termloanfullexhibit101






Exhibit 10.1    [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10).  Such excluded information is not material and is the type that the registrant treats as private or confidential. A  copy of omitted information will be furnished to the Securities and Exchange Commission upon request;  provided, however, that the parties may request confidential treatment pursuant to Rule 24b-2 of the Securities  Exchange Act of 1934, as amended, for any document so furnished.    EXECUTION VERSION        AMENDMENT AND RESTATEMENT AGREEMENT (this “Agreement”), dated as of May 25, 2022, to  the Amended and Restated Revolving Credit Agreement, dated as of June 20, 2019 (as amended by the  First Amendment, dated as of February 8, 2021 and the Second Amendment, dated as of December 10,  2021, and as further amended, supplemented or otherwise modified from time to time, the “Existing Credit  Agreement”, and the Existing Credit Agreement as amended and restated by this Agreement, the “Second  Amended and Restated Credit Agreement”; capitalized terms used but not defined in this Agreement shall  have the meanings assigned to such terms in the Second Amended and Restated Credit Agreement), among  Peloton Interactive, Inc. (the “Borrower”), the several banks and other financial institutions or entities from  time to time party thereto (the “Existing Lenders”), and JPMorgan Chase Bank, N.A., as Administrative  Agent (in such capacity, the “Administrative Agent”).  WHEREAS, upon the terms and subject to the conditions set forth in this Agreement and  the Second Amended and Restated Credit Agreement, the Borrower desires to (i) obtain the Initial Term  Loans and (ii) amend and restate the Existing Credit Agreement;    WHEREAS, upon the terms and subject to the conditions set forth in this Agreement and  the Second Amended and Restated Credit Agreement, each Initial Term Lender party to this Agreement,  severally and not jointly, is willing to provide its respective Initial Term Commitment;     WHEREAS,  upon the terms and subject to the conditions set forth in this Agreement and  the Second Amended and Restated Credit Agreement, each Lender party to this Agreement that is an  Existing Lender, which Lenders constitute the “Required Lenders” under and as defined in the Existing  Credit Agreement, is willing to consent to the amendments to the Existing Credit Agreement as set forth in  this Agreement and in the Second Amended and Restated Credit Agreement; and     WHEREAS, each of JPMorgan Chase Bank, N.A. and Goldman Sachs Lending Partners  LLC, will act as an Arranger with respect to the Initial Term Facility.     NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein  contained and for other good and valuable consