with respect to a Benchmark Replacement in respect of Loans denominated in euro,  the European Central Bank, or a committee officially endorsed or convened by the European Central Bank  or, in each case, any successor thereto, (iv) with respect to a Benchmark Replacement in respect of Loans  denominated in Japanese Yen, the Bank of Japan, or a committee officially endorsed or convened by the  Bank of Japan or, in each case, any successor thereto, (v) with respect to a Benchmark Replacement in  respect of Loans denominated in Swiss Francs, the Swiss National Bank, or a committee officially endorsed  or convened by the Swiss National Bank or, in each case, any successor thereto, and (vi) with respect to a  Benchmark Replacement in respect of Loans denominated in any other currency, (a) the central bank for  the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor  which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of  such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by  (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central  bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or  (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other  supervisors or (4) the Financial Stability Board or any part thereof.  “Relevant Rate” shall mean (i) with respect to any Eurocurrency Borrowing denominated  in Dollars, the LIBO Rate, (ii) with respect to any Eurocurrency Borrowing denominated in euro, the  EURIBO Rate, (iii) with respect to any Eurocurrency Borrowing denominated in Japanese Yen, the TIBO  Rate or (iv) with respect to any Borrowing denominated in Pounds Sterling or Swiss Francs, the applicable  Daily Simple RFR, as applicable.  “Relevant Screen Rate” shall mean (i) with respect to any Eurocurrency Borrowing  denominated in Dollars, the LIBO Screen Rate, (ii) with respect to any Eurocurrency Borrowing  





 






  37  denominated in euro, the EURIBO Screen Rate or (iii) with respect to any Eurocurrency Borrowing  denominated in Japanese Yen, the TIBO Screen Rate, as applicable.  “Required Lenders” means, subject to Section 2.24, (a) at any time prior to the earlier of  the Loans becoming due and payable pursuant to Section 7.02 or the Commitments terminating or expiring,  Lenders having Credit Exposures and Unfunded Commitments representing more than 50% of the sum of  the total Credit Exposure and Unfunded Commitments at such time; provided that, solely for purposes of  declaring the Loans to be due and payable pursuant to Section 7.02, the Unfunded Commitment of each  Lender shall be deemed to be zero; and (b) for all purposes after the Loans become due and payable pursuant  to Section 7.02 or the Commitments expire or terminate, Lenders having Credit Exposures representing  more than 50% of the total Credit Exposure at such time; provided that, in the case of clauses (a) and (b)  above, (x) the Revolving Credit Exposure of any Revolving Lender that is the Swingline Lender shall be  deemed to exclude any amount of its Swingline Exposure in excess of its Applicable Percentage of all  outstanding Swingline Loans, adjusted to give effect to any reallocation under Section 2.24 of the Swingline  Exposures of Defaulting Lenders in effect at such time, and the Unfunded Commitment of such Revolving  Lender shall be determined on the basis of its Revolving Credit Exposure excluding such excess amount  and (y) for the purpose of determining the Required Lenders needed for any waiver, amendment,  modification or consent of or under this Agreement or any other Loan Document, any Lender that is the  Company or an Affiliate of the Company shall be disregarded.  “Required Revolving Lenders” means, subject to Section 2.24, (a) at any time prior to the  earlier of the Revolving Loans becoming due and payable pursuant to Section 7.02 or the Revolving  Commitments terminating or expiring, Revolving Lenders having Revolving Credit Exposures and  Unfunded Commitments representing more than 50% of the sum of the Total Revolving Credit Exposure  and Unfunded Commitments at such time; provided that, solely for purposes of declaring the Loans to be  due and payable pursuant to Section 7.02, the Unfunded Commitment of each Lender shall be deemed to  be zero; and (b) for all purposes after the Loans become due and payable pursuant to Section 7.02 or the  Revolving Commitments expire or terminate, Revolving Lenders having Revolving Credit Exposures  representing more than 50% of the Total Revolving Credit Exposure at such time; provided that, in the case  of clauses (a) and (b) above, (x) the Revolving Credit Exposure of any Revolving Lender that is the  Swingline Lender shall be deemed to exclude any amount of its Swingline Exposure in excess of its  Applicable Percentage of all outstanding Swingline Loans, adjusted to give effect to any reallocation under  Section 2.24 of the Swingline Exposures of Defaulting Lenders in effect at such time, and the Unfunded  Commitment of such Revolving Lender shall be determined on the basis of its Revolving Credit Exposure  excluding such excess amount and (y) for the purpose of determining the Revolving Required Lenders  needed for any waiver, amendment, modification or consent of or under this Agreement or any other Loan  Document, any Revolving Lender that is the Company or an Affiliate of the Company shall be disregarded.  “Required Term Lenders” means, subject to Section 2.24, at any time, Term Lenders  having Term Loans and unused Term Loan Commitments representing more than 50% of the sum of the  total outstanding principal amount of Term Loans and unused Term Loan Commitments at such time.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  “Responsible Officer” means the chief executive officer, president, chief legal officer,  chief financial officer, principal accounting officer, treasurer, assistant treasurer, senior vice president- finance or controller of the Company.  “Restricted Payment” means any dividend or other distribution (whether in cash, securities  or other property) with respect to any Equity Interests in the Company or any Subsidiary, or any payment  





 






  38  (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of  the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests  or any option, warrant or other right to acquire any such Equity Interests.  “Reuters” means, as applicable, Thomson Reuters Corp., Refinitiv, or any successor  thereto.  “Revolving Commitment” means, with respect to each Revolving Lender, the amount set  forth on Schedule 2.01 opposite such Revolving Lender’s name under the heading “Revolving  Commitment”, or in the Assignment and Assumption or other documentation or record (as such term is  defined in Section 9-102(a)(70) of the New York Uniform Commercial Code) contemplated hereby  pursuant to which such Revolving Lender shall have assumed its Revolving Commitment, as applicable,  and giving effect to (a) any reduction in such amount from time to time pursuant to Section 2.09, (b) any  increase from time to time pursuant to Section 2.20 and (c) any reduction or increase in such amount from  time to time pursuant to assignments by or to such Revolving Lender pursuant to Section 9.04; provided  that at no time shall the Revolving Credit Exposure of any Revolving Lender exceed its Revolving  Commitment.  The initial aggregate amount of the Revolving Commitments on the Effective Date is  $375,000,000.  “Revolving Credit Availability Period” means the period from and including the Effective  Date to but excluding the earlier of the Revolving Credit Maturity Date and the date of termination of the  Revolving Commitments.  “Revolving Credit Exposure” means, with respect to any Revolving Lender at any time,  the sum of the outstanding principal amount of such Revolving Lender’s Revolving Loans, its LC Exposure  and its Swingline Exposure at such time.  “Revolving Credit Maturity Date” means October 27, 2026, as extended (in the case of  each Revolving Lender consenting thereto) pursuant to Section 2.25; provided, however, in each case, if  such date is not a Business Day, the Revolving Credit Maturity Date shall be the next preceding Business  Day.  “Revolving Lender” means, as of any date of determination, each Lender that has a  Revolving Commitment or, if the Revolving Commitments have terminated or expired, a Lender with  Revolving Credit Exposure.  “Revolving Loan” means a Loan made by a Revolving Lender pursuant to Section 2.01(a).  “RFR” when used in reference to a currency means, Pounds Sterling and Swiss Francs and,  when used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such  Borrowing, bears interest at a rate determined by reference to (a) with respect to a Loan denominated in  Pounds Sterling, SONIA and (b) with respect to a Loan denominated in Swiss Francs, SARON.  “RFR Administrator” means the SONIA Administrator or the SARON Administrator.  “RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such  Borrowing.  “RFR Business Day” means, for any Loan denominated in (a) Pounds Sterling, any day  except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in  





 






  39  London and (b) Swiss Francs, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks  are closed for the settlement of payments and foreign exchange transactions in Zurich.  “RFR Interest Day” has the meaning specified in the definition of “Daily Simple RFR”.  “RFR Loan” shall mean a Loan that bears interest at a rate based on Daily Simple RFR.  “S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services  LLC business.  “Sale and Leaseback Transaction” means any sale or other transfer of Property by any  Person with the intent to lease such Property as lessee.  “Sanctioned Country” means, at any time, a country, region or territory which is itself the  subject or target of any Sanctions (including, at the time of this Agreement, Crimea, Cuba, Iran, North  Korea and Syria).  “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list  of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security  Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United  Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a  Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the  foregoing clauses (a) or (b), or (d) any Person otherwise the subject of any Sanctions.  “Sanctions” means all economic or financial sanctions or trade embargoes imposed,  administered or enforced from time to time by (a) the U.S. government, including those administered by  OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union,  any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant  sanctions authority.  “SARON” means, with respect to any Business Day, a rate per annum equal to the Swiss  Average Rate Overnight for such Business Day published by the SARON Administrator on the SARON  Administrator’s Website.  “SARON Administrator” means the SIX Swiss Exchange AG (or any successor  administrator of the Swiss Average Rate Overnight).  “SARON Administrator’s Website” means the SIX Swiss Exchange AG’s website,  currently at https://www.six-group.com, or any successor source for the Swiss Average Rate Overnight  identified as such by the SARON Administrator from time to time.  “SEC” means the United States Securities and Exchange Commission.  “Secured Obligations” means all Obligations, together with all Swap Obligations and  Banking Services Obligations owing to one or more Lenders or their respective Affiliates; provided that  the definition of “Secured Obligations” shall not create any guarantee by any Loan Party of (or grant of  security interest by any Loan Party to support, as applicable) any Excluded Swap Obligations of such Loan  Party for purposes of determining any obligations of any Loan Party.  “Security Agreement” means the Domestic Security Agreement and/or the Dutch Security  Agreements, as the context requires.  





 






  40  “SOFR” means, with respect to any Business Day, a rate per annum equal to the secured  overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR  Administrator’s Website on the immediately succeeding Business Day.  “SOFR Administrator” means the NYFRB (or a successor administrator of the secured  overnight financing rate).  “SOFR Administrator’s Website” means the NYFRB’s website, currently at  http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as  such by the SOFR Administrator from time to time.  “Solvent” means, in reference to any Person, (i) the fair value of the assets of such Person,  at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (ii) the present  fair saleable value of the property of such Person will be greater than the amount that will be required to  pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such  debts and other liabilities become absolute and matured; (iii) such Person will be able to pay its debts and  liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured;  and (iv) such Person will not have unreasonably small capital with which to conduct the business in which  it is engaged as such business is now conducted and is proposed to be conducted after the Effective Date.  “SONIA” shall mean, with respect to any Business Day, a rate per annum equal to the  Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the  SONIA Administrator’s Website on the immediately succeeding Business Day.  “SONIA Administrator” shall mean the Bank of England (or any successor administrator  of the Sterling Overnight Index Average).  “SONIA Administrator’s Website” shall mean the Bank of England’s website, currently at  http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average  identified as such by the SONIA Administrator from time to time.  “Specified Representations” means the representations and warranties of the Borrowers  and the Subsidiary Guarantors set forth in the first sentence of Section 3.01 (solely with respect to the  Borrowers and the Subsidiary Guarantors), Section 3.02 (solely with respect to the Borrowers and the  Subsidiary Guarantors), Section 3.03(b) (solely with respect to no violation of the organizational documents  of the Borrowers or any Subsidiary Guarantor), Sections 3.08, 3.12, 3.16(c), 3.18 (solely with respect to the  Borrowers and the Subsidiary Guarantors and subject to the Omega Closing Date Limited Conditionality  Provision) and the penultimate sentence of Section 3.19 of this Agreement.  “Specified Swap Obligation” means, with respect to any Loan Party, any obligation to pay  or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of  Section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.  “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of  which is the number one and the denominator of which is the number one minus the aggregate of the  maximum reserve percentage (including any marginal, special, emergency or supplemental reserves)  expressed as a decimal established by the Board to which the Administrative Agent is subject with respect  to the Adjusted LIBO Rate, Adjusted EURIBO Rate or Adjusted TIBO Rate, as applicable, for eurocurrency  funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the Board) or any other  reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in  respect of the maintenance of the Commitments or the funding of the Loans.  Such reserve percentage shall  





 






  41  include those imposed pursuant to Regulation D of the Board.  Eurocurrency Loans shall be deemed to  constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit  for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation  D of the Board or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically  on and as of the effective date of any change in any reserve percentage.  “Subordinated Indebtedness” means any Indebtedness of the Company or any Subsidiary,  the payment of which is subordinated to payment of the Secured Obligations in a manner reasonably  acceptable to the Administrative Agent (such acceptance not to be unreasonably withheld, delayed or  conditioned).  “Subordinated Indebtedness Documents” means any document, agreement or instrument  evidencing any Subordinated Indebtedness or entered into in connection with any Subordinated  Indebtedness.  “subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation,  limited liability company, partnership, association or other entity the accounts of which would be  consolidated with those of the parent in the parent’s consolidated financial statements if such financial  statements were prepared in accordance with GAAP as of such date, as well as any other corporation,  limited liability company, partnership, association or other entity (a) of which securities or other ownership  interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in  the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned,  Controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more  subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.  “Subsidiary” means any subsidiary of the Company.  “Subsidiary Guarantor” means each Domestic Subsidiary Guarantor and each Dutch  Subsidiary Guarantor.  The Subsidiary Guarantors on the Effective Date are identified as such in  Schedule 3.01 hereto.  “Subsidiary Guaranty” means that certain Fourth Amended and Restated Guaranty dated  as of the Effective Date (including any and all supplements thereto) and executed by each Subsidiary  Guarantor party thereto, and, in the case of any guaranty by a Foreign Subsidiary, any other guaranty  agreements executed by a Dutch Subsidiary Guarantor for the benefit of the Administrative Agent and the  other Holders of Secured Obligations, in each case as amended, restated, supplemented or otherwise  modified from time to time.  “Substantial Portion” means Property which represents more than 10% of the Consolidated  Total Assets of the Company or Property which is responsible for more than 10% of the consolidated net  sales or of the Consolidated Net Income of the Company, in each case, as would be shown in the  consolidated financial statements of the Company as at the beginning of the four-quarter period ending with  the quarter in which such determination is made (or if financial statements have not been delivered  hereunder for that quarter which begins the four quarter period, then the financial statements delivered  hereunder for the quarter ending immediately prior to that quarter).  “Supported QFC” has the meaning assigned to it in Section 9.19.  “Swap Agreement” means any transaction (including an agreement with respect thereto)  now existing or hereafter entered into by the Company or any Subsidiary which is a rate swap, basis swap,  forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity  





 






  42  index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor  transaction, collar transaction, forward transaction, currency swap transaction, cross-currency rate swap  transaction, currency option or any other similar transaction (including any option with respect to any of  these transactions) or any combination thereof, whether linked to one or more interest rates, foreign  currencies, commodity prices, equity prices or other financial measures.  “Swap Obligations” means any and all obligations of the Company or any Subsidiary,  whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired  (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and  all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender, and (b) any and all  cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement transaction.  “Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline  Loans outstanding at such time.  The Swingline Exposure of any Revolving Lender at any time shall be the  sum of (a) its Applicable Percentage of the aggregate principal amount of all Swingline Loans outstanding  at such time (excluding, in the case of any Revolving Lender that is a Swingline Lender, Swingline Loans  made by it that are outstanding at such time to the extent that the other Revolving Lenders shall not have  funded their participations in such Swingline Loans), adjusted to give effect to any reallocation under  Section 2.24 of the Swingline Exposure of Defaulting Lenders in effect at such time, and (b) in the case of  any Revolving Lender that is a Swingline Lender, the aggregate principal amount of all Swingline Loans  made by such Revolving Lender outstanding at such time, less the amount of participations funded by the  other Revolving Lenders in such Swingline Loans.  “Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as the lender of  Swingline Loans hereunder.  “Swingline Loan” means a Loan made pursuant to Section 2.05.  “Swiss Franc” or “CHF” means the lawful currency of Switzerland.  “TARGET2” shall mean the Trans-European Automated Real-time Gross Settlement  Express Transfer payment system which utilizes a single shared platform and which was launched on  November 19, 2007.  “TARGET Day” shall mean any day on which TARGET2 (or, if such payment system  ceases to be operative, such other payment system, if any, reasonably determined by the Administrative  Agent to be a suitable replacement) is open for the settlement of payments in euro.  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), value added taxes, or any other goods and services, use or sales taxes,  assessments, fees or other charges imposed by any Governmental Authority, including any interest,  additions to tax or penalties applicable thereto.  “Term Lender” means, as of any date of determination, each Lender having a Term Loan  Commitment or that holds Term Loans.  “Term Loan Availability Period” means the period beginning on the Effective Date and  ending on (and including) the Term Loan Commitment Expiration Date.  “Term Loan Commitment” means (a) with respect to any Term Lender, the amount set  forth on Schedule 2.01 opposite such Term Lender’s name under the heading “Term Loan Commitment”,  





 






  43  or in the Assignment and Assumption or other documentation or record (as such term is defined in Section  9-102(a)(70) of the New York Uniform Commercial Code) contemplated hereby pursuant to which such  Term Lender shall have assumed its Term Loan Commitment, as applicable, and giving effect to (i) any  reduction in such amount from time to time pursuant to Section 2.09 and (ii) any reduction or increase in  such amount from time to time pursuant to assignments by or to such Term Lender pursuant to Section 9.04  and (b) as to all Term Lenders, the aggregate commitments of all Term Lenders to make Term Loans.  After  advancing the Term Loan, each reference to a Term Lender’s Term Loan Commitment shall refer to that  Term Lender’s Applicable Percentage of the Term Loans.  The initial aggregate amount of the Term Loan  Commitments on the Effective Date is $300,000,000.  “Term Loan Commitment Expiration Date” means the earliest of (i) 11:59 p.m., New York  City time, five Business Days after the Termination Date (as defined in the Omega Purchase Agreement as  in effect on September 19, 2021, and as such Termination Date may be extended pursuant to the final  paragraph of Section 8.1 of the Omega Purchase Agreement as in effect on September 19, 2021), (ii) the  closing of the Omega Acquisition with or without the use of the Omega Closing Date Loans and (iii) the  termination of the Omega Purchase Agreement in accordance with the terms thereof prior to closing of the  Omega Acquisition or the termination by the Company of the Company’s (or any of the Company’s  Affiliates’) obligations under the Omega Purchase Agreement to consummate the Omega Acquisition in  accordance with the terms thereof.  “Term Loan Maturity Date” means the date that is the five-year anniversary of the Omega  Closing Date, as extended (in the case of each Term Lender consenting thereto) pursuant to Section 2.25;  provided, however, in each case, if such date is not a Business Day, the Term Loan Maturity Date shall be  the next preceding Business Day.  “Term Loans” means the term loans made by the Term Lenders to the Company pursuant  to Section 2.01(b).  “Term SOFR” shall mean, for the applicable Corresponding Tenor as of the applicable  Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by  the Relevant Governmental Body.  “Term SOFR Notice” shall mean a notification by the Administrative Agent to the Lenders  and the Company of the occurrence of a Term SOFR Transition Event.   “Term SOFR Transition Event” shall mean the determination by the Administrative Agent  that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the  administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a  Benchmark Transition Event or an Early Opt-in Election, as applicable (and, for the avoidance of doubt,  not in the case of an Other Benchmark Rate Election), has previously occurred resulting in a Benchmark  Replacement in accordance with Section 2.14 that is not Term SOFR.  “TIBO Interpolated Rate” shall mean, at any time, with respect to any Eurocurrency  Borrowing denominated in Japanese Yen and for any Interest Period, the rate per annum determined by the  Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be  equal to the rate that results from interpolating on a linear basis between: (a) the TIBO Screen Rate for the  longest Interest Period (for which the TIBO Screen Rate is available for Japanese Yen) that is shorter than  the Impacted TIBO Rate Interest Period; and (b) the TIBO Screen Rate for the shortest Interest Period (for  which the TIBO Screen Rate is available for Japanese Yen) that exceeds the Impacted TIBO Rate Interest  Period, in each case, at such time; provided that, if any TIBO Interpolated Rate as so determined would be  less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.  





 






  44  “TIBO Rate” shall mean, with respect to any Eurocurrency Borrowing denominated in  Japanese Yen and for any Interest Period, the TIBO Screen Rate at approximately 1:00 p.m., Japan time,  two (2) Business Days prior to the commencement of such Interest Period; provided that, if the TIBO Screen  Rate shall not be available at such time for such Interest Period (an “Impacted TIBO Rate Interest Period”)  with respect to Japanese Yen then the TIBO Rate shall be the TIBO Interpolated Rate.  “TIBO Screen Rate” shall mean, for any day and time, with respect to any Eurocurrency  Borrowing denominated in Japanese Yen and for any Interest Period, the Tokyo interbank offered rate  administered by the Ippan Shadan Hojin JBA TIBOR Administration (or any other person which takes over  the administration of such rate) for Japanese Yen for the relevant period displayed on page DTIBOR01 of  the Reuters screen (or, in the event such rate does not appear on such Reuters page or screen, on any  successor or substitute page on such screen that displays such rate, or on the appropriate page of such other  information service that publishes such rate as selected by the Administrative Agent from time to time in  its reasonable discretion).  If the TIBO Screen Rate as so determined would be less than zero, such rate  shall be deemed to be zero for the purposes of this Agreement.  “TIBOR” has the meaning assigned to such term in Section 1.06.  “Total Revolving Credit Exposure” means, at any time, the sum of (a) the outstanding  principal amount of the Revolving Loans and Swingline Loans at such time and (b) the total LC Exposure  at such time.  “Trade Date” has the meaning assigned to such term in Section 9.04(e)(i).  “Transactions” means the execution, delivery and performance by the Loan Parties of this  Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions, the use of  the proceeds thereof, and the issuance of Letters of Credit hereunder.  “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of  interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the  Adjusted LIBO Rate, the Adjusted EURIBO Rate, the Adjusted TIBO Rate, the Alternate Base Rate or the  Daily Simple RFR.  “UCC” means the Uniform Commercial Code as in effect from time to time in the State of  New York or any other state the laws of which are required to be applied in connection with the issue of  perfection of security interests.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under  the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from  time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain  credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” shall mean the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.  “Unfunded Commitment” means, with respect to each Lender, the Commitment of such  Lender less its Revolving Credit Exposure.  





 






  45  “United States” or “U.S.” mean the United States of America.  “Unliquidated Obligations” means, at any time, any Secured Obligations (or portion  thereof) that are contingent in nature or unliquidated at such time, including any Secured Obligation that is:   (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (ii) any  other obligation (including any guarantee) that is contingent in nature at such time; or (iii) an obligation to  provide collateral to secure any of the foregoing types of obligations.  “U.S. Special Resolution Regime” has the meaning assigned to it in Section 9.19.  “U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.17(e).  “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any  date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the  amount of each then remaining installment, sinking fund, serial maturity or other required payments of  principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to  the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the then  outstanding principal amount of such Indebtedness; provided that for purposes of determining the Weighted  Average Life to Maturity of any Indebtedness that is being modified, refinanced, refunded, renewed,  replaced or extended (the “Applicable Indebtedness”), the effect of any prepayments made on such  Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal,  replacement or extension shall be disregarded.  “Wholly-Owned” means, when used in reference to a subsidiary of any Person, that all the  Equity Interests in such subsidiary (other than directors’ qualifying shares and other nominal amounts of  Equity Interests that are required to be held by other Persons under applicable law) are owned, beneficially  and of record, by such Person, another wholly-owned subsidiary of such Person or any combination thereof.  “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete  or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of  Title IV of ERISA.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time  under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion  powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,  any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify  or change the form of a liability of any UK Financial Institution or any contract or instrument under which  that liability arises, to convert all or part of that liability into shares, securities or obligations of that person  or any other person, to provide that any such contract or instrument is to have effect as if a right had been  exercised under it or to suspend any obligation in respect of that liability or any of the powers under that  Bail-In Legislation that are related to or ancillary to any of those powers.  SECTION 1.02. Classification of Loans and Borrowings.  For purposes of this  Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g.,  a “Eurocurrency Loan” or an “RFR Loan”) or by Class and Type (e.g., a “Eurocurrency Revolving Loan”  or an “RFR Revolving Loan”).  Borrowings also may be classified and referred to by Class (e.g., a  “Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing” or an “RFR Borrowing”) or by  Class and Type (e.g., a “Eurocurrency Revolving Borrowing” or an “RFR Revolving Borrowing”).  





 






  46  SECTION 1.03. Terms Generally.  The definitions of terms herein shall apply equally  to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall  include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and  “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be  construed to have the same meaning and effect as the word “shall”.  The word “law” shall be construed as  referring to all statutes, rules, regulations, codes and other laws (including official rulings and  interpretations thereunder having the force of law), and all judgments, orders and decrees, of all  Governmental Authorities.  Unless the context requires otherwise (a) any definition of or reference to any  agreement, instrument or other document herein shall be construed as referring to such agreement,  instrument or other document as from time to time amended, restated, supplemented or otherwise modified  (subject to any restrictions on such amendments, restatements, supplements or modifications set forth  herein), (b) any definition of or reference to any law, statute, rule or regulation shall, unless otherwise  specified, be construed as referring thereto as from time to time amended, supplemented or otherwise  modified (including by succession of comparable successor laws), (c) any reference herein to any Person  shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment  set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that  shall have succeeded to any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and  words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular  provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed  to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (f) the words “asset”  and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible  and intangible assets and properties, including cash, securities, accounts and contract rights.  SECTION 1.04. Accounting Terms; GAAP.  Except as otherwise expressly provided  herein (including the definitions of Capitalized Lease and Capitalized Lease Obligations), all terms of an  accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time;  provided that, if the Company notifies the Administrative Agent that the Company requests an amendment  to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in  the application thereof on the operation of such provision (or if the Administrative Agent notifies the  Company that the Required Lenders request an amendment to any provision hereof for such purpose),  regardless of whether any such notice is given before or after such change in GAAP or in the application  thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately  before such change shall have become effective until such notice shall have been withdrawn or such  provision  amended in accordance herewith.  Notwithstanding any other provision contained herein, all  terms of an accounting or financial nature used herein shall be construed, and all computations of amounts  and ratios referred to herein shall be made (i) without giving effect to any election under Financial  Accounting Standards Board Accounting Standards Codification 825 (or any other Accounting Standards  Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness  or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein and (ii) without  giving effect to any treatment of Indebtedness under Accounting Standards Codification 470-20 or 2015- 03 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar  result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and  such Indebtedness shall at all times be valued at the full stated principal amount thereof.  Notwithstanding  anything to the contrary contained in this Section 1.04 or in the definition of “Capitalized Lease  Obligations,” any change in accounting for leases before or after the date hereof pursuant to GAAP resulting  from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02,  Leases (Topic 842) (“FAS 842”), to the extent such adoption would require treating any lease (or similar  arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) would  not have been required to be so treated under GAAP as in effect on December 31, 2015, such lease shall  not be considered a capital lease, and all calculations and deliverables under this Agreement or any other  Loan Document shall be made or delivered, as applicable, in accordance therewith.  





 






  47  SECTION 1.05. Amendment and Restatement of the Existing Credit Agreement.  The  parties to this Agreement agree that, upon (i) the execution and delivery by each of the parties hereto of this  Agreement and (ii) satisfaction of the conditions set forth in Section 4.01, the terms and provisions of the  Existing Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by  the terms and provisions of this Agreement.  This Agreement is not intended to and shall not constitute a  novation.  All Loans made and Obligations incurred under the Existing Credit Agreement which are  outstanding on the Effective Date shall continue as Loans and Obligations under (and, as of the Effective  Date, shall be governed by the terms of) this Agreement and the other Loan Documents.  Without limiting  the foregoing, upon the effectiveness hereof:  (a) all references in the “Loan Documents” (as defined in the  Existing Credit Agreement) to the “Administrative Agent”, the “Credit Agreement” and the “Loan  Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents,  (b) the Existing Letters of Credit which remain outstanding on the Effective Date shall continue as Letters  of Credit under (and, as of the Effective Date, shall be governed by the terms of) this Agreement, (c) all  obligations constituting “Obligations” with any Lender or any Affiliate of any Lender which are outstanding  on the Effective Date shall continue as Obligations under this Agreement and the other Loan Documents,  (d) the Administrative Agent shall make such reallocations, sales, assignments or other relevant actions in  respect of each Lender’s credit exposure under the Existing Credit Agreement as are necessary in order that  each such Lender’s Revolving Credit Exposure and outstanding Revolving Loans hereunder reflect such  Lender’s Applicable Percentage of the outstanding aggregate Revolving Exposures on the Effective Date  and (e) the Company hereby agrees to compensate each Lender for any and all losses, costs and expenses  incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans (including  the “Eurocurrency Loans” under the Existing Credit Agreement) and such reallocation described above, in  each case on the terms and in the manner set forth in Section 2.16 hereof.  SECTION 1.06. Interest Rates; LIBOR Notification.  The interest rate on a Loan  denominated in an Agreed Currency may be derived from an interest rate benchmark that is, or may in the  future become, the subject of regulatory reform.  Regulators have signaled the need to use alternative  benchmark reference rates for some of these interest rate benchmarks and, as a result, such interest rate  benchmarks may cease to comply with applicable laws and regulations, may be permanently discontinued,  and/or the basis on which they are calculated may change.  The London interbank offered rate (“LIBOR”) is  intended to represent the rate at which contributing banks may obtain short-term borrowings from each  other in the London interbank market.  On March 5, 2021, the U.K. Financial Conduct Authority (“FCA”)  publicly announced that: (a) immediately after December 31, 2021, publication of all seven euro LIBOR  settings, all seven Swiss Franc LIBOR settings, the spot next, 1-week, 2-month and 12-month Japanese  Yen LIBOR settings, the overnight, 1-week, 2-month and 12-month Pound Sterling LIBOR settings, and  the 1-week and 2-month U.S. Dollar LIBOR settings will permanently cease; immediately after June 30,  2023, publication of the overnight and 12-month U.S. Dollar LIBOR settings will permanently cease;  immediately after December 31, 2021, the 1-month, 3-month and 6-month Japanese Yen LIBOR settings  and the 1-month, 3-month and 6-month Pound Sterling LIBOR settings will cease to be provided or, subject  to consultation by the FCA, be provided on a changed methodology (or “synthetic”) basis and no longer be  representative of the underlying market and economic reality they are intended to measure and that  representativeness will not be restored; and immediately after June 30, 2023, the 1-month, 3-month and 6- month U.S. Dollar LIBOR settings will cease to be provided or, subject to the FCA’s consideration of the  case, be provided on a synthetic basis and no longer be representative of the underlying market and  economic reality they are intended to measure and that representativeness will not be restored.  There is no  assurance that dates announced by the FCA will not change or that the administrator of LIBOR and/or  regulators will not take further action that could impact the availability, composition, or characteristics of  LIBOR or the currencies and/or tenors for which LIBOR is published.  Each party to this agreement should  consult its own advisors to stay informed of any such developments.  Public and private sector industry  initiatives are currently underway to identify new or alternative reference rates to be used in place of  LIBOR.  Upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event, an Early  





 






  48  Opt-in Election or an Other Benchmark Rate Election, Section 2.14(b) and Section 2.14(c) provide a  mechanism for determining an alternative rate of interest.  The Administrative Agent will promptly notify  the Company, pursuant to Section 2.14(e), of any change to the reference rate upon which the interest rate  on Eurocurrency Loans is based.  However, the Administrative Agent does not warrant or accept any  responsibility for, and shall not have any liability with respect to, the administration, submission,  performance or any other matter related to the Daily Simple RFR, LIBOR, EURIBOR or other rates in the  definition of “LIBO Rate” (or “EURIBO Rate”, or “TIBO Rate”, as applicable) or with respect to any  alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such  alternative, successor or replacement rate implemented pursuant to Section 2.14(b) or Section 2.14(c),  whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event, an Early  Opt-in Election or an Other Benchmark Rate Election, and (ii) the implementation of any Benchmark  Replacement Conforming Changes pursuant to Section 2.14(d)), including without limitation, whether the  composition or characteristics of any such alternative, successor or replacement reference rate will be  similar to, or produce the same value or economic equivalence of, the Daily Simple RFR, the LIBO Rate  (or the EURIBO Rate, or the TIBO Rate, as applicable) or have the same volume or liquidity as did LIBOR  (or the euro interbank offered rate (“EURIBOR”), or the Tokyo interbank offered rate (“TIBOR”), as  applicable) prior to its discontinuance or unavailability.  The Administrative Agent and its affiliates and/or  other related entities may engage in transactions that affect the calculation of any Daily Simple RFR, any  alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant  adjustments thereto, in each case, in a manner adverse to the Company.  The Administrative Agent may  select information sources or services in its reasonable discretion to ascertain any RFR, Daily Simple RFR  or any rate with respect to any Eurocurrency Loan, any component thereof, or rates referenced in the  definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the  Company, any Lender or any other person or entity for damages of any kind, including direct or indirect,  special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract  or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component  thereof) provided by any such information source or service.  SECTION 1.07. Divisions.  For all purposes under the Loan Documents, in connection  with any division or plan of division under Delaware law (or any comparable event under a different  jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right,  obligation or liability of a different Person, then it shall be deemed to have been transferred from the original  Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be  deemed to have been organized and acquired on the first date of its existence by the holders of its Equity  Interests at such time.  SECTION 1.08. Pro Forma Adjustments for Acquisitions and Dispositions.  To the  extent the Company or any Subsidiary makes any Acquisition or Investment permitted pursuant to Section  6.04 or disposition of assets outside the ordinary course of business permitted by Section 6.03 during the  period of four Fiscal Quarters of the Company most recently ended, the Leverage Ratio, the First Lien  Leverage Ratio and Interest Coverage Ratio, and any other financial covenant or definition, shall be  calculated after giving Pro Forma effect thereto, as if such Acquisition or Investment or such disposition  (and any related incurrence, repayment or assumption of Indebtedness) had occurred in the first day of such  four Fiscal Quarter period.  SECTION 1.09. Certain Calculations.  For purposes of calculating any “net” ratio test  utilized in any debt incurrence test (including any amounts permitted to be incurred pursuant to Section  2.20), such ratio shall be calculated after giving effect to any such incurrence on a Pro Forma Basis, and,  in each case, with respect to any revolving credit commitments being established utilizing a debt incurrence  test (including any Incremental Revolving Commitment), assuming a borrowing of the maximum amount  of such revolving credit commitment (but for the avoidance of doubt, no other previously established  





 






  49  revolving commitment), and such calculation shall be made excluding the cash proceeds from such  incurrence from the amount of cash and Cash Equivalents that may be netted in the calculation of pro forma  Leverage Ratio or First Lien Leverage Ratio, as applicable.  SECTION 1.10. Exchange Rates; Currency Equivalents.  (a) The Administrative Agent or the Issuing Bank, as applicable, shall determine the  Dollar Amount of Borrowings or Letters of Credit denominated in Foreign Currencies on each Computation  Date.  Such Dollar Amount shall become effective as of such Computation Date and shall be the Dollar  Amount of such amounts until the next Computation Date to occur.  Except for purposes of financial  statements delivered by the Company hereunder or calculating financial covenants hereunder or except as  otherwise provided herein, the applicable amount of any Agreed Currency (other than Dollars) for purposes  of the Loan Documents shall be such Dollar Amount as so determined by the Administrative Agent or the  Issuing Bank, as applicable.  (b) Wherever in this Agreement in connection with a Borrowing, conversion,  continuation or prepayment of a Eurocurrency Loan or an RFR Loan or the issuance, amendment or  extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed  in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in a Foreign Currency, such amount  shall be the Dollar Amount of such amount (rounded to the nearest unit of such Foreign Currency, with 0.5  of a unit being rounded upward), as determined by the Administrative Agent or the Issuing Bank, as the  case may be.  ARTICLE II    The Credits  SECTION 2.01. Commitments.  Prior to the Effective Date, certain loans were  previously made to the Borrowers under the Existing Credit Agreement which remain outstanding as of the  date of this Agreement (such outstanding loans being hereinafter referred to as the “Existing Loans”).   Subject to the terms and conditions set forth in this Agreement, the Borrowers and each of the Lenders  agree that on the Effective Date but subject to the satisfaction of the conditions precedent set forth in  Section 4.01 and the reallocation and other transactions described in Section 1.05, the Existing Loans shall,  as of the Effective Date, be reevidenced as Revolving Loans under this Agreement and the terms of the  Existing Loans shall be restated in their entirety and shall be evidenced by this Agreement.  Subject to the  terms and conditions set forth herein, (a) each Revolving Lender (severally and not jointly) agrees to make  Revolving Loans to the Borrowers in Agreed Currencies from time to time during the Revolving Credit  Availability Period in an aggregate principal amount that will not result (after giving effect to any  application of proceeds of such Borrowing to any Swingline Loans outstanding pursuant to Section 2.10(a))  in, subject to Sections 2.04 and 2.11(b), (i) the Dollar Amount of such Lender’s Revolving Credit Exposure  exceeding such Lender’s Revolving Commitment, (ii) the Dollar Amount of the Total Revolving Credit  Exposure exceeding the aggregate Revolving Commitments, (iii) the Dollar Amount of the total outstanding  Revolving Loans and LC Exposure, in each case denominated in Foreign Currencies, exceeding the Foreign  Currency Sublimit or (iv) the total Revolving Credit Exposures in respect of Foreign Subsidiary Borrowers  exceeding the Foreign Subsidiary Borrower Sublimit and (b) each Term Lender with a Term Loan  Commitment (severally and not jointly) agrees to make a Term Loan to the Company in Dollars in a single  drawing during the Term Loan Availability Period on the Omega Closing Date, in an amount equal to such  Lender’s Term Loan Commitment by making immediately available funds available to the Administrative  Agent’s designated account, not later than the time specified by the Administrative Agent.  Within the  foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay  





 






  50  and reborrow Revolving Loans. Amounts repaid or prepaid in respect of Term Loans may not be  reborrowed.  SECTION 2.02. Loans and Borrowings.  (a) Each Loan (other than a Swingline Loan)  shall be made as part of a Borrowing consisting of Loans made by the applicable Lenders ratably in  accordance with their respective Commitments of the applicable Class.  The failure of any Lender to make  any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided  that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s  failure to make Loans as required.  Any Swingline Loan shall be made in accordance with the procedures  set forth in Section 2.05. The Term Loans shall amortize as set forth in Section 2.10.  (b) Subject to Section 2.14, each Borrowing shall be comprised (i) in the case of  Borrowings in Dollars, entirely of ABR Loans or Eurocurrency Loans and (ii) in the case of Borrowings in  any other Agreed Currency, entirely of Eurocurrency Loans or RFR Loans, as applicable, in each case of  the same Agreed Currency, as the relevant Borrower may request in accordance herewith; provided that  each ABR Loan shall only be made in Dollars.  Each Swingline Loan shall be an ABR Loan.  Each Lender  at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to  make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall  apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall  not affect the obligation of the relevant Borrower to repay such Loan in accordance with the terms of this  Agreement.  (c) At the commencement of each Interest Period for any Eurocurrency Revolving  Borrowing that is made to the Company, such Borrowing shall be in an aggregate amount that is an integral  multiple of $1,000,000 (or, if such Borrowing is denominated in (i) Japanese Yen, JPY100,000,000 or (ii) a  Foreign Currency other than Japanese Yen, 1,000,000 units of such currency) and not less than $3,000,000  (or, if such Borrowing is denominated in (i) Japanese Yen, JPY300,000,000 or (ii) a Foreign Currency other  than Japanese Yen, 3,000,000 units of such currency).  Subject to paragraph (e) of this Section, at the  commencement of each Interest Period for any Eurocurrency Revolving Borrowing that is made to a  Foreign Subsidiary Borrower, such Borrowing shall be in an aggregate amount that is an integral multiple  of $100,000 (or, if such Borrowing is denominated in (i) Japanese Yen, JPY10,000,000 or (ii) a Foreign  Currency other than Japanese Yen, 100,000 units of such currency) and not less than $100,000 (or, if such  Borrowing is denominated in (i) Japanese Yen, JPY10,000,000 or (ii) a Foreign Currency other than  Japanese Yen, 100,000 units of such currency).  At the time that each ABR Revolving Borrowing and/or  RFR Borrowing is made, such Borrowing shall be in an aggregate Dollar Amount that is an integral multiple  of $500,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing may be in an  aggregate amount that is equal to the entire unused balance of the aggregate Revolving Commitments or  that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e).   Each Swingline Loan shall be in an amount that is an integral multiple of $500,000 and not less than  $500,000.  Borrowings of more than one Type and Class may be outstanding at the same time; provided  that there shall not at any time be more than a total of eight (8) Eurocurrency Borrowings or RFR  Borrowings outstanding.  (d) Notwithstanding any other provision of this Agreement, no Borrower shall be  entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with  respect thereto would end after the applicable Maturity Date.  (e) An initial Borrowing from any Lender, and (to the extent before such initial  Borrowing) any initial Letter of Credit issued under Section 2.06 by the Issuing Bank, to any Borrower that  is organized under the laws of the Netherlands shall at all times be provided by a Lender that is a Dutch  Non-Public Lender.  





 






  51  SECTION 2.03. Requests for Borrowings.  To request a Borrowing, the applicable  Borrower, or the Company on behalf of the applicable Borrower, shall notify the Administrative Agent of  such request by irrevocable written notice (via a written Borrowing Request signed by the applicable  Borrower, or the Company on behalf of the applicable Borrower) (a)(i) in the case of a Eurocurrency  Borrowing denominated in Dollars, not later than 12:00 noon, New York City time, three (3) Business Days  before the date of the proposed Borrowing, (ii) in the case of a Eurocurrency Borrowing denominated in  euro or Japanese Yen, not later than 12:00 noon, New York City time, three (3) Business Days before the  date of the proposed Borrowing, (iii) in the case of an RFR Borrowing denominated in Pounds Sterling, not  later than 11:00 a.m., New York City time, five (5) RFR Business Days before the date of the proposed  Borrowing and (iv) in the case of an RFR Borrowing denominated in Swiss Francs, not later than 11:00  a.m., New York City time, five (5) RFR Business Days before the date of the proposed Borrowing or (b) in  the case of an ABR Borrowing, not later than 11:00 a.m., Chicago time, on the Business Day of the proposed  Borrowing; provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement  of an LC Disbursement as contemplated by Section 2.06(e) may be given not later than 10:00 a.m., Chicago  time, on the date of the proposed Borrowing.  Each Borrowing Request to fund an Acquisition permitted  hereunder or other transaction may be conditioned upon such Acquisition or transaction, provided that any  such conditioning shall not avoid any payment that may be owed under Section 2.16.  Each such Borrowing  Request shall specify the following information in compliance with Section 2.02:  (i) the name of the applicable Borrower;  (ii) the Agreed Currency and aggregate principal amount of the requested Borrowing;  (iii) the date of such Borrowing, which shall be a Business Day;  (iv) whether such Borrowing is to be an ABR Borrowing, a Eurocurrency Borrowing  or an RFR Borrowing, and whether such Borrowing is to be a Revolving Borrowing or a Term  Loan Borrowing;  (v) in the case of a Eurocurrency Borrowing, the Agreed Currency and initial Interest  Period to be applicable thereto, which shall be a period contemplated by the definition of the term  “Interest Period”; and  (vi) the location and number of the applicable Borrower’s account to which funds are  to be disbursed, which shall comply with the requirements of Section 2.07.  If no election as to the currency of a Borrowing is specified, then the requested Borrowing shall be made  in Dollars.  If no election as to the Type of Borrowing is specified, then, in the case of a Borrowing  denominated in Dollars, the requested Borrowing shall be an ABR Borrowing.  If no Interest Period is  specified with respect to any requested Eurocurrency Borrowing, then the relevant Borrower shall be  deemed to have selected an Interest Period of one (1) month’s duration.  Promptly following receipt of a  Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of  the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.  Notwithstanding anything to the contrary in this Section 2.03, any request for Omega Closing Date Loans  to be made on the Omega Closing Date may be conditioned upon the consummation of the Omega  Acquisition on such date.  





 






  52  SECTION 2.04. Determination of Dollar Amounts.  The Administrative Agent or the  Issuing Bank, as applicable, will determine the Dollar Amount of:  (a) any Loan denominated in a Foreign Currency, on each of the following: (i) the date  of the Borrowing of such Loan and (ii) each date of a conversion or continuation of such Loan pursuant to  the terms of this Agreement,  (b) any Letter of Credit denominated in a Foreign Currency, on each of the following:  (i) the date on which such Letter of Credit is issued, (ii) the first Business Day of each calendar month and  (iii) the date of any amendment of such Letter of Credit that has the effect of increasing the face amount  thereof, and  (c) any Credit Event, on any additional date as the Administrative Agent may  determine at any time when an Event of Default exists.  Each day upon or as of which the Administrative Agent (or the Issuing Bank, as applicable)  determines Dollar Amounts as described in the preceding clauses (a), (b) and (c) is herein described as a  “Computation Date” with respect to each Credit Event for which a Dollar Amount is determined on or as  of such day.  SECTION 2.05. Swingline Loans.  (a) Subject to the terms and conditions set forth  herein, the Swingline Lender may agree, but shall have no obligation, to make Swingline Loans in Dollars  to the Company from time to time during the Revolving Credit Availability Period, in an aggregate principal  amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding  Swingline Loans exceeding $30,000,000, (ii) the Swingline Lender’s Revolving Credit Exposure exceeding  its Revolving Commitment or (iii) the Dollar Amount of the Total Revolving Credit Exposure exceeding  the aggregate Revolving Commitments; provided that the Swingline Lender shall not be required to make  a Swingline Loan to refinance an outstanding Swingline Loan.  Within the foregoing limits and subject to  the terms and conditions set forth herein, the Company may borrow, prepay and reborrow Swingline Loans.  (b) To request a Swingline Loan, the Company shall notify the Administrative Agent  of such request by irrevocable written notice (via a written Borrowing Request in a form approved by the  Administrative Agent and signed by the Company), not later than 12:00 noon, Chicago time, on the day of  a proposed Swingline Loan.  Each such notice shall be irrevocable and shall specify the requested date  (which shall be a Business Day) and amount of the requested Swingline Loan.  The Administrative Agent  will promptly advise the Swingline Lender of any such notice received from the Company.  The Swingline  Lender shall make each Swingline Loan available to the Company by means of a credit to an account of  the Company with the Administrative Agent designated for such purpose (or, in the case of a Swingline  Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by  remittance to the Issuing Bank) by 3:00 p.m., Chicago time, on the requested date of such Swingline Loan.  (c) The Swingline Lender may by written notice given to the Administrative Agent  require the Revolving Lenders to acquire participations in all or a portion of the Swingline Loans  outstanding.  Such notice shall specify the aggregate amount of Swingline Loans in which Revolving  Lenders will participate.  Promptly upon receipt of such notice, the Administrative Agent will give notice  thereof to each Revolving Lender, specifying in such notice such Revolving Lender’s Applicable  Percentage of such Swingline Loan or Loans.  Each Revolving Lender hereby absolutely and  unconditionally agrees, promptly upon receipt of such notice from the Administrative Agent (and in any  event, if such notice is received by 11:00 a.m., Chicago time, on a Business Day, no later than 4:00 p.m.,  Chicago time, on such Business Day and if received after 11:00 a.m., Chicago time, on a Business Day, no  later than 9:00 a.m., Chicago time, on the immediately succeeding Business Day), to pay to the  





 






  53  Administrative Agent, for the account of the Swingline Lender, such Revolving Lender’s Applicable  Percentage of such Swingline Loan or Loans.  Each Revolving Lender acknowledges and agrees that its  obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and  unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and  continuance of a Default or reduction or termination of the Revolving Commitments, and that each such  payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each  Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately  available funds, in the same manner as provided in Section 2.07 with respect to Loans made by such  Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the  Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts  so received by it from the Revolving Lenders.  The Administrative Agent shall notify the Company of any  participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect  of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender.  Any  amounts received by the Swingline Lender from the Company (or other party on behalf of the Company)  in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of  participations therein shall be promptly remitted to the Administrative Agent; any such amounts received  by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving  Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as  their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline  Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be  refunded to the Company for any reason.  The purchase of participations in a Swingline Loan pursuant to  this paragraph shall not relieve the Company of any default in the Company’s repayment of such Swingline  Loan.  (d) The Swingline Lender may be replaced at any time by written agreement among  the Company, the Administrative Agent, the replaced Swingline Lender and the successor Swingline  Lender.  The Administrative Agent shall notify the Revolving Lenders of any such replacement of the  Swingline Lender.  At the time any such replacement shall become effective, the Company shall pay all  unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.13(a).  From  and after the effective date of any such replacement, (i) the successor Swingline Lender shall have all the  rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline  Loans made thereafter and (ii) references herein to the term “Swingline Lender” shall be deemed to refer  to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline  Lenders, as the context shall require.  After the replacement of a Swingline Lender hereunder, the replaced  Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a  Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement  to the extent such Swingline Loans remain outstanding, but shall not be required to make additional  Swingline Loans.  (e) Subject to the appointment and acceptance of a successor Swingline Lender, the  Swingline Lender may resign as a Swingline Lender at any time upon thirty (30) days’ prior written notice  to the Administrative Agent, the Company and the Revolving Lenders, in which case, such Swingline  Lender shall be replaced in accordance with Section 2.05(d) above.  SECTION 2.06. Letters of Credit.  (a) General.  Subject to the terms and conditions set  forth herein, the Company may request the issuance of Letters of Credit denominated in Agreed Currencies  for its own account or any Subsidiary, in a form reasonably acceptable to the Issuing Bank, at any time and  from time to time during the Revolving Credit Availability Period.  In the event of any inconsistency  between the terms and conditions of this Agreement and the terms and conditions of any Letter of Credit  Agreement, the terms and conditions of this Agreement shall control; provided, however, if the Issuing  Bank is requested to issue Letters of Credit with respect to a jurisdiction the Issuing Bank deems, in its  





 






  54  reasonable judgment, may at any time subject it to a New Money Credit Event or a Country Risk Event,  the Company shall, at the request of the Issuing Bank, guaranty and indemnify the Issuing Bank against  any and all costs, liabilities and losses to the extent resulting from such New Money Credit Event or Country  Risk Event, in each case in a form and substance reasonably satisfactory to the Issuing Bank.  The letters  of credit identified on Schedule 2.06 (the “Existing Letters of Credit”) shall be deemed to be “Letters of  Credit” issued on the Effective Date for all purposes of the Loan Documents, except that the Issuing Bank  shall not collect any issuance or fronting fee or similar compensation with respect to the deemed issuance  thereof on the Effective Date.   Notwithstanding anything herein to the contrary, the Issuing Bank shall  have no obligation hereunder to issue any Letter of Credit if (i) any binding order, judgment or decree of  any Governmental Authority or arbitrator shall by its terms enjoin or restrain the Issuing Bank from issuing  such Letter of Credit, or any law applicable to the Issuing Bank shall prohibit, or require that the Issuing  Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall  impose upon the Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital  requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the  Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense that was not  applicable on the Effective Date (for which the Issuing Bank is not otherwise compensated hereunder) and  that the Issuing Bank in good faith deems material to it or (ii) the issuance of such Letter of Credit would  violate one or more policies of the Issuing Bank applicable to letters of credit generally.  (b) Notice of Issuance, Amendment, Extension; Certain Conditions.  To request the  issuance of a Letter of Credit (or the amendment or extension of an outstanding Letter of Credit), the  Company shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for  doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent  (reasonably in advance of the requested date of issuance, amendment or extension, but in any event no less  than three (3) Business Days or such shorter time period as agreed to by the Issuing Bank) a notice  requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended or extended,  and specifying the date of issuance, amendment or extension (which shall be a Business Day), the date on  which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount  of such Letter of Credit, the Agreed Currency applicable thereto, the name and address of the beneficiary  thereof and such other information as shall be necessary to prepare, amend or extend such Letter of Credit.   In addition, if requested by the Issuing Bank as a condition to any such Letter of Credit issuance, the  Company shall have entered into a continuing agreement (or other letter of credit agreement) for the  issuance of letters of credit and/or shall submit a letter of credit application, in each case, as required by the  Issuing Bank and using the Issuing Bank’s standard form (each, a “Letter of Credit Agreement”).  A Letter  of Credit shall be issued, amended or extended only if (and upon issuance, amendment or extension of each  Letter of Credit the Company shall be deemed to represent and warrant that), after giving effect to such  issuance, amendment or extension subject to Sections 2.04 and 2.11(b), (i) the Dollar Amount of the LC  Exposure shall not exceed $100,000,000, (ii) the Dollar Amount of the Total Revolving Credit Exposure  shall not exceed the aggregate Revolving Commitments, (iii) the Dollar Amount of each Lender’s  Revolving Credit Exposure shall not exceed such Lender’s Revolving Commitment, (iv) the Dollar Amount  of the total outstanding Revolving Loans and LC Exposure, in each case denominated in Foreign  Currencies, shall not exceed the Foreign Currency Sublimit and (v) the total Revolving Credit Exposures  in respect of Foreign Subsidiary Borrowers shall not exceed the Foreign Subsidiary Borrower Sublimit.  (c) Expiration Date.  Each Letter of Credit shall expire (or be subject to termination  by notice from the Issuing Bank to the beneficiary thereof) at or prior to the close of business on the earlier  of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any extension  of the expiration thereof, one year after such extension); provided that, subject to the immediately  succeeding clause (ii), any Letter of Credit with a one-year tenor may provide for the extension thereof for  additional one-year periods at the option of the relevant Borrower and (ii) the date that is thirty (30) days  prior to the Revolving Credit Maturity Date. Notwithstanding the foregoing, any Letter of Credit may expire  





 






  55  no later than one year after the Revolving Credit Maturity Date so long as the Company cash collateralizes  an amount equal to 105% of the face amount of such Letter of Credit by the date that is thirty (30) days  prior to the Revolving Credit Maturity Date, in the manner described in Section 2.06(j) and otherwise on  terms and conditions reasonably acceptable to the Issuing Bank and the Administrative Agent.  (d) Participations.  By the issuance of a Letter of Credit (or an amendment to a Letter  of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or  the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from the  Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the  aggregate amount available to be drawn under such Letter of Credit.  In consideration and in furtherance of  the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative  Agent, for the account of the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement  made by the Issuing Bank and not reimbursed by the Company on the date due as provided in paragraph (e)  of this Section, or of any reimbursement payment required to be refunded to the Company for any reason,  including after the Revolving Credit Maturity Date.  Each Lender acknowledges and agrees that its  obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and  unconditional and shall not be affected by any circumstance whatsoever, including any amendment or  extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination  of the Commitments, and that each such payment shall be made without any offset, abatement, withholding  or reduction whatsoever.  (e) Reimbursement.  If the Issuing Bank shall make any LC Disbursement in respect  of a Letter of Credit, the Company shall reimburse such LC Disbursement by paying to the Administrative  Agent in Dollars the Dollar Amount equal to such LC Disbursement, calculated as of the date the Issuing  Bank made such LC Disbursement (or if the Issuing Bank shall so elect in its sole discretion by notice to  the Company, in such other Agreed Currency which was paid by the Issuing Bank pursuant to such LC  Disbursement in an amount equal to such LC Disbursement) not later than 12:00 noon, Local Time, on the  date that such LC Disbursement is made, if the Company shall have received notice of such LC  Disbursement prior to 10:00 a.m., Local Time, on such date, or, if such notice has not been received by the  Company prior to 10:00 a.m., Local Time on such date, then not later than 12:00 noon, Local Time, on the  Business Day immediately following the day that the Company receives such notice; provided that, if such  LC Disbursement is not less than the Dollar Amount of $1,000,000, the Company may, subject to the  conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.05 that such payment  be financed with (i) to the extent such LC Disbursement was made in Dollars, an ABR Revolving  Borrowing, Eurocurrency Revolving Borrowing or Swingline Loan in Dollars in an amount equal to such  LC Disbursement or (ii) to the extent that such LC Disbursement was made in a Foreign Currency, a  Eurocurrency Revolving Borrowing in such Foreign Currency in an amount equal to such LC Disbursement  and, in each case, to the extent so financed, the Company’s obligation to make such payment shall be  discharged and replaced by the resulting ABR Revolving Borrowing, Eurocurrency Revolving Borrowing  or Swingline Loan, as applicable.  If the Company fails to make such payment when due, the Administrative  Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from  the Company in respect thereof and such Revolving Lender’s Applicable Percentage thereof.  Promptly  following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its  Applicable Percentage of the payment then due from the Company, in the same manner as provided in  Section 2.07 with respect to Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis  mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall  promptly pay to the Issuing Bank the amounts so received by it from the Revolving Lenders.  Promptly  following receipt by the Administrative Agent of any payment from the Company pursuant to this  paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that  Revolving Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to  such Revolving Lenders and the Issuing Bank as their interests may appear.  Any payment made by a  





 






  56  Revolving Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other  than the funding of Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a  Loan and shall not relieve the Company of its obligation to reimburse such LC Disbursement.  If the  Company’s reimbursement of, or obligation to reimburse, any amounts in any Foreign Currency would  subject the Administrative Agent, the Issuing Bank or any Revolving Lender to any stamp duty, ad valorem  charge or similar tax that would not be payable if such reimbursement were made or required to be made  in Dollars, the Company shall, at its option, either (x) pay the amount of any such tax requested by the  Administrative Agent, the Issuing Bank or the relevant Revolving Lender or (y) reimburse each LC  Disbursement made in such Foreign Currency in Dollars, in an amount equal to the Dollar Amount thereof  calculated on the date such LC Disbursement is made.  (f) Obligations Absolute.  The Company’s obligation to reimburse LC Disbursements  as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be  performed strictly in accordance with the terms of this Agreement under any and all circumstances  whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, any Letter  of Credit Agreement or this Agreement, or any term or provision therein or herein, (ii) any draft or other  document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or  any statement therein being untrue or inaccurate in any respect, (iii) any payment by the Issuing Bank under  a Letter of Credit against presentation of a draft or other document that does not comply with the terms of  such Letter of Credit, (iv) any other event or circumstance whatsoever, whether or not similar to any of the  foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or  provide a right of setoff against, the Company’s obligations hereunder or (v) any adverse change in the  relevant exchange rates or in the availability of the relevant Foreign Currency to the Company or any  Subsidiary or in the relevant currency markets generally.  Neither the Administrative Agent, the Revolving  Lenders nor the Issuing Bank, nor any of their respective Related Parties, shall have any liability or  responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any  payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in  the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of  any draft, notice or other communication under or relating to any Letter of Credit (including any document  required to make a drawing thereunder), any error in interpretation of technical terms, any error in  translation or any consequence arising from causes beyond the control of the Issuing Bank.   Notwithstanding anything to the contrary in this paragraph, nothing herein shall be construed to excuse the  Issuing Bank from liability to the Company to the extent of any direct damages (as opposed to special,  indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Company  to the extent permitted by applicable law) suffered by the Company that are caused by the Issuing Bank’s  failure to exercise care when determining whether drafts and other documents presented under a Letter of  Credit comply with the terms thereof.  The parties hereto expressly agree that, in the absence of gross  negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of  competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such  determination.  In furtherance of the foregoing and without limiting the generality thereof, the parties agree  that, with respect to documents presented which appear on their face to be in substantial compliance with  the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment  upon such documents without responsibility for further investigation, regardless of any notice or  information to the contrary, or refuse to accept and make payment upon such documents if such documents  are not in strict compliance with the terms of such Letter of Credit.  (g) Disbursement Procedures.  The Issuing Bank shall, within the time allowed by  applicable law or the specific terms of the applicable Letter of Credit following its receipt thereof, examine  all documents purporting to represent a demand for payment under a Letter of Credit.  The Issuing Bank  shall promptly after such examination notify the Administrative Agent and the Company by telephone  (confirmed by telecopy or electronic mail) of such demand for payment and whether the Issuing Bank has  





 






  57  made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving  such notice shall not relieve the Company of its obligation to reimburse the Issuing Bank and the Revolving  Lenders with respect to any such LC Disbursement.  (h) Interim Interest.  If the Issuing Bank shall make any LC Disbursement, then, unless  the Company shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the  unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement  is made to but excluding the date that the Company reimburses such LC Disbursement, at the rate per annum  then applicable to ABR Revolving Loans (or in the case such LC Disbursement is denominated in a Foreign  Currency, at the Overnight Rate for such Agreed Currency plus the then effective Applicable Rate with  respect to Eurocurrency Revolving Loans); provided that, if the Company fails to reimburse such LC  Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall apply.  Interest  accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest accrued  on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to  reimburse the Issuing Bank for such LC Disbursement shall be for the account of such Revolving Lender  to the extent of such payment.  (i) Replacement and Resignation of the Issuing Bank.  (A) The Issuing Bank may be  replaced at any time by written agreement among the Company, the Administrative Agent, the replaced  Issuing Bank and the successor Issuing Bank.  The Administrative Agent shall notify the Revolving Lenders  of any such replacement of the Issuing Bank.  At the time any such replacement shall become effective, the  Company shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to  Section 2.12(b).  From and after the effective date of any such replacement, (i) the successor Issuing Bank  shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of  Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer  to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as  the context shall require.  After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank  shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under  this Agreement with respect to Letters of Credit then outstanding and issued by it prior to such replacement,  but shall not be required to issue additional Letters of Credit or extend or otherwise amend any existing  Letter of Credit.  (B) Subject to the appointment and acceptance of a successor Issuing Bank, the  Issuing Bank may resign as the Issuing Bank at any time upon thirty days’ prior written notice to the  Administrative Agent, the Company and the Revolving Lenders, in which case, the resigning Issuing Bank  shall be replaced in accordance with Section 2.06(i)(A) above.  (j) Cash Collateralization.  If any Event of Default shall occur and be continuing, on  the Business Day that the Company receives notice from the Administrative Agent or the Required Lenders  (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure representing  greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this  paragraph, the Company shall deposit in an account with the Administrative Agent, in the name of the  Administrative Agent and for the benefit of the Revolving Lenders (the “LC Collateral Account”), an  amount in cash equal to 105% of the Dollar Amount of the LC Exposure as of such date plus any accrued  and unpaid interest thereon; provided that (i) the portions of such amount attributable to undrawn Foreign  Currency Letters of Credit or LC Disbursements in a Foreign Currency that the Company is not late in  reimbursing shall be deposited in the applicable Foreign Currencies in the actual amounts of such undrawn  Letters of Credit and LC Disbursements and (ii) the obligation to deposit such cash collateral shall become  effective immediately, and such deposit shall become immediately due and payable, without demand or  other notice of any kind, upon the occurrence of any Event of Default with respect to any Borrower  described in Section 7.01(h) or 7.01(i).  For the purposes of this paragraph, the Dollar Amount of the  





 






  58  Foreign Currency LC Exposure shall be calculated on the date notice demanding cash collateralization is  delivered to the Company.  The Company also shall deposit cash collateral pursuant to this paragraph as  and to the extent required by Section 2.11(b).  Such deposit shall be held by the Administrative Agent as  collateral for the payment and performance of the Secured Obligations.  In addition, and without limiting  the foregoing or Section 2.06(c), if any LC Exposure remains outstanding after the expiration date specified  in Section 2.06(c), the Company shall immediately deposit into the LC Collateral Account an amount in  cash equal to 105% of the Dollar Amount of such LC Exposure as of such date plus any accrued and unpaid  interest thereon.  The Administrative Agent shall have exclusive dominion and control, including the  exclusive right of withdrawal, over such account and the Company hereby grants the Administrative Agent  a security interest in the LC Collateral Account.  Other than any interest earned on the investment of such  deposits, which investments shall be made at the option and sole discretion of the Administrative Agent  and at the Company’s risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on  such investments shall accumulate in such account.  Moneys in such account shall be applied by the  Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been  reimbursed, together with related fees, costs and customary processing charges, and, to the extent not so  applied, shall be held for the satisfaction of the reimbursement obligations of the Company for the LC  Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of  Revolving Lenders with LC Exposure  representing greater than 50% of the total LC Exposure), be applied  to satisfy other Secured Obligations.  If the Company is required to provide an amount of cash collateral  hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as  aforesaid) shall be returned to the Company within three (3) Business Days after all such Events of Default  have been cured or waived.  (k) Conversion.  In the event that the Revolving Loans become immediately due and  payable on any date pursuant to Article VII, all amounts (i) that the Company is at the time or thereafter  becomes required to reimburse or otherwise pay to the Administrative Agent in respect of LC  Disbursements made under any Foreign Currency Letter of Credit (other than amounts in respect of which  the Company has deposited cash collateral pursuant to paragraph (j) above, if such cash collateral was  deposited in the applicable Foreign Currency to the extent so deposited or applied), (ii) that the Revolving  Lenders are at the time or thereafter become required to pay to the Administrative Agent and the  Administrative Agent is at the time or thereafter becomes required to distribute to the Issuing Bank pursuant  to paragraph (e) of this Section in respect of unreimbursed LC Disbursements made under any Foreign  Currency Letter of Credit and (iii) of each Revolving Lender’s participation in any Foreign Currency Letter  of Credit under which an LC Disbursement has been made shall, automatically and with no further action  required, be converted into the Dollar Amount thereof on such date (or in the case of any LC Disbursement  made after such date, on the date such LC Disbursement is made), of such amounts.  On and after such  conversion, all amounts accruing and owed to the Administrative Agent, the Issuing Bank or any Revolving  Lender in respect of the obligations described in this paragraph shall accrue and be payable in Dollars at  the rates otherwise applicable hereunder.  (l) Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a  Letter of Credit at any time shall be deemed to be the amount of such Letter of Credit available to be drawn  at such time; provided that with respect to any Letter of Credit that, by its terms or the terms of any Letter  of Credit Agreement related thereto, provides for one or more automatic increases in the available amount  thereof, the amount of such Letter of Credit shall be deemed to be the maximum amount of such Letter of  Credit after giving effect to all such increases, whether or not such maximum amount is available to be  drawn at such time.  (m) Letters of Credit Issued for Account of Subsidiaries.  Notwithstanding that a Letter  of Credit issued or outstanding hereunder supports any obligations of, or is for the account of, a Subsidiary,  or states that a Subsidiary is the “account party,” “applicant,” “customer,” “instructing party,” or the like  





 






  59  of or for such Letter of Credit, and without derogating from any rights of the Issuing Bank (whether arising  by contract, at law, in equity or otherwise) against such Subsidiary in respect of such Letter of Credit, the  Company (i) shall reimburse, indemnify and compensate the Issuing Bank hereunder for such Letter of  Credit (including to reimburse any and all drawings thereunder) as if such Letter of Credit had been issued  solely for the account of the Company and (ii) irrevocably waives any and all defenses that might otherwise  be available to it as a guarantor or surety of any or all of the obligations of such Subsidiary in respect of  such Letter of Credit (other than the defense of payment and performance in full in cash).  The Company  hereby acknowledges that the issuance of such Letters of Credit for its Subsidiaries inures to the benefit of  the Company, and that the Company’s business derives substantial benefits from the businesses of such  Subsidiaries.  SECTION 2.07. Funding of Borrowings.  (a) Each Lender shall make each Loan to be  made by it hereunder on the proposed date thereof (which shall be the Omega Closing Date in the case of  the Term Loans) solely by wire transfer of immediately available funds (i) in the case of Loans denominated  in Dollars, by 12:00 noon, Chicago time, to the account of the Administrative Agent most recently  designated by it for such purpose by notice to the Lenders and (ii) in the case of each Loan denominated in  a Foreign Currency, by 12:00 noon, Local Time, in the city of the Administrative Agent’s Eurocurrency  Payment Office for such currency and at such Eurocurrency Payment Office for such currency; provided  (i) Term Loans shall be made as provided in Section 2.01(b) and (ii) that Swingline Loans shall be made as  provided in Section 2.05.  Except in respect of the provisions of this Agreement covering the reimbursement  of Letters of Credit, the Administrative Agent will make such Loans available to the relevant Borrower by  promptly crediting the funds so received in the aforesaid account of the Administrative Agent to (x) an  account of such Borrower maintained with the Administrative Agent in New York City or Chicago and  designated by such Borrower in the applicable Borrowing Request, in the case of Loans denominated in  Dollars and (y) an account of such Borrower in the relevant jurisdiction and designated by such Borrower  in the applicable Borrowing Request, in the case of Loans denominated in a Foreign Currency; provided  that Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in  Section 2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.  (b) Unless the Administrative Agent shall have received notice from a Lender prior to  the proposed date of any Borrowing (or in the case of an ABR Borrowing, prior to 12:00 noon, Chicago  time, on the date of such Borrowing) that such Lender will not make available to the Administrative Agent  such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made  such share available on such date in accordance with paragraph (a) of this Section and may, in reliance  upon such assumption, make available to the relevant Borrower a corresponding amount.  In such event, if  a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent,  then the applicable Lender and such Borrower severally agree to pay to the Administrative Agent forthwith  on demand such corresponding amount with interest thereon, for each day from and including the date such  amount is made available to such Borrower to but excluding the date of payment to the Administrative  Agent, at (i) in the case of such Lender, the greater of the applicable Overnight Rate and a rate determined  by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in  the case of such Borrower, the interest rate applicable to ABR Loans, or in the case of Foreign Currencies,  in accordance with such market practice, in each case, as applicable.  If such Lender pays such amount to  the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such  Borrowing.  SECTION 2.08. Interest Elections.  (a) Each Borrowing initially shall be of the Type  and Agreed Currency specified in the applicable Borrowing Request and, in the case of a Eurocurrency  Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the  relevant Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing  and, in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this  





 






  60  Section.  A Borrower may elect different options with respect to different portions of the affected  Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans  comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate  Borrowing.  This Section shall not apply to Swingline Borrowings, which may not be converted or  continued.  (b) To make an election pursuant to this Section, a Borrower, or the Company on its  behalf, shall notify the Administrative Agent of such election (by irrevocable written notice via an Interest  Election Request signed by such Borrower, or the Company on its behalf) by the time that a Borrowing  Request would be required under Section 2.03 if such Borrower were requesting a Borrowing of the Type  resulting from such election to be made on the effective date of such election.  Notwithstanding any contrary  provision herein, this Section shall not be construed to permit any Borrower to (i) change the currency of  any Borrowing, (ii) elect an Interest Period for Eurocurrency Loans that does not comply with  Section 2.02(d) or (iii) convert any Borrowing to a Borrowing of a Type not available under the Class of  Commitments pursuant to which such Borrowing was made.  (c) Each Interest Election Request shall specify the following information in  compliance with Section 2.02:  (i) the name of the applicable Borrower, the Agreed Currency and principal amount  of the Borrowing to which such Interest Election Request applies and, if different options are being  elected with respect to different portions thereof, the portions thereof to be allocated to each  resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and  (iv) below shall be specified for each resulting Borrowing);  (ii) the effective date of the election made pursuant to such Interest Election Request,  which shall be a Business Day;  (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency  Borrowing; and   (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period and  Agreed Currency to be applicable thereto after giving effect to such election, which Interest Period  shall be a period contemplated by the definition of the term “Interest Period”.  If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest  Period, then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s  duration.  (d) Promptly following receipt of an Interest Election Request, the Administrative  Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting  Borrowing.  (e) If the relevant Borrower fails to deliver a timely Interest Election Request with  respect to a Eurocurrency Borrowing denominated in Dollars prior to the end of the Interest Period  applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest  Period such Borrowing shall be converted to an ABR Borrowing at the end of such Interest Period.  If the  relevant Borrower fails to deliver a timely and complete Interest Election Request with respect to a  Eurocurrency Borrowing denominated in a Foreign Currency prior to the end of the Interest Period  applicable thereto, then, unless such Borrowing is repaid as provided herein, the relevant Borrower shall be  deemed to have selected that such Eurocurrency Borrowing shall automatically be continued as a  





 






  61  Eurocurrency Borrowing in its original Agreed Currency with an Interest Period of one (1) month at the  end of such Interest Period.  Notwithstanding any contrary provision hereof, if an Event of Default has  occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies  the Company, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be  converted to or continued as a Eurocurrency Borrowing and (ii) unless repaid, (x) each Eurocurrency  Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the Interest Period  applicable thereto and (y)  each Eurocurrency Borrowing denominated in a Foreign Currency shall bear  interest at the Central Bank Rate for the applicable Agreed Currency plus the Applicable Rate; provided  that, if the Administrative Agent determines (which determination shall be conclusive and binding absent  manifest error) that the Central Bank Rate for the applicable Agreed Currency cannot be determined, any  outstanding affected Eurocurrency Loans denominated in any Foreign Currency shall either be  (A) converted to an ABR Borrowing denominated in Dollars (in an amount equal to the Dollar Amount of  such Foreign Currency) at the end of the Interest Period therefor or (B) prepaid at the end of the applicable  Interest Period in full; provided that if no election is made by the relevant Borrower by the earlier of (x) the  date that is three (3) Business Days after receipt by the relevant Borrower of such notice and (y) the last  day of the current Interest Period for the applicable Eurocurrency Loan, the relevant Borrower shall be  deemed to have elected clause (A) above.  SECTION 2.09. Termination and Reduction of Commitments.  (a) Unless previously  terminated, (i) the Term Loan Commitments shall terminate on the Term Loan Commitment Expiration  Date and (ii) the Revolving Commitments shall terminate on the Revolving Credit Maturity Date.  On the  Omega Closing Date (after giving effect to the funding of the Term Loans to be made on such date), the  Term Loan Commitment of each Lender shall terminate.  (b) The Company may at any time terminate, or from time to time reduce, the  Commitments; provided that (i) each reduction of the Revolving Commitments or the Term Loan  Commitments, as applicable, shall be in an amount that is an integral multiple of $5,000,000 and not less  than $10,000,000 (or, if less, the remaining amount of the Revolving Commitments or the Term Loan  Commitments, as applicable) and (ii) the Company shall not terminate or reduce the Revolving  Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance  with Section 2.11, (A) any Lender’s Revolving Credit Exposure would exceed its Revolving Commitment  or (B) the Dollar Amount of the Total Revolving Credit Exposure would exceed the aggregate Revolving  Commitments.  (c) The Company shall notify the Administrative Agent of any election to terminate  or reduce the Revolving Commitments or the Term Loan Commitments under paragraph (b) of this Section  at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such  election and the effective date thereof.  Promptly following receipt of any notice, the Administrative Agent  shall advise the Lenders of the applicable Class of the contents thereof.  Each notice delivered by the  Company pursuant to this Section shall be irrevocable; provided that a notice of termination of the  Revolving Commitments or the Term Loan Commitments delivered by the Company may state that such  notice is conditioned upon the effectiveness of other credit facilities or other transactions specified therein,  in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or  prior to the specified effective date) if such condition is not satisfied.  Any termination or reduction of the  Commitments shall be permanent.  Each reduction of the Commitments of an applicable Class shall be  made ratably among the Lenders of such Class in accordance with their respective Commitments of such  Class.  SECTION 2.10. Repayment and Amortization of Loans; Evidence of Debt.  (a) Each  Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each  Revolving Lender the then unpaid principal amount of each Revolving Loan made to such Borrower on the  





 






  62  Revolving Credit Maturity Date in the currency of such Loan and (ii) in the case of the Company, to the  Administrative Agent for the account of the Swingline Lender the then unpaid principal amount of each  Swingline Loan on the earlier of the Revolving Credit Maturity Date and the first date after such Swingline  Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such  Swingline Loan is made; provided that on each date that a Revolving Borrowing is made, the Company  shall repay all Swingline Loans then outstanding and the proceeds of any such Borrowing shall be applied  by the Administrative Agent first to repay any Swingline Loans outstanding.  (b) The Company shall repay the Term Loans in installments as follows:  (i) on the  last day of the first full Fiscal Quarter ending immediately following the Fiscal Quarter during which the  Omega Closing Date occurs (such full Fiscal Quarter, the “Specified Quarter”) and on the last day of the  eight Fiscal Quarters ending immediately after the Specified Quarter, 1.25% of the aggregate principal  amount of the Term Loans actually funded on the Omega Closing Date (the “Funded Amount”); and (ii) on  the last day of each Fiscal Quarter ending after such eighth Fiscal Quarter (and prior to the Term Loan  Maturity Date), 2.50% of the Funded Amount (in each of the foregoing cases, as adjusted from time to time  pursuant to Section 2.11).  To the extent not previously repaid, all unpaid Term Loans shall be paid in full  in Dollars by the Company on the Term Loan Maturity Date.  (c) Each Lender shall maintain in accordance with its usual practice an account or  accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Loan made by  such Lender, including the amounts of principal and interest payable and paid to such Lender from time to  time hereunder.  (d) The Administrative Agent shall maintain accounts in which it shall record (i) the  amount of each Loan made hereunder, the Class, Agreed Currency and Type thereof and the Interest Period  applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable  from each Borrower to each Lender hereunder and (iii) the amount of any sum received by the  Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.  (e) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of  this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein  absent manifest error; provided that the failure of any Lender or the Administrative Agent to maintain such  accounts or any error therein shall not in any manner affect the obligation of any Borrower to repay the  Loans in accordance with the terms of this Agreement.  (f) Any Lender may request that Loans made by it to any Borrower be evidenced by  a promissory note.  In such event, the relevant Borrower shall prepare, execute and deliver to such Lender  a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered  assigns) and in substantially the form attached hereto as Exhibit H-1 or Exhibit H-2, as applicable.   Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including  after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form.   Upon either (i) payment in full of the Loans evidenced by any such promissory note and termination of the  relevant Commitments relating thereto, or (ii) the assignment of such Loans and Commitments in  accordance with Section 9.04 hereof, each such Lender that received a promissory note shall use  commercially reasonable efforts to cause each such promissory note be returned to the applicable Borrower  at the request of such Borrower.  SECTION 2.11. Prepayment of Loans.  (a) Any Borrower shall have the right at any time and from time to time to prepay any  Borrowing in whole or in part without premium or penalty (except as provided in Section 2.16) and any  





 






  63  such payment shall be applied as directed by the Company, subject to prior notice in accordance with the  provisions of this Section 2.11(a).  The applicable Borrower, or the Company on behalf of the applicable  Borrower, shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the  Swingline Lender) by written notice of any prepayment hereunder (i)(w) in the case of prepayment of a  Eurocurrency Borrowing denominated in Dollars, not later than 11:00 a.m., Local Time, three (3) Business  Days before the date of prepayment, (x) in the case of prepayment of a Eurocurrency Borrowing  denominated in euro or Japanese Yen, not later than 12:00 noon, New York City time, four (4) Business  Days before the date of prepayment, (y) in the case of prepayment of an RFR Borrowing denominated in  Pounds Sterling, not later than 12:00 noon, New York City time, five (5) RFR Business Days before the  date of prepayment and (z) in the case of prepayment of an RFR Borrowing denominated in Swiss Francs,  not later than 12:00 noon, New York City time, five (5) RFR Business Days before the date of prepayment,  (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., Chicago time, on the date  of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, Chicago  time, on the date of prepayment.  Each such notice shall be irrevocable and shall specify the prepayment  date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice  of prepayment is given in connection with a conditional notice of termination of the Commitments as  contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of termination  is revoked in accordance with Section 2.09.  Promptly following receipt of any such notice relating to a  Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.  Each partial  prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a  Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a Revolving Borrowing  shall be applied ratably to the Revolving Loans included in the prepaid Revolving Borrowing, each  voluntary prepayment of a Term Loan Borrowing shall be applied ratably to the Term Loans included in  the prepaid Term Loan Borrowing in such order of application as directed by the Company, and each  mandatory prepayment of a Term Loan Borrowing shall be applied in accordance with Section 2.11(d).   Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.13 and (ii) any  break funding payments required by Section 2.16.  (b) If at any time, (i) other than as a result of fluctuations in currency exchange rates,  (A) the aggregate principal Dollar Amount of the Total Revolving Credit Exposure (calculated, with respect  to those Credit Events denominated in Foreign Currencies, as of the most recent Computation Date with  respect to each such Credit Event) exceeds the aggregate Revolving Commitments or such sum in respect  of Foreign Subsidiary Borrowers exceeds the Foreign Subsidiary Borrower Sublimit or (B) the aggregate  principal Dollar Amount of the Total Revolving Credit Exposure denominated in Foreign Currencies (the  “Foreign Currency Exposure”) (so calculated), as of the most recent Computation Date with respect to each  such Credit Event, exceeds the Foreign Currency Sublimit or (ii) solely as a result of fluctuations in currency  exchange rates, (A) the aggregate principal Dollar Amount of the Total Revolving Credit Exposure (so  calculated) exceeds 105% of the aggregate Revolving Commitments or such sum in respect of Foreign  Subsidiary Borrowers exceeds 105% of the Foreign Subsidiary Borrower Sublimit or (B) the Foreign  Currency Exposure, as of the most recent Computation Date with respect to each such Credit Event, exceeds  105% of the Foreign Currency Sublimit, the Borrowers shall in each case immediately repay Revolving  Borrowings or, if required after the payment of all Borrowings, cash collateralize LC Exposure in an  account with the Administrative Agent pursuant to Section 2.06(j), as applicable, in an aggregate principal  amount sufficient to cause (x) the aggregate Dollar Amount of the Total Revolving Credit Exposure (so  calculated) to be less than or equal to the aggregate Revolving Commitments, (y) the Foreign Currency  Exposure to be less than or equal to the Foreign Currency Sublimit and (z) the aggregate Dollar Amount of  all Revolving Credit Exposures in respect of the Foreign Subsidiary Borrowers to be less than or equal to  the Foreign Subsidiary Borrower Sublimit.  (c) In the event and on each occasion that any Net Proceeds are received by or on  behalf of the Company or any of its Subsidiaries in respect of any Prepayment Event, the Company shall,  





 






  64  within five (5) Business Days after such Net Proceeds are received, prepay the Obligations as set forth in  Section 2.11(d) below in an aggregate amount equal to 100% of such Net Proceeds; provided that, in the  case of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, (x) the  amount of such prepayment as a result of the receipt of Net Proceeds in excess of $10,000,000 shall be the  amount of such Net Proceeds received in excess of $10,000,000, and (y) if the Company shall deliver to  the Administrative Agent a certificate of a Financial Officer to the effect that the Company or its relevant  Subsidiaries intend to apply the Net Proceeds from such event (or a portion thereof specified in such  certificate), within 365 days after receipt of such Net Proceeds, to reinvest in assets used or useful in the  business of the Company and/or its Subsidiaries, then no prepayment shall be required pursuant to this  paragraph in respect of the Net Proceeds specified in such certificate; provided further that to the extent of  any such Net Proceeds therefrom that have not been so applied by the end of such 365-day period (or within  a period of 180 days thereafter if by the end of such initial 365-day period the Company or one or more  Subsidiaries shall have entered into an agreement with an unaffiliated third party to acquire such assets with  such Net Proceeds), at which time a prepayment shall be required in an amount equal to such Net Proceeds  that have not been so applied; provided further that, in the case of any event described in clause (a) or (b) of  the definition of the term “Prepayment Event” which is attributable to a Foreign Subsidiary, if a Restricted  Payment or other distribution to the Company is required (notwithstanding the Loan Parties’ commercially  reasonable efforts to make such prepayment without making such Restricted Payment or other payment) in  connection with such prepayment (or portion thereof), no prepayment (or a portion thereof) shall be made  if the Company or any Subsidiary determines in good faith that it would incur a liability in respect of Taxes  (including any withholding tax) in connection with making such Restricted Payment or other distribution  which the Company, in its reasonable judgment, deems to be material (taking into account any foreign tax  credit or benefit that will be actually realized in connection with such prepayment); provided further, that  when the Company determines in good faith that such prepayment would no longer result in such a material  tax liability (taking into account any foreign tax credit or benefit actually realized in connection with such  prepayment), such prepayment shall then be promptly applied.  (d) All such mandatory prepayment amounts pursuant to Section 2.11(c) shall be  applied, first, to the scheduled installments of the Term Loans occurring within the next four (4) scheduled  installments in direct order of maturity and, second, to the remaining scheduled installments of the Term  Loans on a pro rata basis.  (e) Except as otherwise contemplated by this Agreement or provided in, or intended  with respect to, any Incremental Term Loan Amendment (provided, that such Incremental Term Loan  Amendment may not, without the consent of the requisite Lenders in accordance with Section 9.02, provide  that the applicable Class of Incremental Term Loans receive a greater than pro rata portion of mandatory  prepayments of Term Loans pursuant to Section 2.11(c) than would otherwise be permitted by this  Agreement), in each case effectuated or issued in a manner consistent with this Agreement, each  prepayment of Term Loans pursuant to Section 2.11(c) shall be allocated ratably to the Term Loans and  Incremental Term Loans (if any) then outstanding.  SECTION 2.12. Fees.  (a) The Company agrees to pay to the Administrative Agent for  the account of each Revolving Lender a commitment fee, which shall accrue at the Applicable Rate on the  average daily unused Dollar Amount of the Revolving Commitment of such Revolving Lender during the  period from and including the Effective Date to but excluding the date on which such Revolving  Commitment terminates.  Accrued commitment fees shall be payable in arrears on the fifteenth (15th) day  immediately following the last day of March, June, September and December of each year and on the date  on which the Revolving Commitments terminate, commencing on the first such date to occur after the date  hereof.  All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for  the actual number of days elapsed (including the first day and the last day of each period but excluding the  date on which the Revolving Commitments terminate).  For purposes of computing commitment fees, (i) the  





 






  65  Revolving Commitment of a Revolving Lender (other than the Swingline Lender) shall be deemed to be  used to the extent of the outstanding Revolving Loans and LC Exposure of such Revolving Lender, and  (ii) the Revolving Commitment of the Revolving Lender acting as Swingline Lender shall be deemed to be  used to the extent of the outstanding Revolving Loans, LC Exposure and Swingline Loans of such  Revolving Lender.  (b) The Company agrees to pay (i) to the Administrative Agent for the account of each  Revolving Lender a participation fee with respect to its participations in each outstanding Letter of Credit,  which shall accrue on the daily maximum amount then available to be drawn under such Letter of Credit at  the same Applicable Rate used to determine the interest rate applicable to Eurocurrency Revolving Loans,  during the period from and including the Effective Date to but excluding the later of the date on which such  Revolving Lender’s Revolving Commitment terminates and the date on which such Revolving Lender  ceases to have any LC Exposure, and (ii) to the Issuing Bank for its own account a fronting fee, which shall  accrue at the rate of 0.125% per annum on the daily maximum amount then available to be drawn under  each Letter of Credit during the period from and including the Effective Date to but excluding the later of  the date of termination of the Revolving Commitments and the date on which there ceases to be any LC  Exposure, as well as the Issuing Bank’s standard fees with respect to the issuance, amendment or extension  of any Letter of Credit and other processing fees, and other standard costs and charges, of such Issuing  Bank relating to the Letters of Credit as from time to time in effect.  Unless otherwise specified above,  participation fees and fronting fees accrued through and including the last day of March, June, September  and December of each year shall be payable on the fifteenth (15th) day following such last day, commencing  on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the  date on which the Revolving Commitments terminate and any such fees accruing after the date on which  the Revolving Commitments terminate shall be payable on demand.  Any other fees payable to the Issuing  Bank pursuant to this paragraph shall be payable within ten (10) days after invoice.  All participation fees  and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual  number of days elapsed (including the first day but excluding the last day).  Participation fees and fronting  fees in respect of Letters of Credit denominated in Dollars shall be paid in Dollars, and participation fees  and fronting fees in respect of Letters of Credit denominated in a Foreign Currency shall be paid in Dollars  in the Dollar Amount thereof.  (c) The Company agrees to pay to the Administrative Agent, for its own account, fees  payable in the amounts and at the times separately agreed upon between the Company and the  Administrative Agent.  (d) All fees payable hereunder shall be paid on the dates due, in Dollars and  immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable  to it) for distribution, in the case of commitment fees and participation fees, to the applicable Lenders.  Fees  paid shall not be refundable under any circumstances.  SECTION 2.13. Interest.  (a) The Loans comprising each ABR Borrowing (including  each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.  (b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the  Adjusted LIBO Rate, the Adjusted EURIBO Rate or the Adjusted TIBO Rate, as applicable, for the Interest  Period in effect for such Borrowing plus the Applicable Rate.  (c) Each RFR Loan shall bear interest at a rate per annum equal to the applicable Daily  Simple RFR plus the Applicable Rate.  





 






  66  (d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any  fee or other amount payable by any Borrower hereunder is not paid when due, whether at stated maturity,  upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment,  at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise  applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any  other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.  (e) Accrued interest on each Loan shall be payable in arrears on each Interest Payment  Date for such Loan and, (x) in the case of Revolving Loans, upon termination of the Revolving  Commitments and (y) in the case of Term Loans, on the Term Loan Maturity Date; provided that (i) interest  accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in the event of any  repayment or prepayment of any Loan (other than a prepayment of an ABR Loan prior to the end of the  Revolving Credit Availability Period or the Term Loan Maturity Date, as applicable), accrued interest on  the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and  (iii) in the event of any conversion of any Eurocurrency Loan prior to the end of the current Interest Period  therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.  (f) Interest computed by reference to the LIBO Rate, the EURIBO Rate or Daily  Simple RFR with respect to Swiss Francs hereunder shall be computed on the basis of a year of 360 days.   Interest computed by reference to the Daily Simple RFR with respect to Pounds Sterling, the TIBO Rate or  the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed  on the basis of a year of 365 days (or 366 days in a leap year).  In each case interest shall be payable for the  actual number of days elapsed (including the first day but excluding the last day).  All interest hereunder  on any Loan shall be computed on a daily basis based upon the outstanding principal amount of such Loan  as of the applicable date of determination.  The applicable Alternate Base Rate, Adjusted LIBO Rate, LIBO  Rate, Adjusted EURIBO Rate, EURIBO Rate, Adjusted TIBO Rate, TIBO Rate or Daily Simple RFR shall  be determined by the Administrative Agent, and such determination shall be conclusive absent manifest  error.  (g) Interest in respect of Loans denominated in Dollars shall be paid in Dollars, and  interest in respect of Loans denominated in a Foreign Currency shall be paid in such Foreign Currency.  SECTION 2.14. Alternate Rate of Interest.  (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.14:  (i) if the Administrative Agent reasonably determines (which determination  shall be conclusive absent manifest error) (A) prior to the commencement of any Interest Period  for a Eurocurrency Borrowing, that adequate and reasonable means do not exist for ascertaining  the Adjusted LIBO Rate, the LIBO Rate, the Adjusted EURIBO Rate, the EURIBO Rate, the  Adjusted TIBO Rate or the TIBO Rate (including because the Relevant Screen Rate is not available  or published on a current basis), for the applicable Agreed Currency and such Interest Period or  (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable  Daily Simple RFR or RFR for the applicable Agreed Currency; or  (ii) if the Administrative Agent is advised by the Required Lenders that  (A) prior to the commencement of any Interest Period for a Eurocurrency Borrowing, the Adjusted  LIBO Rate, the LIBO Rate, the Adjusted EURIBO Rate, the EURIBO Rate, the Adjusted TIBO  Rate or the TIBO Rate for the applicable Agreed Currency and such Interest Period will not  adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included  in such Borrowing for the applicable Agreed Currency and such Interest Period or (B) at any time,  





 






  67  the applicable Daily Simple RFR or RFR for the applicable Agreed Currency will not adequately  and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such  Borrowing for the applicable Agreed Currency;  then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone,  telecopy or electronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies  the Company and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any  Interest Election Request that requests the conversion of any Borrowing to, or continuation of any  Borrowing as, a Eurocurrency Borrowing shall be ineffective, (ii) if any Borrowing Request requests a  Eurocurrency Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing and (iii) if any  Borrowing Request requests a Eurocurrency Borrowing or an RFR Borrowing for the relevant rate above  in a Foreign Currency, then such request shall be ineffective; provided that if the circumstances giving rise  to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted.   Furthermore, if any Eurocurrency Loan or RFR Loan in any Agreed Currency is outstanding on the date of  the Company’s receipt of the notice from the Administrative Agent referred to in this Section 2.14(a) with  respect to a Relevant Rate applicable to such Eurocurrency Loan or RFR Loan, then until the Administrative  Agent notifies the Company and the Lenders that the circumstances giving rise to such notice no longer  exist, (1) if such Eurocurrency Loan is denominated in Dollars, then on the last day of the Interest Period  applicable to such Eurocurrency Loan (or the next succeeding Business Day if such day is not a Business  Day), such Eurocurrency Loan shall be converted by the Administrative Agent to, and shall constitute, an  ABR Loan denominated in Dollars on such day, (2) if such Eurocurrency Loan is denominated in any  Agreed Currency other than Dollars, then such Eurocurrency Loan shall, on the last day of the Interest  Period applicable to such Eurocurrency Loan (or the next succeeding Business Day if such day is not a  Business Day) bear interest at the Central Bank Rate for the applicable Agreed Currency plus the Applicable  Rate; provided that, if the Administrative Agent determines (which determination shall be conclusive and  binding absent manifest error) that the Central Bank Rate for the applicable Agreed Currency cannot be  determined, any outstanding affected Eurocurrency Loans denominated in any Agreed Currency other than  Dollars shall, at the applicable Borrower’s election prior to such day: (A) be prepaid by such Borrower on  such day or (B) solely for the purpose of calculating the interest rate applicable to such Eurocurrency Loan,  such Eurocurrency Loan denominated in any Agreed Currency other than Dollars shall be deemed to be a  Eurocurrency Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to  Eurocurrency Loans denominated in Dollars at such time or (3) if such RFR Loan is denominated in any  Agreed Currency other than Dollars, then such RFR Loan shall bear interest at the Central Bank Rate for  the applicable Agreed Currency plus the Applicable Rate; provided that, if the Administrative Agent  determines (which determination shall be conclusive and binding absent manifest error) that the Central  Bank Rate for the applicable Agreed Currency cannot be determined, any outstanding affected RFR Loans  denominated in any Agreed Currency, at the applicable Borrower’s election, shall either (x) be converted  into ABR Loans denominated in Dollars (in an amount equal to the Dollar Amount of such Foreign  Currency) immediately or (y) be prepaid in full immediately.  (b) Notwithstanding anything to the contrary herein or in any other Loan Document,  if a Benchmark Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as  applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in  respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined  in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” with respect to Dollars  for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all  purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent  Benchmark settings without any amendment to, or further action or consent of any other party to, this  Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance  with clause (3) of the definition of “Benchmark Replacement” with respect to any Agreed Currency for  such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all  





 






  68  purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00  p.m., New York City time, on the fifth (5th) Business Day after the date notice of such Benchmark  Replacement is provided to the Lenders without any amendment to, or further action or consent of any other  party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received,  by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the  Required Lenders.  (c) Notwithstanding anything to the contrary herein or in any other Loan Document  and subject to the proviso below in this paragraph, with respect to a Loan denominated in Dollars, if a Term  SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference  Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement  will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect  of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further  action or consent of any other party to, this Agreement or any other Loan Document; provided that, this  clause (c) shall not be effective unless the Administrative Agent has delivered to the Lenders and the  Company a Term SOFR Notice.  For the avoidance of doubt, the Administrative Agent shall not be required  to deliver a Term SOFR Notice after the occurrence of a Term SOFR Transition Event and may do so in its  sole discretion.  (d) In connection with the implementation of a Benchmark Replacement, the  Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time  to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any  amendments implementing such Benchmark Replacement Conforming Changes will become effective  without any further action or consent of any other party to this Agreement or any other Loan Document.  (e) The Administrative Agent will promptly notify the Company and the Lenders of  (i) any occurrence of a Benchmark Transition Event, an Early Opt-in Election or an Other Benchmark Rate  Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of  any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a  Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark  Unavailability Period.  Any determination, decision or election that may be made by the Administrative  Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14, including any  determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event,  circumstance or date and any decision to take or refrain from taking any action or any selection, will be  conclusive and binding absent manifest error and may be made in its or their sole discretion and without  consent from any other party to this Agreement or any other Loan Document, except, in each case, as  expressly required pursuant to this Section 2.14.  (f) Notwithstanding anything to the contrary herein or in any other Loan Document,  at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then- current Benchmark is a term rate (including Term SOFR, the LIBO Rate, the EURIBO Rate or the TIBO  Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service  that publishes such rate from time to time as selected by the Administrative Agent in its reasonable  discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public  statement or publication of information announcing that any tenor for such Benchmark is or will be no  longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any  Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if  a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or  information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer,  subject to an announcement that it is or will no longer be representative for a Benchmark (including a  





 






  69  Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period”  for all Benchmark settings at or after such time to reinstate such previously removed tenor.  (g) Upon the Company’s receipt of notice of the commencement of a Benchmark  Unavailability Period, the applicable Borrower may revoke any request for a Eurocurrency Borrowing or  RFR Borrowing of, conversion to or continuation of Eurocurrency Loans to be made, converted or  continued during any Benchmark Unavailability Period and, failing that, either (x) the applicable Borrower  will be deemed to have converted any request for a Eurocurrency Borrowing denominated in Dollars into  a request for a Borrowing of or conversion to ABR Loans or (y) any request for a Eurocurrency Borrowing  or an RFR Borrowing denominated in a Foreign Currency shall be ineffective.  During any Benchmark  Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor,  the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as  applicable, will not be used in any determination of ABR.  Furthermore, if any Eurocurrency Loan or RFR  Loan in any Agreed Currency is outstanding on the date of the Company’s receipt of notice of the  commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such  Eurocurrency Loan or RFR Loan, then until such time as a Benchmark Replacement for such Agreed  Currency is implemented pursuant to this Section 2.14, (i) if such Eurocurrency Loan is denominated in  Dollars, then on the last day of the Interest Period applicable to such Eurocurrency Loan (or the next  succeeding Business Day if such day is not a Business Day), such Eurocurrency Loan shall be converted  by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day,  (ii) if such Eurocurrency Loan is denominated in any Agreed Currency other than Dollars, then such  Eurocurrency Loan shall, on the last day of the Interest Period applicable to such Eurocurrency Loan (or  the next succeeding Business Day if such day is not a Business Day) bear interest at the Central Bank Rate  for the applicable Agreed Currency plus the Applicable Rate; provided that, if the Administrative Agent  determines (which determination shall be conclusive and binding absent manifest error) that the Central  Bank Rate for the applicable Agreed Currency cannot be determined, any outstanding affected  Eurocurrency Loans denominated in any Agreed Currency other than Dollars shall, at the applicable  Borrower’s election prior to such day: (A) be prepaid by the applicable Borrower on such day or (B) solely  for the purpose of calculating the interest rate applicable to such Eurocurrency Loan, such Eurocurrency  Loan denominated in any Agreed Currency other than Dollars shall be deemed to be a Eurocurrency Loan  denominated in Dollars and shall accrue interest at the same interest rate applicable to Eurocurrency Loans  denominated in Dollars at such time or (iii) if such RFR Loan is denominated in any Agreed Currency other  than Dollars, then such RFR Loan shall bear interest at the Central Bank Rate for the applicable Agreed  Currency plus the Applicable Rate; provided that, if the Administrative Agent determines (which  determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the  applicable Agreed Currency cannot be determined, any outstanding affected RFR Loans denominated in  any Agreed Currency, at the applicable Borrower’s election, shall either (A) be converted into ABR Loans  denominated in Dollars (in an amount equal to the Dollar Amount of such Foreign Currency) immediately  or (B) be prepaid in full immediately.  SECTION 2.15. Increased Costs.  (a) If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar  requirement (including any compulsory loan requirement, insurance charge or other assessment)  against assets of, deposits with or for the account of, or credit extended by, any Lender (except any  such reserve requirement reflected in the Adjusted LIBO Rate, the Adjusted EURIBO Rate or the  Adjusted TIBO Rate, as applicable) or the Issuing Bank;  (ii) impose on any Lender or the Issuing Bank or the London or other applicable  offshore interbank market for the applicable Agreed Currency any other condition, cost or expense  





 






  70  affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation  therein; or  (iii) subject any Recipient to any Taxes on its loans, loan principal, letters of credit,  commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable  thereto (other than the imposition or change in rate of any (A) Indemnified Taxes, (B) Excluded  Taxes or (C) Other Taxes);  and the result of any of the foregoing shall be to increase the cost to such Person of making, continuing,  converting or maintaining any Loan or of maintaining its obligation to make any such Loan or to increase  the cost to such Person of participating in, issuing or maintaining any Letter of Credit or to reduce the  amount of any sum received or receivable by such Person hereunder, whether of principal, interest or  otherwise, then the applicable Borrower will pay to such Person such additional amount or amounts as will  compensate such Person for such additional costs incurred or reduction suffered as reasonably determined  by such Person (which determination shall be made in good faith (and not on an arbitrary or capricious  basis) and generally consistent with similarly situation customers of such Person and in each case as  determined by such Person) under agreements having provisions similar to this Section 2.15, after  consideration of such factors as such Person then reasonably determines to be relevant.  (b) If any Lender or the Issuing Bank reasonably determines that any Change in Law  regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on  such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding  company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of  Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a  level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding  company could have achieved with respect thereto but for such Change in Law (taking into consideration  such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding  company with respect to capital adequacy and liquidity), then from time to time the applicable Borrower  will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will  compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for  any such reduction suffered as reasonably determined by such Lender or the Issuing Bank (which  determination shall be made in good faith (and not on an arbitrary or capricious basis) and generally  consistent with similarly situated customers of such Lender or the Issuing Bank, as applicable and in each  case as determined by such Lender or the Issuing Bank under agreements having provisions similar to this  Section 2.15, after consideration of such factors as such Lender or the Issuing Bank, as applicable, then  reasonably determines to be relevant).  (c) A certificate of a Lender or the Issuing Bank describing the Change in Law in  reasonable detail and setting forth the amount or amounts necessary to compensate such Lender or the  Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section  shall be delivered to the Company and shall be conclusive absent manifest error.  The Company shall pay,  or cause the other Borrowers to pay, such Lender or the Issuing Bank, as the case may be, the amount shown  as due on any such certificate within 30 days after receipt thereof.  (d) Failure or delay on the part of any Lender or the Issuing Bank to demand  compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s  right to demand such compensation; provided that the Company shall not be required to compensate a  Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more  than 180 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the  Company of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or  the Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law  





 






  71  giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above  shall be extended to include the period of retroactive effect thereof.  SECTION 2.16. Break Funding Payments.    (a) With respect to Loans that are not RFR Loans, in the event of (i) the payment of  any principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto  (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.11),  (ii) the conversion of any Eurocurrency Loan other than on the last day of the Interest Period applicable  thereto, (iii) the failure to borrow or prepay any Eurocurrency Loan on the date specified in any notice  delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(a) and is  revoked in accordance therewith), (iv) the assignment of any Eurocurrency Loan other than on the last day  of the Interest Period applicable thereto as a result of a request by the Company pursuant to Section 2.19 or  9.02(e) or (v) the failure by any Borrower to make any payment of any Loan or drawing under any Letter  of Credit (or interest due thereof) denominated in a Foreign Currency on its scheduled due date or any  payment thereof in a different currency, then, in any such event, the Borrowers shall compensate each  Lender for the loss, cost and expense attributable to such event; provided that each such Lender shall use  reasonable efforts to mitigate such loss, cost and expense in accordance with Section 2.19.  Such loss, cost  or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess,  if any, of (x) the amount of interest which would have accrued on the principal amount of such Loan had  such event not occurred, at the Adjusted LIBO Rate, the Adjusted EURIBO Rate or the Adjusted TIBO  Rate, as applicable, that would have been applicable to such Loan, for the period from the date of such  event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert  or continue, for the period that would have been the Interest Period for such Loan), over (y) the amount of  interest which would accrue on such principal amount for such period at the interest rate which such Lender  would bid were it to bid, at the commencement of such period, for deposits in the relevant Agreed Currency  of a comparable amount and period from other banks in the applicable offshore market for such Agreement  Currency, whether or not such Eurocurrency Loan was in fact so funded.  A certificate of any Lender setting  forth any amount or amounts that such Lender is entitled to receive pursuant to this Section, including, if  requested by the Company, a description in reasonable detail of the basis for such compensation and a  calculation of such amount or amounts (but excluding any confidential or proprietary information of such  Lender), shall be delivered to the applicable Borrower and shall be conclusive absent manifest error.  The  applicable Borrower shall pay such Lender the amount shown as due on any such certificate within thirty  (30) days after receipt thereof.  (b) With respect to RFR Loans, in the event of (i) the payment of any principal of any  RFR Loan other than on the Interest Payment Date applicable thereto (including as a result of an Event of  Default or as a result of any prepayment pursuant to Section 2.11), (ii)  the failure to borrow, convert,  continue or prepay any RFR Loan on the date specified in any notice delivered pursuant hereto (regardless  of whether such notice may be revoked under Section 2.11(a) and is revoked in accordance therewith),  (iii) the assignment of any RFR Loan other than on the Interest Payment Date applicable thereto as a result  of a request by the Company pursuant to Section 2.19 or 9.02(e) or (iv) the failure by any Borrower to make  any payment of any Loan or drawing under any Letter of Credit (or interest due thereof) denominated in a  Foreign Currency on its scheduled due date or any payment thereof in a different currency, then, in any  such event, the Borrowers shall compensate each Lender for the loss and any reasonable cost and expense  attributable to such event.  A certificate of any Lender setting forth any amount or amounts that such Lender  is entitled to receive pursuant to this Section, including, if requested by the Company, a description in  reasonable detail of the basis for such compensation and a calculation of such amount or amounts (but  excluding any confidential or proprietary information of such Lender), shall be delivered to the applicable  Borrower and shall be conclusive absent manifest error.  The applicable Borrower shall pay such Lender  the amount shown as due on any such certificate within thirty (30) days after receipt thereof.  





 






  72  SECTION 2.17. Taxes.  (a) Any and all payments by or on account of any obligation  of any Loan Party hereunder or any other Loan Document shall be made free and clear of and without  deduction for any Indemnified Taxes or Other Taxes; provided that if any Loan Party or Administrative  Agent shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the  sum payable shall be increased as necessary so that after making all required deductions (including  deductions applicable to additional sums payable under this Section) the Administrative Agent or Lender  (as the case may be) receives an amount equal to the sum it would have received had no such deductions  been made, (ii) such Loan Party shall make such deductions and (iii) such Loan Party shall pay the full  amount deducted to the relevant Governmental Authority in accordance with applicable law.  (b) In addition, each Loan Party shall pay, or at the option of the Administrative Agent  timely reimburse it for the payment of, any Other Taxes related to such Loan Party and imposed on or  incurred by the Administrative Agent or a Lender to the relevant Governmental Authority in accordance  with applicable law.  (c) The relevant Loan Party shall indemnify the Administrative Agent or each Lender,  within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other  Taxes paid or payable by the Administrative Agent or such Lender, as the case may be, on or with respect  to any payment by or on account of any obligation of such Loan Party hereunder or any other Loan  Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts  payable under this Section) and any penalties, interest and reasonable expenses arising therefrom or with  respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed  or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or  liability delivered to the Company by a Lender or by the Administrative Agent on its own behalf or on  behalf of a Lender, shall be conclusive absent manifest error.  (d) As soon as practicable after any payment of Taxes by any Loan Party to a  Governmental Authority pursuant to this Section 2.17, such Loan Party shall deliver to the Administrative  Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such  payment, a copy of the return reporting such payment or other evidence of such payment reasonably  satisfactory to the Administrative Agent.  (e) (i) Any Lender that is entitled to an exemption from or reduction of withholding  Tax with respect to payments made under this Agreement or any other Loan Document shall deliver to the  Borrowers (with a copy to the Administrative Agent) at the time or times reasonably requested by a  Borrower, such properly completed and executed documentation reasonably requested by such Borrower  or the Administrative Agent as will permit such payments to be made without withholding or at a reduced  rate.  In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall  deliver such other documentation prescribed by applicable law or reasonably requested by a Borrower or  the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether  or not such Lender is subject to backup withholding or information reporting requirements.   Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and  submission of such documentation (other than such documentation set forth in Sections 2.17(e)(ii)(A),  2.17(ii)(B) and 2.17(h) below) shall not be required if in the Lender’s reasonable judgment such completion,  execution or submission would subject such Lender to any material unreimbursed cost or expense or would  materially prejudice the legal or commercial position of such Lender.  (ii)  Without limiting the generality of the foregoing, in the event that the Company  is the Borrower:  





 






  73  (A) any Lender that is a United States person (as defined in Section  7701(a)(30) of the Code) shall deliver to such Borrower and the Administrative Agent on  or prior to the date on which such Lender becomes a Lender under this Agreement (and  from time to time thereafter upon the reasonable request of such Borrower or the  Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is  exempt from U.S. federal backup withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver  to such Borrower and the Administrative Agent (in such number of copies as shall be  requested by the recipient) on or prior to the date on which such Foreign Lender becomes  a Lender under this Agreement (and from time to time thereafter upon the reasonable  request of such Borrower or the Administrative Agent), whichever of the following is  applicable:  (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to  which the United States is a party (x) with respect to payments of interest under  any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W- 8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S.  federal withholding Tax pursuant to the “interest” article of such tax treaty and (y)  with respect to any other applicable payments under any Loan Document, IRS  Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption  from, or reduction of, U.S. federal withholding Tax pursuant to the “business  profits” or “other income” article of such tax treaty;  (2) in the case of a Foreign Lender claiming that its extension of credit will  generate U.S. effectively connected income, executed copies of IRS Form W- 8ECI;  (3) in the case of a Foreign Lender claiming the benefits of the exemption for  portfolio interest under Section 881(c) of the Code, (x) a certificate substantially  in the form of Exhibit I-1 to the effect that such Foreign Lender is not a “bank”  within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent  shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the  Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of  the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS  Form W-8BEN or IRS Form W-8BEN-E, as applicable; or  (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of  IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or  IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate  substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other  certification documents from each beneficial owner, as applicable; provided that if  the Foreign Lender is a partnership and one or more direct or indirect partners of  such Foreign Lender are claiming the portfolio interest exemption, such Foreign  Lender may provide a U.S. Tax Compliance Certificate substantially in the form  of Exhibit I-4 on behalf of each such direct and indirect partner; and  (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver  to such Borrower and the Administrative Agent (in such number of copies as shall be  requested by the recipient) on or prior to the date on which such Foreign Lender becomes  a Lender under this Agreement (and from time to time thereafter upon the reasonable  





 






  74  request of such Borrower or the Administrative Agent), executed copies of any other form  prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S.  federal withholding Tax, duly completed, together with such supplementary  documentation as may be prescribed by applicable law to permit such Borrower or the  Administrative Agent to determine the withholding or deduction required to be made.  Each Lender agrees that if any form or certification it previously delivered expires  or becomes obsolete or inaccurate in any respect, it shall update such form or certification or  promptly notify the Company and the Administrative Agent in writing of its legal inability to do  so.  (f) If the Administrative Agent or a Lender determines, in its reasonable discretion,  that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by a Loan  Party or with respect to which a Loan Party  has paid additional amounts pursuant to this Section 2.17, it  shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or  additional amounts paid, by such Loan Party under this Section 2.17 with respect to the Taxes or Other  Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such  Lender and without interest (other than any interest paid by the relevant Governmental Authority with  respect to such refund); provided, that such Loan Party, upon the request of the Administrative Agent or  such Lender, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other  charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in  the event the Administrative Agent or such Lender is required to repay such refund to such Governmental  Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the  Administrative Agent or Lender be required to pay any amount to a Loan Party pursuant to this paragraph  (f) the payment of which would place the Administrative Agent or Lender in a less favorable net after-Tax  position than the Administrative Agent or Lender would have been in if the Tax subject to indemnification  and giving rise to such refund had not been deducted, withheld or otherwise imposed and the  indemnification payments or additional amounts with respect to such Tax had never been paid.  This Section  shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns  (or any other information relating to its Taxes which it deems confidential) to any Loan Party or any other  Person.  (g) Each Lender shall severally indemnify the Administrative Agent for any Taxes  (but, in the case of any Indemnified Taxes or Other Taxes, only to the extent that any Loan Party has not  already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes and without  limiting the obligation of each Loan Party to do so) attributable to such Lender that are paid or payable by  the Administrative Agent in connection with this Agreement (including any Taxes attributable to such  Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant  Register) and any reasonable expenses arising therefrom or with respect thereto, whether or not such  amounts were correctly or legally imposed or asserted by the relevant Governmental Authority.  The  indemnity under this Section 2.17(g) shall be paid within ten (10) days after the Administrative Agent  delivers to the applicable Lender a certificate stating the amount so paid or payable by the Administrative  Agent.  Such certificate shall be conclusive of the amount so paid or payable absent manifest error.  Each  Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time  owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the  Lender from any other source against any amount due to the Administrative Agent under this paragraph  (g).  (h) If a payment made to a Lender under this Agreement would be subject to  U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable  reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code,  





 






  75  as applicable), such Lender shall deliver to the Company and the Administrative Agent, at the time or times  prescribed by law and at such time or times reasonably requested by the Company or the Administrative  Agent, such documentation prescribed by applicable law (including as prescribed by  Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the  Company or the Administrative Agent as may be necessary for each Borrower and the Administrative Agent  to comply with its obligations under FATCA, to determine that such Lender has or has not complied with  such Lender’s obligations under FATCA or, as necessary, to determine the amount to deduct and withhold  from such payment.  Solely for purposes of this Section 2.17(h), “FATCA” shall include any amendments  made to FATCA after the date of this Agreement.  (i) For purposes of determining withholding Taxes imposed under FATCA, the  Borrowers and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative  Agent to treat) this Agreement and the Loans as not qualifying as “grandfathered obligations” within the  meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).  (j) For the purposes of this Section 2.17, references to “Lender” includes the Issuing  Bank.  SECTION 2.18. Payments Generally; Allocation of Proceeds; Pro Rata Treatment;  Sharing of Set-offs.    (a) (i) Except with respect to principal of and interest on Loans denominated in a  Foreign Currency, each Borrower shall make each payment required to be made by it hereunder (whether  of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under  Section 2.15, 2.16 or 2.17, or otherwise) in Dollars prior to 12:00 noon, Chicago time, on the date when  due or the date fixed for any prepayment hereunder and (ii) all payments with respect to principal and  interest on Loans denominated in a Foreign Currency shall be made in such Foreign Currency not later than  the Applicable Time specified by the Administrative Agent on the dates specified herein, in each case, in  immediately available funds, without setoff, recoupment or counterclaim (but without prejudice to any  Borrowers’ rights with respect to any Defaulting Lender hereunder).  Any amounts received after such time  on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the  next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be  made (i) in the same currency in which the applicable Credit Event was made (or where such currency has  been converted to euro, in euro) and (ii) to the Administrative Agent at its offices at 10 South Dearborn  Street, Chicago, Illinois 60603 or, in the case of a Credit Event denominated in a Foreign Currency, the  Administrative Agent’s Eurocurrency Payment Office for such currency, except payments to be made  directly to the Issuing Bank or the Swingline Lender as expressly provided herein and except that payments  pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto.  The  Administrative Agent shall distribute any such payments denominated in the same currency received by it  for the account of any other Person to the appropriate recipient promptly following receipt thereof.  If any  payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended  to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon  shall be payable for the period of such extension.  Notwithstanding the foregoing provisions of this Section,  if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations  are imposed in the country which issues such currency with the result that the type of currency in which the  Credit Event was made (the “Original Currency”) no longer exists or any Borrower is not able to make  payment to the Administrative Agent for the account of the Lenders in such Original Currency, then all  payments to be made by such Borrower hereunder in such currency shall instead be made when due in  Dollars in an amount equal to the Dollar Amount (as of the date of repayment) of such payment due, it  being the intention of the parties hereto that the Borrowers take all risks of the imposition of any such  currency control or exchange regulations.  





 






  76  (b) All payments and any proceeds of Collateral received by the Administrative Agent  (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the  Loan Documents (which shall be applied as specified by the Company) or (B) a mandatory prepayment  (which shall be applied in accordance with Section 2.11) or (ii) after an Event of Default has occurred and  is continuing and the Administrative Agent so elects or the Required Lenders so direct, shall be applied  ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the  Administrative Agent and the Issuing Bank from any Borrower, second, to pay any fees or expense  reimbursements then due to the Lenders from any Borrower, third, to pay interest then due and payable on  the Loans ratably, fourth, to prepay principal on the Loans and unreimbursed LC Disbursements and any  other amounts owing with respect to Banking Services Obligations and Swap Obligations ratably, fifth, to  pay an amount to the Administrative Agent equal to one hundred five percent (105%) of the aggregate  undrawn face amount of all outstanding Letters of Credit and the aggregate amount of any unpaid LC  Disbursements, to be held as cash collateral for such Obligations, and sixth, to the payment of any other  Secured Obligation due to the Administrative Agent or any Lender by any Borrower.  Notwithstanding the  foregoing, amounts received from any Loan Party shall not be applied to any Excluded Swap Obligation of  such Loan Party.  Notwithstanding anything to the contrary contained in this Agreement, unless so directed  by the Company, or unless an Event of Default is in existence, none of the Administrative Agent or any  Lender shall apply any payment which it receives to any Eurocurrency Loan of a Class, except (a) on the  expiration date of the Interest Period applicable to any such Eurocurrency Loan or (b) in the event, and only  to the extent, that there are no outstanding ABR Loans of the same Class and, in any event, the Borrowers  shall pay the break funding payment required in accordance with Section 2.16.  The Administrative Agent  and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all  such proceeds and payments to any portion of the Secured Obligations.  Notwithstanding the foregoing,  (x) any such applicable proceeds from property of the Domestic Loan Parties shall be applied to the Secured  Obligations (other than the Foreign Secured Obligations and the Secured Obligations that constitute a  Guarantee of the Foreign Secured Obligations) before being applied to any of the Foreign Secured  Obligations and (y) the application of any such applicable proceeds from Collateral securing solely the  Foreign Secured Obligations shall only be made in respect of the Foreign Secured Obligations in the same  order set forth above.  (c) At the election of the Administrative Agent, all payments of principal, interest, LC  Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement  for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may  be paid from the proceeds of Borrowings made hereunder whether made following a request by a Borrower  (or the Company on behalf of a Borrower) pursuant to Section 2.03 or a deemed request as provided in this  Section or may be deducted from any deposit account of such Borrower maintained with the Administrative  Agent.  Each Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing  for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any  other amount due under the Loan Documents and agrees that all such amounts charged shall constitute  Loans (including Swingline Loans) and that all such Borrowings shall be deemed to have been requested  pursuant to Section 2.03 or 2.05, as applicable, and (ii) if an Event of Default exists or the Company agrees  in writing, the Administrative Agent to charge any deposit account of the relevant Borrower maintained  with the Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder  or any other amount due under the Loan Documents.  (d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,  obtain payment in respect of any principal of or interest on any of its Loans or participations in LC  Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of  the aggregate amount of its Loans and participations in LC Disbursements and Swingline Loans and accrued  interest thereon than the proportion received by any other Lender, then the Lender receiving such greater  proportion shall purchase (for cash at face value) participations in the Loans and participations in LC  





 






  77  Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such  payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of  and accrued interest on their respective Loans and participations in LC Disbursements and Swingline  Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving  rise thereto is recovered,  such participations shall be rescinded and the purchase price restored to the extent  of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply  to any payment made by any Borrower pursuant to and in accordance with the express terms of this  Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a  participation in any of its Loans or participations in LC Disbursements and Swingline Loans to any assignee  or participant, other than to the Company or any Subsidiary or Affiliate thereof (as to which the provisions  of this paragraph shall apply).  Each Borrower consents to the foregoing and agrees, to the extent it may  effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing  arrangements may exercise against such Borrower rights of set-off and counterclaim with respect to such  participation as fully as if such Lender were a direct creditor of such Borrower under this Agreement in the  amount of such participation.  (e) Unless the Administrative Agent shall have received, prior to any date on which  any payment is due to the Administrative Agent for the account of the relevant Lenders or the Issuing Bank  pursuant to the terms of this Agreement or any other Loan Document (including any date that is fixed for  prepayments by notice from the applicable Borrower to the Administrative Agent pursuant to Section  2.11(b)), notice from the applicable Borrower that such Borrower will not make such payment or  prepayment, the Administrative Agent may assume that such Borrower has made such payment on such  date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders  or the Issuing Bank, as the case may be, the amount due.  In such event, if such Borrower has not in fact  made such payment, then each of the relevant Lenders or the Issuing Bank, as the case may be, severally  agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender  or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed  to it to but excluding the date of payment to the Administrative Agent, at the applicable Overnight Rate.  (f) If any Lender shall fail to make any payment required to be made by it pursuant to  Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in its  discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by  the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent,  the Swingline Lender or the Issuing Bank to satisfy such Lender’s obligations to it under such Section until  all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account  over which the Administrative Agent shall have exclusive control as cash collateral for, and application to,  any future funding obligations of such Lender under any such Section; in the case of each of clauses (i) and  (ii) above, in any order as determined by the Administrative Agent in its discretion.  SECTION 2.19. Mitigation Obligations; Replacement of Lenders.  (a) If any Lender  (or its Affiliate) requests compensation under Section 2.15, or if any Borrower is required to pay any  Indemnified Taxes or additional amounts to any Lender (or its Affiliate) or any Governmental Authority  for the account of any Lender (or its Affiliate) pursuant to Section 2.17, then such Lender (or its Affiliate)  shall use reasonable efforts to designate a different lending office for funding or booking its Loans  hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates,  if, in the judgment of such Lender (or its Affiliate), such designation or assignment (i) would eliminate or  reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii) would  not subject such Lender (or its Affiliate) to any unreimbursed cost or expense and would not otherwise be  disadvantageous to such Lender (or its Affiliate).  The Company hereby agrees to pay all reasonable costs  and expenses incurred by any Lender (or its Affiliate) in connection with any such designation or  assignment.  





 






  78  (b) If (i) any Lender (or its Affiliate) requests compensation under Section 2.15,  (ii) any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender (or its  Affiliate) or any Governmental Authority for the account of any Lender (or its Affiliate) pursuant to  Section 2.17 or (iii) any Lender becomes a Defaulting Lender, then the Company may, at its sole expense  and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and  delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all  its interests, rights (other than its existing rights to payments pursuant to Section 2.15 or 2.17) and  obligations under this Agreement and the other Loan Documents to an assignee that shall assume such  obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that  (i) the Company shall have received the prior written consent of the Administrative Agent (and if a  Revolving Commitment is being assigned, the Issuing Bank and the Swingline Lender), which consent shall  not unreasonably be withheld, (ii) subject to the Borrowers’ rights with respect to Defaulting Lenders  hereunder, such Lender shall have received payment of an amount equal to the outstanding principal of its  Loans and funded participations in LC Disbursements and Swingline Loans, accrued interest thereon,  accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such  outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts) and  (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or  payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such  compensation or payments.  A Lender shall not be required to make any such assignment and delegation if,  prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company  to require such  assignment and delegation cease to apply.  Each party hereto agrees that (i) an assignment  required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed  by the Company, the Administrative Agent and the assignee (or, to the extent applicable, an agreement  incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform  as to which the Administrative Agent and such parties are participants), and (ii) the Lender required to make  such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed  to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any  such assignment, the other parties to such assignment agree to execute and deliver such documents  necessary to evidence such assignment as reasonably requested by the applicable Lender, provided that any  such documents shall be without recourse to or warranty by the parties thereto.  SECTION 2.20. Expansion Option.  The Company may from time to time after the  earlier of (x) the Omega Closing Date and (y) the Term Loan Commitment Expiration Date, elect to increase  the Revolving Commitments (such increase an “Incremental Revolving Commitment”) or enter into one or  more tranches of term loans (each an “Incremental Term Loan”; Incremental Term Loans and Incremental  Revolving Commitments are collectively referred to herein as the “Incremental Facilities”), in each case in  minimum increments of $25,000,000 so long as, after giving effect thereto, the aggregate amount of such  increases and all such Incremental Term Loans does not exceed the sum of (A) the greater of (x)  $150,000,000 and (y) 100% of the Consolidated EBITDA of the Company as of the end of each Fiscal  Quarter of the Company for the then most-recently ended four Fiscal Quarters, plus (B) the amount of any  voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving  Commitments (to the extent not funded with the proceeds of Long Term Debt) (it being understood that  any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans  hereunder or any reduction of Revolving Commitments in connection with a substantially concurrent  issuance of new revolving commitments hereunder shall not increase the calculation of the amount under  this clause (B)) plus (C) an unlimited additional amount such that, in the case of this clause (C) only, after  giving effect (including pro forma effect) thereto (assuming full drawing under such Incremental Facilities),  the First Lien Leverage Ratio calculated on a Pro Forma Basis as of the end of each Fiscal Quarter of the  Company for the then most-recently ended four Fiscal Quarters shall not exceed 3.00 to 1.00 (other than to  the extent such Incremental Facilities are incurred pursuant to this clause (C) concurrently with the  incurrence of Incremental Facilities in reliance on clause (A) above, in which case the First Lien Leverage  





 






  79  Ratio shall be permitted to exceed 3.00 to 1.00 to the extent of such Incremental Facilities incurred in  reliance on such clause (A)); provided that, for the avoidance of doubt, Incremental Facilities may be  incurred pursuant to this clause (C) prior to utilization of the amount set forth in clause (A) above.  The  Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender  so agreeing to an increase in its Revolving Commitment, or to participate in such Incremental Term Loans,  an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such  new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible  Institution may be an Augmenting Lender), which agree to increase their existing Revolving Commitments,  or to participate in such Incremental Term Loans, or provide new Revolving Commitments, as the case may  be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Company and the  Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed) and  (ii) (x) in the case of an Increasing Lender, the Company and such Increasing Lender execute an agreement  substantially in the form of Exhibit C hereto, and (y) in the case of an Augmenting Lender, the Company  and such Augmenting Lender execute an agreement substantially in the form of Exhibit D hereto.  No  consent of any Lender (other than the Lenders participating in the increase or any Incremental Term Loan)  shall be required for any increase in Revolving Commitments or Incremental Term Loan pursuant to this  Section 2.20. No Lender will be required to participate in any Incremental Facility. Increases and new  Revolving Commitments and Incremental Term Loans created pursuant to this Section 2.20 shall become  effective on the date agreed by the Company, the Administrative Agent and the relevant Increasing Lenders  or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof.  Notwithstanding  the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender)  or tranche of Incremental Term Loans shall become effective under this paragraph unless (other than with  respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate a  Limited Conditionality Acquisition as to which the immediately following condition (i) below shall not  apply), (i) on the proposed date of the effectiveness of such increase or Incremental Term Loans, (A) the  conditions set forth in paragraphs (a) and (b) of Section 4.03 shall be satisfied or waived by the Required  Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and  executed by a Financial Officer of the Company and (B) the Company shall be in compliance (on a  Pro Forma Basis) with the covenants contained in Section 6.11 and (ii) the Administrative Agent shall have  received (x) documents and opinions consistent with those delivered on the Effective Date as to the  organizational power and authority of the Borrowers to borrow hereunder after giving effect to such  increase or Incremental Term Loan and (y) reaffirmations from the Loan Parties; provided that no  Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless  (1) as of the date of execution of the Limited Conditionality Acquisition Agreement by the parties thereto,  no Default or Event of Default shall have occurred and be continuing or would result from entry into the  Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental  Term Loans, no Event of Default under Section 7.01(a), (b), (h), (i) or (j) is in existence immediately before  or after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions  and any substantially concurrent use of proceeds thereof, (3) the representations and warranties of each  Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, in the case  of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of  the date of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto,  (4) as of the date of the borrowing of such Incremental Term Loans, customary “Sungard” representations  and warranties (with such representations and warranties to be reasonably determined by the Lenders  providing such Incremental Term Loans) shall be true and correct in all material respects (or, in the case of  any representation or warranty qualified by materiality or Material Adverse Effect, in all respects)  immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans and (5) as  of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto,  the Company shall be in compliance (on a Pro Forma Basis) with the covenants contained in Section 6.11.   On the effective date of any increase in the Revolving Commitments or any Incremental Term Loans being  made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the  





 






  80  Administrative Agent such amounts in immediately available funds as the Administrative Agent shall  determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to  such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion  of the outstanding Revolving Loans of all the Lenders to equal its Applicable Percentage of such  outstanding Revolving Loans, and (ii) except in the case of any Incremental Term Loans, the Borrowers  shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any  increase in the Revolving Commitments (with such reborrowing to consist of the Types of Revolving  Loans, with related Interest Periods if applicable, specified in a notice delivered by the applicable Borrower,  or the Company on behalf of the applicable Borrower, in accordance with the requirements of Section 2.03).   The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be  accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency  Loan, shall be subject to indemnification by the Borrowers pursuant to the provisions of Section 2.16 if the  deemed payment occurs other than on the last day of the related Interest Periods.  The Incremental Term  Loans (a) shall rank pari passu or junior in right of payment and/or security, as applicable, with the  Revolving Loans and the initial Term Loans, (b) shall not be guaranteed by any Person which is not a Loan  Party or secured by any assets other than the Collateral, (c) shall not mature earlier than the Term Loan  Maturity Date (without giving effect to any prepayment thereof), (d) shall not have a shorter the Weighted  Average Life to Maturity than the remaining Weighted Average Life to Maturity of any then-existing  tranche of Term Loans (but, in case of clauses (c) and (d) above, may have amortization and customary  prepayment requirements prior to such date) and (e) shall otherwise be treated substantially the same as  (and in any event no more favorably than) the Revolving Loans and the initial Term Loans; provided that  (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Term  Loan Maturity Date may provide for material additional or different financial or other covenants applicable  only during periods after the Term Loan Maturity Date, (ii) the Incremental Term Loans may be priced  (including as to any fees, original issue discount and interest) differently than the Revolving Loans and the  initial Term Loans, as determined by the Company and the applicable Increasing Lenders and/or  Augmenting Lenders at such time and (iii) to the extent the terms and conditions applicable to any tranche  of Incremental Term Loans are not consistent with the existing Revolving Commitments or Term Loans  (except to the extent permitted by clauses (c) or (d) above or clauses (i) or (ii) to this proviso), they shall be  reasonably satisfactory to the Administrative Agent.  Incremental Term Loans may be made hereunder  pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement  and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender  participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the  Administrative Agent.  The proceeds of the Incremental Facilities shall be used for general corporate  purposes of the Company and its subsidiaries, including permitted acquisitions, investments and other uses  not prohibited by the Loan Documents. The Incremental Term Loan Amendment may, without the consent  of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be  necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of  this Section 2.20.  Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a  commitment on the part of any Lender to increase its Revolving Commitment hereunder, or provide  Incremental Term Loans, at any time.  SECTION 2.21. Market Disruption.  Notwithstanding the satisfaction of all conditions  referred to in Article II and Article IV with respect to any Credit Event to be effected in any Foreign  Currency, if (i) there shall occur on or prior to the date of such Credit Event any change in national or  international financial, political or economic conditions or currency exchange rates or exchange controls  which would in the reasonable opinion of the Administrative Agent, the Issuing Bank (if such Credit Event  is a Letter of Credit) or the Required Lenders make it impracticable for the Eurocurrency Borrowings or  Letters of Credit comprising such Credit Event to be denominated in the Agreed Currency specified by the  applicable Borrower or (ii) the Dollar Amount of such currency is not readily calculable, then the  Administrative Agent shall forthwith give notice thereof to such Borrower, the Lenders and, if such Credit  





 






  81  Event is a Letter of Credit, the Issuing Bank, and such Credit Events shall not be denominated in such  Agreed Currency but shall, except as otherwise set forth in Section 2.07, be made on the date of such Credit  Event in Dollars, (a) if such Credit Event is a Borrowing, in an aggregate principal amount equal to the  Dollar Amount of the aggregate principal amount specified in the related Credit Event Request or Interest  Election Request, as the case may be, as ABR Loans, unless such Borrower notifies the Administrative  Agent at least one Business Day before such date that (i) it elects not to borrow on such date or (ii) it elects  to borrow on such date in a different Agreed Currency, as the case may be, in which the denomination of  such Loans would in the reasonable opinion of the Administrative Agent and the Required Lenders be  practicable and in an aggregate principal amount equal to the Dollar Amount of the aggregate principal  amount specified in the related Credit Event Request or Interest Election Request, as the case may be or  (b) if such Credit Event is a Letter of Credit, in a face amount equal to the Dollar Amount of the face amount  specified in the related request or application for such Letter of Credit, unless such Borrower notifies the  Administrative Agent at least one (1) Business Day before such date that (i) it elects not to request the  issuance of such Letter of Credit on such date or (ii) it elects to have such Letter of Credit issued on such  date in a different Agreed Currency, as the case may be, in which the denomination of such Letter of Credit  would in the reasonable opinion of the Issuing Bank, the Administrative Agent and the Required Lenders  be practicable and in face amount equal to the Dollar Amount of the face amount specified in the related  request or application for such Letter of Credit, as the case may be.  SECTION 2.22. Judgment Currency.  If for the purposes of obtaining judgment in any  court it is necessary to convert a sum due from any Borrower hereunder in the currency expressed to be  payable herein (the “specified currency”) into another currency, the parties hereto agree, to the fullest extent  that they may effectively do so, that the rate of exchange used shall be that at which in accordance with  normal banking procedures the Administrative Agent could purchase the specified currency with such other  currency at the Administrative Agent’s main New York City office on the Business Day preceding that on  which final, non appealable judgment is given.  The obligations of each Borrower in respect of any sum  due to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in a currency  other than the specified currency, be discharged only to the extent that on the Business Day following  receipt by such Lender or the Administrative Agent (as the case may be) of any sum adjudged to be so due  in such other currency such Lender or the Administrative Agent (as the case may be) may in accordance  with normal, reasonable banking procedures purchase the specified currency with such other currency.  If  the amount of the specified currency so purchased is less than the sum originally due to such Lender or the  Administrative Agent, as the case may be, in the specified currency, each Borrower agrees, to the fullest  extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to  indemnify such Lender or the Administrative Agent, as the case may be, against such loss, and if the amount  of the specified currency so purchased exceeds (a) the sum originally due to any Lender or the  Administrative Agent, as the case may be, in the specified currency and (b) any amounts shared with other  Lenders as a result of allocations of such excess as a disproportionate payment to such Lender under  Section 2.18, such Lender or the Administrative Agent, as the case may be, agrees to remit such excess to  such Borrower.  SECTION 2.23. Designation of Foreign Subsidiary Borrowers.  The Company may at  any time and from time to time designate any Eligible Foreign Subsidiary as a Foreign Subsidiary Borrower  by delivery to the Administrative Agent of a Borrowing Subsidiary Agreement executed by such Subsidiary  and the Company and the satisfaction of the other conditions precedent set forth in Section 4.04, and upon  such delivery and satisfaction such Subsidiary shall for all purposes of this Agreement be a Foreign  Subsidiary Borrower and a party to this Agreement.  Each Foreign Subsidiary Borrower shall remain a  Foreign Subsidiary Borrower until the Company shall have executed and delivered to the Administrative  Agent a Borrowing Subsidiary Termination with respect to such Subsidiary, whereupon such Subsidiary  shall cease to be a Foreign Subsidiary Borrower and a party to this Agreement.  Notwithstanding the  preceding sentence, no Borrowing Subsidiary Termination will become effective as to any Foreign  





 






  82  Subsidiary Borrower at a time when any principal of or interest on any Loan to such Borrower shall be  outstanding hereunder, provided that such Borrowing Subsidiary Termination shall be effective to terminate  the right of such Foreign Subsidiary Borrower to make further Borrowings under this Agreement.  As soon  as practicable upon receipt of a Borrowing Subsidiary Agreement, the Administrative Agent shall furnish  a copy thereof to each Lender.  SECTION 2.24. Defaulting Lenders.  Notwithstanding any provision of this  Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall  apply for so long as such Lender is a Defaulting Lender:  (a) fees shall cease to accrue on the unfunded portion of the Commitment of such  Defaulting Lender pursuant to Section 2.12(a);  (b) any payment of principal, interest, fees or other amounts received by the  Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at  maturity, pursuant to Section 2.18(b) or otherwise) or received by the Administrative Agent from a  Defaulting Lender pursuant to Section 9.08 shall be applied at such time or times as may be determined by  the Administrative Agent as follows:  first, to the payment of any amounts owing by such Defaulting Lender  to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing  by such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder; third, to cash collateralize  the Issuing Bank’s LC Exposure with respect to such Defaulting Lender in accordance with this Section;  fourth, as the Company may request (so long as no Default or Event of Default exists), to the funding of  any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by  this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative  Agent and the Company, to be held in a deposit account and released pro rata in order to (x) satisfy such  Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and  (y) cash collateralize the Issuing Bank’s future LC Exposure with respect to such Defaulting Lender with  respect to future Letters of Credit issued under this Agreement, in accordance with this Section; sixth, to  the payment of any amounts owing to the Lenders, the Issuing Bank or Swingline Lender as a result of any  judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or Swingline  Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations  under this Agreement or under any other Loan Document; seventh, so long as no Default or Event of Default  exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of  competent jurisdiction obtained by the Company against such Defaulting Lender as a result of such  Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document;  and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;  provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements  in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans  were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.03  were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements  owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans  of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and  unfunded participations in the Borrowers’ obligations corresponding to such Defaulting Lender’s LC  Exposure and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments  without giving effect to clause (d) below.  Any payments, prepayments or other amounts paid or payable  to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post  cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender,  and each Lender irrevocably consents hereto;  (c) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall  not be included in determining whether the Required Lenders have taken or may take any action hereunder  





 






  83  (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided,  further, that any amendment, waiver or other modification requiring the consent of all Lenders or all  Lenders directly affected thereby shall not, except as otherwise provided in Section 9.02, require the consent  of such Defaulting Lender in accordance with the terms hereof;  (d) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes  a Defaulting Lender then:  (i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting  Lender (other than, in the case of a Defaulting Lender that is a Swingline Lender, the portion of  such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated  among the non-Defaulting Lenders in accordance with their respective Applicable Percentages  but  only to the extent that such reallocation does not, as to any non-Defaulting Lender, cause such non- Defaulting Lender’s Revolving Credit Exposure to exceed its Revolving Commitment;  (ii) if the reallocation described in clause (i) above cannot, or can only partially, be  effected, the Company shall within three (3) Business Days following notice by the Administrative  Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit  of the Issuing Bank only the Borrowers’ obligations corresponding to such Defaulting Lender’s LC  Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance  with the procedures set forth in Section 2.06(j) for so long as such LC Exposure is outstanding;  (iii) if the Company cash collateralizes any portion of such Defaulting Lender’s LC  Exposure pursuant to clause (ii) above, the Borrowers shall not be required to pay any fees to such  Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC  Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;  (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to  clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall  be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and  (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated  nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or  remedies of the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under  Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the  Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized;  and  (e) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be  required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase  any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then  outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting  Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.24(d), and  Swingline Exposure related to any such newly made Swingline Loan or LC Exposure related to any newly  issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent  with Section 2.24(d)(i) (and such Defaulting Lender shall not participate therein).  If (i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur  following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the  Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or  more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be  





 






  84  required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase  any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered  into arrangements with the Company or such Lender, satisfactory to the Swingline Lender or the Issuing  Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.  In the event that the Administrative Agent, the Company, the Swingline Lender and the  Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such  Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be  readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall  purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative  Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its  Applicable Percentage.  SECTION 2.25. Extension of Maturity Date.  (a) Requests for Extension.  The Company may, by notice to the Administrative Agent  (who shall promptly notify the applicable Class of Lenders) at any time (each such date, an “Extension  Date”), request that each applicable Lender extend such Lender’s Revolving Credit Maturity Date and/or  Term Loan Maturity Date, as the case may be, to the date that is one year after the applicable Maturity Date  then in effect for such Lender (the “Existing Maturity Date”); provided that any such request shall be made  no later than 30 days prior to the applicable Existing Maturity Date. For the avoidance of doubt, the  Borrower may request extensions of any Class without requesting an extension of the other Class.  (b) Lender Elections to Extend.  Each Lender of the applicable Class, acting in its sole  and individual discretion, shall, by notice to the Administrative Agent given not later than the date that is  15 days after the date on which the Administrative Agent received the Company’s extension request (the  “Lender Notice Date”), advise the Administrative Agent whether or not such Lender agrees to such  extension (each Lender of the applicable Class that determines to so extend its Existing Maturity Date, an  “Extending Lender”).  Each Lender of the applicable Class that determines not to so extend its Existing  Maturity Date (a “Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly  after such determination (but in any event no later than the Lender Notice Date), and any Lender of the  applicable Class that does not so advise the Administrative Agent on or before the Lender Notice Date shall  be deemed to be a Non-Extending Lender.  The election of any Lender to agree to such extension shall not  obligate any other Lender to so agree, and it is understood and agreed that no Lender shall have any  obligation whatsoever to agree to any request made by the Company for extension of the Existing Maturity  Date.  (c) Notification by Administrative Agent.  The Administrative Agent shall notify the  Company of each applicable Lender’s determination under this Section no later than the date that is 15 days  prior to the applicable Extension Date (or, if such date is not a Business Day, on the next preceding Business  Day).  (d) Additional Commitment Lenders.  The Company shall have the right, but shall not  be obligated, on or before the applicable Maturity Date for any Non-Extending Lender to replace such Non- Extending Lender with, and add as “Revolving Lender” (in the case of an extension of the Revolving Credit  Maturity Date) or as a “Term Lender” (in the case of any extension of the Term Loan Maturity Date) under  this Agreement in place thereof, one or more financial institutions that are not Ineligible Institutions (each,  an “Additional Commitment Lender”) approved by the Administrative Agent and, in the case of an  Additional Commitment Lender assuming a new or additional Revolving Commitment, the Issuing Lenders  and the Swingline Lenders in accordance with the procedures provided in Section 2.19(b), each of which  applicable Additional Commitment Lenders shall have entered into an Assignment and Assumption (in  





 






  85  accordance with and subject to the restrictions contained in Section 9.04, with the Company or replacement  Lender obligated to pay any applicable processing or recordation fee) with such Non-Extending Lender,  pursuant to which such Additional Commitment Lenders shall, effective on or before the applicable  Maturity Date for such Non-Extending Lender, assume a Revolving Commitment and/or Term Loans, as  the case may be (and, if any such Additional Commitment Lender is already a Lender of the applicable  Class, its Revolving Commitment and/or its outstanding Term Loans, as applicable, so assumed shall be in  addition to such Lender’s Revolving Commitment and its outstanding Term Loans, as applicable, hereunder  on such date).  Prior to any Non-Extending Lender being replaced by one or more Additional Commitment  Lenders pursuant hereto, such Non-Extending Lender may elect, in its sole discretion, by giving irrevocable  notice thereof to the Administrative Agent and the Company (which notice shall set forth such Lender’s  new Maturity Date), to become an Extending Lender.  The Administrative Agent may effect such  amendments to this Agreement as are reasonably necessary to provide for any such extensions with the  consent of the Company but without the consent of any other Lenders.  (e) Minimum Extension Requirement.  If (and only if) the total of the applicable  Revolving Commitments or the applicable outstanding Term Loans of the Lenders of the applicable Class  that have agreed to extend their applicable Maturity Date and the new or increased Revolving Commitments  or the applicable newly assumed outstanding Term Loans of any Additional Commitment Lenders is more  than 50% of the aggregate amount of the Revolving Commitments or the outstanding Term Loans, as  applicable, in effect immediately prior to the applicable Extension Date, then, effective as of the applicable  Extension Date, the applicable Maturity Date of each Extending Lender and of each Additional  Commitment Lender of the applicable Class shall be extended to the date that is one year after the Existing  Maturity Date (except that, if such date is not a Business Day, such Maturity Date as so extended shall be  the next preceding Business Day) and each Additional Commitment Lender of such Class shall thereupon  become a “Revolving Lender” and/or a “Term Lender”, as the case may be, for all purposes of this  Agreement and shall be bound by the provisions of this Agreement as a Revolving Lender and/or a Term  Lender, as the case may be, hereunder and shall have the obligations of a Revolving Lender and/or a Term  Lender, as the case may be, hereunder.  (f) Conditions to Effectiveness of Extension.  Notwithstanding the foregoing, (x) no  more than two (2) extensions of the applicable Maturity Date shall be permitted hereunder and (y) any  extension of any applicable Maturity Date pursuant to this Section 2.25 shall not be effective with respect  to any Extending Lender unless:  (i) no Default or Event of Default shall have occurred and be continuing on  the applicable Extension Date and immediately after giving effect thereto;  (ii) the representations and warranties of the Borrowers set forth in this  Agreement are true and correct in all material respects (or, in the case of any representation or  warranty qualified by materiality or Material Adverse Effect, in all respects) on and as of the  applicable Extension Date and after giving effect thereto, as though made on and as of such date (it  being understood and agreed that any representation or warranty which by its terms is made as of  a specified date shall be required to be true and correct in all material respects (or, in the case of  any representation or warranty qualified by materiality or Material Adverse Effect, in all respects)  only as of such specified date); and  (iii) the Administrative Agent shall have received a certificate from the  Company signed by a Financial Officer of the Company (A) certifying the accuracy of the  foregoing clauses (i) and (ii) and (B) certifying and attaching the resolutions adopted by each  Borrower approving or consenting to such extension.  





 






  86  (g) Maturity Date for Non-Extending Lenders.  On the applicable Maturity Date of  each Non-Extending Lender with respect to any Class, (i) to the extent of the Revolving Commitments of  each Non-Extending Lender of the relevant Class not assigned to the Additional Commitment Lenders of  such Class, the Revolving Commitment of each Non-Extending Lender of such Class shall automatically  terminate and (ii) the relevant Borrower shall repay such Non-Extending Lender of such Class in  accordance with Section 2.10 (and shall pay to such Non-Extending Lender all of the other Obligations due  and owing to it under this Agreement, including any additional amounts required pursuant to Section 2.16)  and the Administrative Agent shall administer any necessary reallocation of the applicable Credit Exposures  with respect to Revolving Commitments to the extent necessary to keep outstanding Revolving Loans of  the applicable Class ratable with any revised Applicable Percentages of the respective Lenders of such  Class effective as of such date (without regard to any minimum borrowing, pro rata borrowing and/or pro  rata payment requirements contained elsewhere in this Agreement).  (h) Conflicting Provisions.  This Section shall supersede any provisions in Section  2.18 or Section 9.02 to the contrary.  ARTICLE III    Representations and Warranties  Each Borrower represents and warrants to the Lenders that:  SECTION 3.01. Organization; Powers; Subsidiaries.  Each Loan Party is duly  organized, validly existing and in good standing (to the extent such concept is applicable in the relevant  jurisdiction) under the laws of the jurisdiction of its organization, has all requisite power and authority to  carry on its business as now conducted and, except where the failure to do so, individually or in the  aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do  business in, and is in good standing (to the extent such concept is applicable) in, every jurisdiction where  such qualification is required.  As of the date hereof, Schedule 3.01 hereto identifies each Subsidiary, if  such Subsidiary is a Material Subsidiary, the jurisdiction of its incorporation or organization, as the case  may be, and the percentage of issued and outstanding shares of each class of its capital stock or other equity  interests owned by the Company and the other Subsidiaries.  All of the outstanding shares of capital stock  and other equity interests of each Loan Party (other than the Company) are validly issued and outstanding  and fully paid and nonassessable (to the extent such concept is applicable) and all such shares and other  equity interests indicated on Schedule 3.01 as owned by the Company or another Loan Party are owned,  beneficially and of record, by the Company or any other Loan Party free and clear of all Liens, other than  Liens created under the Loan Documents or Permitted Liens arising by operation of law.  There are no  outstanding commitments or other obligations of any Loan Party to issue, and no options, warrants or other  rights of any Person to acquire, any shares of any class of capital stock or other equity interests of any Loan  Party, except pursuant to compensation plans of the Loan Parties.  Each Foreign Subsidiary Borrower  incorporated in an EU jurisdiction represents and warrants to the Lenders that its centre of main interest (as  that term is used in Article 3(1) of the Insolvency Regulation) is in its jurisdiction of incorporation and it  has no establishment (as that term is used in Article 2(10) of the Insolvency Regulation) in any other  jurisdiction.  SECTION 3.02. Authorization; Enforceability.  The Transactions are within each Loan  Party’s organizational powers and have been duly authorized by all necessary organizational and, if  required, shareholder action.  The Loan Documents to which each Loan Party is a party have been duly  executed and delivered by such Loan Party and constitute a legal, valid and binding obligation of such Loan  Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,  





 






  87  reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general  principles of equity, regardless of whether considered in a proceeding in equity or at law.  SECTION 3.03. Governmental Approvals; No Conflicts.  The Transactions (a) do not  require any consent or approval of, registration or filing with, or any other action by, any Governmental  Authority, except such as have been obtained or made and are in full force and effect and except for filings  necessary to perfect Liens created pursuant to the Loan Documents, (b) will not violate (x) any applicable  law or regulation or any order of any Governmental Authority, except as could not reasonably be expected  to result in a Material Adverse Effect or (y) the charter, by-laws or other organizational documents of any  Loan Party, (c) will not violate or result in a default under any indenture or material agreement or other  instrument binding upon any Loan Party or its assets, or give rise to a right thereunder to require any  payment to be made by any Loan Party, and (d) will not result in the creation or imposition of any Lien  (other than a Permitted Lien) on any asset of any Loan Party, except Liens created pursuant to the Loan  Documents.  SECTION 3.04. Financial Condition; No Material Adverse Change.  (a) The Company  has heretofore furnished to the Lenders its consolidated balance sheet and statements of income,  stockholders equity and cash flows (i) as of and for the Fiscal Year ended December 31, 2020 reported on  by Ernst & Young LLP, independent public accountants, and (ii) as of and for the Fiscal Quarter and the  portion of the Fiscal Year ended April 2, 2021, July 2, 2021 and October 1, 2021, in each case certified by  its chief financial officer.  Such financial statements present fairly, in all material respects, the financial  position and results of operations and cash flows of the Company and its consolidated Subsidiaries as of  such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the  absence of footnotes in the case of the statements referred to in clause (ii) above.  (b) Since December 31, 2020, there has been no material adverse change in the  business, assets, property or financial condition of the Company and its Subsidiaries, taken as a whole.  SECTION 3.05. Properties.  (a) Each Loan Party has good title to, or valid leasehold  interests in, all its real and personal property material to its business, except for minor defects in title that  do not interfere with its ability to conduct its business as currently conducted or to utilize such properties  for their intended purposes.    (b) Each Loan Party owns, or is licensed to use, all trademarks, tradenames,  copyrights, patents and other intellectual property material to its business, and the use thereof by the Loan  Parties does not infringe upon the rights of any other Person, except for any such infringements that,  individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  SECTION 3.06. Litigation and Environmental Matters.  (a) There are no actions, suits,  proceedings or investigations by or before any arbitrator or Governmental Authority pending against or, to  the knowledge of any Borrower, threatened against or affecting any Loan Party (i) that, if adversely  determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse  Effect or (ii) that question the validity of this Agreement or the Transactions.  There are no labor  controversies pending against or, to the knowledge of the Company, threatened against or affecting any  Loan Party (i) which could reasonably be expected, individually or in the aggregate, to result in a Material  Adverse Effect, or (ii) that question the validity of this Agreement or the Transactions.  (b) Except with respect to any matters that, individually or in the aggregate, could not  reasonably be expected to result in a Material Adverse Effect, none of the Loan Parties (i) has failed to  comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other  approval required under any Environmental Law, (ii) has become subject to any Environmental Liability,  





 






  88  (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis  for any Environmental Liability.  SECTION 3.07. Compliance with Laws.  Each Loan Party is in compliance with all  laws, regulations and orders of any Governmental Authority applicable to it or its property and all  indentures, agreements and other instruments binding upon it or its property, except where the failure to do  so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.   Furthermore, the Dutch Borrower does not qualify as a credit institution subject to the Dutch Financial  Supervision Act, or otherwise falls within an applicable exemption from such act.  SECTION 3.08. Investment Company Status.  None of the Loan Parties is an  “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.  SECTION 3.09. Taxes.  Each Loan Party has timely filed or caused to be filed all Tax  returns and related reports required to have been filed and has paid or caused to be paid all Taxes required  to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings  and for which such Loan Party has set aside on its books adequate reserves or (b) to the extent that the  failure to do so could not reasonably be expected to result in a Material Adverse Effect.  SECTION 3.10. ERISA.  No ERISA Event has occurred or is reasonably expected to  occur that, when taken together with all other such ERISA Events for which liability is reasonably expected  to occur, could reasonably be expected to result in a Material Adverse Effect.    SECTION 3.11. Disclosure.  Neither the Information Memorandum nor any of the  other reports, financial statements, certificates or other written factual information (other than projections,  forward-looking statements and information of a general economic nature) furnished by or on behalf of the  Company or any other Loan Party to the Administrative Agent or any Lender in connection with the  negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information  so furnished), when taken as a whole, contains any material misstatement of fact or omits to state any  material fact necessary to make the statements therein, when taken as a whole, in the light of the  circumstances under which they were made, not materially misleading; provided that, with respect to  projected financial information, the Borrowers represent only that such information was prepared in good  faith based upon assumptions believed to be reasonable at the time.  As of the Effective Date, to the best  knowledge of the Company, the information included in the Beneficial Ownership Certification, if any,  provided on or prior to the Effective Date to any Lender in connection with this Agreement is true and  correct in all respects.  SECTION 3.12. Federal Reserve Regulations.  No part of the proceeds of any Loan  have been used or will be used, whether directly or indirectly, for any purpose that entails a violation of any  of the Regulations of the Board, including Regulations T, U and X.  No Borrower is engaged and no  Borrower will engage, principally or as one of its important activities, in the business of purchasing or  carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no  part of the proceeds of any Borrowing or Letter of Credit extension hereunder will be used to buy or carry  any Margin Stock.  Following the application of the proceeds of each Borrowing or drawing under each  Letter of Credit, not more than 25% of the value of the assets (either of the Company only or of the Company  and its Subsidiaries on a consolidated basis) will be Margin Stock.  SECTION 3.13. [Intentionally Omitted].  SECTION 3.14. No Default.  No Default or Event of Default has occurred and is  continuing.  





 






  89  SECTION 3.15. [Intentionally Omitted].  SECTION 3.16. Solvency.  (a) Immediately after the consummation of the Transactions to occur on the Effective  Date, the Company and its Subsidiaries, taken as a whole, are Solvent.  (b) The Company does not intend to, nor will it permit any of the other Loan Parties  to, and the Company does not believe that it or any of the other Loan Parties will, incur debts beyond its  ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received  by it or any such Loan Party and the timing of the amounts of cash to be payable on or in respect of its  Indebtedness or the Indebtedness of any such Loan Party.  (c) Immediately after the consummation of the Omega Closing Date Transactions,  with respect to the Company and its Subsidiaries on a consolidated basis, (i) the sum of the liabilities of the  Company and its Subsidiaries, taken as a whole, does not exceed the present fair saleable value of the assets  of the Company and its Subsidiaries, taken as a whole; (ii) the capital of the Company and its Subsidiaries,  taken as a whole, is not unreasonably small in relation to the business of the Company and its Subsidiaries,  taken as a whole, contemplated on the Omega Closing Date and (iii) the Company and its Subsidiaries,  taken as a whole, do not intend to incur, or believe that they will incur, debts including current obligations  beyond their ability to pay such debt as they mature in the ordinary course of business.  For the purposes  hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of  all of the facts and circumstances existing at such time, represents the amount that can reasonably be  expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet  the criteria for accrual under Statement of Financial Accounting Standard No. 5).  SECTION 3.17. Insurance.  Except as qualified below, the Company maintains, and  has caused each other Loan Party to maintain, with financially sound and reputable insurance companies,  insurance on all their real and personal property in such amounts, subject to such deductibles and self- insurance retentions and covering such properties and risks as are adequate and customarily maintained by  companies engaged in the same or similar businesses operating in the same or similar locations.  The  Company and the other Loan Parties are self-insured for general liability coverage.  SECTION 3.18. Security Interest in Collateral.  The provisions of this Agreement and  the other Loan Documents create legal and valid Liens on all the Collateral in favor of the Administrative  Agent, for the benefit of the Holders of Secured Obligations, and provided that the Administrative Agent  does what is required to continue the perfection of such Liens under the UCC or other applicable law, such  Liens constitute perfected and continuing Liens on the Collateral, securing the Secured Obligations,  enforceable against the applicable Loan Party and all third parties, and having priority over all other Liens  on the Collateral except in the case of (a) Permitted Liens, to the extent any such Permitted Liens would  have priority over the Liens in favor of the Administrative Agent pursuant to any applicable law or any  Intercreditor Agreements and (b) Liens perfected only by possession (including possession of any  certificate of title) to the extent the Administrative Agent has not obtained or does not maintain possession  of such Collateral.  SECTION 3.19. Anti-Corruption Laws and Sanctions.  The Company has in its  reasonable business judgment implemented and maintains in effect policies and procedures designed to  ensure compliance in all material respects by the Company, its Subsidiaries and their respective directors,  officers, employees and agents with Anti-Corruption Laws applicable to the Company and its Subsidiaries  and applicable Sanctions, and the Company, its Subsidiaries and their respective officers and directors and  to the knowledge of the Company its employees and agents, are in compliance with Anti-Corruption Laws  





 






  90  and applicable Sanctions in all material respects and, in the case of any Foreign Subsidiary Borrower, is not  knowingly engaged in any activity that could reasonably be expected to result in such Borrower being  designated as a Sanctioned Person.  None of (a) the Company, any Subsidiary, any of their respective  directors or officers or to the knowledge of the Company or such Subsidiary employees, or (b) to the  knowledge of the Company, any agent of the Company or any Subsidiary that will act in any capacity in  connection with or benefit from the credit facilities established hereby, is a Sanctioned Person.  No  Borrowing or Letter of Credit, use of proceeds or other Transactions will violate any Anti-Corruption Law  or applicable Sanctions.  The foregoing representations in this Section 3.19 will not apply to any party  hereto to which the Blocking Regulation applies, if and to the extent that such representations are or would  be unenforceable pursuant to, or would otherwise result in a breach and/or violation of, (i) any provision of  the Blocking Regulation (or any law or regulation implementing the Blocking Regulation in any member  state of the European Union) or (ii) any similar blocking or anti-boycott law in the United Kingdom.  SECTION 3.20. Affected Financial Institutions.  No Loan Party is an Affected  Financial Institution.  SECTION 3.21. Dutch Fiscal Unity.  Any fiscal unity (fiscale eenheid) for Dutch  corporate income tax (vennootschapsbelasting) or Dutch value added tax (omzetbelasting) purposes in  which a Loan Party is included consists of Loan Parties only, unless with the prior written consent of the  Administrative Agent.  SECTION 3.22. Residency for Tax Purposes.  Each Dutch Loan Party is resident for  tax purposes in the Netherlands only and does not have any permanent establishment or other taxable  presence outside the Netherlands, unless with the prior written consent of the Administrative Agent.  ARTICLE IV    Conditions  SECTION 4.01. Effective Date.  The obligations of the Lenders to make its initial  Loans (other than the Omega Closing Date Loans which shall only be subject to the conditions set forth in  Section 4.02 hereof) and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective  until the date on which each of the following conditions is satisfied (or waived in accordance with  Section 9.02):  (a) The Administrative Agent (or its counsel) shall have received (i) from each party  hereto a counterpart of this Agreement signed on behalf of such party (which, subject to Section  9.06, may include any Electronic Signatures transmitted by telecopy, emailed pdf, or any other  electronic means that reproduces an image of an actual executed signature page) that such party  has signed a counterpart of this Agreement and (ii) duly executed copies of the other Loan  Documents and such other legal opinions, certificates, documents, instruments and agreements as  the Administrative Agent shall reasonably request in connection with the Transactions, all in form  and substance satisfactory to the Administrative Agent and its counsel and as further described in  the list of closing documents attached as Exhibit E.  (b) The Administrative Agent shall have received a favorable written opinion  (addressed to the Administrative Agent and the Lenders, and dated the Effective Date) of Jones  Day with respect to the Loan Parties covering such matters relating to the Loan Parties, the Loan  Documents or the Transactions as the Administrative Agent shall reasonably request.  The  Company hereby requests such counsel to deliver such opinions.  





 






  91  (c) The Administrative Agent shall have received such documents and certificates as  the Administrative Agent or its counsel may reasonably request relating to the organization,  existence and good standing of the initial Loan Parties, the authorization of the Transactions and  any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all  in form and substance satisfactory to the Administrative Agent and its counsel and as further  described in the list of closing documents attached as Exhibit E.  (d) The Administrative Agent shall have received a certificate, dated the Effective  Date and signed by the President, a Vice President or a Financial Officer of the Company,  confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.03, as  further described in the list of closing documents attached as Exhibit E.  (e) The Administrative Agent shall have received all fees and other amounts due and  payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or  payment of all out-of-pocket expenses required to be reimbursed or paid by the Company  hereunder.  (f) The Administrative Agent shall have received from the Dutch Borrower a  confirmation by an authorized signatory of the Dutch Borrower that there is no works council with  jurisdiction over the transactions as envisaged by any Loan Document to which it is a party and  that there is no obligation for the Dutch Borrower to establish a works council pursuant to the  Works Council Act (Wet op de ondernemingsraden), or, if a works council is established, a  confirmation that all consultation obligations in respect of such works council have been complied  with and that positive unconditional advice has been obtained, attaching a copy of such advice and  a copy of the request for such advice.  (g) (i) The Administrative Agent shall have received, at least five (5) days prior to the  Effective Date, all documentation and other information regarding the Borrowers requested in  connection with applicable “know your customer” and anti-money laundering rules and  regulations, including the Patriot Act, to the extent requested in writing of the Company at least ten  (10) days prior to the Effective Date and (ii) to the extent any Borrower qualifies as a “legal entity  customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the Effective  Date, any Lender that has requested, in a written notice to the Company at least ten (10) days prior  to the Effective Date, a Beneficial Ownership Certification in relation to such Borrower shall have  received such Beneficial Ownership Certification (provided that, upon the execution and delivery  by such Lender of its signature page to this Agreement, the condition set forth in this clause (g)  shall be deemed to be satisfied).  The Administrative Agent shall notify the Company and the Lenders of the Effective Date,  and such notice shall evidence the satisfaction (or waiver in accordance of Section 9.02) of all of the  conditions in this Section 4.01 and shall be conclusive and binding.  SECTION 4.02. Omega Closing Date.  Subject to the Omega Closing Date Limited  Conditionality Provision, the obligations of the Lenders to make the Omega Closing Date Loans hereunder  shall be subject solely to the satisfaction (or waiver in accordance with Section 9.02) of only the following  conditions:  (a) The Effective Date shall have occurred or shall occur concurrently with  the Omega Closing Date.  





 






  92  (b) The Omega Acquisition shall, substantially concurrently with the initial  funding of the Omega Closing Date Loans, be consummated in all material respects pursuant to the  Omega Purchase Agreement, and no provision thereof shall have been amended or waived, and no  consent or request shall have been given under the Omega Purchase Agreement, without the prior  written consent of the Administrative Agent (not to be unreasonably withheld, delayed or  conditioned), in any way that is materially adverse to the Lenders in their capacities as such (it being  understood and agreed that any modification, amendment or express waiver or consents by the  Company that results in (a) an increase to the purchase price shall be deemed to not be materially  adverse to the Lenders so long as such increase in excess of 10% is funded solely with common  equity of the Company or cash on hand or borrowing capacity under this Agreement and (b) a  decrease to the purchase price shall be deemed to not be materially adverse to the Lenders if and so  long as such reduction is allocated to ratably reduce the Term Loan Commitments).  (c) The Specified Representations shall be true and correct in all material  respects (provided that any representation or warranty that is qualified by materiality, Material  Adverse Effect or similar language shall be true and correct in all respects) on and as of the Omega  Closing Date (or, if any such representation or warranty is expressly stated to have been made as of  a specific date, as of such date).  (d) The Omega Purchase Agreement Representations shall be true and correct  in all material respects (provided that any representation or warranty that is qualified by materiality,  Material Adverse Effect or similar language shall be true and correct in all respects).  (e) Omega shall have been, or substantially concurrently with the funding of  the Omega Closing Date Loans shall be, released and discharged from all liabilities and obligations  under the Indebtedness identified in Section 2.1(c)(i) of the Disclosure Schedules to the Omega  Purchase Agreement as in effect on September 19, 2021, and all Liens encumbering assets or shares  of Omega related to the Indebtedness identified in Section 2.1(c)(i) of the Disclosure Schedules to  the Omega Purchase Agreement as in effect on September 19, 2021 shall be released, discharged,  terminated and/or retransferred, as applicable (or arrangements for discharge, termination and/or  retransfer shall have been made).  (f) The Administrative Agent shall have received (i) a Solvency Certificate of  the chief financial officer of the Company substantially in the form of Exhibit B, (ii) a certificate  signed by a Responsible Officer of the Company certifying as to the conditions set forth in Sections  4.02(b), (c) and (d) above, and the Administrative Agent shall be entitled to rely conclusively on such  certificate with respect to the matters covered by such certificate, (iii) a certificate of the Secretary or  an Assistant Secretary of Omega certifying (A) that there have been no changes in the Certificate of  Incorporation of Omega, as attached thereto and as certified as of a recent date by the Secretary of  State of the State of Delaware, since the date of the certification thereof by such governmental entity,  (B) the By-Laws or other applicable organizational document, as attached thereto, of Omega as in  effect on the date of such certification, (C) resolutions of the Board of Directors or other governing  body of Omega authorizing the execution, delivery and performance of each Loan Document to  which it is a party, and (D) the names and true signatures of the incumbent officers of Omega  authorized to sign the Loan Documents to which it is a party, (iv) a good standing certificate for  Omega from the Secretary of State of the State of Delaware and (v) legal opinions in form and  substance reasonably satisfactory to the Administrative Agent and its counsel.  (g) The Administrative Agent shall have received: (i) audited consolidated  balance sheets and related statements of income, stockholders’ equity and cash flows of the Company  and its Subsidiaries, for the three most recently completed fiscal years ended at least 90 days before  





 






  93  the Omega Closing Date and (ii) unaudited consolidated balance sheets and related statements of  income, stockholders’ equity and cash flows of the Company and its Subsidiaries, for each subsequent  fiscal quarter ended at least 60 days before the Omega Closing Date; provided that filing of the  required financial statements on form 10-K and/or form 10-Q by the Company, as applicable will  satisfy the foregoing applicable requirements. The Administrative Agent acknowledges receipt of  (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and  cash flows of the Company and its Subsidiaries for the fiscal years ended December 31, 2018,  December 31, 2019 and December 31, 2020 and (ii) the unaudited consolidated balance sheets and  related statements of income, stockholders’ equity and cash flows of the Company and its  Subsidiaries, for the fiscal quarters ending March 31, 2021 and June 30, 2021.  (h) The Administrative Agent shall have received the Financial Statements (as  defined in the Omega Purchase Agreement).  (i) The Administrative Agent shall have received a pro forma consolidated  balance sheet and related pro forma consolidated statement of income of the Company as of and for  the twelve-month period ending on the last day of the most recently completed four-fiscal quarter  period ended at least 45 days prior to the Omega Closing Date (or, if the end of such most recently  completed fiscal period is the end of a fiscal year, ended at least 90 days before the Omega Closing  Date), prepared after giving effect to the Omega Closing Date Transactions (including the Omega  Acquisition) as if the Omega Closing Date Transactions had occurred as of such date (in the case of  such balance sheet) or at the beginning of such period (in the case of such statement of income),  which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as  amended, or include adjustments for purchase accounting.  (j) The Administrative Agent shall have received, at least three (3) Business  Days prior to the Omega Closing Date, all documentation and other information about the Borrowers  and Guarantors as shall have been reasonably requested in writing by the Administrative Agent at  least ten (10) Business Days prior to the Omega Closing Date and required by U.S. regulatory  authorities under applicable “know your customer” and anti-money laundering rules and regulations,  including the PATRIOT Act (including a Beneficial Ownership Certification from the Borrowers in  respect of the Beneficial Ownership Regulation).  (k) Subject to the Omega Closing Date Limited Conditionality Provision all actions  necessary to establish that the Administrative Agent will have a perfected first priority security  interest (subject to Liens permitted under the Loan Documents) in the Collateral shall have been  taken (including a collateral assignment of insurance with respect to any representation and  warranty insurance policy obtained in connection with the Omega Acquisition and joinder  documentation in respect of the Subsidiary Guaranty and the Domestic Security Agreement (in  each case in the forms contemplated thereby) pursuant to which Omega agrees to be bound by the  terms and provisions thereof).  (l) All fees and expenses due and payable to the Administrative Agent and  the Lenders and required to be paid on or prior to the Omega Closing Date shall have been paid or  shall have been authorized to be deducted from the proceeds of the initial fundings under the Omega  Closing Date Loans, so long as any such fees or expenses not expressly set forth in any letter  agreement have been invoiced not less than two (2) Business Days prior to the Omega Closing Date  (except as otherwise reasonably agreed by the Company).  The availability of the Omega Closing Date Loans shall be subject solely to the satisfaction  (or waiver in accordance of Section 9.02) of only the conditions set forth in this Section 4.02; it being  





 






  94  understood that there shall be no conditions (implied or otherwise) to the availability of the Omega Closing  Date Loans (including compliance with the terms of this Agreement or the other Loan Documents) other  than those that are expressly stated in this Section 4.02.    The Administrative Agent shall notify the Company and the Lenders of the Omega Closing  Date, and such notice shall evidence the satisfaction (or waiver in accordance of Section 9.02) of all of the  conditions in this Section 4.02 and shall be conclusive and binding.    SECTION 4.03. Each Credit Event.  Other than with respect to any funding of the  Omega Closing Date Loans on the Omega Closing Date (which shall only be subject to the conditions set  forth in Section 4.02 hereof), the obligation of each Lender to make a Loan on the occasion of any  Borrowing (excluding, for the avoidance of doubt, any conversion or continuation of a Loan), and of the  Issuing Bank to issue, amend or extend any Letter of Credit, is subject to the satisfaction of the following  conditions:  (a) The representations and warranties of the Borrowers set forth in this Agreement  shall be true and correct in all material respects (or, in the case of any representation or warranty  qualified by materiality or Material Adverse Effect, in all respects) on and as of the date of such  Borrowing or the date of issuance, amendment or extension of such Letter of Credit, as applicable  (it being understood and agreed that any representation or warranty which by its terms is made as  of a specified date shall be required to be true and correct in all material respects (or, in the case of  any representation or warranty qualified by materiality or Material Adverse Effect, in all respects)  only as of such specified date).  (b) At the time of and immediately after giving effect to such Borrowing (other than a  conversion or continuation of a Loan) or the issuance, amendment or extension of such Letter of  Credit, as applicable, no Default shall have occurred and be continuing.  Each Borrowing (excluding any conversion or continuation of an existing Loan, or any  Borrowing in respect of the Omega Closing Date Loans) and each issuance, amendment or extension of a  Letter of Credit shall be deemed to constitute a representation and warranty by the Borrowers on the date  thereof as to the matters specified in paragraphs (a) and (b) of this Section.  SECTION 4.04. Designation of a Foreign Subsidiary Borrower.  The designation of a  Foreign Subsidiary Borrower pursuant to Section 2.23 is subject to the condition precedent that the  Company or such proposed Foreign Subsidiary Borrower shall have furnished or caused to be furnished to  the Administrative Agent:  (a) Copies, certified by the Secretary or Assistant Secretary (or comparable officer) of  such Subsidiary, of its Board of Directors’ resolutions (and resolutions of other bodies, if any are  deemed necessary by counsel for the Administrative Agent) approving the Borrowing Subsidiary  Agreement and any other Loan Documents to which such Subsidiary is becoming a party and such  documents and certificates as the Administrative Agent or its counsel may reasonably request  relating to the organization, existence and good standing of such Subsidiary;  (b) An incumbency certificate, executed by the Secretary or Assistant Secretary (or  comparable officer) of such Subsidiary, which shall identify by name and title and bear the  signature of the officers of such Subsidiary authorized to request Borrowings hereunder and sign  the Borrowing Subsidiary Agreement and the other Loan Documents to which such Subsidiary is  becoming a party, upon which certificate the Administrative Agent and the Lenders shall be entitled  to rely until informed of any change in writing by the Company or such Subsidiary;  





 






  95  (c) Opinions of counsel to such Subsidiary, in form and substance reasonably  satisfactory to the Administrative Agent and its counsel, with respect to the laws of its jurisdiction  of organization and such other matters as are reasonably requested by counsel to the Administrative  Agent and addressed to the Administrative Agent and the Lenders;  (d) Any documentation and other information related to such Subsidiary reasonably  requested by the Administrative Agent or any Lender under applicable “know your customer” or  similar rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation;  and  (e) Any promissory notes requested by any Lender, and any other instruments and  documents reasonably requested by the Administrative Agent.  ARTICLE V    Affirmative Covenants  Until the Commitments have expired or been terminated and the principal of and interest  on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have  expired or terminated (or have been cash collateralized in accordance with Section 2.06), in each case,  without any pending draw, and all LC Disbursements shall have been reimbursed, the Company covenants  and agrees with the Lenders that:  SECTION 5.01. Financial Statements and Other Information.  The Company will  furnish to the Administrative Agent for distribution to each Lender:  (a) within ninety (90) days after the end of each Fiscal Year of the Company, its  audited consolidated balance sheet and related statements of operations, stockholders’ equity and  cash flows as of the end of and for such year, setting forth in each case in comparative form the  figures for the previous Fiscal Year, all reported on by Ernst & Young LLP or other independent  public accountants of recognized national standing (without a “going concern” or like qualification  or exception and without any qualification or exception as to the scope of such audit in any material  respect) to the effect that such consolidated financial statements present fairly in all material  respects the financial condition and results of operations of the Company and its consolidated  Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (except as may  be described as required by paragraph (c)(iii) of this Section);  (b) within forty-five (45) days after the end of each of the first three Fiscal Quarters  of each Fiscal Year of the Company, its consolidated balance sheet and related statements of  operations, stockholders’ equity and cash flows as of the end of and for such Fiscal Quarter and the  then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures  for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the  previous Fiscal Year, all certified by one of its Financial Officers as presenting fairly in all material  respects the financial condition and results of operations of the Company and its consolidated  Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to  normal year-end audit adjustments, the absence of footnotes and any matters described as required  by paragraph (c)(iii) of this Section;  (c) concurrently with any delivery (including any deemed delivery pursuant to the last  paragraph of this Section 5.01) of financial statements under clause (a) or (b) above, a certificate  of a Financial Officer of the Company (i) certifying as to whether a Default has occurred and is  





 






  96  continuing and, if a Default has occurred and is continuing, specifying the details thereof and any  action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed  calculations demonstrating compliance with Section 6.11 and (iii) stating whether any material  change in GAAP or in the application thereof has occurred since the date of the audited financial  statements referred to in Section 3.04 and, if any such material change has occurred, specifying the  effect of such change on the financial statements accompanying such certificate;  (d) concurrently with any delivery of financial statements under clause (a) above, a  certificate of the accounting firm that reported on such financial statements stating whether they  obtained knowledge during the course of their examination of such financial statements of any  Default (which certificate may be limited to the extent required by accounting rules or guidelines);  (e) as soon as available, but in any event no later than the end of, and no earlier than  thirty (30) days prior to the end of, each Fiscal Year of the Company, a copy of the plan and forecast  (including a projected consolidated and consolidating balance sheet, income statement and funds  flow statement) of the Company for the upcoming Fiscal Year in form reasonably satisfactory to  the Administrative Agent; and  (f) promptly following any request therefor, (x) such other information regarding the  operations, business affairs and financial condition of the Company or any Subsidiary, or  compliance with the terms of this Agreement, as the Administrative Agent or any Lender (acting  through the Administrative Agent) may reasonably request and (y) information and documentation  reasonably requested by the Administrative Agent or any Lender for purposes of compliance with  applicable “know your customer” and anti-money laundering rules and regulations, including the  Patriot Act and the Beneficial Ownership Regulation.  Documents required to be delivered pursuant to clauses (a) and (b) of this Section 5.01 may be delivered  electronically and if so delivered, shall be deemed to have been delivered on the date on which such  documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System;  provided that the Company shall notify (which may be by facsimile or electronic mail) the Administrative  Agent of the filing of any such documents and provide to the Administrative Agent by electronic mail  electronic versions (i.e., soft copies) of such documents.  Notwithstanding anything contained herein, in  every instance the Company shall be required to provide paper copies or PDF of the compliance certificates  required by clause (c) of this Section 5.01 to the Administrative Agent.  SECTION 5.02. Notices of Material Events.  The Company will furnish to the  Administrative Agent for distribution to each Lender prompt written notice of the following, promptly after  a Responsible Officer of the Company having actual knowledge thereof:  (a) the occurrence of any Default;  (b) the filing or commencement of any action, suit or proceeding by or before any  arbitrator or Governmental Authority against or affecting the Company or any Affiliate thereof  that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;  (c) the occurrence of any ERISA Event that, alone or together with any other ERISA  Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;  (d) any other development that results in, or could reasonably be expected to result in,  a Material Adverse Effect; and  





 






  97  (e) any change in the information provided in the Beneficial Ownership Certification  delivered to such Lender that would result in a change to the list of beneficial owners identified in  such certification.  Each notice delivered under this Section (i) shall contain a heading or a reference line that reads “Notice  under Section 5.02 of the Materion Corporation Fourth Amended and Restated Credit Agreement dated  October 27, 2021” and (ii) shall be accompanied by a statement of a Financial Officer or other executive  officer of the Company setting forth the details of the event or development requiring such notice and any  action taken or proposed to be taken with respect thereto.  SECTION 5.03. Existence; Conduct of Business.  The Company will, and will cause  each other Loan Party to, do or cause to be done (i) all things necessary to preserve, renew and keep in full  force and effect its legal existence and (ii) take, or cause to be taken, all reasonable actions to maintain the  rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations and intellectual  property rights material to the conduct of its business, and maintain all requisite authority to conduct its  business in each jurisdiction in which its business is conducted, except, in the case of this clause (ii), to the  extent failure to do so could not reasonably be expected to result in a Material Adverse Effect; provided  that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under  Section 6.03.  The Company will cause each Subsidiary incorporated in an EU jurisdiction to cause its  centre of main interest (as that term is used in Article 3(1) of the Insolvency Regulation) to be situated  solely in its jurisdiction of incorporation and not to have an establishment (as that term is used in Article  2(10) of the Insolvency Regulation) situated outside its jurisdiction of incorporation.  SECTION 5.04. Payment of Obligations.  The Company will, and will cause each other  Loan Party to, pay its obligations, including Tax liabilities, that, if not paid, could result in a Material  Adverse Effect before the same shall become delinquent or in default, except where (a) (i) the validity or  amount thereof is being contested in good faith by appropriate proceedings, and (ii) the Company or such  other Loan Party has set aside on its books adequate reserves with respect thereto in accordance with GAAP  or (b) the failure to make payment pending such contest could not reasonably be expected to result in a  Material Adverse Effect.  SECTION 5.05. Maintenance of Properties; Insurance.  The Company will, and will  cause each other Loan Party to, (a) keep and maintain all property material to the conduct of its business in  good working order and condition, ordinary wear and tear excepted, except to the extent any failure to do  so could not reasonably be expected to result in a Material Adverse Effect and (b) maintain with financially  sound and reputable carriers (i) insurance in such amounts (with no greater risk retention) and against such  risks (including loss or damage by fire and loss in transit; theft, burglary, pilferage, larceny, embezzlement,  and other criminal activities; and general liability) and such other hazards, as is customarily maintained by  companies engaged in the same or similar businesses operating in the same or similar locations and (ii) all  insurance required pursuant to the Collateral Documents; provided, that the Loan Parties shall be entitled  to self-insure for general liability in a manner consistent with historical practices.  The Company will  furnish to the Administrative Agent, upon request, information in reasonable detail as to the insurance so  maintained.  The Company shall deliver to the Administrative Agent endorsements (x) to all “All Risk”  physical damage insurance policies on all of the Loan Parties’ tangible personal property and assets naming  the Administrative Agent as lender loss payee, and (y) to all general liability policies naming the  Administrative Agent an additional insured.  In the event the Company or any other Loan Party at any time  or times hereafter shall fail to obtain or maintain any of the policies or insurance required herein or to pay  any premium in whole or in part relating thereto, then after notice to the Company and a reasonable time to  cure, the Administrative Agent, without waiving or releasing any obligations or resulting Default hereunder,  may at any time or times thereafter (but shall be under no obligation to do so) obtain and maintain such  policies of insurance and pay such premiums and take any other action with respect thereto which the  





 






  98  Administrative Agent deems reasonably advisable.  All sums so disbursed by the Administrative Agent  shall constitute part of the Obligations, payable as provided in this Agreement.  The Company will furnish  to the Administrative Agent and the Lenders prompt written notice of any casualty or other insured damage  to any material portion of the Collateral or the commencement of any action or proceeding for the taking  of any material portion of the Collateral or interest therein under power of eminent domain or by  condemnation or similar proceeding.  SECTION 5.06. Books and Records; Inspection Rights.  The Company will, and will  cause each other Loan Party to, keep proper books of record and account in which full, true and correct  entries in all material respects, are made of all dealings and transactions in relation to its business and  activities.  The Company will, and will cause each other Loan Party to, permit any representatives  designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its  properties, to examine and make extracts from its books and records, including environmental assessment  reports and Phase I or Phase II studies commissioned previously by the Company or any other Loan Party  (it being understood that the Administrative Agent and Lenders will not be entitled to conduct their own  environmental studies with respect to the Company or any of the Loan Parties), and to discuss its affairs,  finances and condition with its officers and, provided that the Company or such Loan Party is afforded the  opportunity to participate in such discussions, independent accountants, all at such reasonable times during  normal business hours and as often as reasonably requested; provided, that unless an Event of Default has  occurred and is continuing at the time such inspection commences, (a) the Company shall not be required  to pay expenses relating to more than one inspection by the Administrative Agent in any twelve consecutive  calendar months and (b) the Company shall not be required to pay the expenses of any Lender for any  inspection; provided, further, that when an Event of Default exists the Administrative Agent or any Lender  (or any of their respective representatives or independent contractors) may do any of the foregoing at the  reasonable expense of the Company at any time during normal business hours, without advance notice and  without limitation as to frequency.  During any inspection or examination, the Administrative Agent will  make reasonable efforts to cause all of its representatives to comply in all material respects with all health,  safety and security requirements of general application of the Company or applicable Loan Party, or  otherwise applicable to the relevant location.  The Company acknowledges that the Administrative Agent,  after exercising its rights of inspection, may prepare and distribute to the Lenders certain reports pertaining  to the Company and the other Loan Parties’ assets for internal use by the Administrative Agent and the  Lenders.  SECTION 5.07. Compliance with Laws and Material Contractual Obligations.  The  Company will, and will cause each other Loan Party to, (i) comply with all laws, rules, regulations and  orders of any Governmental Authority applicable to it or its property (including without limitation  Environmental Laws) and (ii) perform in all material respects its obligations under material agreements to  which it is a party, in each case except where the failure to do so, individually or in the aggregate, could  not reasonably be expected to result in a Material Adverse Effect.  The Company will in its reasonable  business judgment maintain in effect and enforce policies and procedures designed to ensure compliance  in all material respects by the Company, its Subsidiaries and their respective directors, officers, employees  and agents with Anti-Corruption Laws applicable to the Company and its Subsidiaries and applicable  Sanctions.  SECTION 5.08. Use of Proceeds.  The proceeds of the Loans will be used only to  finance the working capital needs, and for general corporate purposes, of the Company and its Subsidiaries;  provided that the proceeds of the Term Loans and the Omega Closing Date Revolving Loans on the Omega  Closing Date will be used first to finance the Omega Acquisition and to pay Omega Closing Date  Transaction Costs in respect of the Omega Acquisition.  No part of the proceeds of any Loan will be used,  whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board,  including Regulations T, U and X.  No Borrower will request any Borrowing or Letter of Credit, and no  





 






  99  Borrower shall use, and the Company shall procure that its Subsidiaries and its or their respective directors,  officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (i) in  furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or  anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of  funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person,  or in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions  or (iii) in any manner that would result in the violation of  any Sanctions applicable to any party hereto.   The foregoing clauses (ii) and (iii) of this Section 5.08 will not apply to any party hereto to which the  Blocking Regulation applies, if and to the extent that such representations are or would be unenforceable  pursuant to, or would otherwise result in a breach and/or violation of, (i) any provision of the Blocking  Regulation (or any law or regulation implementing the Blocking Regulation in any member state of the  European Union) or (ii) any similar blocking or anti-boycott law in the United Kingdom.  SECTION 5.09. Subsidiary Guarantors; Pledges; Additional Collateral; Further  Assurances.    (a) Additional Guarantors.  (i) Domestic Subsidiary Guarantors.  As promptly as possible but in any event within  thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) after any  Person becomes, or is designated by the Company as, or qualifies independently as a Domestic  Subsidiary Guarantor pursuant to the definitions of “Material Subsidiary” and “Domestic  Subsidiary Guarantor”, the Company shall provide the Administrative Agent with written notice  thereof and shall cause each such Subsidiary to deliver to the Administrative Agent a joinder to the  Subsidiary Guaranty and the Domestic Security Agreement (in each case in the form contemplated  thereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions thereof,  such Subsidiary Guaranty and the Domestic Security Agreement to be accompanied by appropriate  corporate resolutions, other corporate documentation and legal opinions in form and substance  reasonably satisfactory to the Administrative Agent and its counsel.  Upon execution and delivery  thereof, each such Subsidiary (i) shall automatically become a Domestic Subsidiary Guarantor  hereunder and thereupon shall have all of the rights, benefits, duties and obligations in such capacity  under the Loan Documents, (ii) shall guarantee repayment of all of the Secured Obligations and  (iii) shall grant Liens in respect of its assets (other than Excluded Assets) to the Administrative  Agent, for the benefit of the Holders of Secured Obligations, in order to secure repayment of all of  the Secured Obligations.  (ii) Dutch Subsidiary Guarantors.  As promptly as possible but in any event within  thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) after any  Person becomes, or is designated by the Company as, or qualifies independently as a Dutch  Subsidiary Guarantor pursuant to the definitions of “Material Subsidiary” and “Dutch Subsidiary  Guarantor”, the Company shall provide the Administrative Agent with written notice thereof and  shall cause each such Subsidiary to deliver to the Administrative Agent a joinder to the Subsidiary  Guaranty, and a joinder to (or shall enter into) the relevant Dutch Collateral Documents (in each  case any such joinder being in the form contemplated thereby) pursuant to which such Subsidiary  agrees to be bound by the terms and provisions thereof, such Subsidiary Guaranty and Dutch  Collateral Documents to be accompanied by appropriate corporate resolutions, other corporate  documentation and legal opinions in form and substance reasonably satisfactory to the  Administrative Agent and its counsel.  Upon execution and delivery thereof, each such Subsidiary  (i) shall automatically become a Dutch Subsidiary Guarantor hereunder and thereupon shall have  all of the rights, benefits, duties and obligations in such capacity under the Loan Documents, (ii)  shall guarantee repayment of all of the Foreign Secured Obligations and (iii) shall grant Liens in  





 






  100  respect of its assets (other than Excluded Assets) to the Administrative Agent, for the benefit of the  Holders of Secured Obligations, in order to secure repayment of all of the Foreign Secured  Obligations.  (b) The Company will cause, and will cause each other Domestic Loan Party and  Dutch Subsidiary Guarantor to cause, all of its owned property (whether real, personal, tangible, intangible,  or mixed, but excluding Excluded Assets), to be subject at all times to first priority, perfected Liens in favor  of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Secured  Obligations (or, in the case of a Dutch Subsidiary Guarantor, only the Foreign Secured Obligations) in  accordance with the terms and conditions of the Collateral Documents, subject in any case to Permitted  Liens.  Without limiting the generality of the foregoing, the Company (i) will cause the Applicable Pledge  Percentage of the issued and outstanding Equity Interests of each Pledge Subsidiary directly owned by the  Company or any other Loan Party (other than Excluded Assets) to be subject at all times to a first priority,  perfected Lien (subject only to Permitted Liens arising by operation of law) in favor of the Administrative  Agent to secure the Secured Obligations (or, in the case of a Dutch Subsidiary Guarantor, only the Foreign  Secured Obligations) in accordance with the terms and conditions of the Collateral Documents or such other  security documents as the Administrative Agent shall reasonably request and (ii) will, and will cause each  Domestic Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real mining  Property owned by the Company or such Subsidiary Guarantor to the extent, and within such time period  as is, reasonably required by the Administrative Agent.  Notwithstanding the foregoing, (i) no such  Mortgages and Mortgage Instruments are required to be delivered hereunder until the date that is sixty  (60) days after the Effective Date or such later date as the Administrative Agent may agree in the exercise  of its reasonable discretion with respect thereto and (ii) no such pledge agreement in respect of the Equity  Interests of a Foreign Subsidiary that is a Pledge Subsidiary shall be required hereunder (A) until the date  that is sixty (60) days after the Effective Date or such later date as the Administrative Agent may agree in  the exercise of its reasonable discretion with respect thereto, (B) under the laws of any jurisdiction other  than the United States or any state or territory thereof or, with respect to any Dutch Loan Party, the  Netherlands, and (C) to the extent the Administrative Agent or its counsel determines that such pledge  would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to  legally valid, binding and enforceable pledge agreements.  (c) Without limiting the foregoing, the Company will, and will cause each other  Domestic Loan Party and Dutch Subsidiary Guarantor to, execute and deliver, or cause to be executed and  delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause  to be taken such further actions (including the filing and recording of financing statements, fixture filings,  mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by  Section 4.01, as applicable), which may be required by law or which the Administrative Agent may, from  time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan  Documents and to ensure perfection and priority of the Liens created or intended to be created by the  Collateral Documents, all at the expense of the Company.  (d) If any material assets that constitute Collateral (including any real mining Property  or improvements thereto or any interest therein but excluding Excluded Assets) are acquired by a Domestic  Loan Party or a Dutch Subsidiary Guarantor after the Effective Date (other than assets constituting  Collateral under the Domestic Security Agreement or any Dutch Collateral Document, as applicable, that  become subject to the Lien under the Security Agreement upon acquisition thereof), the Company will  notify the Administrative Agent thereof, and, if reasonably requested by the Administrative Agent, the  Company will cause such assets to be subjected to a Lien securing the Secured Obligations (or, in the case  of a Dutch Subsidiary Guarantor, only the Foreign Secured Obligations) and will take, and cause the other  Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent  





 






  101  to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the  expense of the Company.  (e) Notwithstanding anything to the contrary set forth in this Agreement, it is hereby  understood and agreed that no Dutch Subsidiary Guarantor shall be required to provide a Guarantee of, or  grant a lien in any of its Property to secure, any Secured Obligations other than the Foreign Secured  Obligations.  SECTION 5.10. Fiscal Unity for Dutch Tax Purposes.  Any fiscal unity (fiscale  eenheid) for Dutch corporate income tax (vennootschapsbelasting) or Dutch value added tax  (omzetbelasting) purposes in which a Loan Party is included shall consist of Loan Parties only, unless with  the prior written consent of the Administrative Agent.  SECTION 5.11. Allocation of Tax Losses and Interest Expenses.  If, at any time, a  Loan Party is a member of a fiscal unity (fiscale eenheid) for Dutch corporate income tax  (vennootschapsbelasting) purposes and such fiscal unity is, in respect of that Loan Party, terminated  (verbroken) or disrupted (beëindigd) as a result of or in connection with the Administrative Agent enforcing  its rights under any Loan Document, such Loan Party shall, at the request of the Administrative Agent and  together with the parent company (moedermaatschappij) or deemed parent company (aangewezen  moedermaatschappij) of that fiscal unity, for no consideration and as soon as reasonably practicable lodge  a request with the relevant Governmental Authority to allocate and surrender any tax losses (within the  meaning of Article 20 of the Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969))  and any interest expenses available for carry forward (within the meaning of section 15b(5) of the Dutch  Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969)) to the Loan Party leaving that fiscal  unity, to the extent such tax losses and/or interests expenses are attributable (toerekenbaar) to the Loan  Party leaving that fiscal unity (respectively, within the meaning of Article 15af and Article 15ahb of the  Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969)).  SECTION 5.12. Residency for Tax Purposes.  None of the Dutch Loan Parties shall  change its residency for tax purposes or create any permanent establishment or other taxable presence  outside the Netherlands, unless with the prior written consent of the Administrative Agent.  SECTION 5.13. Post-Closing Matters.  (a) No later than the date that is thirty (30) days  after the Effective Date (or such later date as the Administrative Agent may agree to in its discretion), the  Company shall deliver to the Administrative Agent, certificates of insurance listing the Administrative  Agent as (i) lender loss payee for the property and casualty insurance policies of the initial Loan Parties,  together with separate lender loss payable endorsements and (ii) additional insured with respect to the  liability insurance of the initial Loan Parties, in each case to the extent required by Section 5.05 and (b) no  later than the date that is sixty (60) days after the Effective Date (or such later date as the Administrative  Agent may agree to in its discretion), the Company shall deliver to the Administrative Agent (i) an  amendment to the existing Mortgages, in recordable form, in form and substance reasonably acceptable to  the Administrative Agent, and (ii) date down endorsements to the title policies related to such Mortgages,  insuring the lien of such Mortgages as amended by such amendment, showing no Liens other than Permitted  Liens, in form and substance reasonably acceptable to the Administrative Agent.  ARTICLE VI    Negative Covenants  Until the Commitments have expired or terminated and the principal of and interest on each  Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or  





 






  102  terminated (or have been cash collateralized in accordance with Section 2.06), in each case, without any  pending draw, and all LC Disbursements shall have been reimbursed, the Company covenants and agrees  with the Lenders that:  SECTION 6.01. Indebtedness.  The Company will not, and will not permit any  Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:  (a) the Secured Obligations;  (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and  extensions, renewals, refinancings and replacements of any such Indebtedness with Indebtedness  of a similar type that does not increase the outstanding principal amount thereof (other than  attributable to the accretion of original issue discount, interest, capitalization of interest or payment  premiums in respect of the Indebtedness being extended, renewed, refinanced or replaced and costs  and expenses related thereto);  (c) Indebtedness of the Company to any Subsidiary and of any Subsidiary to the  Company or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a  Domestic Loan Party to any Domestic Loan Party shall be subject to Section 6.04;  (d) Guarantees by the Company of Indebtedness of any Subsidiary and by any  Subsidiary of Indebtedness of the Company or any other Subsidiary; provided that Guarantees by  any Domestic Loan Party of Indebtedness of any Subsidiary that is not a Domestic Loan Party shall  be subject to Section 6.04;  (e) Indebtedness of the Company or any Subsidiary incurred to finance the acquisition,  construction or improvement of any assets, including Capitalized Lease Obligations and any  Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien  on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and  replacements of any such Indebtedness that do not increase the outstanding principal amount  thereof (other than attributable to the accretion of original issue discount, interest, capitalization of  interest or payment premiums in respect of the Indebtedness being extended, renewed, refinanced  or replaced and costs and expenses related thereto); provided that the aggregate principal amount  of Indebtedness incurred in any Fiscal Year pursuant to this clause (e) shall not exceed  $25,000,000;  (f) Contingent Obligations (i) by endorsement of instruments for deposit or collection  in the ordinary course of business, (ii) consisting of the reimbursement obligations in respect of LC  Disbursements hereunder, (iii) consisting of the Subsidiary Guaranty and Guarantees of  Indebtedness incurred for the benefit of any other Loan Party if the primary obligation is expressly  permitted elsewhere in this Section 6.01, and (iv) under the Beryllium Contracts;  (g) Indebtedness arising under Swap Agreements having a Net Mark-to-Market  Exposure not exceeding $50,000,000 at any time, which amount shall include the Swap  Agreements in existence on the Effective Date;  (h) Indebtedness arising under Permitted Precious Metals Agreements in an aggregate  principal amount not to exceed $600,000,000 at any time outstanding;  (i) unsecured Indebtedness of the Company (including unsecured Subordinated  Indebtedness to the extent subordinated to the Secured Obligations on terms reasonably acceptable  





 






  103  to the Administrative Agent) in the form of publicly issued notes, to the extent not otherwise  permitted under this Section 6.01, and any Indebtedness of the Company constituting refinancings,  renewals or replacements of any such Indebtedness; provided that (i) both immediately prior to and  after giving effect (including giving effect on a Pro Forma Basis) thereto, no Default or Event of  Default shall exist or would result therefrom, (ii) such Indebtedness matures after, and does not  require any scheduled amortization or other scheduled payments of principal prior to, the date that  is 181 days after any Revolving Credit Maturity Date, any Term Loan Maturity Date and any  maturity date of any Incremental Term Loan in effect on the date of incurrence of such Indebtedness  (it being understood that any provision requiring an offer to purchase such Indebtedness as a result  of change of control or asset sale shall not violate the foregoing restriction), (iii) such Indebtedness  is not guaranteed by any Subsidiary of the Company other than the Subsidiary Guarantors (which  guarantees, if such Indebtedness is subordinated, shall be expressly subordinated to the Secured  Obligations on terms not less favorable to the Lenders than the subordination terms of such  Subordinated Indebtedness), (iv) the covenants applicable to such Indebtedness are not more  onerous or more restrictive in any material respect (taken as a whole) than the applicable covenants  set forth in this Agreement and (v) both immediately prior to and after giving effect (including  giving effect on a Pro Forma Basis) thereto, the Company is in compliance with Section 6.11;  (j) Indebtedness of the Company or any Domestic Subsidiary incurred to finance the  acquisition of any equipment to be used in the United States and extensions, renewals, refinancings  and replacements of any such Indebtedness that do not increase the outstanding principal amount  thereof (other than attributable to the accretion of original issue discount, interest, capitalization of  interest or payment premiums in respect of the Indebtedness being extended, renewed, refinanced  or replaced and costs and expenses related thereto); provided that the aggregate principal amount  of Indebtedness incurred pursuant to this clause (j) shall not exceed $75,000,000 at any time  outstanding;  (k) Indebtedness (including obligations in respect of letters of credit or bank  guarantees or similar instruments) owed to any Person providing workers’ compensation, health,  disability or other employee benefits or property, casualty or liability insurance, pursuant to  reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary  course of business;  (l) Indebtedness in respect of performance bonds, performance and completion  guarantees, bid bonds, customs and appeal bonds, surety bonds and similar obligations or  obligations in respect of letters of credit related thereto, in each case provided in the ordinary course  of business, including those incurred to secure health, safety and environmental obligations in the  ordinary course of business;   (m) Indebtedness of any Person that becomes a Subsidiary or is merged into or  consolidated with the Company or a Subsidiary and Indebtedness assumed in connection with the  acquisition of assets, in each case, pursuant to a transaction not otherwise prohibited by this  Agreement; provided that such Indebtedness exists at the time such Person becomes a Subsidiary  or at the time of such merger, consolidation or acquisition, as applicable, and is not created in  contemplation of or in connection with such Person becoming a Subsidiary or such merger,  consolidation or acquisition, as applicable, and extensions, renewals, refinancings and  replacements of any such Indebtedness with Indebtedness of a similar type that does not increase  the outstanding principal amount thereof (other than attributable to the accretion of original issue  discount, interest, capitalization of interest or payment premiums in respect of the Indebtedness  being extended, renewed, refinanced or replaced and costs and expenses related thereto);  





 






  104  (n) Indebtedness representing deferred compensation to employees of the Company  or any Subsidiary;  (o) Indebtedness to the extent constituting obligations providing for indemnification,  the adjustment of the purchase price or similar adjustments in connection with an Acquisition or  disposition permitted hereunder;  (p) Indebtedness and other obligations in respect of netting services, overdraft  protections and similar arrangements in each case in connection with cash management agreements  and deposit accounts in the ordinary course of business;  (q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or- pay obligations contained in supply arrangements, in each case, in the ordinary course of business;  (r) Indebtedness in respect of any trade letters of credit, warehouse receipts or similar  facilities entered into in the ordinary course of business;  (s) Indebtedness of Foreign Subsidiaries that are not Loan Parties in an aggregate  principal amount not to exceed $25,000,000 at any time outstanding; provided that such  Indebtedness is without any direct or indirect recourse to the Company or any Domestic Subsidiary;  and  (t) other unsecured Indebtedness in an aggregate principal amount not to exceed  $150,000,000 at any time outstanding.  SECTION 6.02. Liens.  The Company will not, and will not permit any Subsidiary to,  create, incur, assume or permit to exist any Lien on any Collateral, except the following (collectively,  “Permitted Liens”):  (a) Liens created pursuant to any Loan Document;  (b) Liens arising in connection with Permitted Precious Metals Agreements subject to  the Intercreditor Agreement referenced in clause (a) of the definition of “Intercreditor Agreements”  to the extent applicable;  (c) any Lien on any property or asset of the Company or any Subsidiary existing on  the date hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any  other property or asset of the Company or any Subsidiary (other than (x) after-acquired property  that is affixed or incorporated into the property covered by such Lien and (y) proceeds and products  thereof) and (ii) such Lien shall secure only those obligations which it secures on the date hereof  and extensions, renewals, refinancings and replacements thereof that do not increase the  outstanding principal amount thereof (other than attributable to the accretion of original issue  discount, interest, capitalization of interest or payment premiums in respect of the obligations being  extended, renewed, refinanced or replaced and costs and expenses related thereto);  (d) any Lien existing on any property or asset prior to the acquisition thereof by the  Company or any Subsidiary or existing on any property or asset of any Person that becomes a  Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that  (i) such Lien is not created in contemplation of or in connection with such acquisition or such  Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other  property or assets of the Company or any Subsidiary (other than the proceeds or products thereof  





 






  105  and after-acquired property subject to a Lien pursuant to terms existing at the time of such  acquisition) and (iii) such Lien shall secure only those obligations which it secures on the date of  such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions,  renewals, refinancings and replacements thereof that do not increase the outstanding principal  amount thereof (other than attributable to the accretion of original issue discount, interest,  capitalization of interest or payment premiums in respect of the obligations being extended,  renewed, refinanced or replaced and costs and expenses related thereto);  (e) Liens on assets acquired, constructed or improved by the Company or any  Subsidiary; provided that (i) such security interests secure Indebtedness permitted by clause (e) of  Section 6.01, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring,  constructing or improving such assets and (iii) such security interests shall not apply to any other  property or assets of the Company or any Subsidiary other than the property financed by such  Indebtedness and any accessions thereto and the proceeds and products thereof and related  property; provided further that individual financings provided by one lender may be cross- collateralized to other financings provided by such lender incurred under clause (e) of Section 6.01;  (f) Liens for taxes, fees, assessments, or other governmental charges or levies on the  Property of the Company or any Subsidiary if such Liens (a) shall not at the time be delinquent by  more than 30 days (after giving effect to any grace period), (b) are being contested in good faith by  appropriate proceedings diligently pursued and for which adequate reserves shall have been  provided on the Company or such Subsidiary’s books, or (c) subject to the provisions of  Section 5.04, do not secure obligations in excess of $15,000,000 and a stay of enforcement of such  Lien is in effect;  (g) Liens imposed by law, such as carrier’s, warehousemen’s, and mechanic’s Liens  and other similar Liens arising in the ordinary course of business which secure payment of  obligations not more than 30 days past due or which are being contested in good faith by appropriate  proceedings diligently pursued and for which adequate reserves shall have been provided on the  Company or such Subsidiary’s books;  (h) statutory Liens in favor of landlords of real Property leased by the Company or  any Subsidiary; provided that, the Company or such Subsidiary is current with respect to payment  of all rent and other material amounts due to such landlord under any lease of such real Property or  is contesting such amounts in good faith by appropriate proceedings;  (i) Liens arising out of pledges or deposits under worker’s compensation laws,  unemployment insurance, old age pensions, or other social security or retirement benefits, or  similar legislation or to secure the performance of bids, tenders, or contracts (other than for the  repayment of Indebtedness) or to secure indemnity, performance, or other similar bonds for the  performance of bids, tenders, or contracts (other than for the repayment of Indebtedness) and other  obligations of a like nature or to secure statutory obligations (other than liens arising under ERISA  or Environmental Laws) or surety or appeal bonds, or to secure indemnity, performance, or other  similar bonds;  (j) utility easements, building restrictions, and such other encumbrances or charges  against real Property as are of a nature generally existing with respect to properties of a similar  character and which do not in any material way affect the marketability of such real Property or  interfere in any material respect with the use thereof in the business of the Company or any  Subsidiary;  





 






  106  (k) the equivalent of the types of Liens discussed in clauses (f) through (j) above, and  in clauses (n) through (p) and (s) through (u) below, inclusive, in any jurisdiction in which the  Company or any Subsidiary is engaged in business or owns Property or assets;  (l) Liens arising from judgments or orders under circumstances that do not constitute  an Event of Default under Section 7.01(k);  (m) Liens on equipment acquired by the Company or any Domestic Subsidiary to be  used in the United States; provided that (i) such security interests secure Indebtedness permitted by  clause (j) of Section 6.01, (ii) the Indebtedness secured thereby does not exceed the cost of  acquiring such equipment and (iii) such security interests shall not apply to any other property or  assets of the Company or any Subsidiary other than the property financed by such Indebtedness  and any accessions thereto and the proceeds and products thereof and related property; provided  that individual financings provided by one lender may be cross-collateralized to other financings  provided by such lender incurred under clause (j) of Section 6.01;   (n) Liens securing insurance premiums financing arrangements in the ordinary course  of business;   (o) Liens in favor of customs and revenue authorities arising as a matter of law to  secure payment of customs duties in connection with the importation of goods in the ordinary  course of business;  (p) Liens of a collecting bank arising in the ordinary course of business under  Section 4-208 of the UCC in effect in the relevant jurisdiction covering only the items being  collected upon;  (q) (i) leases, licenses, subleases or sublicenses granted to other Persons (including  with respect to intellectual property and software) which do not (x) interfere in any material respect  with the business of the Company and its Subsidiaries, taken as a whole, or (y) secure any  Indebtedness for borrowed money or (ii) the rights reserved or vested in any Person by the terms  of any lease, license, franchise, grant or permit held by the Company or any of its Subsidiaries or  by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require  annual or periodic payments as a condition to the continuance thereof;  (r) Liens (i) (x) on advances of cash or cash equivalents in favor of the seller of any  property to be acquired in an Acquisition permitted hereunder to be applied against the purchase  price for such Acquisition and (y) consisting of an agreement to dispose of any property in a  disposition permitted under Section 6.03, in each case solely to the extent such Investment or  disposition, as the case may be, would have been permitted on the date of the creation of such Lien,  and (ii) reasonable earnest money deposits of cash or cash equivalents made by the Company or  any of its Subsidiaries in connection with any letter of intent or purchase agreement permitted  hereunder;  (s) Liens arising from precautionary UCC financing statement filings (or similar  filings under other applicable law) in connection with Operating Leases and other ordinary course  transaction and which, in each case, do not relate to any Indebtedness;  (t) Liens on cash and cash equivalents on deposit with Lenders and Affiliates of  Lenders securing obligations owing to such Persons under any treasury, depository, overdraft or  





 






  107  other cash management services agreements or arrangements with the Company or any Subsidiary  in the ordinary course of business;   (u) Liens that are contractual rights of set-off (i) relating to the establishment of  depository relations with banks not given in connection with the issuance of Indebtedness, (ii)  relating to pooled deposit or sweep accounts of the Company or any of its Subsidiaries to permit  satisfaction of overdraft of similar obligations incurred in the ordinary course of business of the  Company and its Subsidiaries, including with respect to credit card chargebacks and similar  obligations incurred in the ordinary course of business, or (iii) relating to purchase orders and other  agreements entered into with customers, suppliers or service providers of the Company or any of  its Subsidiaries in the ordinary course of business;   (v) non-recourse Liens on Equity Interests in joint ventures which are not Subsidiaries  securing obligations of such joint ventures which are not prohibited by this Agreement;  (w) to the extent constituting Liens, dispositions expressly permitted under Section  6.03;  (x) Liens arising out of conditional sale, title retention, consignment or similar  arrangements for sale of goods entered into by the Company or any of its Subsidiaries and not  prohibited by this Agreement;   (y) Liens securing Indebtedness permitted under Section 6.01(s); provided that such  Liens do not attach to the Collateral;   (z) Liens arising out of a Sale and Leaseback Transaction permitted by Section 6.10  to the extent that any assets subject to any such Lien are the assets subject to such Sale and  Leaseback Transaction;   (aa) Liens arising under Article 24 or 26 of the general terms and conditions (Algemene  Bank Voorwaarden) of any member of the Dutch Bankers' Association (Nederlandse Vereniging  van Banken) or any similar term applied by a financial institution in the Netherlands pursuant to its  general terms and conditions, notwithstanding any obligation of a Loan Party to obtain a partial  waiver of such Lien in accordance with the provisions of the relevant Dutch Security Agreement;  and  (bb) other Liens not otherwise permitted above so long as the aggregate principal  amount of the obligations subject to such Liens does not at any time exceed $20,000,000.  SECTION 6.03. Fundamental Changes and Asset Sales.  (a) The Company will not,  and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other  Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction  or in a series of transactions) any of its assets, (including pursuant to a Sale and Leaseback Transaction), or  any of the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter  acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect  thereto no Event of Default shall have occurred and be continuing:  (i) any Person may merge into the Company in a transaction in which the Company  is the surviving corporation;  





 






  108  (ii) (A) any Subsidiary may merge into or consolidate with or liquidate or dissolve into  a Loan Party in a transaction in which the surviving entity is such Loan Party (provided that any  such merger involving the Company must result in the Company as the surviving entity), (B) any  Subsidiary which is not a Loan Party may merge into another Subsidiary which is not a Loan Party  and (C) the Company or any of its Subsidiaries may merge into or consolidate with or liquidate or  dissolve into any other Person in order to effect an Acquisition or an Investment permitted under  Section 6.04 so long as the surviving entity is or shall become a Loan Party and, if the Company is  involved, the surviving entity is or shall be the Company;  (iii) any sale, transfer, lease or other disposal of assets to the Company or any  Subsidiary; provided that any such sales, transfers, leases or other dispositions by a Domestic Loan  Party to a Subsidiary that is not a Domestic Loan Party shall be considered an Investment and shall  be required to be made in compliance with Section 6.04;  (iv) the Company and its Subsidiaries may (A) sell inventory in the ordinary course of  business, (B) effect sales, trade-ins or dispositions of equipment that is obsolete or no longer useful  in any meaningful way in its business, (C) enter into licenses of technology in the ordinary course  of business, and (D) make any other sales, transfers, leases or dispositions that, together with all  other Property of the Company and its Subsidiaries previously leased, sold or disposed of as  permitted by this clause (D) during any Fiscal Year of the Company, does not represent Property  with a book value that (1) is greater than 10% of the Consolidated Total Assets of the Company or  (2) is responsible for more than 10% of the consolidated net sales or of the Consolidated Net  Income of the Company, in each case, as would be shown in the consolidated financial statements  of the Company as at the beginning of the four-quarter period ending with the quarter in which  such determination is made (or if financial statements have not been delivered hereunder for that  quarter which begins the four quarter period, then the financial statements delivered hereunder for  the quarter ending immediately prior to that quarter);  (v) any Subsidiary may liquidate or dissolve if the Company determines in good faith  that such liquidation or dissolution is in the best interests of the Company and is not materially  disadvantageous to the Lenders; provided that any such merger involving a Person that is not a  Wholly-Owned Subsidiary immediately prior to such merger shall not be permitted unless also  permitted by Section 6.04;   (vi) any sale, transfer, lease or other disposal of accounts receivable (excluding sales  or dispositions in a factoring arrangement) in connection with the compromise, settlement or  collection thereof;  (vii) Sale and Leaseback Transactions permitted by Section 6.10;  (viii) any sale, transfer, lease or other disposal resulting from any casualty or other  insured damage to, or any taking under power of eminent domain or by condemnation or similar  proceeding of, any property or asset of the Company or any Subsidiary;   (ix) leases, subleases, licenses or sublicenses of real or personal property in the  ordinary course of business, in each case that do not materially interfere with the business of the  Company and its Subsidiaries;  (x) the termination, surrender or sublease of leases (as lessee), licenses (as licensee),  subleases (as sublessee) and sublicenses (as sublicensee) in the ordinary course of business;   





 






  109  (xi) any sale, transfer, lease or other disposal of fixed assets which are replaced by  comparable fixed assets within 180 days of such sale, transfer or lease; provided that such substitute  assets, if owned by a Loan Party, constitute Collateral;  (xii) any sale, transfer, lease or other disposal of non-core assets, including Equity  Interests, acquired in connection with an Acquisition permitted under Section 6.04 after the  Effective Date to the extent the Company identified such assets to the Administrative Agent  promptly after such Acquisition including, for the avoidance of doubt, the Omega Dispositions;  (xiii) any surrender or waiver of contractual rights or the settlement, release or surrender  of contractual rights or other litigation claims in the ordinary course of business;  (xiv) the termination of any Swap Agreement;   (xv) any like kind exchange of property; and  (xvi) Dispositions of cash and Cash Equivalent Investments.  (b) The Company will not, and will not permit any of its Subsidiaries to, engage to  any material extent in any business other than businesses of the type conducted by the Company and its  Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.  (c) The Company will not, nor will it permit any of its Subsidiaries to, change its Fiscal  Year from the basis in effect on the Effective Date, except to conform the fiscal year or fiscal quarter of a  Subsidiary to that of the Company.  SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.  The  Company will not, and will not permit any of its Subsidiaries to, make or permit to exist any Investment in  any other Person, or make any Acquisition, except:  (a) Cash Equivalent Investments;  (b) Investments in Subsidiaries existing as of the Effective Date and additional  Investments in the Company or in Subsidiaries which are Domestic Loan Parties;  (c) other Investments in existence on the Effective Date and described in  Schedule 6.04, and any modification, replacement, renewal or extension thereof that does not increase the  amount thereof;  (d) Investments consisting of loans or advances made to employees of the Company  or any Subsidiary on an arms-length basis in the ordinary course of business consistent with past practices  for travel and entertainment expenses, and similar purposes up to a maximum of $50,000 to any employee  and up to a maximum of $250,000 in the aggregate at any one time outstanding and advances of payroll  payments to employees in the ordinary course of business;  (e) Investments comprised of notes payable, or stock or other securities issued by  account debtors to the Company or any Subsidiary pursuant to negotiated agreements with respect to  settlement of such account debtor’s accounts in the ordinary course of business, consistent with past  practices;  





 






  110  (f) Investments made in connection with employee compensation arrangements,  employee option plans or deferred director compensation, all in a manner consistent with the Company’s  historical practices;  (g) (x) Acquisitions; provided, that, at the time of and immediately after giving effect  to any such Acquisition, (i) no Event of Default has occurred and is continuing or would arise after giving  effect thereto, (ii) such Acquisition is not a Hostile Acquisition, (iii) such Person or division or line of  business is engaged in the same or a similar line of business as the Company and the Subsidiaries or business  reasonably related thereto, (iv) the Company and the Subsidiaries are in compliance, on a Pro Forma Basis  after giving effect to such Acquisition (but without giving effect to any synergies or cost savings), with the  covenants contained in Section 6.11 recomputed as of the last day of the most recently ended Fiscal Quarter  of the Company for which financial statements are available, as if such Acquisition (and any related  incurrence or repayment of Indebtedness, with any new Indebtedness being deemed to be amortized over  the applicable testing period in accordance with its terms) had occurred on the first day of each relevant  period for testing such compliance and, if the aggregate consideration paid in respect of such Acquisition  exceeds $100,000,000, the Company shall have delivered to the Administrative Agent a certificate of a  Financial Officer of the Company to such effect, together with all relevant financial information, statements  and projections reasonably requested by the Administrative Agent, (v) in the case of an Acquisition or  merger involving the Company or a Subsidiary, (1) if such Subsidiary is a Loan Party, either such  Subsidiary is the surviving entity of such merger and/or consolidation or the survivor shall become a Loan  Party upon the consummation thereof, or (2) if such Subsidiary is not a Loan Party, the surviving entity of  such merger and/or consolidation is a Subsidiary (provided that any such merger involving the Company  must result in the Company as the surviving entity) and (vi) immediately prior to and immediately after  giving effect (including giving effect on a Pro Forma Basis) to any such Acquisition, the Leverage Ratio  does not exceed the maximum applicable Leverage Ratio permitted by Section 6.11(a) less 0.25 to 1.00;  and (y) the Omega Acquisition;  (h) Investments under Permitted Precious Metal Agreements;   (i) other Investments in Subsidiaries that are not Domestic Loan Parties; provided that  Investments by Domestic Loan Parties in Subsidiaries that are not Domestic Loan Parties, net of  Investments by Subsidiaries that are not Domestic Loan Parties in Domestic Loan Parties, shall not exceed  $80,000,000 in the aggregate at any time outstanding;  (j) Investments of any Person existing at the time such Person becomes a Subsidiary  of the Company or consolidates or merges with the Company or any of its Subsidiaries (including in  connection with an Acquisition permitted under this Section 6.04), so long as such Investments were not  made in contemplation of such Person becoming a Subsidiary or of such merger;  (k) Investments received in connection with the disposition of assets permitted by  Section 6.03;  (l) Investments consisting of endorsements of instruments for collection or deposit in  the ordinary course of business;  (m) Investments (including debt obligations and Equity Interests) received in  connection with the bankruptcy or reorganization of any Person and in settlement of obligations of, or  disputes with, any Person arising and upon foreclosure with respect to any secured Investment or other  transfer of title with respect to any secured Investment;  





 






  111  (n) Guarantees (i) by the Company or any of its Subsidiaries of leases (other than  Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in  the ordinary course of business or (ii) permitted under Section 6.01;  (o) to the extent constituting Investments, Restricted Payments permitted by 6.07,  fundamental changes permitted by Section 6.03 and dispositions permitted by Section 6.03;  (p) Acquisitions made by any Foreign Subsidiary that is not a Loan Party; and  (q) other Investments not to exceed $50,000,000 at any time outstanding.  SECTION 6.05. Swap Agreements.  The Company will not, and will not permit any of  its Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or  mitigate risks to which the Company or any Subsidiary has actual exposure (other than those in respect of  Equity Interests of the Company or any of its Subsidiaries), and (b) Swap Agreements entered into in order  to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to  another floating rate or otherwise) with respect to any interest-bearing liability or investment of the  Company or any Subsidiary.  SECTION 6.06. Transactions with Affiliates.  The Company will not, and will not  permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease  or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any  of its Affiliates, except (a)  at prices and on terms and conditions, when taken as a whole, not materially  less favorable to the Company or such Subsidiary than could be obtained on an arm’s-length basis from  unrelated third parties, (b) transactions between or among the Company and its Wholly-Owned Subsidiaries  not involving any other Affiliate, (c)  any Restricted Payment permitted by Section 6.07, (d) loans or  advances to employees permitted under Section 6.04(d), and (e) the payment of reasonable fees to directors  of the Company or any Subsidiary who are not employees of the Company or any Subsidiary, and  compensation and employee benefit arrangements paid to, and indemnities provided for the benefit of,  directors, officers or employees of the Company or its Subsidiaries in the ordinary course of business.  SECTION 6.07.  Restricted Payments.  The Company will not, and will not permit any  of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted  Payment, except (a) the Company may declare and pay dividends with respect to its Equity Interests or  repurchase any of its Equity Interests, in each case, payable solely in additional shares of its common stock,  (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the  Company may make Restricted Payments pursuant to and in accordance with stock option plans or other  benefit plans for management or employees of the Company and its Subsidiaries and (d) the Company and  its Subsidiaries may make any other Restricted Payment so long as no Default or Event of Default has  occurred and is continuing prior to making such Restricted Payment or would arise after giving effect  (including giving effect on a Pro Forma Basis) thereto and the aggregate amount of such Restricted  Payments does not exceed 10% of Consolidated Net Worth as of the most recently ended Fiscal Quarter of  the Company for which Financials have been delivered; provided, that the foregoing aggregate limitation  for Restricted Payments shall not apply as long as the Leverage Ratio does not exceed 2.75 to 1.00  immediately prior to and immediately after giving effect (including giving effect on a Pro Forma Basis) to  any such Restricted Payment; provided further that nothing in this Section 6.07 shall operate to prevent the  making of any previously declared Restricted Payment by the Company so long as (i) at the declaration  date or execution date, such Restricted Payment was permitted by the foregoing, and (ii) such Restricted  Payment is consummated within the earlier of 60 days and any date under applicable law on which such  dividend or repurchase must be consummated.  





 






  112  SECTION 6.08. Restrictive Agreements.  The Company will not, and will not permit  any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement (other  than this Agreement and the other Loan Documents) or other arrangement that prohibits, restricts or  imposes any condition upon (a) the ability of the Company or any Subsidiary to create, incur or permit to  exist any Lien upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or  other distributions with respect to holders of its Equity Interests or to make or repay loans or advances to  the Company or any other Subsidiary or to Guarantee Indebtedness of the Company or any other Subsidiary;  provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan  Document, (ii) the foregoing shall not apply to customary restrictions and conditions contained in  agreements relating to the sale of a Subsidiary pending such sale or relating to any Acquisition permitted  under Section 6.04; provided such restrictions and conditions apply only to the Subsidiary that is to be sold  and such sale is permitted hereunder, (iii) the foregoing shall not apply to restrictions and conditions set  forth in any Permitted Precious Metals Agreement that is subject to the Intercreditor Agreement referenced  in clause (a) of the definition of “Intercreditor Agreements”, (iv) the foregoing shall not apply to restrictions  and conditions binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary, so long as  such agreements or other arrangements were not entered into in contemplation of such Person becoming a  Subsidiary, (v) the foregoing shall not apply to restrictions and conditions constituting customary provisions  in joint venture agreements and other similar agreements applicable to joint ventures, (vi) the foregoing  shall not apply to restrictions and conditions on cash or other deposits imposed by customers under contracts  entered into in the ordinary course of business, and (vii) the foregoing shall not apply to restrictions and  conditions imposed by any amendments, modifications, restatements, renewals, increases, supplements,  refundings, replacements or refinancings of the agreements or arrangements referred to in clauses (i)  through (vi) above; provided that such amendments, modifications, restatements, renewals, increases,  supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no  more restrictive with respect to such terms than those in effect prior to such amendment, modification,  restatement, renewal, increase, supplement, refunding, replacement or refinancing, (viii) clause (a) of the  foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured  Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or  assets securing such Indebtedness, and (ix) clause (a) of the foregoing shall not apply to customary  provisions in leases and other contracts restricting the assignment thereof.  SECTION 6.09. Subordinated Indebtedness and Amendments to Subordinated  Indebtedness Documents.  The Company will not, and will not permit any Subsidiary to, directly or  indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire,  any Subordinated Indebtedness or any Indebtedness from time to time outstanding under the Subordinated  Indebtedness Documents (other than, for the avoidance of doubt (a) payment of regularly scheduled interest  payments as and when due in respect of such Indebtedness to the extent permitted by the subordination  provisions applicable thereto and (b) refinancings of such Indebtedness permitted by Section 6.01).   Furthermore, the Company will not, and will not permit any Subsidiary to, amend the Subordinated  Indebtedness Documents or any document, agreement or instrument evidencing any Indebtedness incurred  pursuant to the Subordinated Indebtedness Documents (or any replacements, substitutions, extensions or  renewals thereof) or pursuant to which such Indebtedness is issued to the extent prohibited by the terms of  the subordination agreement or subordination provisions applicable thereto.  SECTION 6.10. Sale and Leaseback Transactions.  The Company shall not, nor shall  it permit any Subsidiary to, enter into any Sale and Leaseback Transaction other than (a) Sale and Leaseback  Transactions entered into in connection with any Permitted Precious Metals Agreement, (b) Sale and  Leaseback Transactions entered into in connection with any project financing involving municipal bond  offerings otherwise permitted by this Agreement, and (c) Sale and Leaseback Transactions (i) made for  cash consideration in an amount not less than the fair value of such fixed or capital asset, (ii) in respect of  which the net cash proceeds received in connection therewith does not exceed $20,000,000 in the aggregate  





 






  113  for all such Sale and Leaseback Transactions after the Effective Date, and (iii) that is consummated within  180 days after the Company or such Subsidiary acquires or completes the construction of such fixed or  capital asset.  SECTION 6.11. Financial Covenants.  (a) Maximum Leverage Ratio.  The Company will not permit the Leverage Ratio,  determined as of the end of each of its Fiscal Quarters for the then most-recently ended four Fiscal Quarters,  to be more than (i) for Fiscal Quarters ending after the Effective Date and prior to the Omega Closing Date,  3.50 to 1.00, and (ii) for Fiscal Quarters ending on or after the Omega Closing Date: (x) 4.50 to 1.00 for the  first four Fiscal Quarters ending after the Omega Closing Date, (y) 4.00 to 1.00 for the next two successive  Fiscal Quarters ending thereafter and (z) 3.50 to 1.00 for each Fiscal Quarter ending thereafter; provided  that, with respect to any period occurring on or after the completion of the sixth Fiscal Quarter ending after  the Omega Closing Date, to the extent the Company or any of its Subsidiaries (x) consummates during any  period of four consecutive Fiscal Quarters for which financial statements are available one or more  Acquisitions for which the aggregate consideration, including assumed debt, for all such Acquisitions, is  $100,000,000 or more and (y) within 30 days of consummating such Acquisition or Acquisitions referred  to in clause (x) of this proviso, the Company notifies the Administrative Agent that the Company elects to  increase the maximum Leverage Ratio threshold as a result thereof, then the maximum Leverage Ratio  threshold for the Fiscal Quarter in which such election is made by the Company and the immediately three  following Fiscal Quarters shall be increased to 4.00 to 1.00.  Not more than one such election may be made  by the Company.  (b) Minimum Interest Coverage Ratio.  The Company will not permit the Interest  Coverage Ratio, determined as of the end of each of its Fiscal Quarters for the then most-recently ended  four Fiscal Quarters, to be less than 3.00 to 1.00.  ARTICLE VII    Events of Default  SECTION 7.01. Events of Default.  If any of the following events (“Events of Default”)  shall occur:  (a) any Borrower shall fail to pay any principal of any Loan or any reimbursement  obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether  at the due date thereof or at a date fixed for prepayment thereof or otherwise;  (b) any Borrower shall fail to pay any interest on any Loan or any fee or any other  amount (other than an amount referred to in Section 7.01(a)) payable under this Agreement, when and as  the same shall become due and payable, and such failure shall continue unremedied for a period of three  (3) Business Days;  (c) any representation or warranty made or deemed made by or on behalf of any Loan  Party in or in connection with this Agreement or any other Loan Document or any amendment or  modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial  statement or other document furnished pursuant to or in connection with this Agreement or any other Loan  Document or any amendment or modification thereof or waiver thereunder, shall prove to have been  materially incorrect when made or deemed made;  





 






  114  (d) the Company shall fail to observe or perform any covenant, condition or agreement  contained in Section 5.02(a), 5.03 (with respect to any Borrower’s existence) or 5.08, in Article VI or in  Article X;  (e) any Loan Party, as applicable, shall fail to observe or perform any covenant,  condition or agreement contained in this Agreement (other than those specified in Section 7.01(a), (b) or  (d)) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30) days  after notice thereof from the Administrative Agent to the Company (which notice will be given at the  request of any Lender);  (f) the Company or any Subsidiary shall fail to make any payment (whether of  principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the  same shall become due and payable;  (g) any event or condition occurs that results in any Material Indebtedness becoming  due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse  of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their  behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase,  redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not  apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property  or assets securing such Indebtedness;  (h) an involuntary proceeding shall be commenced or an involuntary petition shall be  filed seeking (i) liquidation, reorganization or other relief in respect of the Company or any other Loan  Party or its debts, or of a Substantial Portion of its assets, under any federal, state or foreign bankruptcy,  insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver,  trustee, custodian, sequestrator, conservator or similar official for the Company or any other Loan Party or  for a Substantial Portion of its assets, and, in any such case, such proceeding or petition shall continue  undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;  (i) the Company or any other Loan Party shall (i) voluntarily commence any  proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or  foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the  institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in  Section 7.01(h), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,  conservator or similar official for the Company or any other Loan Party or for a Substantial Portion of its  assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such  proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose  of effecting any of the foregoing;  (j) the Company or any other Loan Party shall admit in writing its inability or fail  generally to pay its debts as they become due;  (k) one or more judgments for the payment of money in an aggregate amount in excess  of $20,000,000 (or the equivalent thereof in currencies other than Dollars) shall be rendered against the  Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a period  of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall  be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Subsidiary  to enforce any such judgment;  





 






  115  (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,  when taken together with all other ERISA Events that have occurred, could reasonably be expected to result  in a Material Adverse Effect;  (m) a Change in Control shall occur;  (n) the occurrence of any “Default”, as defined in any Loan Document (other than this  Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this  Agreement), which default or breach continues beyond any period of grace therein provided;  (o) any material provision of any Loan Document for any reason ceases to be valid,  binding and enforceable in accordance with its terms (or any Loan Party shall challenge the enforceability  of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such  assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid,  binding and enforceable in accordance with its terms); or  (p) any Collateral Document shall for any reason fail to create a valid and perfected  first priority security interest in any portion of the Collateral purported to be covered thereby, except as  permitted by the terms of any Loan Document.  SECTION 7.02. Remedies Upon an Event of Default.  If an Event of Default occurs  (other than an event with respect to any Borrower described in Section 7.01(h) or 7.01(i)), and at any time  thereafter during the continuance of such Event of Default, the Administrative Agent may with the consent  of the Required Lenders, and shall at the request of the Required Lenders, by notice to the Company, take  any or all of the following actions, at the same or different times:  (a) terminate the Commitments, and thereupon the Commitments shall terminate  immediately (subject to the final paragraph of this Section 7.02);  (b) declare the Loans then outstanding to be due and payable in whole (or in part, in  which case any principal not so declared to be due and payable may thereafter be declared to be due and  payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued  interest thereon and all fees and other Secured Obligations of the Borrowers accrued hereunder and under  any other Loan Document, shall become  due and payable immediately, without presentment, demand,  protest or other notice of any kind, all of which are hereby waived by the Borrowers;  (c) require that the Company provide cash collateral as required in Section 2.06(j);  and  (d) exercise on behalf of itself, the Lenders and the Issuing Bank all rights and  remedies available to it, the Lenders and the Issuing Bank under the Loan Documents and applicable law.  If an Event of Default described in Section 7.01(h) or 7.01(i) occurs with respect to any  Borrower, the Commitments shall automatically terminate and the principal of the Loans then outstanding  and cash collateral for the LC Exposure, together with accrued interest thereon and all fees and other  Obligations accrued hereunder and under any other Loan Document, shall automatically become due and  payable, and the obligation of the Company to cash collateralize the LC Exposure as provided in clause (c)  above shall automatically become effective, in each case, without presentment, demand, protest or other  notice of any kind, all of which are hereby waived by the Borrowers.  





 






  116  In addition to any other rights and remedies granted to the Administrative Agent and the  Lenders in the Loan Documents, the Administrative Agent on behalf of the Lenders may exercise all rights  and remedies of a secured party under the UCC or any other applicable law.  Without limiting the generality  of the foregoing, the Administrative Agent, without demand of performance or other demand, presentment,  protest, advertisement or notice of any kind (except any notice required by law referred to below or to the  extent expressly provided in this Agreement or any other Loan Document) to or upon any Loan Party or  any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived  by the Company on behalf of itself and its Subsidiaries), may in such circumstances forthwith collect,  receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by any Loan  Party of any cash collateral arising in respect of the Collateral on such terms as the Administrative Agent  deems reasonable, and/or may forthwith sell, lease, assign give an option or options to purchase or otherwise  dispose of and deliver, or acquire by credit bid on behalf of the Holders of Secured Obligations, the  Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or  private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or any Lender  or elsewhere, upon such terms and conditions as it may deem advisable and at such prices as it may deem  best, in its reasonable judgment, for cash or on credit or for future delivery, all without assumption of any  credit risk. The Administrative Agent or any Lender shall have the right upon any such public sale or sales,  and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part  of the Collateral so sold, free of any right or equity of redemption in any Loan Party, which right or equity  is hereby waived and released by the Company on behalf of itself and its Subsidiaries.  The Company  further agrees on behalf of itself and its Subsidiaries, at the Administrative Agent’s request, to assemble the  Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall  reasonably select, whether at the premises of the Company, another Loan Party or elsewhere.  The  Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Article VII,  after deducting all reasonable costs and expenses of every kind incurred in connection therewith or  incidental to the care or safekeeping of any of the Collateral or in any other way relating to the Collateral  or the rights of the Administrative Agent and the Lenders hereunder, including reasonable attorneys’ fees  and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as the  Administrative Agent may elect, and only after such application and after the payment by the  Administrative Agent of any other amount required by any provision of law, including Section 9-615(a)(3)  of the New York Uniform Commercial Code, need the Administrative Agent account for the surplus, if  any, to any Loan Party.  To the extent permitted by applicable law, the Company on behalf of itself and its  Subsidiaries waives all Liabilities it may acquire against the Administrative Agent or any Lender arising  out of the exercise by them of any rights hereunder.  If any notice of a proposed sale or other disposition of  Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10  days before such sale or other disposition.  Notwithstanding anything herein or in any other Loan Document to the contrary, in respect  of the Omega Closing Date Commitments, during the period from and including the Effective Date to and  including the earlier of (x) the Omega Closing Date and (y) the Term Loan Commitment Expiration Date,  and notwithstanding (a) that any representation made on the Effective Date was incorrect or (b) any  provision to the contrary in this Agreement or the other Loan Documents, neither the Administrative Agent  nor any Lender shall be entitled to (1) cancel, rescind or terminate any of its Omega Closing Date  Commitments under this Agreement or (2) refuse to participate in making its loans in respect of the Omega  Closing Date Loans when required to do so under this Agreement; provided in each case that the applicable  conditions precedent to the making of such Omega Closing Date Loans set forth in Section 4.02 have been  satisfied and; provided further that subsequent to the making of such Omega Closing Date Loans on the  Omega Closing Date, all of the rights, remedies and entitlements of the Administrative Agent and the  Lenders shall be available notwithstanding that such rights were not available prior to such time as a result  of the foregoing.  





 






  117  ARTICLE VIII    The Administrative Agent  SECTION 8.01. Authorization and Action.  (a) Each Lender and the Issuing Bank hereby irrevocably appoints the entity named  as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the  administrative agent and collateral agent under the Loan Documents and each Lender and the Issuing Bank  authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers  under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under  such agreements and to exercise such powers as are reasonably incidental thereto.  Further, each of the  Lenders and the Issuing Bank, on behalf of itself and any of its Affiliates that are Holders of Secured  Obligations, hereby irrevocably (i) empower and authorize JPMorgan Chase Bank, N.A. (in its capacity as  Administrative Agent) to execute and deliver the Collateral Documents and all related documents or  instruments as shall be necessary or appropriate to effect the purposes of the Collateral Documents and (ii)  empower and authorize JPMorgan Chase Bank, N.A. (in its capacity as Administrative Agent) to execute  and deliver on their behalf the Intercreditor Agreement and all related documents or instruments as shall be  necessary or appropriate to effect the purposes of the Intercreditor Agreement.  Each Lender shall be bound  by the terms and provisions of the Intercreditor Agreement, (and the Intercreditor Agreement is hereby  approved by the Lenders), so executed by the Administrative Agent, and by any further amendments thereto  executed by the Administrative Agent on behalf of the Lenders provided that any such further amendment  has been approved by the Required Lenders.  In addition, to the extent required under the laws of any  jurisdiction other than within the United States, each Lender and the Issuing Bank hereby grants to the  Administrative Agent any required powers of attorney to execute and enforce any Collateral Document  governed by the laws of such jurisdiction on such Lender’s or the Issuing Bank’s behalf.  Without limiting  the foregoing, each Lender and the Issuing Bank hereby authorizes the Administrative Agent to execute  and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative  Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have  under such Loan Documents.  (b) As to any matters not expressly provided for herein and in the other Loan  Documents (including enforcement or collection), the Administrative Agent shall not be required to  exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be  fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders  (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan  Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender  and the Issuing Bank; provided, however, that the Administrative Agent shall not be required to take any  action that (i) the Administrative Agent in good faith believes exposes it to liability unless the  Administrative Agent receives an indemnification and is exculpated in a manner satisfactory to it from the  Lenders and the Issuing Bank with respect to such action or (ii) is contrary to this Agreement or any other  Loan Document or applicable law, including any action that may be in violation of the automatic stay under  any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may  effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any  requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided,  further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior  to the exercise of any such instructed action and may refrain from acting until such clarification or direction  has been provided. Except as expressly set forth in the Loan Documents, the Administrative Agent shall  not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to  the Company, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained  by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this  





 






  118  Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any  financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or  powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity  against such risk or liability is not reasonably assured to it.  (c) In performing its functions and duties hereunder and under the other Loan  Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Bank (except  in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its  duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:  (i) the Administrative Agent does not assume and shall not be deemed to have  assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for  any Lender, the Issuing Bank or any other Holder of Secured Obligations other than as expressly  set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of  Default has occurred and is continuing (and it is understood and agreed that the use of the term  “agent” (or any similar term) herein or in any other Loan Document with reference to the  Administrative Agent is not intended to connote any fiduciary duty or other implied (or express)  obligations arising under agency doctrine of any applicable law, and that such term is used as a  matter of market custom and is intended to create or reflect only an administrative relationship  between contracting parties); additionally, each Lender agrees that it will not assert any claim  against the Administrative Agent based on an alleged breach of fiduciary duty by the  Administrative Agent in connection with this Agreement and/or the transactions contemplated  hereby;  (ii) where the Administrative Agent is required or deemed to act as a trustee  in respect of any Collateral over which a security interest has been created pursuant to a Loan  Document expressed to be governed by the laws of any jurisdiction other than the United States of  America, or is required or deemed to hold any Collateral “on trust” pursuant to the foregoing, the  obligations and liabilities of the Administrative Agent to the Holders of Secured Obligations in its  capacity as trustee shall be excluded to the fullest extent permitted by applicable law; and  (iii) nothing in this Agreement or any Loan Document shall require the  Administrative Agent to account to any Lender for any sum or the profit element of any sum  received by the Administrative Agent for its own account.  (d) The Administrative Agent may perform any of its duties and exercise its rights and  powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed  by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their  respective duties and exercise their respective rights and powers through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of  the Administrative Agent and any such sub-agent, and shall apply to their respective activities pursuant to  this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any  sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable  judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection  of such sub-agent.  (e) None of any Co-Syndication Agent, the Documentation Agent or any Arranger  shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan  Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall  have the benefit of the indemnities provided for hereunder.  





 






  119  (f) In case of the pendency of any proceeding with respect to any Loan Party under  any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect,  the Administrative Agent (irrespective of whether the principal of any Loan or any reimbursement  obligation in respect of any LC Disbursement shall then be due and payable as herein expressed or by  declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand  on any Loan Party) shall be entitled and empowered (but not obligated) by intervention in such proceeding  or otherwise:  (i) to file and prove a claim for the whole amount of the principal and interest  owing and unpaid in respect of the Loans, LC Disbursements and all other Obligations that are  owing and unpaid and to file such other documents as may be necessary or advisable in order to  have the claims of the Lenders, the Issuing Bank and the Administrative Agent (including any claim  under Sections 2.12, 2.13, 2.15, 2.17 and 9.03) allowed in such judicial proceeding; and  (ii) to collect and receive any monies or other property payable or deliverable  on any such claims and to distribute the same;   and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  proceeding is hereby authorized by each Lender, the Issuing Bank and each other Holder of Secured  Obligations to make such payments to the Administrative Agent and, in the event that the Administrative  Agent shall consent to the making of such payments directly to the Lenders, the Issuing Bank or the other  Holders of Secured Obligations, to pay to the Administrative Agent any amount due to it, in its capacity as  the Administrative Agent, under the Loan Documents (including under Section 9.03). Nothing contained  herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt  on behalf of any Lender or the Issuing Bank any plan of reorganization, arrangement, adjustment or  composition affecting the Obligations or the rights of any Lender or the Issuing Bank or to authorize the  Administrative Agent to vote in respect of the claim of any Lender or the Issuing Bank in any such  proceeding.    (g) The provisions of this Article VIII are solely for the benefit of the Administrative  Agent, the Lenders and the Issuing Bank, and, except solely to the extent of the Company’s rights to consent  pursuant to and subject to the conditions set forth in this Article VIII, none of the Company or any  Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any  such provisions. Each Holder of Secured Obligations, whether or not a party hereto, will be deemed, by its  acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the  Loan Documents, to have agreed to the provisions of this Article VIII.  SECTION 8.02. Administrative Agent’s Reliance, Indemnification, Etc.  (a) Neither the Administrative Agent nor any of its Related Parties shall be (i) liable  for any action taken or omitted to be taken by such party, the Administrative Agent or any of its Related  Parties under or in connection with this Agreement or the other Loan Documents (x) with the consent of or  at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be  necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the  circumstances as provided in the Loan Documents) or (y) in the absence of its own gross negligence or  willful misconduct (such absence to be presumed unless otherwise determined by a court of competent  jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any of the Lenders  for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof  contained in this Agreement or any other Loan Document or in any certificate, report, statement or other  document referred to or provided for in, or received by the Administrative Agent under or in connection  with, this Agreement or any other Loan Document (including, for the avoidance of doubt, in connection  





 






  120  with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf,  or any other electronic means that reproduces an image of an actual executed signature page) or for the  value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other  Loan Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder.  (b) The Administrative Agent shall be deemed not to have knowledge of any (i) notice  of any of the events or circumstances set forth or described in Section 5.02 unless and until written notice  thereof stating that it is a “notice under Section 5.02” in respect of this Agreement and identifying the  specific clause under said Section is given to the Administrative Agent by the Company, or (ii) notice of  any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of Default”  or a “notice of an Event of Default”) is given to the Administrative Agent by the Company, a Lender or the  Issuing Bank.  Further, the Administrative Agent shall not be responsible for or have any duty to ascertain  or inquire into (A) any statement, warranty or representation made in or in connection with any Loan  Document, (B) the contents of any certificate, report or other document delivered thereunder or in  connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms  or conditions set forth in any Loan Document or the occurrence of any Default or Event of Default, (D) the  sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other  agreement, instrument or document, (E) the satisfaction of any condition set forth in Article IV or elsewhere  in any Loan Document, other than to confirm receipt of items (which on their face purport to be such items)  expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly  refers to the matters described therein being acceptable or satisfactory to the Administrative Agent or (F)  the creation, perfection or priority of Liens on the Collateral.  Notwithstanding anything herein to the  contrary, the Administrative Agent shall not be liable for, or be responsible for any Liabilities, costs or  expenses suffered by the Company, any Subsidiary, any Lender or the Issuing Bank as a result of, any  determination of the Revolving Credit Exposure, any of the component amounts thereof or any portion  thereof attributable to each Lender or the Issuing Bank or any Dollar Amount thereof.  (c) Without limiting the foregoing, the Administrative Agent (i) may treat the payee  of any promissory note as its holder until such promissory note has been assigned in accordance with  Section 9.04, (ii) may rely on the Register to the extent set forth in Section 9.04(b), (iii) may consult with  legal counsel (including counsel to the Company), independent public accountants and other experts  selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in  accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty or  representation to any Lender or the Issuing Bank and shall not be responsible to any Lender or the Issuing  Bank for any statements, warranties or representations made by or on behalf of any Loan Party in connection  with this Agreement or any other Loan Document, (v) in determining compliance with any condition  hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled  to the satisfaction of a Lender or the Issuing Bank, may presume that such condition is satisfactory to such  Lender or the Issuing Bank unless the Administrative Agent shall have received notice to the contrary from  such Lender or the Issuing Bank sufficiently in advance of the making of such Loan or the issuance of such  Letter of Credit and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this  Agreement or any other Loan Document by acting upon, any notice, consent, certificate or other instrument  or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other  distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed  or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets  the requirements set forth in the Loan Documents for being the maker thereof).  SECTION 8.03. Posting of Communications.  (a) The Borrowers agree that the Administrative Agent may, but shall not be obligated  to, make any Communications available to the Lenders and the Issuing Bank by posting the  





 






  121  Communications on IntraLinksTM, DebtDomain, SyndTrak, ClearPar or any other electronic platform  chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic  Platform”).  (b) Although the Approved Electronic Platform and its primary web portal are secured  with generally-applicable security procedures and policies implemented or modified by the Administrative  Agent from time to time (including, as of the Effective Date, a user ID/password authorization system) and  the Approved Electronic Platform is secured through a per-deal authorization method whereby each user  may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the Issuing  Bank and the Borrowers acknowledges and agrees that the distribution of material through an electronic  medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting  the representatives or contacts of any Lender that are added to the Approved Electronic Platform, and that  there may be confidentiality and other risks associated with such distribution. Each of the Lenders, the  Issuing Bank and the Borrowers hereby approves distribution of the Communications through the Approved  Electronic Platform and understands and assumes the risks of such distribution.  (c) THE APPROVED ELECTRONIC PLATFORM AND THE  COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE  PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF  THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM  AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED  ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND,  EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,  FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR  FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE  PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC  PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER, ANY  CO-SYNDICATION AGENT, THE DOCUMENTATION AGENT OR ANY OF THEIR RESPECTIVE  RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO  ANY LOAN PARTY, ANY LENDER, THE ISSUING BANK OR ANY OTHER PERSON OR ENTITY  FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR  CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR  OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S  TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED  ELECTRONIC PLATFORM; EXCEPT TO THE EXTENT OF DIRECT AND ACTUAL DAMAGES AS  ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND  NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR  WILLFUL MISCONDUCT ON THE PART OF THE APPLICABLE PARTIES.  (d) Each Lender and the Issuing Bank agrees that notice to it (as provided in the next  sentence) specifying that Communications have been posted to the Approved Electronic Platform shall  constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents.  Each Lender and the Issuing Bank agrees (i) to notify the Administrative Agent in writing (which could be  in the form of electronic communication) from time to time of such Lender’s or the Issuing Bank’s (as  applicable) email address to which the foregoing notice may be sent by electronic transmission and (ii) that  the foregoing notice may be sent to such email address.  (e) Each of the Lenders, the Issuing Bank and the Company agrees that the  Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to,  store the Communications on the Approved Electronic Platform in accordance with the Administrative  Agent’s generally applicable document retention procedures and policies.  





 






  122  (f) Nothing herein shall prejudice the right of the Administrative Agent, any Lender  or the Issuing Bank to give any notice or other communication pursuant to any Loan Document in any other  manner specified in such Loan Document.  SECTION 8.04. The Administrative Agent Individually.  With respect to its Commitment,  Loans and Letters of Credit, the Person serving as the Administrative Agent shall have and may exercise  the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the  extent set forth herein for any other Lender or Issuing Bank, as the case may be. The terms “Issuing Bank”,  “Lenders”, “Required Lenders” and any similar terms shall, unless the context clearly otherwise indicates,  include the Administrative Agent in its individual capacity as a Lender, the Issuing Bank or as one of the  Required Lenders, as applicable. The Person serving as the Administrative Agent and its Affiliates may  accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory  capacity for and generally engage in any kind of banking, trust or other business with, the Company, any  Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative  Agent and without any duty to account therefor to the Lenders or the Issuing Bank.  SECTION 8.05. Successor Administrative Agent.  (a) The Administrative Agent may resign at any time by giving 30 days’ prior written  notice thereof to the Lenders, the Issuing Bank and the Company, whether or not a successor Administrative  Agent has been appointed. Upon any such resignation, the Required Lenders shall have the right (with the  consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed; provided  that no such consent shall be required if an Event of Default under Section 7.01(a), (b), (h), (i) or (j) has  occurred and is continuing) to appoint a successor Administrative Agent. If no successor Administrative  Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment,  within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring  Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor  Administrative Agent, which shall be a bank with an office in New York, New York or an Affiliate of any  such bank. In either case, such appointment shall be subject to the prior written approval of the Company  (which approval may not be unreasonably withheld and shall not be required while an Event of Default  under Section 7.01(a), (b), (h), (i) or (j) has occurred and is continuing). Upon the acceptance of any  appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative  Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring  Administrative Agent. Upon the acceptance of appointment as Administrative Agent by a successor  Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and obligations  under this Agreement and the other Loan Documents. Prior to any retiring Administrative Agent’s  resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as  may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative  Agent under the Loan Documents.  (b) Notwithstanding paragraph (a) of this Section, in the event no successor  Administrative Agent shall have been so appointed and shall have accepted such appointment within 30  days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative  Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Bank and the  Company, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring  Administrative Agent shall be discharged from its duties and obligations hereunder and under the other  Loan Documents; provided that, solely for purposes of maintaining any security interest granted to the  Administrative Agent under any Collateral Document for the benefit of the Holders of Secured Obligations,  the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent  for the benefit of the Holders of Secured Obligations, and continue to be entitled to the rights set forth in  such Collateral Document and Loan Document, and, in the case of any Collateral in the possession of the  





 






  123  Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor  Administrative Agent is appointed and accepts such appointment in accordance with this Section (it being  understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any  further action under any Collateral Document, including any action required to maintain the perfection of  any such security interest) and (ii) the Required Lenders shall succeed to and become vested with all the  rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments  required to be made hereunder or under any other Loan Document to the Administrative Agent for the  account of any Person other than the Administrative Agent shall be made directly to such Person and (B)  all notices and other communications required or contemplated to be given or made to the Administrative  Agent shall directly be given or made to each Lender and the Issuing Bank. Following the effectiveness of  the Administrative Agent’s resignation from its capacity as such, the provisions of this Article VIII and  Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any  other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub- agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of  them while the retiring Administrative Agent was acting as Administrative Agent and in respect of the  matters referred to in the proviso under clause (i) above.  SECTION 8.06. Acknowledgements of Lenders and Issuing Bank.  (a) Each Lender and the Issuing Bank represents and warrants that (i) the Loan  Documents set forth the terms of a commercial lending facility, (ii) that it is engaged in making, acquiring  or holding commercial loans and in providing other facilities set forth herein as may be applicable to such  Lender or the Issuing Bank, in each case, in the ordinary course of business, and not for the purpose of  purchasing, acquiring or holding any other type of financial instrument (and each Lender and the Issuing  Bank agrees not to assert a claim in contravention of the foregoing), (iii) it has, independently and without  reliance upon the Administrative Agent, any Arranger, any Co-Syndication Agent, the Documentation  Agent or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based  on such documents and information as it has deemed appropriate, made its own credit analysis and decision  to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is  sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other  facilities set forth herein, as may be applicable to such Lender or the Issuing Bank, and either it, or the  Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or  to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or  providing such other facilities.  Each Lender and the Issuing Bank also acknowledges that it will,  independently and without reliance upon the Administrative Agent, any Arranger, any Co-Syndication  Agent, the Documentation Agent or any other Lender or Issuing Bank, or any of the Related Parties of any  of the foregoing, and based on such documents and information (which may contain material, non-public  information within the meaning of the United States securities laws concerning the Company and its  Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or  not taking action under or based upon this Agreement, any other Loan Document or any related agreement  or any document furnished hereunder or thereunder.  (b) Each Lender, by delivering its signature page to this Agreement on the Effective  Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document  pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of,  and consented to and approved, each Loan Document and each other document required to be delivered to,  or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date or the  effective date of any such Assignment and Assumption or any other document pursuant to which it shall  have become a Lender hereunder.  





 






  124  (c) (i) Each Lender hereby agrees that (x) if the Administrative Agent notifies such  Lender that the Administrative Agent has determined in its sole discretion that any funds received by such  Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or  repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were  erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of  such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business  Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as  to which such a demand was made in same day funds, together with interest thereon in respect of each day  from and including the date such Payment (or portion thereof) was received by such Lender to the date such  amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by  the Administrative Agent in accordance with banking industry rules on interbank compensation from time  to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby  waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment  with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any  Payments received, including without limitation any defense based on “discharge for value” or any similar  doctrine.  A notice of the Administrative Agent to any Lender under this Section 8.06(c) shall be conclusive,  absent manifest error.   Each Lender hereby further agrees that if it receives a Payment from the  Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different  date from, that specified in a notice of payment sent by the Administrative Agent (or any of its  Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or  accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been  made with respect to such Payment.  Each Lender agrees that, in each such case, or if it otherwise  becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall  promptly notify the Administrative Agent of such occurrence and, upon demand from the  Administrative Agent, it shall promptly, but in no event later than one (1) Business Day thereafter,  return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which  such a demand was made in same day funds, together with interest thereon in respect of each day  from and including the date such Payment (or portion thereof) was received by such Lender to the  date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a  rate determined by the Administrative Agent in accordance with banking industry rules on  interbank compensation from time to time in effect.   The Company and each other Loan Party hereby agrees that (x) in the  event an erroneous Payment (or portion thereof) are not recovered from any Lender that has  received such Payment (or portion thereof) for any reason, the Administrative Agent shall be  subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous  Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations (or any other  Secured Obligations) owed by the Company or any other Loan Party, except to the extent such  erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is,  comprised of funds received by the Administrative Agent from the Company or any other Loan  Party for the purpose of satisfying an Obligation (or any other Secured Obligation).   Each party’s obligations under this Section 8.06(c) shall survive the  resignation or replacement of the Administrative Agent or any transfer of rights or obligations by,  or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction  or discharge of all Obligations under any Loan Document.  SECTION 8.07. Collateral Matters.  





 






  125  (a) Except with respect to the exercise of setoff rights in accordance with Section 9.08  or with respect to a Holder of Secured Obligations’s right to file a proof of claim in an insolvency  proceeding, no Holder of Secured Obligations shall have any right individually to realize upon any of the  Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers,  rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on  behalf of the Holders of Secured Obligations in accordance with the terms thereof.  In its capacity, the  Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the  term “secured party” as defined in the UCC.  In the event that any Collateral is hereafter pledged by any  Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized,  and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured  Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in  favor of the Administrative Agent on behalf of the Holders of Secured Obligations.  The Lenders hereby  authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held  by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (ii) as permitted by,  but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or  ratified in writing by the Required Lenders, unless such release is required to be approved by all of the  Lenders hereunder.  Upon request by the Administrative Agent at any time, the Lenders will confirm in  writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant  hereto.  Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms  of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as  applicable, and upon at least five (5) Business Days’ prior written request by the Company to the  Administrative Agent (or such shorter period as the Administrative Agent shall agree), the Administrative  Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be  necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the  Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or transferred;  provided, however, that (i) the Administrative Agent shall not be required to execute any such document  on terms which, in the Administrative Agent’s reasonable opinion, would expose the Administrative Agent  to liability or create any obligation or entail any consequence other than the release of such Liens without  recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Secured  Obligations or any Liens upon (or obligations of the Loan Parties in respect of) all interests retained by any  Loan Party, including (without limitation) the proceeds of the sale, all of which shall continue to constitute  part of the Collateral.  (b) In furtherance of the foregoing and not in limitation thereof, no Banking Services  Agreement or Swap Agreement will create (or be deemed to create) in favor of any Holder of Secured  Obligations that is a party thereto any rights in connection with the management or release of any Collateral  or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the  Collateral, each Holder of Secured Obligations that is a party to any such Banking Services Agreement or  Swap Agreement, as applicable, shall be deemed to have appointed the Administrative Agent to serve as  administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan  Documents as a Holder of Secured Obligations thereunder, subject to the limitations set forth in this  paragraph.  (c) The Holders of Secured Obligations irrevocably authorize the Administrative  Agent, at its option and in its discretion, to subordinate any Lien on any property granted to or held by the  Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted  by Section 6.02(e) or (m). The Administrative Agent shall not be responsible for or have a duty to ascertain  or inquire into any representation or warranty regarding the existence, value or collectability of the  Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon or any certificate  prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or  





 






  126  liable to the Lenders or any other Holder of Secured Obligations for any failure to monitor or maintain any  portion of the Collateral.  SECTION 8.08. Credit Bidding.  The Holders of Secured Obligations hereby irrevocably  authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion  of the Secured Obligations (including by accepting some or all of the Collateral in satisfaction of some or  all of the Secured Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner  purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a)  at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363,  1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party  is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or  with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise)  in accordance with any applicable law. In connection with any such credit bid and purchase, the Secured  Obligations owed to the Holders of Secured Obligations shall be entitled to be, and shall be, credit bid by  the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Secured  Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired  assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the  liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset  or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles  that are issued in connection with such purchase). In connection with any such bid, (i) the Administrative  Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid  to such acquisition vehicle or vehicles, (ii) each of the Holders of Secured Obligations’ ratable interests in  the Secured Obligations which were credit bid shall be deemed without any further action under this  Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the  Administrative Agent shall be authorized to adopt documents providing for the governance of the  acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such  acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be  governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of  the Required Lenders or their permitted assignees under the terms of this Agreement or the governing  documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the  termination of this Agreement and without giving effect to the limitations on actions by the Required  Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such  acquisition vehicle or vehicles shall be authorized to issue to each of the Holders of Secured Obligations,  ratably on account of the relevant Secured Obligations which were credit bid, interests, whether as equity,  partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle  and/or debt instruments issued by such acquisition vehicle, all without the need for any Holder of Secured  Obligations or acquisition vehicle to take any further action, and (v) to the extent that Secured Obligations  that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of  another bid being higher or better, because the amount of Secured Obligations assigned to the acquisition  vehicle exceeds the amount of Secured Obligations credit bid by the acquisition vehicle or otherwise), such  Secured Obligations shall automatically be reassigned to the Holders of Secured Obligations pro rata with  their original interest in such Secured Obligations and the equity interests and/or debt instruments issued  by any acquisition vehicle on account of such Secured Obligations shall automatically be cancelled, without  the need for any Holder of Secured Obligations or any acquisition vehicle to take any further action.  Notwithstanding that the ratable portion of the Secured Obligations of each Holder of Secured Obligations  are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Holder of  Secured Obligations shall execute such documents and provide such information regarding the Holder of  Secured Obligations (and/or any designee of the Holder of Secured Obligations which will receive interests  in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably  request in connection with the formation of any acquisition vehicle, the formulation or submission of any  credit bid or the consummation of the transactions contemplated by such credit bid.  





 






  127  SECTION 8.09. Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became a  Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the  date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and the  Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the  Company or any other Loan Party, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of the Plan  Asset Regulations) of one or more Benefit Plans in connection with the Loans, the Letters of Credit  or the Commitments,  (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84- 14 (a class exemption for certain transactions determined by independent qualified professional  asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance  company general accounts), PTE 90-1 (a class exemption for certain transactions involving  insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain  transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for  certain transactions determined by in-house asset managers), is applicable with respect to such  Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters  of Credit, the Commitments and this Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified  Professional Asset Manager made the investment decision on behalf of such Lender to enter into,  participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this  Agreement, (C) the entrance into, participation in, administration of and performance of the Loans,  the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub- sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the  requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the Letters of  Credit, the Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in  writing between the Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true  with respect to a Lender or such Lender has provided another representation, warranty and covenant as  provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and  warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such  Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the  benefit of, the Administrative Agent, the Arrangers, the Co-Syndication Agents and the Documentation  Agent or any of their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the  Company or any other Loan Party, that none of the Administrative Agent, or the Arrangers, the Co- Syndication Agents, the Documentation Agent or any of their respective Affiliates is a fiduciary with  respect to the assets of such Lender (including in connection with the reservation or exercise of any rights  by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto  or thereto).  (c) The Administrative Agent and the Arrangers, the Co-Syndication Agents and the  Documentation Agent hereby informs the Lenders that each such Person is not undertaking to provide  





 






  128  impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions  contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby  in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the  Loans, the Letters of Credit, the Commitments, this Agreement and any other Loan Documents, (ii) may  recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than  the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender  or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the  Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees,  upfront fees, underwriting fees, ticking fees, agency fees, administrative agent fees or collateral agent fees,  utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction  fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other  early termination fees or fees similar to the foregoing.  SECTION 8.10. Certain Foreign Pledge Matters.  The Administrative Agent is hereby  authorized to execute and deliver any documents necessary or appropriate to create and perfect the rights  of pledge for the benefit of the Holders of Secured Obligations including a right of pledge with respect to  the Equity Interests in any Subsidiary which is organized under the laws of the Netherlands.  Without  prejudice to the provisions of this Agreement and the other Loan Documents, the parties hereto  acknowledge and agree with the creation of parallel debt obligations of the Company or any relevant  Subsidiary as will be described in any Dutch Security Agreement (a “Parallel Debt”), including that any  payment received by the Administrative Agent in respect of a Parallel Debt will - conditionally upon such  payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to  bankruptcy, insolvency, preference, liquidation or similar laws of general application - be deemed a  satisfaction of a pro rata portion of the corresponding amounts of the Secured Obligations, and any payment  to the Holders of Secured Obligations in satisfaction of the Secured Obligations shall - conditionally upon  such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating  to bankruptcy, insolvency, preference, liquidation or similar laws of general application - be deemed as  satisfaction of a pro rata portion of the corresponding amount of a Parallel Debt.  The parties hereto  acknowledge and agree that, for purposes of the Dutch Security Agreements, any resignation by the  Administrative Agent is not effective with respect to its rights and obligations under a Parallel Debt until  such rights and obligations have been assumed by the successor Administrative Agent.  The Administrative  Agent will reasonably cooperate in assigning its rights and obligations under any Parallel Debt to a  successor agent in accordance with Section 8.05 of this Agreement and will reasonably cooperate in  transferring all rights and obligations under any Dutch Security Agreement to such successor agent.  All  other parties hereby, in advance, irrevocably grant their cooperation (medewerking) to the transfer of all  such rights and obligations by the Administrative Agent to a successor agent in accordance with Section  8.05 of this Agreement.  ARTICLE IX    Miscellaneous  SECTION 9.01. Notices.  (a) Except in the case of notices and other communications  expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other  communications provided for herein shall be in writing and shall be delivered by hand or overnight courier  service, mailed by certified or registered mail or sent by telecopy, as follows:  (i) if to any Borrower, to it c/o Materion Corporation, 6070 Parkland Boulevard,  Mayfield Heights, Ohio 44124, Attention of Christopher Eberhardt (Telecopy No. (216) 383-4918;  Telephone No. (216) 383-6820);  





 






  129  (ii) if to the Administrative Agent, (A) in the case of Borrowings denominated in  Dollars, to JPMorgan Chase Bank, N.A., JPMorgan Loan Services, 10 South Dearborn Street,  L2 Floor, Chicago, Illinois 60603, Attention: Sean Melvin (Facsimile No. (888) 499-5663;  Email: jpm.agency.cri@jpmorgan.com), (B) in the case of Borrowings denominated in Foreign  Currencies, to J.P. Morgan Europe Limited, 25 Bank Street, Canary Wharf, London E14 5JP,  Attention of The Manager, Loan & Agency Services (Telecopy No. 44 207 777 2360), (C) in the  case of a notification of the DQ List, to JPMDQ_Contact@jpmorgan.com and (D) for all other  notices, to JPMorgan Chase Bank, N.A., 10 South Dearborn Street, Floor 9, Chicago, Illinois  60603, Attention: Eric Bergeson (Email: eric.b.bergeson@jpmorgan.com);  (iii) if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A., JPMorgan Loan  Services, 10 South Dearborn Street, L2 Floor, Chicago, Illinois 60603, Attention: Chicago LC  Agency Activity Team (Email: chicago.lc.agency.closing.team@jpmorgan.com;  chicago.lc.agency.activity.team@jpmorgan.com);  (iv) if to the Swingline Lender, to it at JPMorgan Chase Bank, N.A., JPMorgan Loan  Services, 10 South Dearborn Street, L2 Floor, Chicago, Illinois 60603, Attention: Sean Melvin  (Facsimile No. (888) 499-5663; Email: jpm.agency.cri@jpmorgan.com); and  (v) if to any other Lender, to it at its address (or telecopy number) set forth in its  Administrative Questionnaire.  Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed  to have been given when received; notices sent by facsimile shall be deemed to have been given when sent  (except that, if not given during normal business hours for the recipient, shall be deemed to have been given  at the opening of business on the next business day for the recipient).  Notices delivered through Approved  Electronic Platforms, to the extent provided in paragraph (b) below, shall be effective as provided in said  paragraph (b).  (b) Notices and other communications to any Loan Party, the Lenders and the Issuing  Bank hereunder may be delivered or furnished by using Approved Electronic Platforms pursuant to  procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices  pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender.  The  Administrative Agent or the Company may, in its discretion, agree to accept notices and other  communications to it hereunder by electronic communications pursuant to procedures approved by it;  provided that approval of such procedures may be limited to particular notices or communications.  (c) Unless the Administrative Agent otherwise prescribes, (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an  acknowledgement from the intended recipient (such as by the “return receipt requested” function, as  available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to  an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient,  at its e-mail address as described in the foregoing clause (i), of notification that such notice or  communication is available and identifying the website address therefor; provided that, for both clauses (i)  and (ii) above, if such notice, email or other communication is not sent during the normal business hours  of the recipient, such notice or communication shall be deemed to have been sent at the opening of business  on the next business day for the recipient.  (d) Any party hereto may change its address or telecopy number for notices and other  communications hereunder by notice to the other parties hereto.  





 






  130  SECTION 9.02. Waivers; Amendments.  (a) No failure or delay by the Administrative  Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan  Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or  power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other  or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the  Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents  are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver  of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in  any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such  waiver or consent shall be effective only in the specific instance and for the purpose for which given.   Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall  not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender  or the Issuing Bank may have had notice or knowledge of such Default at the time.  (b) Except as provided in Section 2.20 with respect to an Incremental Term Loan  Amendment, Section 2.25 with respect to an extension of the applicable Maturity Date or as provided in  Section 2.14(b), Section 2.14(c) and Section 2.14(d), neither this Agreement nor any provision hereof may  be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by  the Borrowers and the Required Lenders or by the Borrowers and the Administrative Agent with the consent  of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender  without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC  Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the  written consent of each Lender directly affected thereby (except that (x) any amendment or modification of  the financial covenants in this Agreement (or defined terms used in the financial covenants in this  Agreement) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (ii) and  (y) only the consent of the Required Lenders shall be necessary to reduce or waive any obligation of any  Borrower to pay interest or any other amount at the applicable default rate set forth in Section 2.13(d) or to  amend Section 2.13(d)), (iii) postpone the scheduled date of payment (including any scheduled date of  amortization payment) of the principal amount of any Loan or LC Disbursement, or any interest thereon,  or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone  the scheduled date of expiration of any Commitment, without the written consent of each Lender directly  affected thereby (other than (x) any reduction of the amount of, or any extension of the payment date for,  the mandatory prepayments required under Section 2.11(b), which shall only require the approval of the  Required Revolving Lenders, (y) any reduction of the amount of, or any extension of the payment date for,  the mandatory prepayments required under Section 2.11(c), which shall only require the approval of the  Required Term Lenders, and (z) with respect to the matters set forth in clauses (ii)(x) and (ii)(y) above),  (iv) change Section 2.09(c) or 2.18(b) or (d) in a manner that would alter the ratable reduction of  Commitments or the pro rata sharing of payments required thereby, without the written consent of each  Lender (other than any Defaulting Lender), (v) change the payment waterfall provisions of Section 2.18(b)  or 2.24(b) without the written consent of each Lender, (vi) change any of the provisions of this Section or  the definition of “Required Lenders”, “Required Revolving Lenders”, “Required Term Lenders” or any  other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify  any rights hereunder or make any determination or grant any consent hereunder, without the written consent  of each Lender of the applicable Class (other than any Defaulting Lender) (it being understood that, solely  with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Term Loan  Amendment, Incremental Term Loans may be included in the determination of Required Lenders on  substantially the same basis as the Commitments and the Loans are included on the Effective Date),  (vii) release the Company or all or substantially all of the Subsidiary Guarantors from their obligations  under Article X or the Subsidiary Guaranty, in each case, without the written consent of each Lender (other  than any Defaulting Lender), (viii) (x) waive any condition set forth in Section 4.03 in respect of the making  of a Revolving Loan without the written consent of the Required Revolving Lenders or (y) waive any  





 






  131  condition set forth in Section 4.02 in respect of the making of a Term Loan without the written consent of  the Required Term Lenders (it being understood and agreed that any amendment or waiver of, or any  consent with respect to, any provision of this Agreement (other than any waiver expressly relating to Section  4.02 or Section 4.03, as applicable) or any other Loan Document, including any amendment of any  affirmative or negative covenant set forth herein or in any other Loan Document or any waiver of a Default  or an Event of Default, shall not be deemed to be a waiver of a condition set forth in Section 4.02 or Section  4.03, as applicable, for purposes of this Section 9.02), or (ix) except as provided in clause (d) of this Section  or in any Collateral Document, release all or substantially all of the Collateral, without the written consent  of each Lender (other than any Defaulting Lender); provided further that no such agreement shall amend,  modify or otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank or the  Swingline Lender hereunder without the prior written consent of the Administrative Agent, the Issuing  Bank or the Swingline Lender, as the case may be (it being understood that any change to Section 2.24 shall  require the consent of the Administrative Agent, the Issuing Bank and the Swingline Lender); and provided  further that no such agreement shall amend or modify the provisions of Section 2.06 without the prior  written consent of the Administrative Agent and the Issuing Bank.  Notwithstanding the foregoing, no  consent with respect to any amendment, waiver or other modification of this Agreement shall be required  of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to  in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting  Lender shall be directly affected by such amendment, waiver or other modification.  (c) Notwithstanding the foregoing, (i) this Agreement and any other Loan Document  may be amended (or amended and restated) with the written consent of the Required Lenders, the  Administrative Agent and each Loan Party party to each relevant Loan Document (x) to add one or more  credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan  Amendment) to this Agreement and to permit extensions of credit from time to time outstanding thereunder  and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and  the other Loan Documents with the Revolving Loans, Term Loans, Incremental Term Loans and the  accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit  facilities in any determination of the Required Lenders and Lenders, and (ii) in connection with (x) new or  increases to the Commitments and/or Incremental Term Loans pursuant to Section 2.20 or (y) any extension  pursuant to Section 2.25, this Agreement and any other Loan Document may be amended (or amended and  restated) with the written consent of the parties prescribed by such Sections and shall not require the consent  of the Required Lenders.  (d) The Lenders hereby irrevocably authorize the Administrative Agent, at its option  and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on  any Collateral (i) upon the termination of all the Commitments, payment and satisfaction in full in cash of  all Secured Obligations (other than Swap Obligations not yet due and payable, Banking Services  Obligations not yet due and payable, Unliquidated Obligations for which no claim has been made and other  Obligations expressly stated to survive such payment and termination), and the cash collateralization (or  receipt of a backstop letter of credit) of all Unliquidated Obligations in a manner (and, in the case of a  backstop letter of credit, by an issuer) reasonably satisfactory to the Administrative Agent, (ii) constituting  property being sold or disposed of if the Company certifies to the Administrative Agent that the sale or  disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may  rely conclusively on any such certificate, without further inquiry), and to the extent that the property being  sold or disposed of constitutes 100% of the Equity Interest of a Subsidiary, the Administrative Agent is  authorized to release such Subsidiary from its obligations hereunder and under the other Loan Documents,  (iii) constituting property leased to the Company or any Subsidiary under a lease which has expired or been  terminated in a transaction permitted under this Agreement, (iv) as required to effect any sale or other  disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and  the Lenders pursuant to Article VII, or (v) in the event that such Collateral (A) constitutes property of a  





 






  132  Subsidiary in the event that such Subsidiary ceases to be a Loan Party, (B) constitutes Excluded Assets or  (C) constitutes the Equity Interest of a Subsidiary that is not a Loan Party or a Pledge Subsidiary.  Any such  release shall not in any manner discharge, affect, or impair the Secured Obligations or any Liens (other than  those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained  by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the  Collateral.  In addition, each of the Lenders, on behalf of itself and any of its Affiliates that are Holders of  Secured Obligations, irrevocably authorizes the Administrative Agent, at its option and in its discretion, (i)  to subordinate any Lien on any assets granted to or held by the Administrative Agent under any Loan  Document to the holder of any Lien on such property that is permitted by Section 6.02(e) or (m) or (ii) in  the event that the Company shall have advised the Administrative Agent that, notwithstanding the use by  the Company of commercially reasonable efforts to obtain the consent of such holder (but without the  requirement to pay any sums to obtain such consent) to permit the Administrative Agent to retain its liens  (on a subordinated basis as contemplated by clause (i) above), the holder of such other Indebtedness  requires, as a condition to the extension of such credit, that the Liens on such assets granted to or held by  the Administrative Agent under any Loan Document be released, to release the Administrative Agent’s  Liens on such assets.  (e) If, in connection with any proposed amendment, waiver or consent  requiring the  consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders  is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is  necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Company may  elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently  with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Company  and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other  Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become  a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender  to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, (ii) each  Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1)  all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such  Borrower hereunder to and including the date of termination, including without limitation payments due to  such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment  which would have been due to such Lender on the day of such replacement under Section 2.16 had the  Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender  and (iii) such Non-Consenting Lender shall have received the outstanding principal amount of its Loans  and participations in LC Disbursements.  Each party hereto agrees that (i) an assignment required pursuant  to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Company,  the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an  Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the  Administrative Agent and such parties are participants), and (ii) the Lender required to make such  assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to  have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such  assignment, the other parties to such assignment agree to execute and deliver such documents necessary to  evidence such assignment as reasonably requested by the applicable Lender, provided that any such  documents shall be without recourse to or warranty by the parties thereto.  (f) Notwithstanding anything to the contrary herein the Administrative Agent may,  with the consent of the Borrowers only, amend, modify or supplement this Agreement or any of the other  Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.  SECTION 9.03. Expenses; Limitation of Liability; Indemnity.  (a) The Company shall  pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its  





 






  133  Affiliates (which shall be limited, in the case of legal fees and expenses, to the reasonable and documented  fees, disbursements and other charges of one primary counsel and one local counsel in each relevant  jurisdiction) in connection with the syndication and distribution (including, without limitation, via the  internet or through a service such as Intralinks) of the credit facilities provided for herein, the preparation  and administration of this Agreement and the other Loan Documents or any amendments, modifications or  waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby  shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by the Issuing  Bank in connection with the issuance, amendment or extension of any Letter of Credit or any demand for  payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the  Administrative Agent, the Issuing Bank or any Lender (which shall be limited, in the case of legal fees and  expenses, to the reasonable and documented fees, disbursements and other charges of (x) one primary  counsel to the Administrative Agent (and one local counsel to the Administrative Agent in each relevant  jurisdiction), (y) one counsel to all of the other Lenders taken as a whole (and one local counsel to all of  the other Lenders taken as a whole in each relevant jurisdiction) and (z) solely in the event of an actual or  reasonably perceived conflict of interest, one additional counsel (and one local counsel in each relevant  jurisdiction) for each group of similarly affected Lenders taken as a whole) in connection with the  enforcement or protection of its rights in connection with this Agreement and any other Loan Document,  including its rights under this Section, or in connection with the Loans made or Letters of Credit issued  hereunder, including all such out-of-pocket expenses (subject to the foregoing limitations with respect to  legal fees and expenses) incurred during  any workout, restructuring or negotiations in respect of such Loans  or Letters of Credit.  (b) Limitation of Liability.  To the extent permitted by applicable law the Company  and any other Loan Party shall not assert, and the Company and each other Loan Party hereby waives (i)  any claim against the Administrative Agent, any Arranger, any Co-Syndication Agent, the Documentation  Agent, the Issuing Bank and any Lender, and any Related Party of any of the foregoing Persons (each such  Person being called a “Lender-Related Person”) for any Liabilities arising from the use by others of  information or other materials (including, without limitation, any personal data) obtained through  telecommunications, electronic or other information transmission systems (including the Internet), and  (ii) any Liabilities against any Lender-Related Person, on any theory of liability, for special, indirect,  consequential or punitive damages (as opposed to direct or actual damages) incurred by the Company or  any of its Subsidiaries arising out of, in connection with, or as a result of, this Agreement, any other Loan  Document, or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or  Letter of Credit or the use of the proceeds thereof; provided that, nothing in this Section 9.03(b) shall relieve  the Company or any other Loan Party of any obligation it may have to indemnify an Indemnitee, as provided  in Section 9.03(c), against any special, indirect, consequential or punitive damages asserted against such  Indemnitee by a third party.  (c) The Company shall indemnify the Administrative Agent, each Arranger, the  Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person  being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all Liabilities and  related expenses, including the reasonable fees, charges and disbursements of any counsel for any  Indemnitee (which shall be limited, in the case of legal fees and expenses, to the reasonable and documented  fees, disbursements and other charges of one primary counsel, and one local counsel in each applicable  jurisdiction, for the Administrative Agent, and not more than one outside counsel, and one local counsel in  each applicable jurisdiction, for all of the other Indemnitees and, solely in the case of an actual or reasonably  perceived conflict of interest, one additional counsel for each affected Indemnitee), incurred by or asserted  against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of  any Loan Document or any agreement or instrument contemplated thereby, the performance by the parties  hereto of their respective obligations thereunder or the consummation of the Transactions or any other  transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom  





 






  134  (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the  documents presented in connection with such demand do not strictly comply with the terms of such Letter  of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property  owned or operated by the Company or any of its Subsidiaries, or any Environmental Liability related in any  way to the Company or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,  investigation, arbitration or proceeding relating to any of the foregoing, whether or not such claim,  litigation, investigation, arbitration or proceeding is brought by the Company or any other Loan Party or its  or their respective equity holders, Affiliates, creditors or any other third Person and whether based on  contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that  such indemnity shall not, as to any Indemnitee, be available to the extent that such Liabilities or related  expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have  resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee (or any of its  Controlled Related Parties (as defined below)), (y) the material breach by such Indemnitee of any of its  express obligations under this Agreement pursuant to a claim initiated by the Company or (z) any disputes  solely among Indemnitees and not arising out of any act or omission of the Company or any of its Affiliates  (other than (A) any proceeding against any Indemnitee solely in its capacity or in fulfilling its role as  Administrative Agent, Arranger, Co-Syndication Agent or Documentation Agent or any other similar role  with respect to the credit facilities evidenced by this Agreement or (B) arising as a result of an act or  omission by the Company or any of its Affiliates).  As used in this Section 9.03(c), a “Controlled Related  Party” of an Indemnitee means (1) any Controlling Person or Controlled Affiliate of such Indemnitee, (2)  the respective directors, officers, or employees of such Indemnitee or any of its Controlling Persons or  Controlled Affiliates and (3) the respective agents or representatives of such Indemnitee or any of its  Controlling Persons or Controlled Affiliates, in the case of this clause (3), acting on behalf of or at the  instructions of such Indemnitee, Controlling Person or such Controlled Affiliate; provided that each  reference to a Controlled Affiliate, Controlling Person, director, officer or employee in this sentence  pertains to a Controlled Affiliate, Controlling Person, director, officer or employee involved in the  structuring, arrangement, negotiation or syndication of the credit facilities evidenced by this Agreement.   Each of the Administrative Agent and the Lenders hereby agrees, on behalf of itself and its Controlled  Related Party, that any settlement entered into by the Administrative Agent or such Lender, respectively,  and its Controlled Related Party in connection with a claim or proceeding for which an indemnity claim is  made against the Company pursuant to the preceding sentence shall be so entered into in good faith and not  on an arbitrary or capricious basis.  This Section 9.03(c) shall not apply with respect to Taxes other than  any Taxes that represent losses, claims or damages arising from any non-Tax claim.  (d) To the extent that the Company fails to pay any amount required to be paid by it  to the Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a), (b) or (c) of  this Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the  Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the time that  the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (it being  understood that the Company’s failure to pay any such amount shall not relieve the Company of any default  in the payment thereof); provided that the unreimbursed expense or indemnified Liability or related  expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank  or the Swingline Lender in its capacity as such.  (e) All amounts due under this Section shall be payable not later than fifteen (15) days  after written demand therefor.  SECTION 9.04. Successors and Assigns.  (a) The provisions of this Agreement shall  be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns  permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that  (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior  





 






  135  written consent of each Lender (and any attempted assignment or transfer by any Borrower without such  consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations  hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or implied, shall  be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns  permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants  (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby,  the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or  equitable right, remedy or claim under or by reason of this Agreement.  (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may  assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights and  obligations under this Agreement (including all or a portion of its Commitment, participations in Letters of  Credit and the Loans at the time owing to it) with the prior written consent (such consent not to be  unreasonably withheld, conditioned or delayed) of:  (A) the Company (provided that the Company shall be deemed to have  consented to any such assignment unless it shall object thereto by written notice to the  Administrative Agent within ten (10) Business Days after having received notice thereof);  provided further that no consent of the Company shall be required for an assignment to a  Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section  7.01(a), (b), (h), (i) or (j) has occurred and is continuing, any other assignee (but, in each  case, the assignor or assignee shall send notice of such assignment to the Company);   (B) the Administrative Agent;  (C) the Issuing Bank; provided that no consent of the Issuing Bank shall be  required for an assignment of all or any portion of a Term Loan Commitment or a Term  Loan; and  (D) the Swingline Lender; provided that no consent of the Swingline Lender  shall be required for an assignment of all or any portion of a Term Loan Commitment or a  Term Loan.  (ii) Assignments shall be subject to the following additional conditions:  (A) except in the case of an assignment to a Lender or an Affiliate of a Lender  or an Approved Fund or an assignment of the entire remaining amount of the assigning  Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of  the assigning Lender subject to each such assignment (determined as of the date the  Assignment and Assumption with respect to such assignment is delivered to the  Administrative Agent) shall not be less than $5,000,000 unless each of the Company and  the Administrative Agent otherwise consent; provided that no such consent of the  Company shall be required if an Event of Default under Section 7.01(a), (b), (h), (i) or (j)  has occurred and is continuing;  (B) each partial assignment shall be made as an assignment of a proportionate  part of all the assigning Lender’s rights and obligations under this Agreement; provided  that this clause shall not be construed to prohibit the assignment of a proportionate part of  all the assigning Lender’s rights and obligations in respect of one Class of Commitments  or Loans;  





 






  136  (C) the parties to each assignment shall execute and deliver to the  Administrative Agent (x) an Assignment and Assumption or (y) to the extent applicable,  an agreement incorporating an Assignment and Assumption by reference pursuant to an  Approved Electronic Platform as to which the Administrative Agent and the parties to the  Assignment and Assumption are participants, together with a processing and recordation  fee of $3,500, such fee to be paid by either the assigning Lender or the assignee Lender or  shared between such Lenders;   (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative  Agent an Administrative Questionnaire in which the assignee designates one or more credit  contacts to whom all syndicate-level information (which may contain material non-public  information about the Company and its affiliates and their Related Parties or their  respective securities) will be made available and who may receive such information in  accordance with the assignee’s compliance procedures and applicable laws, including  federal and state securities laws; and  (E) other than assignments to an existing Lender, any assignment or transfer  to or assumption by  any Person of all or a portion of a Lender's rights and obligations  under this Agreement (including all or a portion of its Commitments or Loans) with respect  to a Borrower organized under the laws of the Netherlands shall only be permitted if such  Person is a Dutch Non-Public Lender.  For the purposes of this Section 9.04(b), the terms “Approved Fund” and “Ineligible  Institution” have the following meanings:  “Approved Fund” means any Person (other than a natural person) that is engaged in  making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary  course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or  (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or its Lender  Parent, (c) the Company, any of its Subsidiaries or any of its Affiliates, (d) a company, investment vehicle  or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof, or (e)  a Disqualified Institution.  (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this  Section, from and after the effective date specified in each Assignment and Assumption the assignee  thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and  Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender  thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released  from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all  of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party  hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03).  Any  assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with  this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation  in such rights and obligations in accordance with paragraph (c) of this Section.  (iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of each  Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it  and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and  principal amount (and stated interest) of the Loans and LC Disbursements owing to, each Lender pursuant  





 






  137  to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent  manifest error, and the Borrowers, the Administrative Agent, the Issuing Bank and the Lenders shall treat  each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for  all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for  inspection by the Company, the Issuing Bank and any Lender, at any reasonable time and from time to time  upon reasonable prior notice.  (v) Upon its receipt of (x) a duly completed Assignment and Assumption executed by  an assigning Lender and an assignee or (y) to the extent applicable, an agreement incorporating an  Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the  Administrative Agent and the parties to the Assignment and Assumption are participants, the assignee’s  completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the  processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such  assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such  Assignment and Assumption and record the information contained therein in the Register; provided that if  either the assigning Lender or the assignee shall have failed to make any payment required to be made by  it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(d), the Administrative Agent shall  have no obligation to accept such Assignment and Assumption and record the information therein in the  Register unless and until such payment shall have been made in full, together with all accrued interest  thereon.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the  Register as provided in this paragraph.  (c) (i) Any Lender may, without the consent of the Company, the Administrative  Agent, the Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities,  other than an Ineligible Institution (each such bank or entity, a “Participant”), in all or a portion of such  Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment  and/or the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall  remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the  performance of such obligations and (C) the Borrowers, the Administrative Agent, the Issuing Bank and  the other Lenders shall continue to deal solely and directly with such Lender in connection with such  Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a  Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this  Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;  provided that such agreement or instrument may provide that such Lender will not, without the consent of  the Participant, agree to any amendment, modification or waiver described in the first proviso to  Section 9.02(b) that affects such Participant.  Subject to the following clause (B) of this Section 9.04(c)(i),  each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17  (subject to the requirements and limitations therein, including the requirements under Section 2.17(e) and  (h) (it being understood that the documentation required under Section 2.17(e) and (h) shall be delivered to  the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by  assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject  to the provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section; and  (B) shall not be entitled to receive any greater payment under Sections 2.15 or 2.17, with respect to any  participation, than its participating Lender would have been entitled to receive, except to the extent such  entitlement to receive a greater payment results from a Change in Law that occurs after the Participant  acquired the applicable participation.  Each Lender that sells a participation agrees, at the Company’s  request and expense, to use reasonable efforts to cooperate with the Company to effectuate the provisions  of Section 2.19(b) with respect to any Participant.  To the extent permitted by law, each Participant also  shall be entitled to the benefits of Section 9.08 as though it were a Lender; provided such Participant agrees  to be subject to Section 2.18(d) as though it were a Lender.  





 






  138  (ii) A Participant that would be a Foreign Lender if it were a Lender shall not be  entitled to the benefits of Section 2.17 unless the Company is notified of the participation sold to such  Participant and such Participant agrees, for the benefit of the Company, to comply with Section 2.17(e) and  (h) as though it were a Lender (it being understood that the documentation required under Section 2.17(e)  and (h) shall be delivered to the participating Lender).  Each Lender that sells a participation shall, acting  solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the  name and address of each Participant and the principal amounts (and stated interest) of each Participant’s  interest in the obligations under this Agreement (the “Participant Register”); provided that no Lender shall  have any obligation to disclose all or any portion of the Participant Register to any Person (including the  identity of any Participant or any information relating to a Participant’s interest in the obligations under this  Agreement) except to the extent that such disclosure is necessary to establish that such interest is in  registered form under Section 5f.103-1(c) of the United States Treasury Regulations or Section 1.163-5(b)  of the Proposed United States Treasury Regulations (or, in each case, any amended or successor version).   The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat  each Person whose name is recorded in the Participant Register as the owner of such participation for all  purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the  Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining  a Participant Register.  (d) Any Lender may at any time pledge or assign a security interest in all or any portion  of its rights under this Agreement to secure obligations of such Lender, including without limitation any  pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to  any such pledge or assignment of a security interest; provided that no such pledge or assignment of a  security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee  or assignee for such Lender as a party hereto.  (e) Disqualified Institutions.  (i) No assignment or participation shall be made to any Person that was a Disqualified  Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding  agreement to sell and assign or grant a participation in all or a portion of its rights and obligations  under this Agreement to such Person (unless the Company has consented to such assignment or  participation in writing in its sole and absolute discretion, in which case such Person will not be  considered a Disqualified Institution for the purpose of such assignment or participation). For the  avoidance of doubt, with respect to any assignee or Participant that becomes a Disqualified  Institution after the applicable Trade Date (including as a result of the delivery of a written  supplement to the list of “Disqualified Institutions” referred to in, the definition of “Disqualified  Institution”), (x) such assignee or Participant shall not retroactively be disqualified from becoming  a Lender or Participant and (y) the execution by the Company of an Assignment and Assumption  with respect to such assignee will not by itself result in such assignee no longer being considered a  Disqualified Institution. Any assignment or participation in violation of this clause (e)(i) shall not  be void, but the other provisions of this clause (e) shall apply.  (ii) If any assignment or participation is made to any Disqualified Institution without  the Company’s prior written consent in violation of clause (i) above, or if any Person becomes a  Disqualified Institution after the applicable Trade Date, the Company may, at its sole expense and  effort, upon notice to the applicable Disqualified Institution and the Administrative Agent, require  such Disqualified Institution to assign, without recourse (in accordance with and subject to the  restrictions contained in this Section 9.04), all of its interest, rights and obligations under this  Agreement to one or more Persons (other than an Ineligible Institution) at the lesser of (x) the  principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such  





 






  139  interests, rights and obligations in each case plus accrued interest, accrued fees and all other  amounts (other than principal amounts) payable to it hereunder.  (iii) Notwithstanding anything to the contrary contained in this Agreement,  Disqualified Institutions to whom an assignment or participation is made in violation of clause (i)  above (A) will not have the right to (x) receive information, reports or other materials provided to  Lenders by the Company, the Administrative Agent or any other Lender, (y) attend or participate  in meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic site  established for the Lenders or confidential communications from counsel to or financial advisors  of the Administrative Agent or the Lenders and (B) (x) for purposes of any consent to any  amendment, waiver or modification of, or any action under, and for the purpose of any direction to  the Administrative Agent or any Lender to undertake any action (or refrain from taking any action)  under this Agreement or any other Loan Document, each Disqualified Institution will be deemed  to have consented in the same proportion as the Lenders that are not Disqualified Institutions  consented to such matter, and (y) for purposes of voting on any plan of reorganization, each  Disqualified Lender party hereto hereby agrees (1) not to vote on such plan of reorganization, (2)  if such Disqualified Lender does vote on such plan of reorganization notwithstanding the restriction  in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be  “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any  other applicable laws), and such vote shall not be counted in determining whether the applicable  class has accepted or rejected such plan of reorganization in accordance with Section 1126(c) of  the Bankruptcy Code (or any similar provision in any other applicable laws) and (3) not to contest  any request by any party for a determination by the Bankruptcy Court (or other applicable court of  competent jurisdiction) effectuating the foregoing clause (2).  (iv) The Administrative Agent shall have the right, and the Company hereby expressly  authorizes the Administrative Agent, to (A) post the list of Disqualified Institutions provided by  the Company and any updates thereto from time to time (collectively, the “DQ List”) on an  Approved Electronic Platform, including that portion of such Approved Electronic Platform that is  designated for “public side” Lenders and/or (B) provide the DQ List to each Lender or potential  Lender requesting the same.  (v) The Administrative Agent shall not be responsible or have any liability for, or have  any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof  relating to Disqualified Institutions.  Without limiting the generality of the foregoing, the  Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any  Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have  any liability with respect to or arising out of any assignment or participation of Loans, or disclosure  of confidential information, by any other Person to any Disqualified Institution.  SECTION 9.05. Survival.  All covenants, agreements, representations and warranties  made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in  connection with or pursuant to this Agreement or any other Loan Document shall be considered to have  been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan  Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any  investigation made by any such other party or on its behalf and notwithstanding that the Administrative  Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect  representation or warranty at the time any credit is extended hereunder, and shall continue in full force and  effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable  under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of Credit is  outstanding and so long as the Commitments have not expired or terminated.  The provisions of  





 






  140  Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect  regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the  expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement  or any other Loan Document or any provision hereof or thereof.  SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution.  This  Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each  of which shall constitute an original, but all of which when taken together shall constitute a single contract.   This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable  to the Administrative Agent constitute the entire contract among the parties relating to the subject matter  hereof and supersede any and all previous agreements and understandings, oral or written, relating to the  subject matter hereof.  Except as provided in Section 4.01, this Agreement shall become effective when it  shall have been executed by the Administrative Agent and when the Administrative Agent shall have  received counterparts hereof which, when taken together, bear the signatures of each of the other parties  hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective  successors and assigns.  Delivery of an executed counterpart of a signature page of (x) this Agreement,  (y) any other Loan Document and/or (z) any document, amendment, approval, consent, information, notice  (including, for the avoidance of doubt, any notice delivered pursuant to Section 9.01), certificate, request,  statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the  transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic  Signature transmitted by telecopy, emailed pdf, or any other electronic means that reproduces an image of  an actual executed signature page shall be effective as delivery of a manually executed counterpart of this  Agreement, such other Loan Document or such Ancillary Document, as applicable.  The words “execution,”  “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement, any other Loan  Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or  the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf, or any other  electronic means that reproduces an image of an actual executed signature page), each of which shall be of  the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof  or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall  require the Administrative Agent to accept Electronic Signatures in any form or format without its prior  written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing,  (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative  Agent and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by  or on behalf of the Company or any other Loan Party without further verification thereof and without any  obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of  the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by a manually  executed counterpart.  Without limiting the generality of the foregoing, the Company and each other Loan  Party hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout,  restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative  Agent, the Lenders, the Company and the other Loan Parties, Electronic Signatures transmitted by telecopy,  emailed pdf, or any other electronic means that reproduces an image of an actual executed signature page  and/or any electronic images of this Agreement, any other Loan Document and/or any Ancillary Document  shall have the same legal effect, validity and enforceability as any paper original, (ii) agrees that the  Administrative Agent and each of the Lenders may, at its option, create one or more copies of this  Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged electronic  record in any format, which shall be deemed created in the ordinary course of such Person’s business, and  destroy the original paper document (and all such electronic records shall be considered an original for all  purposes and shall have the same legal effect, validity and enforceability as a paper record), (iii) waives  any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any  other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of  this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with  





 






  141  respect to any signature pages thereto and (iv) waives any claim against any Lender-Related Person for any  Liabilities arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of  Electronic Signatures and/or transmissions by telecopy, emailed pdf, or any other electronic means that  reproduces an image of an actual executed signature page, including any Liabilities arising as a result of  the failure of the Company and/or any other Loan Party to use any available security measures in connection  with the execution, delivery or transmission of any Electronic Signature.  SECTION 9.07. Severability.  Any provision of any Loan Document held to be invalid,  illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such  invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the  remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall  not invalidate such provision in any other jurisdiction.  SECTION 9.08. Right of Setoff.  If an Event of Default shall have occurred and be  continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time,  to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or  demand, provisional or final and in whatever currency denominated) at any time held and other obligations  at any time owing by such Lender or Affiliate to or for the credit or the account of any Borrower or any  Subsidiary Guarantor against any of and all the Secured Obligations held by such Lender, irrespective of  whether or not such Lender shall have made any demand under the Loan Documents and although such  obligations may be unmatured.  The rights of each Lender under this Section are in addition to other rights  and remedies (including other rights of setoff) which such Lender may have.  Each Lender and the Issuing  Bank agrees to notify the Company and the Administrative Agent promptly after any such setoff and  application; provided that the failure to give such notice shall not affect the validity of such setoff and  application.  SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.  (a) This Agreement shall be construed in accordance with and governed by the law of  the State of New York, without regard to its conflicts of laws principles.  (b) Each of the Lenders and the Administrative Agent hereby irrevocably and  unconditionally agrees that, notwithstanding the governing law provisions of any applicable Loan  Document, any claims brought against the Administrative Agent by any Secured Party relating to this  Agreement, any other Loan Document, the Collateral or the consummation or administration of the  transactions contemplated hereby or thereby shall be construed in accordance with and governed by the law  of the State of New York.  (c) Each of the parties hereto hereby irrevocably and unconditionally submits, for  itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern  District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction,  the Supreme Court of the State of New York sitting in the  Borough of Manhattan), and any appellate court  from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan  Document or the transactions relating hereto or thereto, or for recognition or enforcement of any judgment,  and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of  any such action or proceeding may (and any such claims, cross-claims or third party claims brought against  the Administrative Agent or any of its Related Parties may only) be heard and determined in such Federal  (to the extent permitted by law) or New York State court.  Each of the parties hereto agrees that a final  judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions  by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement or in any other  Loan Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may  





 






  142  otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document  against any Loan Party or its properties in the courts of any jurisdiction.  (d) Each of the parties hereto hereby irrevocably and unconditionally waives, to the  fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the  laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other  Loan Document in any court referred to in paragraph (c) of this Section.  Each of the parties hereto hereby  irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the  maintenance of such action or proceeding in any such court.  (e) Each party to this Agreement irrevocably consents to service of process in the  manner provided for notices in Section 9.01.  Each Foreign Subsidiary Borrower irrevocably designates  and appoints the Company, as its authorized agent, to accept and acknowledge on its behalf, service of any  and all process which may be served in any suit, action or proceeding of the nature referred to in  Section 9.09(c) in any federal or New York State court sitting in New York City.  The Company hereby  represents, warrants and confirms that the Company has agreed to accept such appointment (and any similar  appointment by a Subsidiary Guarantor which is a Foreign Subsidiary).  Said designation and appointment  shall be irrevocable by each such Foreign Subsidiary Borrower until all Loans, all reimbursement  obligations, interest thereon and all other amounts payable by such Foreign Subsidiary Borrower hereunder  and under the other Loan Documents shall have been paid in full in accordance with the provisions hereof  and thereof and such Foreign Subsidiary Borrower shall have been terminated as a Borrower hereunder  pursuant to Section 2.23.  Each Foreign Subsidiary Borrower hereby consents to process being served in  any suit, action or proceeding of the nature referred to in Section 9.09(c) in any federal or New York State  court sitting in New York City by service of process upon the Company as provided in this Section 9.09(e);  provided that, to the extent lawful and possible, notice of said service upon such agent shall be mailed by  registered or certified air mail, postage prepaid, return receipt requested, to the Company and (if applicable  to) such Foreign Subsidiary Borrower at its address set forth in the Borrowing Subsidiary Agreement to  which it is a party or to any other address of which such Foreign Subsidiary Borrower shall have given  written notice to the Administrative Agent (with a copy thereof to the Company).  Each Foreign Subsidiary  Borrower irrevocably waives, to the fullest extent permitted by law, all claim of error by reason of any such  service in such manner and agrees that such service shall be deemed in every respect effective service of  process upon such Foreign Subsidiary Borrower in any such suit, action or proceeding and shall, to the  fullest extent permitted by law, be taken and held to be valid and personal service upon and personal  delivery to such Foreign Subsidiary Borrower.  To the extent any Foreign Subsidiary Borrower has or  hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether from  service or notice, attachment prior to judgment, attachment in aid of execution of a judgment, execution or  otherwise), each Foreign Subsidiary Borrower hereby irrevocably waives such immunity in respect of its  obligations under the Loan Documents.  Nothing in this Agreement or any other Loan Document will affect  the right of any party to this Agreement to serve process in any other manner permitted by law.  SECTION 9.10. WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY  HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY  ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR  THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON  CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT  NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,  EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF  LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT  IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS  





 






  143  AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS  IN THIS SECTION.  SECTION 9.11. Headings.  Article and Section headings and the Table of Contents  used herein are for convenience of reference only, are not part of this Agreement and shall not affect the  construction of, or be taken into consideration in interpreting, this Agreement.  SECTION 9.12. Confidentiality.  Each of the Administrative Agent, the Issuing Bank  and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that  Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents,  including accountants, legal counsel and other advisors (it being understood that the Persons to whom such  disclosure is made will be informed of the confidential nature of such Information and instructed to keep  such Information confidential), and that the disclosing Administrative Agent, Issuing Bank or Lender will  be responsible for any unauthorized disclosure by any of its foregoing affiliated Persons), (b) to the extent  requested by any Governmental Authority (including any self-regulatory authority, such as the National  Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by  any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the  exercise of any remedies under this Agreement or any other Loan Document or any suit, action or  proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder  or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this  Section, to (x) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its  rights or obligations under this Agreement (other than a Disqualified Institution) (it being understood that  the DQ List may be disclosed to any assignee or Participant, or prospective assignee or Participant, in  reliance on this clause (f)) or (y) any actual or prospective counterparty (or its advisors) to any swap or  derivative transaction relating to any Borrower and its obligations, (g) on a confidential basis to (x) any  rating agency in connection with rating the Company or its Subsidiaries or the credit facilities provided for  herein or (y) the CUSIP Service Bureau or any similar agency in connection with the issuance and  monitoring of identification numbers with respect to the credit facilities provided for herein, (h) with the  consent of the Company or (i) to the extent such Information (1) becomes publicly available other than as  a result of a breach of this Section or (2) becomes available to the Administrative Agent, the Issuing Bank  or any Lender on a nonconfidential basis from a source other than the Company.  For the purposes of this  Section, “Information” means all information received from the Company or any Subsidiary relating to the  Company, any of its Subsidiaries or its business, other than any such information that is available to the  Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the  Company and other than information pertaining to this Agreement routinely provided by arrangers to data  service providers, including league table providers, that serve the lending industry.  Any Person required to  maintain the confidentiality of Information as provided in this Section shall be considered to have complied  with its obligation to do so if such Person has exercised the same degree of care to maintain the  confidentiality of such Information as such Person would accord to its own confidential information.  EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THIS  SECTION 9.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE  MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY, THE OTHER  LOAN PARTIES AND  THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES,  AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING  THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE  SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE  PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES  LAWS.  





 






  144  ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS,  FURNISHED BY THE COMPANY OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR  IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL  INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION  ABOUT THE COMPANY, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR  RESPECTIVE SECURITIES.  ACCORDINGLY, EACH LENDER REPRESENTS TO THE  COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS  ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE  INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN  ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW,  INCLUDING FEDERAL AND STATE SECURITIES LAWS.  SECTION 9.13. USA PATRIOT Act.  Each Lender that is subject to the requirements  of the Patriot Act and the requirements of the Beneficial Ownership Regulation hereby notifies each Loan  Party that pursuant to the requirements of the Patriot Act and the Beneficial Ownership Regulation, it is  required to obtain, verify and record information that identifies such Loan Party, which information  includes the name, address and tax identification number of such Loan Party and other information that will  allow such Lender to identify such Loan Party in accordance with the Patriot Act and the Beneficial  Ownership Regulation.  SECTION 9.14. Appointment for Perfection.  Each Lender hereby appoints each other  Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative Agent and the  Holders of Secured Obligations, in assets which, in accordance with Article 9 of the UCC or any other  applicable law can be perfected only by possession or control.  Should any Lender (other than the  Administrative Agent) obtain possession or control of any such Collateral, such Lender shall notify the  Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor shall deliver  such Collateral to the Administrative Agent or otherwise deal with such Collateral in accordance with the  Administrative Agent’s instructions.  SECTION 9.15. Interest Rate Limitation.  Notwithstanding anything herein to the  contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other  amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall  exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken,  received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest  payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be  limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been  payable in respect of such Loan but were not payable as a result of the operation of this Section shall be  cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall  be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with  interest thereon at the applicable Overnight Rate to the date of repayment, shall have been received by such  Lender.  SECTION 9.16. No Advisory or Fiduciary Responsibility.  (a) Each Borrower acknowledges and agrees, and acknowledges its Subsidiaries’  understanding, that no Credit Party will have any obligations except those obligations expressly set forth  herein and in the other Loan Documents and each Credit Party is acting solely in the capacity of an arm’s  length contractual counterparty to such Borrower with respect to the Loan Documents and the transactions  contemplated herein and therein and not as a financial advisor or a fiduciary to, or an agent of, such  Borrower or any other person.  Each Borrower agrees that it will not assert any claim against any Credit  Party based on an alleged breach of fiduciary duty by such Credit Party in connection with this Agreement  





 






  145  and the transactions contemplated hereby.  Additionally, each Borrower acknowledges and agrees that no  Credit Party is advising such Borrower as to any legal, tax, investment, accounting, regulatory or any other  matters in any jurisdiction.  Each Borrower shall consult with its own advisors concerning such matters and  shall be responsible for making its own independent investigation and appraisal of the transactions  contemplated herein or in the other Loan Documents, and the Credit Parties shall have no responsibility or  liability to any Borrower with respect thereto.  (b) Each Borrower further acknowledges and agrees, and acknowledges its  Subsidiaries’ understanding, that each Credit Party, together with its Affiliates, is a full service securities  or banking firm engaged in securities trading and brokerage activities as well as providing investment  banking and other financial services.  In the ordinary course of business, any Credit Party may provide  investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and  the accounts of customers, equity, debt and other securities and financial instruments (including bank loans  and other obligations) of, such Borrower, its Subsidiaries and other companies with which such Borrower  or any of its Subsidiaries may have commercial or other relationships.  With respect to any securities and/or  financial instruments so held by any Credit Party or any of its customers, all rights in respect of such  securities and financial instruments, including any voting rights, will be exercised by the holder of the  rights, in its sole discretion.  (c) In addition, each Borrower acknowledges and agrees, and acknowledges its  Subsidiaries’ understanding, that each Credit Party and its Affiliates may be providing debt financing,  equity capital or other services (including financial advisory services) to other companies in respect of  which such Borrower or any of its Subsidiaries may have conflicting interests regarding the transactions  described herein and otherwise.  No Credit Party will use confidential information obtained from any  Borrower by virtue of the transactions contemplated by the Loan Documents or its other relationships with  such Borrower in connection with the performance by such Credit Party of services for other companies,  and no Credit Party will furnish any such information to other companies.  Each Borrower also  acknowledges that no Credit Party has any obligation to use in connection with the transactions  contemplated by the Loan Documents, or to furnish to such Borrower or any of its Subsidiaries, confidential  information obtained from other companies.  SECTION 9.17. Attorney Representation.  If any Borrower that is organized under the  laws of the Netherlands is represented by an attorney in connection with the signing and/or execution of  the Agreement and/or any other Loan Document, it is hereby expressly acknowledged and accepted by the  parties to this Agreement and/or any other Loan Document that the existence and extent of the attorney’s  authority and the effects of the attorney’s exercise or purported exercise of his or her authority shall be  governed by the laws of The Netherlands.  SECTION 9.18. Acknowledgement and Consent to Bail-In of Affected Financial  Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any liability of  any Affected Financial Institution arising under any Loan Document may be subject to the Write Down and  Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges  and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the applicable  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party  hereto that is an Affected Financial Institution; and  (b) the effects of any Bail-In Action on any such liability, including, if applicable:  





 






  146  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge  institution that may be issued to it or otherwise conferred on it, and that such shares or other  instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability  under this Agreement or any other Loan Document; or  (iii) the variation of the terms of such liability in connection with the exercise  of the Write-Down and Conversion Powers of the applicable Resolution Authority.  SECTION 9.19. Acknowledgement Regarding Any Supported QFCs.  To the extent  that the Loan Documents provide support, through a guarantee or otherwise, for Swap Agreements or any  other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC a  “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of  the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the  Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated  thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit  Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported  QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States  or any other state of the United States):  In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes  subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and  the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC  and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit  Support) from such Covered Party will be effective to the same extent as the transfer would be effective  under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any  such interest, obligation and rights in property) were governed by the laws of the United States or a state of  the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject  to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that  might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be  exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were  governed by the laws of the United States or a state of the United States. Without limitation of the foregoing,  it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall  in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit  Support.  SECTION 9.20. Releases of Subsidiary Guarantors.  (a) A Subsidiary Guarantor shall automatically be released from its obligations under  the Subsidiary Guaranty upon the consummation of any transaction permitted by this Agreement as a result  of which such Subsidiary Guarantor ceases to be a Subsidiary; provided that, if so required by this  Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent  shall not have provided otherwise.  In connection with any termination or release pursuant to this Section,  the Administrative Agent shall (and is hereby irrevocably authorized by each Lender to) execute and deliver  to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably  request to evidence such termination or release.  Any execution and delivery of documents pursuant to this  Section shall be without recourse to or warranty by the Administrative Agent.  





 






  147  (b) Further, the Administrative Agent may (and is hereby irrevocably authorized by  each Lender to), upon the request of the Company, release any Subsidiary Guarantor from its obligations  under the Subsidiary Guaranty if such Subsidiary Guarantor is no longer a Material Domestic Subsidiary  or a Material Dutch Subsidiary, as applicable.  (c) At such time as the principal and interest on the Loans, all LC Disbursements, the  fees, expenses and other amounts payable under the Loan Documents and the other Secured Obligations  (other than Swap Obligations not yet due and payable, Banking Services Obligations not yet due and  payable, Unliquidated Obligations for which no claim has been made and other Obligations expressly stated  to survive such payment and termination) shall have been paid in full in cash, the Commitments shall have  been terminated and no Letters of Credit shall be outstanding, the Subsidiary Guaranty and all obligations  (other than those expressly stated to survive such termination) of each Subsidiary Guarantor thereunder  shall automatically terminate, all without delivery of any instrument or performance of any act by any  Person.  ARTICLE X    Company Guarantee  In order to induce the Lenders to extend credit to the other Borrowers hereunder and for  other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the  Company hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a  surety, the payment when and as due of the Secured Obligations.  The Company further agrees that the due  and punctual payment of the Secured Obligations may be extended or renewed, in whole or in part, without  notice to or further assent from it, and that it will remain bound upon its guarantee hereunder  notwithstanding any such extension or renewal of any Secured Obligation.  The Company waives presentment to, demand of payment from and protest to any  Subsidiary of any of the Secured Obligations, and also waives notice of acceptance of its obligations and  notice of protest for nonpayment.  The obligations of the Company hereunder shall not be affected by (a) the  failure of the Administrative Agent, the Issuing Bank or any Lender (or any of its Affiliates) to assert any  claim or demand or to enforce any right or remedy against any Subsidiary under the provisions of this  Agreement, any other Loan Document, any Swap Agreement, any Banking Services Agreement or  otherwise; (b) any extension or renewal of any of the Secured Obligations; (c) any rescission, waiver,  amendment or modification of, or release from, any of the terms or provisions of this Agreement, any other  Loan Document, any Swap Agreement, any Banking Services Agreement or any other agreement; (d) any  default, failure or delay, willful or otherwise, in the performance of any of the Secured Obligations; (e) the  failure of the Administrative Agent (or any applicable Lender (or any of its Affiliates)) to take any steps to  perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the  Secured Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or  ownership of any Subsidiary or any other guarantor of any of the Secured Obligations; (g) the enforceability  or validity of the Secured Obligations or any part thereof or the genuineness, enforceability or validity of  any agreement relating thereto or with respect to any collateral securing the Secured Obligations or any part  thereof, or any other invalidity or unenforceability relating to or against any Subsidiary or any other  guarantor of any of the Secured Obligations, for any reason related to this Agreement, any other Loan  Document, any Swap Agreement, any Banking Services Agreement, or any provision of applicable law,  decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Subsidiary or any  other guarantor of the Secured Obligations, of any of the Secured Obligations or otherwise affecting any  term of any of the Secured Obligations; or (h) any other act, omission or delay to do any other act which  may or might in any manner or to any extent vary the risk of the Company or otherwise operate as a  





 






  148  discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of the  Company to subrogation.  The Company further agrees that its agreement hereunder constitutes a guarantee of  payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or  collection of any of the Secured Obligations or operated as a discharge thereof) and not merely of collection,  and waives any right to require that any resort be had by the Administrative Agent, the Issuing Bank or any  Lender (or any of its Affiliates) to any balance of any deposit account or credit on the books of the  Administrative Agent, the Issuing Bank or any Lender in favor of any Subsidiary or any other Person.  The obligations of the Company hereunder shall not be subject to any reduction, limitation,  impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim,  recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of  the Secured Obligations, any impossibility in the performance of any of the Secured Obligations or  otherwise (other than the defense of payment and performance in full in cash).  The Company further agrees that its obligations hereunder shall constitute a continuing and  irrevocable guarantee of all Secured Obligations now or hereafter existing and shall continue to be effective  or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Secured Obligation  (including a payment effected through exercise of a right of setoff) is rescinded, or is or must otherwise be  restored or returned by the Administrative Agent, the Issuing Bank or any Lender (or any of its Affiliates)  upon the insolvency, bankruptcy or reorganization of any Subsidiary or otherwise (including pursuant to  any settlement entered into by a holder of Secured Obligations in its discretion).  In furtherance of the foregoing and not in limitation of any other right which the  Administrative Agent, the Issuing Bank or any Lender (or any of its Affiliates) may have at law or in equity  against the Company by virtue hereof, upon the failure of any Subsidiary to pay any Secured Obligation  when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment  or otherwise, the Company hereby promises to and will, upon receipt of written demand by the  Administrative Agent, the Issuing Bank or any Lender (or any of its Affiliates), forthwith pay, or cause to  be paid, to the Administrative Agent, the Issuing Bank or such Lender (or any of such Lender’s Affiliates)  in cash an amount equal to the unpaid principal amount of the Secured Obligations then due, together with  accrued and unpaid interest thereon.  The Company further agrees that if payment in respect of any Secured  Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York,  Chicago or any other Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of  currency or foreign exchange markets, war or civil disturbance or other event, payment of such Secured  Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment  of the Administrative Agent, the Issuing Bank or any Lender (or any of its Affiliates), disadvantageous to  the Administrative Agent, the Issuing Bank or such Lender (or any of such Lender’s Affiliates) in any  material respect, then, at the election of the Administrative Agent or such Lender, the Company shall make  payment of such Secured Obligation in Dollars (based upon the Dollar Amount thereof on the date of  payment) and/or in New York, Chicago or such other Eurocurrency Payment Office as is designated by the  Administrative Agent or such Lender and, as a separate and independent obligation, shall indemnify the  Administrative Agent, the Issuing Bank and such Lender (and such Lender’s Affiliates), as applicable,  against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative  payment.  Upon payment by the Company of any sums as provided above, all rights of the Company  against any Subsidiary arising as a result thereof by way of right of subrogation or otherwise shall in all  respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of  all the Secured Obligations owed by such Subsidiary.  





 






  149  Nothing shall discharge or satisfy the liability of the Company hereunder except the full  performance and payment in cash of the Secured Obligations.  [Signature Pages Follow]    





 






Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and  delivered by their respective authorized officers as of the day and year first above written.  MATERION CORPORATION, as the Company  By  /s/ Christopher E. Eberhardt   Name:  Christopher E. Eberhardt  Title:  Vice President, Tax and Treasury  MATERION NETHERLANDS B.V., as the Dutch  Borrower  By  /s/ Christopher E. Eberhardt   Name:  Christopher E. Eberhardt  Title:  Authorized Signatory  





 






  Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  JPMORGAN CHASE BANK, N.A., individually as a  Lender, as Swingline Lender, as Issuing Bank and as  Administrative Agent  By  /s/ Eric B. Bergeson   Name:  Eric B. Bergeson  Title:  Authorized Officer  





 






  Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  WELLS FARGO BANK, NATIONAL ASSOCIATION,  individually as a Lender and as Co-Syndication Agent  By  /s/ Mark M. Mountain   Name:  Mark M. Mountain  Title:  Senior Vice President  





 






  Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  BANK OF AMERICA, N.A., individually as a Lender  and as Co-Syndication Agent  By  /s/ Gregg Bush   Name:  Gregg Bush  Title:  Senior Vice President  





 






  Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  KEYBANK NATIONAL ASSOCIATION, individually  as a Lender and as Documentation Agent  By  /s/ John R. Macks   Name:  John R. Macks  Title:  Vice President  





 






  Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  FIFTH THIRD BANK, NATIONAL ASSOCIATION,  as a Lender  By  /s/ Rachel Hermanson   Name:  Rachel Hermanson  Title:  Managing Director  





 






  Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  CITIZENS BANK, N.A., as a Lender  By  /s/ Arianna DeMarco   Name:  Arianna DeMarco  Title:  Vice President  





 






  Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  PNC BANK, NATIONAL ASSOCIATION, as a Lender  By  /s/ Spencer Dieken   Name:  Spencer Dieken  Title:  Senior Vice President  





 






  Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  TRUIST BANK, as a Lender  By  /s/ William P. Rutkowski   Name:  William P. Rutkowski  Title:  Director  





 






  Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  MUFG BANK, LTD., as a Lender  By  /s/ Eric Hill   Name:  Eric Hill  Title:  Authorized Signatory  





 






  Signature Page to Fourth Amended and Restated Credit Agreement  Materion Corporation et al  HSBC BANK USA, NATIONAL ASSOCIATION, as a  Lender  By  /s/ Shaun R. Kleinman   Name:  Shaun R. Kleinman  Title:  Senior Vice President      





 






  SCHEDULE 2.01  COMMITMENTS  LENDER REVOLVING  COMMITMENT  TERM LOAN  COMMITMENT  JPMORGAN CHASE BANK, N.A. $60,000,000 $50,000,000  WELLS FARGO BANK, NATIONAL  ASSOCIATION  $60,000,000 $50,000,000  BANK OF AMERICA, N.A. $60,000,000 $50,000,000  KEYBANK NATIONAL ASSOCIATION $35,000,000 $30,000,000  FIFTH THIRD BANK, NATIONAL  ASSOCIATION  $30,000,000 $20,000,000  CITIZENS BANK, N.A. $30,000,000 $20,000,000  PNC BANK, NATIONAL ASSOCIATION $30,000,000 $20,000,000  TRUIST BANK $30,000,000 $20,000,000  MUFG BANK, LTD. $20,000,000 $20,000,000  HSBC BANK USA, NATIONAL  ASSOCIATION  $20,000,000 $20,000,000  TOTAL COMMITMENTS $375,000,000 $300,000,000                              





 






  EXHIBIT A  ASSIGNMENT AND ASSUMPTION  This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the  Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”)  and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein shall have  the meanings given to them in the Credit Agreement identified below (as amended, restated, supplemented  or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby  acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto  are hereby agreed to and incorporated herein by reference and made a part of this Assignment and  Assumption as if set forth herein in full.  For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the  Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in  accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date  inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations  in its capacity as a Lender under the Credit Agreement and any other Loan Documents to the extent related  to the amount and percentage interest identified below of all of such outstanding rights and obligations of  the Assignor under the respective facilities identified below (including any letters of credit, guarantees, and  swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable  law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender)  against any Person, whether known or unknown, arising under or in connection with the Credit Agreement,  any other Loan Documents or in any way based on or related to any of the foregoing, including contract  claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to  the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and  assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned  Interest”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided  in this Assignment and Assumption, without representation or warranty by the Assignor.  1. Assignor:        2. Assignee:        [and is an Affiliate/Approved Fund of [identify Lender]1]  3. Borrowers: Materion Corporation, Materion Netherlands B.V. and certain other  Foreign Subsidiary Borrowers  4. Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under the Credit  Agreement  5. Credit Agreement: Fourth Amended and Restated Credit Agreement dated as of October 27,  2021 among Materion Corporation, Materion Netherlands B.V., the other  Foreign Subsidiary Borrowers from time to time parties thereto, the  Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative  Agent, and the other agents parties thereto  6. Assigned Interest:    1 Select as applicable  





 






  2  Facility Assigned2 Aggregate Amount of  Commitment/Loans of such  Class for all Lenders  Amount of  Commitment/  Loans Assigned  Percentage Assigned  of  Commitment/Loans3   $ $ %   $ $ %   $ $ %    Effective Date:  _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND  WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE  REGISTER THEREFOR.]  The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in  which the Assignee designates one or more credit contacts to whom all syndicate-level information (which  may contain material non-public information about the Company, the Loan Parties and their Related Parties  or their respective securities) will be made available and who may receive such information in accordance  with the Assignee’s compliance procedures and applicable laws, including federal and state securities laws.  The terms set forth in this Assignment and Assumption are hereby agreed to:  ASSIGNOR  [NAME OF ASSIGNOR]  By:     Name:  Title:  ASSIGNEE  [NAME OF ASSIGNEE]  By:     Name:  Title:  Consented to and Accepted:  JPMORGAN CHASE BANK, N.A., as   Administrative Agent [and Issuing Bank and Swingline Lender]4   By:    Name:  Title:    2 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned  under this Assignment (e.g., “Revolving Commitment”, “Term Loan Commitment”, etc.).  3 Set forth, to at least 9 decimals as a percentage of the Commitment/Loans of all Lenders thereunder.  4 Consents to be included to the extent required by Section 9.04(b) of the Credit Agreement  





 






  3  [Consented to:]5  MATERION CORPORATION   By:        Title:        5 To be added only if the consent of the Company is required by the terms of the Credit Agreement.  





 






  ANNEX I  STANDARD TERMS AND CONDITIONS FOR  ASSIGNMENT AND ASSUMPTION  1. Representations and Warranties.  1.1 Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and  beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien,  encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action  necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions  contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or  representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the  execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or  any collateral thereunder, (iii) the financial condition of the Company, any of its Subsidiaries or Affiliates  or any other Person obligated in respect of any Loan Document, (iv) any requirements under applicable law  for the Assignee to become a lender under the Credit Agreement or to charge interest at the rate set forth  therein from time to time or (v) the performance or observance by the Company, any of its Subsidiaries or  Affiliates or any other Person of any of their respective obligations under any Loan Document.  1.2. Assignee.  The Assignee (a) represents and warrants that (i) it has full power and  authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and  to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement,  (ii) it satisfies the requirements, if any, specified in the Credit Agreement and under applicable law that are  required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and  after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder  and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is  sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest  and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is  experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, together  with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable,  and such other documents and information as it has deemed appropriate to make its own credit analysis and  decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis  of which it has made such analysis and decision independently and without reliance on the Administrative  Agent, any Arranger, the Assignor or any other Lender or any of their respective Related Parties, and  (vi) attached to the Assignment and Assumption is any documentation required to be delivered by it  pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees  that (i) it will, independently and without reliance on the Administrative Agent, any Arranger, any Co- Syndication Agent, the Documentation Agent, the Assignor or any other Lender or any of their respective  Related Parties, and based on such documents and information as it shall deem appropriate at the time,  continue to make its own credit decisions in taking or not taking action under the Loan Documents, and  (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan  Documents are required to be performed by it as a Lender.  2. Payments.  From and after the Effective Date, the Administrative Agent shall make  all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other  amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the  Assignee for amounts which have accrued from and after the Effective Date.  





 






  2  3. General Provisions.  This Assignment and Assumption shall be binding upon, and  inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and  Assumption may be executed in any number of counterparts, which together shall constitute one instrument.   Acceptance and adoption of the terms of this Assignment and Assumption by the Assignee and the Assignor  by Electronic Signature or delivery of an executed counterpart of a signature page of this Assignment and  Assumption by any Approved Electronic Platform shall be effective as delivery of a manually executed  counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be governed by,  and construed in accordance with, the law of the State of New York, without regard to its conflicts of laws  principles.    





 






  EXHIBIT B  FORM OF SOLVENCY CERTIFICATE  [__________], 20[__]  This Solvency Certificate is being executed and delivered pursuant to Section 4.02(f) of the Fourth  Amended and Restated Credit Agreement dated as of October 27, 2021 among Materion Corporation (the  “Company”), Materion Netherlands B.V., the other Foreign Subsidiary Borrowers from time to time parties  thereto, the Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other  agents parties thereto (the “Credit Agreement”); the terms defined therein being used herein as therein  defined.   I, [__________], the chief financial officer of the Company, solely in such capacity and not in an  individual capacity, hereby certify that I am the chief financial officer of the Company and that I am  generally familiar with the businesses and assets of the Company and its Subsidiaries (taken as a whole), I  have made such other investigations and inquiries as I have deemed appropriate and I am duly authorized  to execute this Solvency Certificate on behalf of the Company pursuant to the Credit Agreement.  I further certify, solely in my capacity as chief financial officer of the Company, and not in my  individual capacity, as of the date hereof and after giving effect to the Omega Closing Date Transactions  and the incurrence of the indebtedness and obligations being incurred in connection with the Credit  Agreement and the Omega Closing Date Transactions on the date hereof, that, with respect to the Company  and its Subsidiaries on a consolidated basis, (a) the sum of the liabilities of the Company and its  Subsidiaries, taken as a whole, does not exceed the present fair saleable value of the assets of the Company  and its Subsidiaries, taken as a whole; (b) the capital of the Company and its Subsidiaries, taken as a whole,  is not unreasonably small in relation to the business of the Company and its Subsidiaries, taken as a whole,  contemplated on the date hereof and (c) the Company and its Subsidiaries, taken as a whole, do not intend  to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such  debt as they mature in the ordinary course of business.  For the purposes hereof, the amount of any  contingent liability at any time shall be computed as the amount that, in light of all of the facts and  circumstances existing at such time, represents the amount that can reasonably be expected to become an  actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual  under Statement of Financial Accounting Standard No. 5).  [Remainder of page intentionally left blank]  





 






  2  IN WITNESS WHEREOF, I have executed this Solvency Certificate on the date first written above.    By:__________________________________  Name:  Title: Chief Financial Officer             





 






  EXHIBIT C  FORM OF INCREASING LENDER SUPPLEMENT  INCREASING LENDER SUPPLEMENT, dated __________, 20___ (this “Supplement”), by and  among each of the signatories hereto, to the Fourth Amended and Restated Credit Agreement dated as of  October 27, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement”), among Materion Corporation (the “Company”), Materion Netherlands B.V., the other  Foreign Subsidiary Borrowers from time to time party thereto, the Lenders party thereto and JPMorgan  Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”).  W I T N E S S E T H  WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the Company has the right,  subject to the terms and conditions thereof, to effectuate from time to time an increase in the aggregate  Revolving Commitments and/or one or more tranches of Incremental Term Loans under the Credit  Agreement by requesting one or more Lenders to increase the amount of its Commitment and/or to  participate in such a tranche;  WHEREAS, the Company has given notice to the Administrative Agent of its intention to  [increase the aggregate Revolving Commitments] [and] [enter into a tranche of Incremental Term Loans]  pursuant to such Section 2.20; and  WHEREAS, pursuant to Section 2.20 of the Credit Agreement, the undersigned Increasing  Lender now desires to [increase the amount of its Revolving Commitment] [and] [participate in a tranche  of Incremental Term Loans] under the Credit Agreement by executing and delivering to the Company and  the Administrative Agent this Supplement;  NOW, THEREFORE, each of the parties hereto hereby agrees as follows:  1.  The undersigned Increasing Lender agrees, subject to the terms and conditions of the  Credit Agreement, that on the date of this Supplement it shall [have its Revolving Commitment increased  by $[__________], thereby making the aggregate amount of its total Revolving Commitments equal to  $[__________]] [and] [participate in a tranche of Incremental Term Loans with a commitment amount  equal to $[__________] with respect thereto].  2.  The Company hereby represents and warrants that no Default or Event of Default has  occurred and is continuing on and as of the date hereof (or, with respect to any Incremental Term Loans in  respect of a Limited Conditionality Acquisition, no Event of Default under Section 7.01(a), (b), (h), (i) or  (j) has occurred and is continuing).  3.  Terms defined in the Credit Agreement shall have their defined meanings when used  herein.  4.  This Supplement shall be governed by, and construed in accordance with, the laws of  the State of New York, without regard to its conflicts of laws principles.  5.  This Supplement may be executed in any number of counterparts and by different parties  hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all  of which taken together shall constitute one and the same document.  





 






  2  IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be  executed and delivered by a duly authorized officer on the date first above written.  [INSERT NAME OF INCREASING LENDER]  By:     Name:  Title:  Accepted and agreed to as of the date first written above:  MATERION CORPORATION  By:       Name:  Title:  [OTHER BORROWERS]  By:       Name:  Title:  Acknowledged as of the date first written above:  JPMORGAN CHASE BANK, N.A.  as Administrative Agent  By:       Name:  Title:  





 






  EXHIBIT D  FORM OF AUGMENTING LENDER SUPPLEMENT  AUGMENTING LENDER SUPPLEMENT, dated __________, 20___ (this  “Supplement”) by and among each of the signatories hereto, to the Fourth Amended and Restated Credit  Agreement dated as of October 27, 2021 (as amended, restated, supplemented or otherwise modified from  time to time, the “Credit Agreement”), among Materion Corporation (the “Company”), Materion  Netherlands B.V., the other Foreign Subsidiary Borrowers from time to time party thereto, the Lenders  party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the  “Administrative Agent”).  W I T N E S S E T H  WHEREAS, the Credit Agreement provides in Section 2.20 thereof that any bank, financial  institution or other entity may [extend Revolving Commitments] [and] [participate in tranches of  Incremental Term Loans] under the Credit Agreement subject to the approval of the Company and the  Administrative Agent, by executing and delivering to the Company and the Administrative Agent a  supplement to the Credit Agreement in substantially the form of this Supplement; and  WHEREAS, the undersigned Augmenting Lender was not an original party to the Credit  Agreement but now desires to become a party thereto;  NOW, THEREFORE, each of the parties hereto hereby agrees as follows:  1.  The undersigned Augmenting Lender agrees to be bound by the provisions of the Credit  Agreement and agrees that it shall, on the date of this Supplement, become a Lender for all purposes of the  Credit Agreement to the same extent as if originally a party thereto, with a [Revolving Commitment with  respect to Revolving Loans of $[__________]] [and] [a commitment with respect to Incremental Term  Loans of $[__________]].  2.  The undersigned Augmenting Lender (a) represents and warrants that it is legally  authorized to enter into this Supplement; (b) confirms that it has received a copy of the Credit Agreement,  together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as  applicable, and has reviewed such other documents and information as it has deemed appropriate to make  its own credit analysis and decision to enter into this Supplement; (c) agrees that it will, independently and  without reliance upon the Administrative Agent or any other Lender and based on such documents and  information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or  not taking action under the Credit Agreement or any other instrument or document furnished pursuant  hereto or thereto; (d) appoints and authorizes the Administrative Agent to take such action as agent on its  behalf and to exercise such powers and discretion under the Credit Agreement or any other instrument or  document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms  thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the  provisions of the Credit Agreement and will perform in accordance with its terms all the obligations which  by the terms of the Credit Agreement are required to be performed by it as a Lender.  3.  The undersigned’s address for notices for the purposes of the Credit Agreement is as  follows:   [___________]  





 






  2  4.  The Company hereby represents and warrants that no Default or Event of Default has  occurred and is continuing on and as of the date hereof (or, with respect to any Incremental Term Loans in  respect of a Limited Conditionality Acquisition, no Event of Default under Section 7.01(a), (b), (h), (i) or  (j) has occurred and is continuing).  5.  Terms defined in the Credit Agreement shall have their defined meanings when used  herein.  6.  This Supplement shall be governed by, and construed in accordance with, the laws of  the State of New York, without regard to its conflicts of laws principles.  7.  This Supplement may be executed in any number of counterparts and by different parties  hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all  of which taken together shall constitute one and the same document.  [remainder of this page intentionally left blank]  





 






  3  IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be  executed and delivered by a duly authorized officer on the date first above written.  [INSERT NAME OF AUGMENTING LENDER]  By:     Name:  Title:  Accepted and agreed to as of the date first written above:  MATERION CORPORATION  By:       Name:  Title:  [OTHER BORROWERS]  By:       Name:  Title:  Acknowledged as of the date first written above:  JPMORGAN CHASE BANK, N.A.  as Administrative Agent  By:       Name:  Title:    





 






  EXHIBIT E  LIST OF CLOSING DOCUMENTS  MATERION CORPORATION  CERTAIN FOREIGN SUBSIDIARY BORROWERS  CREDIT FACILITIES  October 27, 2021  LIST OF CLOSING DOCUMENTS1  A. LOAN DOCUMENTS  1. Fourth Amended and Restated Credit Agreement dated as of October 27, 2021 (the “Credit  Agreement”) by and among Materion Corporation, an Ohio corporation (the “Company”),  Materion Netherlands B.V., the other Foreign Subsidiary Borrowers from time to time parties  thereto (collectively with the Company, the “Borrowers”), the institutions from time to time parties  thereto as Lenders (the “Lenders”) and JPMorgan Chase Bank, N.A., in its capacity as  Administrative Agent for itself and the other Lenders (the “Administrative Agent”), evidencing a  revolving credit facility to the Borrowers from the Lenders in an initial aggregate principal amount  of $375,000,000 and a term loan facility to the Company in an initial aggregate principal amount  of $300,000,000.  SCHEDULES  Schedule 2.01 – Commitments  Schedule 2.06 – Existing Letters of Credit  Schedule 3.01 – Subsidiaries  Schedule 6.01 – Existing Indebtedness  Schedule 6.02 – Existing Liens  Schedule 6.04 – Existing Investments    EXHIBITS  Exhibit A – Form of Assignment and Assumption  Exhibit B – Form of Solvency Certificate  Exhibit C – Form of Increasing Lender Supplement  Exhibit D – Form of Augmenting Lender Supplement  Exhibit E – List of Closing Documents  Exhibit F-1 – Form of Borrowing Subsidiary Agreement  Exhibit F-2 – Form of Borrowing Subsidiary Termination  Exhibit G-1 – Form of Borrowing Request  Exhibit G-2 – Form of Interest Election Request  Exhibit H-1 -- Form of Revolving Loan Note    1 Each capitalized term used herein and not defined herein shall have the meaning assigned to such term in the above- defined Credit Agreement.  Items appearing in bold and italics shall be prepared and/or provided by the Company  and/or Company’s counsel  





 






  2  Exhibit H-2 -- Form of Term Loan Note  Exhibit I-1 -- Form of U.S. Tax Certificate (Foreign Lenders That Are  Not Partnerships)  Exhibit I-2 -- Form of U.S. Tax Certificate (Foreign Participants That  Are Not Partnerships)  Exhibit I-3 -- Form of U.S. Tax Certificate (Foreign Participants That  Are Partnerships)  Exhibit I-4 -- Form of U.S. Tax Certificate (Foreign Lenders That Are  Partnerships)    2. Notes executed by the initial Borrowers in favor of each of the Lenders, if any, which has requested  a note pursuant to Section 2.10(f) of the Credit Agreement.  3. Fourth Amended and Restated Guaranty executed by the initial Subsidiary Guarantors (collectively  with the Borrowers, the “Loan Parties”) in favor of the Administrative Agent.  4. Fourth Amended and Restated Pledge and Security Agreement executed by the Domestic Loan  Parties, together with, pledged instruments and allonges, stock certificates, stock powers executed  in blank, pledge instructions and acknowledgments, as appropriate.  Exhibit A – Legal and Prior Names; Principal Place of Business and Chief  Executive Office; FEIN; State Organization Number and Jurisdiction  of Incorporation; Properties Leased by the Grantors; Properties Owned  by the Grantors; Public Warehouses or Other Locations  Exhibit B – Deposit Accounts; Securities Accounts  Exhibit C – Letter of Credit Rights; Chattel Paper  Exhibit D – Patents, Copyrights and Trademarks Protected under Federal Law  Exhibit E – Aircraft/Engines, Ships, Railcars and Other Vehicles Governed by  Federal Statute  Exhibit G – List of Instruments, Pledged Securities and other Investment Property  Exhibit H – Form of Amendment to Security Agreement  Exhibit I – Excluded Assets  Exhibit J – Commercial Tort Claims  Annex I – Form of Supplement to Security Agreement  5. Dutch Share Pledge – Senior Priority, executed by Materion Advanced Materials Technologies and  Services Inc., the Dutch Borrower and the Administrative Agent, which agreement shall also  provide for a contractual change in priority of the Lien created under the Dutch Share Pledge –  Junior Priority and the Lien created under the Dutch Share Pledge – Senior Priority.  6. Confirmatory Grant of Security Interest in United States Patents made by certain of the Loan Parties  in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations.  Exhibit A – Schedule of Patents  7. Confirmatory Grants of Security Interest in United States Trademarks made by certain of the Loan  Parties in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations.  Exhibit A – Schedule of Trademarks  





 






  3  B. UCC DOCUMENTS  8. UCC, tax lien and name variation search reports naming each Domestic Loan Party from the  appropriate offices in relevant jurisdictions.  9. UCC financing statements naming each Domestic Loan Party as debtor and the Administrative  Agent as secured party as filed with the appropriate offices in applicable jurisdictions.  C. CORPORATE DOCUMENTS  10. Certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (i) that there  have been no changes in the Certificate of Incorporation or other charter document of such  Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or  analogous governmental entity) of the jurisdiction of its organization, since the date of the  certification thereof by such governmental entity, (ii) the By-Laws or other applicable  organizational document, as attached thereto, of such Loan Party as in effect on the date of such  certification, (iii) resolutions of the Board of Directors or other governing body of such Loan  Party authorizing the execution, delivery and performance of each Loan Document to which it  is a party, and (iv) the names and true signatures of the incumbent officers of each Loan Party  authorized to sign the Loan Documents to which it is a party, and (in the case of each Borrower)  authorized to request a Borrowing or the issuance of a Letter of Credit under the Credit  Agreement.  11. Good Standing Certificate (or analogous documentation if applicable) for each Loan Party from  the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization,  to the extent generally available in such jurisdiction.  D. OPINIONS  12. Opinion of Jones Day, counsel for the U.S. Loan Parties.  13. Opinion of Jones Day, counsel for the Dutch Borrower.  E. CLOSING CERTIFICATES AND MISCELLANEOUS  14. A Certificate signed by the Chief Financial Officer of the Company certifying the following:   (i) all of the representations and warranties of the Company set forth in the Credit Agreement  are true and correct in all material respects (or, in the case of any representation or warranty  qualified by materiality or Material Adverse Effect, in all respects), (ii) no Default has occurred  and is then continuing and (iii) immediately after the consummation of the Transactions to occur  on the Effective Date, the Company and its Subsidiaries, taken as a whole, are Solvent.    





 






  EXHIBIT F-1  [FORM OF]  BORROWING SUBSIDIARY AGREEMENT  BORROWING SUBSIDIARY AGREEMENT dated as of [_____], among Materion  Corporation, an Ohio corporation (the “Company”), Materion Netherlands B.V., [Name of Foreign  Subsidiary Borrower], a [__________] (the “New Borrowing Subsidiary”), and JPMorgan Chase Bank,  N.A. as Administrative Agent (the “Administrative Agent”).  Reference is hereby made to the Fourth Amended and Restated Credit Agreement dated as  of October 27, 2021 (as amended, supplemented or otherwise modified from time to time, the “Credit  Agreement”), among the Company, the Foreign Subsidiary Borrowers from time to time party thereto, the  Lenders from time to time party thereto and JPMorgan Chase Bank, N.A. as Administrative Agent.   Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such  terms in the Credit Agreement.  Under the Credit Agreement, the Lenders have agreed, upon the terms and  subject to the conditions therein set forth, to make Loans to certain Foreign Subsidiary Borrowers  (collectively with the Company, the “Borrowers”), and the Company and the New Borrowing Subsidiary  desire that the New Borrowing Subsidiary become a Foreign Subsidiary Borrower.  In addition, the New  Borrowing Subsidiary hereby authorizes the Company to act on its behalf as and to the extent provided for  in Article II of the Credit Agreement.  [Notwithstanding the preceding sentence, the New Borrowing  Subsidiary hereby designates the officers designated on any incumbency certificate delivered to the  Administrative Agent from time to time as being authorized to request Borrowings under the Credit  Agreement on behalf of the New Subsidiary Borrower and sign this Borrowing Subsidiary Agreement and  the other Loan Documents to which the New Borrowing Subsidiary is, or may from time to time become,  a party.]  Each of the Company and the New Borrowing Subsidiary represents and warrants that the  representations and warranties of the Company in the Credit Agreement relating to the New Borrowing  Subsidiary and this Agreement are true and correct in all material respects (or, in the case of any  representation or warranty qualified by materiality or Material Adverse Effect, in all respects) on and as of  the date hereof, other than representations given as of a particular date, in which case they shall be true and  correct in all material respects (or, in the case of any representation or warranty qualified by materiality or  Material Adverse Effect, in all respects) as of that date.  [The Company and the New Borrowing Subsidiary  further represent and warrant that the execution, delivery and performance by the New Borrowing  Subsidiary of the transactions contemplated under this Agreement and the use of any of the proceeds raised  in connection with this Agreement will not contravene or conflict with, or otherwise constitute unlawful  financial assistance under, Sections 677 to 683 (inclusive) of the United Kingdom Companies Act 2006 of  England and Wales (as amended).]7 [INSERT OTHER PROVISIONS REASONABLY REQUESTED BY  ADMINISTRATIVE AGENT OR ITS COUNSELS]  The Company agrees that the Guarantee of the  Company contained in the Credit Agreement will apply to the Secured Obligations of the New Borrowing  Subsidiary.  Upon execution of this Agreement by each of the Company, the New Borrowing Subsidiary  and the Administrative Agent, the New Borrowing Subsidiary shall be a party to the Credit Agreement and  shall constitute a “Foreign Subsidiary Borrower” for all purposes thereof, and the New Borrowing  Subsidiary hereby agrees to be bound by all provisions of the Credit Agreement.    7 To be included only if a New Borrowing Subsidiary will be a Borrower organized under the laws of England and  Wales.  





 






    This Agreement shall be governed by and construed in accordance with the laws of the  State of New York, without regard to its conflicts of laws principles.  [Signature Page Follows]  





 






    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly  executed by their authorized officers as of the date first appearing above.  MATERION CORPORATION  By:  _________________________________  Name:  Title:  [NAME OF NEW BORROWING SUBSIDIARY]  By:  _________________________________  Name:  Title:  JPMORGAN CHASE BANK, N.A., as  Administrative Agent  By:  _________________________________  Name:  Title:  





 






    EXHIBIT F-2  [FORM OF]  BORROWING SUBSIDIARY TERMINATION  JPMorgan Chase Bank, N.A.  as Administrative Agent  for the Lenders referred to below  10 South Dearborn Street  Chicago, Illinois 60603  Attention:  [__________]  [Date]  Ladies and Gentlemen:  The undersigned, Materion Corporation (the “Company”), refers to the Fourth Amended  and Restated Credit Agreement dated as of October 27, 2021 (as amended, supplemented or otherwise  modified from time to time, the “Credit Agreement”), among the Company, the Foreign Subsidiary  Borrowers from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.   Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in  the Credit Agreement.  The Company hereby terminates the status of [______________] (the “Terminated  Borrowing Subsidiary”) as a Foreign Subsidiary Borrower under the Credit Agreement.  [The Company  represents and warrants that no Loans made to the Terminated Borrowing Subsidiary are outstanding as of  the date hereof and that all amounts payable by the Terminated Borrowing Subsidiary in respect of interest  and/or fees (and, to the extent notified by the Administrative Agent or any Lender, any other amounts  payable under the Credit Agreement) pursuant to the Credit Agreement have been paid in full on or prior  to the date hereof.] [The Company acknowledges that the Terminated Borrowing Subsidiary shall continue  to be a Borrower until such time as all Loans made to the Terminated Borrowing Subsidiary shall have been  prepaid and all amounts payable by the Terminated Borrowing Subsidiary in respect of interest and/or fees  (and, to the extent notified by the Administrative Agent or any Lender, any other amounts payable under  the Credit Agreement) pursuant to the Credit Agreement shall have been paid in full; provided that the  Terminated Borrowing Subsidiary shall not have the right to make further Borrowings under the Credit  Agreement.]  [Signature Page Follows]  





 






    This instrument shall be construed in accordance with and governed by the laws of the  State of New York, without regard to its conflicts of laws principles.  Very truly yours,  MATERION CORPORATION  By:      Name:  Title:  Copy to: JPMorgan Chase Bank, N.A.  10 South Dearborn Street  Chicago, Illinois 60603    





 






    EXHIBIT G-1  FORM OF BORROWING REQUEST  JPMorgan Chase Bank, N.A.,  as Administrative Agent  for the Lenders referred to below    [10 South Dearborn, L2 Floor  Chicago, Illinois 60603  Attention: JPMorgan Loan Services  Facsimile: (888) 499-5663]8    With a copy to:    JPMorgan Chase Bank, N.A.  10 South Dearborn Street, Floor 9  Chicago, Illinois 60603  Attention:  Eric Bergeson     Re:  Materion Corporation, et al.  [Date]  Ladies and Gentlemen:  Reference is hereby made to the Fourth Amended and Restated Credit Agreement dated as of October  27, 2021 (as the same may be amended, restated, supplemented or otherwise modified from time to time,  the “Credit Agreement”), among Materion Corporation (the “Company”), the Foreign Subsidiary  Borrowers from time to time party thereto, the Lenders from time to time party thereto and JPMorgan Chase  Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”).  Capitalized terms used  but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.  The  [undersigned Borrower][Company, on behalf of [Foreign Subsidiary Borrower],] hereby gives you notice  pursuant to Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit Agreement,  and in that connection the [undersigned Borrower][Company, on behalf of [Foreign Subsidiary Borrower],]  specifies the following information with respect to such Borrowing requested hereby:    1. Name of Borrower: __________  2. Aggregate principal amount of Borrowing:9  __________  3. Date of Borrowing (which shall be a Business Day):  __________    8 If request is in respect of Revolving Loans in a Foreign Currency, please replace this address with the London address  from Section 9.01(a)(ii).  9 Not less than applicable amounts specified in Section 2.02(c).  





 






  -2-  4. Type and Class of Borrowing ((x) ABR or Eurocurrency or RFR and (y) Revolving Borrowing or  Term Loan Borrowing):  __________  5. Interest Period and the last day thereof (if a Eurocurrency Borrowing):10  __________  6. Agreed Currency:  __________  7. Location and number of the applicable Borrower’s account (or any other account agreed upon by  the Administrative Agent and such Borrower) to which proceeds of Borrowing are to be disbursed:   __________  [Signature Page Follows]    10 Which must comply with the definition of “Interest Period” and end not later than the applicable Maturity Date.   





 






      The undersigned hereby represents and warrants that the conditions to lending specified in  [Section[s] [4.01 and]1 4.03][Section 4.02]2 of the Credit Agreement are satisfied as of the date hereof.    Very truly yours,    [MATERION CORPORATION,  as the Company]  [[FOREIGN SUBSIDIARY BORROWER],  as a Borrower]      By:______________________________  Name:   Title:      1 To be included only for Borrowings on the Effective Date.  2 To be included only for Omega Closing Date Loans.   





 






    EXHIBIT G-2  FORM OF INTEREST ELECTION REQUEST  JPMorgan Chase Bank, N.A.,  as Administrative Agent  for the Lenders referred to below    [10 South Dearborn, L2 Floor  Chicago, Illinois 60603  Attention: JPMorgan Loan Services  Facsimile: (888) 499-5663]1    With a copy to:    JPMorgan Chase Bank, N.A.  10 South Dearborn Street, Floor 9  Chicago, Illinois 60603  Attention:  Eric Bergeson     Re:  Materion Corporation, et al.  [Date]  Ladies and Gentlemen:  Reference is hereby made to the Fourth Amended and Restated Credit Agreement dated as of October  27, 2021 (as the same may be amended, restated, supplemented or otherwise modified from time to time,  the “Credit Agreement”), among Materion Corporation (the “Company”), the Foreign Subsidiary  Borrowers from time to time party thereto, the Lenders from time to time party thereto and JPMorgan Chase  Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”).  Capitalized terms used  but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.  The  [undersigned Borrower][Company, on behalf of [Subsidiary Borrower],] hereby gives you notice pursuant  to Section 2.08 of the Credit Agreement that it requests to continue or convert an existing Borrowing under  the Credit Agreement, and in that connection the [undersigned Borrower][Company, on behalf of [Foreign  Subsidiary Borrower],] specifies the following information with respect to such continuation or conversion  requested hereby:     1. List Borrower, date, Class, Type, principal amount, Agreed Currency and Interest Period (if  applicable) of existing Borrowing and portion thereof subject to this interest election:  __________  2. Aggregate principal amount of resulting Borrowing:  __________    1 If request is in respect of Revolving Loans in a Foreign Currency, please replace this address with the London address  from Section 9.01(a)(ii).  





 






    3. Effective date of interest election (which shall be a Business Day):  __________  4. Type of Borrowing (ABR or Eurocurrency or RFR):  __________  5. Class of Borrowing (Revolving Borrowing or Term Loan Borrowing): __________  6. Interest Period and the last day thereof (if a Eurocurrency Borrowing):2  __________  7. Agreed Currency:  __________  [Signature Page Follows]    2 Which must comply with the definition of “Interest Period” and end not later than the applicable Maturity Date.   





 






    Very truly yours,    [MATERION CORPORATION,  as the Company]  [[FOREIGN SUBSIDIARY BORROWER],  as a Borrower]      By:______________________________  Name:   Title:  





 






    EXHIBIT H-1  [FORM OF] [AMENDED AND RESTATED] REVOLVING NOTE  [________], 20[__]  FOR VALUE RECEIVED, the undersigned, [BORROWER], a [__________] (the  “Borrower”), HEREBY UNCONDITIONALLY PROMISES TO PAY to [LENDER] (the “Lender”) the  aggregate unpaid principal amount of all Revolving Loans made by the Lender to the Borrower pursuant to  the “Credit Agreement” (as defined below) on the Revolving Credit Maturity Date or on such earlier date  as may be required by the terms of the Credit Agreement.  Capitalized terms used herein and not otherwise  defined herein are as defined in the Credit Agreement.  The undersigned Borrower promises to pay interest on the unpaid principal amount of each  Revolving Loan made to it from the date of such Revolving Loan until such principal amount is paid in full  at a rate or rates per annum determined in accordance with the terms of the Credit Agreement.  Interest  hereunder is due and payable at such times and on such dates as set forth in the Credit Agreement.  At the time of each Revolving Loan, and upon each payment or prepayment of principal of  each Revolving Loan, the Lender shall make a notation either on the schedule attached hereto and made a  part hereof, or in such Lender’s own books and records, in each case specifying the amount of such  Revolving Loan, the respective Interest Period thereof (in the case of Eurocurrency Loans) or the amount  of principal paid or prepaid with respect to such Revolving Loan, as applicable; provided that the failure of  the Lender to make any such recordation or notation shall not affect the Secured Obligations of the  undersigned Borrower hereunder or under the Credit Agreement.  This Note is one of the notes referred to in, and is entitled to the benefits of, that certain  Fourth Amended and Restated Credit Agreement dated as of October 27, 2021 by and among [the  Borrower], [Materion Corporation,] the [other] Foreign Subsidiary Borrowers from time to time parties  thereto, the financial institutions from time to time parties thereto as Lenders and JPMorgan Chase Bank,  N.A., as Administrative Agent (as the same may be amended, restated, supplemented or otherwise modified  from time to time, the “Credit Agreement”). The Credit Agreement, among other things, (i) provides for  the making of Revolving Loans by the Lender to the undersigned Borrower from time to time in an  aggregate amount not to exceed at any time outstanding [the Dollar Amount of such Lender’s Revolving  Commitment][such Lender’s Applicable Percentage of the Foreign Subsidiary Borrower Sublimit], the  indebtedness of the undersigned Borrower resulting from each such Revolving Loan to it being evidenced  by this Note, and (ii) contains provisions for acceleration of the maturity hereof upon the happening of  certain stated events and also for prepayments of the principal hereof prior to the maturity hereof upon the  terms and conditions therein specified.  This Note is secured by the [Domestic] Collateral Documents. Reference is hereby made  to the [Domestic] Collateral Documents for a description of the collateral thereby mortgaged, warranted,  bargained, sold, released, conveyed, assigned, transferred, pledged and hypothecated, the nature and extent  of the security for this Note, the rights of the holder of this Note, the Administrative Agent in respect of  such security and otherwise.  Demand, presentment, protest and notice of nonpayment and protest are hereby waived by  the Borrower.  





 






  2  Whenever in this Note reference is made to the Administrative Agent, the Lender or the  Borrower, such reference shall be deemed to include, as applicable, a reference to their respective  successors and assigns.  The provisions of this Note shall be binding upon and shall inure to the benefit of  said successors and assigns.  The Borrower’s successors and assigns shall include, without limitation, a  receiver, trustee or debtor in possession of or for the Borrower.  [This Note amends and restates in its entirety that certain Note, dated as of [________],  20[__], by the Borrower in favor of the Lender (the “Original Note”) and all of the terms and provisions of  the Original Note shall in all respects be superseded hereby in their entirety. Notwithstanding the  amendment and restatement of the Original Note by this Note, this Note shall not be deemed to evidence  or result in a novation or repayment and re-borrowing of the obligations evidenced by the Original Note.]  ****    





 






  Note    This Note shall be construed in accordance with and governed by the law of the State of  New York.    [BORROWER]      By:        Name:  Title:     





 






  2  SCHEDULE OF LOANS AND PAYMENTS OR PREPAYMENTS              Date    Amount of  Loan    Type of  Loan Currency      Interest  Period/Rate  Amount of  Principal  Paid or  Prepaid    Unpaid  Principal  Balance    Notation  Made By                                                                                                                                                                                                                                                                                                      





 






    EXHIBIT H-2  [FORM OF] TERM LOAN NOTE  [________], 20[__]  FOR VALUE RECEIVED, the undersigned, MATERION CORPORATION, an Ohio  corporation (the “Borrower”), HEREBY UNCONDITIONALLY PROMISES TO PAY to [LENDER] (the  “Lender”) the aggregate unpaid principal amount of all Term Loans made by the Lender to the Borrower  pursuant to the “Credit Agreement” (as defined below) on the Term Loan Maturity Date or on such earlier  date as may be required by the terms of the Credit Agreement.  Capitalized terms used herein and not  otherwise defined herein are as defined in the Credit Agreement.  The undersigned Borrower promises to pay interest on the unpaid principal amount of each  Term Loan made to it from the date of such Term Loan until such principal amount is paid in full at a rate  or rates per annum determined in accordance with the terms of the Credit Agreement.  Interest hereunder  is due and payable at such times and on such dates as set forth in the Credit Agreement.  At the time of each Term Loan, and upon each payment or prepayment of principal of each  Term Loan, the Lender shall make a notation either on the schedule attached hereto and made a part hereof,  or in such Lender’s own books and records, in each case specifying the amount of such Term Loan, the  respective Interest Period thereof (in the case of Eurocurrency Loans) or the amount of principal paid or  prepaid with respect to such Term Loan, as applicable; provided that the failure of the Lender to make any  such recordation or notation shall not affect the Secured Obligations of the undersigned Borrower hereunder  or under the Credit Agreement.  This Note is one of the notes referred to in, and is entitled to the benefits of, that certain  Fourth Amended and Restated Credit Agreement dated as of October 27, 2021 by and among the Borrower,  the Foreign Subsidiary Borrowers from time to time parties thereto, the financial institutions from time to  time parties thereto as Lenders and JPMorgan Chase Bank, N.A., as Administrative Agent (as the same  may be amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement”). The Credit Agreement, among other things, (i) provides for the making of Term Loans by  the Lender to the undersigned Borrower from time to time in an aggregate amount not to exceed at any time  outstanding such Lender’s Term Loan Commitment, the indebtedness of the undersigned Borrower  resulting from each such Term Loan to it being evidenced by this Note, and (ii) contains provisions for  acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments of  the principal hereof prior to the maturity hereof upon the terms and conditions therein specified.  This Note is secured by the Domestic Collateral Documents.  Reference is hereby made to  the Domestic Collateral Documents for a description of the collateral thereby mortgaged, warranted,  bargained, sold, released, conveyed, assigned, transferred, pledged and hypothecated, the nature and extent  of the security for this Note, the rights of the holder of this Note, the Administrative Agent in respect of  such security and otherwise.  Demand, presentment, protest and notice of nonpayment and protest are hereby waived by  the Borrower.  Whenever in this Note reference is made to the Administrative Agent, the Lender or the  Borrower, such reference shall be deemed to include, as applicable, a reference to their respective  successors and assigns.  The provisions of this Note shall be binding upon and shall inure to the benefit of  





 






  2  said successors and assigns.  The Borrower’s successors and assigns shall include, without limitation, a  receiver, trustee or debtor in possession of or for the Borrower.  ****    





 






  Note  This Note shall be construed in accordance with and governed by the law of the State of  New York.    MATERION CORPORATION  By:      Name:  Title:   





 






  2  SCHEDULE OF LOANS AND PAYMENTS OR PREPAYMENTS              Date    Amount of  Loan      Interest  Period/Rate  Amount of  Principal Paid  or Prepaid    Unpaid  Principal  Balance    Notation Made  By                                                                                                                                                                                                                                                              





 






  3  EXHIBIT I-1  [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Fourth Amended and Restated Credit Agreement dated as  of October 27, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the  “Credit Agreement”), among Materion Corporation (the “Company”), the Dutch Borrower and the other  Foreign Subsidiary Borrowers from time to time party thereto (collectively with the Company, the  “Borrowers”), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as  administrative agent (in such capacity, the “Administrative Agent”).  Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby  certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any promissory note(s)  evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the  meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within  the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to  the Company as described in Section 881(c)(3)(C) of the Code and (v) the interest payments in question  are not effectively connected with the undersigned’s conduct of U.S. trade or business.  The undersigned has furnished the Administrative Agent and the Company with a  certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E.  By executing  this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the  undersigned shall promptly so inform the Company and the Administrative Agent and (2) the undersigned  shall have at all times furnished the Company and the Administrative Agent with a properly completed and  currently effective certificate in either the calendar year in which each payment is to be made to the  undersigned, or in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]  By:______________________________________  Name:  Title:  Date:  __________, 20[__]  





 






    EXHIBIT I-2  [FORM OF]    U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Fourth Amended and Restated Credit Agreement dated as  of October 27, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the  “Credit Agreement”), among Materion Corporation (the “Company”), the Dutch Borrower and the other  Foreign Subsidiary Borrowers from time to time party thereto (collectively with the Company, the  “Borrowers”), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as  administrative agent (in such capacity, the “Administrative Agent”).  Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby  certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is  providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii)  it is not a ten percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code,  (iv) it is not a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C)  of the Code and (v) the interest payments in question are not effectively connected with the undersigned’s  conduct of U.S. trade or business.  The undersigned has furnished its participating Lender with a certificate of its non-U.S.  Person status on IRS Form W-8BEN or IRS Form W-8BEN-E.  By executing this certificate, the  undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall  promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such  Lender with a properly completed and currently effective certificate in either the calendar year in which  each payment is to be made to the undersigned, or in either of the two calendar years preceding such  payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]  By:______________________________________  Name:  Title:  Date:  __________, 20[__]  





 






    EXHIBIT I-3  [FORM OF]    U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Fourth Amended and Restated Credit Agreement dated as  of October 27, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the  “Credit Agreement”), among Materion Corporation (the “Company”), the Dutch Borrower and the other  Foreign Subsidiary Borrowers from time to time party thereto (collectively with the Company, the  “Borrowers”), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as  administrative agent (in such capacity, the “Administrative Agent”).  Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby  certifies that (i) it is the sole record owner of the participation in respect of which it is providing this  certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation,  (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect  partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course  of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or  indirect partners/members is a ten percent shareholder of the Company within the meaning of Section  871(h)(3)(B) of the Code, (v) none of its direct or indirect partners/members is a controlled foreign  corporation related to the Company as described in Section 881(c)(3)(C) of the Code and (vi) the interest  payments in question are not effectively connected with the undersigned’s or its partners’/members’  conduct of a U.S. trade or business.  The undersigned has furnished its participating Lender with IRS Form W-8IMY  accompanied by one of the following forms from each of its partners/members that is claiming the portfolio  interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY  accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s  beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the  undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall  promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with  a properly completed and currently effective certificate in either the calendar year in which each payment  is to be made to the undersigned, or in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]  By:______________________________________  Name:  Title:  Date:  __________, 20[__]  





 






    EXHIBIT I-4  [FORM OF]    U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Fourth Amended and Restated Credit Agreement dated as  of October 27, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the  “Credit Agreement”), among Materion Corporation (the “Company”), the Dutch Borrower and the other  Foreign Subsidiary Borrowers from time to time party thereto (collectively with the Company, the  “Borrowers”), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as  administrative agent (in such capacity, the “Administrative Agent”).  Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby  certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory note(s) evidencing  such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members  are the sole beneficial owners of such Loan(s) (as well as any promissory note (s) evidencing such Loan(s)),  (iii) with respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document,  neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant  to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section  881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder  of the Company within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its direct or indirect  partners/members is a controlled foreign corporation related to the Company as described in Section  881(c)(3)(C) of the Code and (vi) the interest payments in question are not effectively connected with the  undersigned’s or its partners’/members’ conduct of a U.S. trade or business.  The undersigned has furnished the Administrative Agent and the Company with IRS Form  W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming  the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form  W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such  partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the  undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned  shall have at all times furnished the Company and the Administrative Agent with a properly completed and  currently effective certificate in either the calendar year in which each payment is to be made to the  undersigned, or in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]  By:______________________________________  Name:  Title:  Date:  __________, 20[__]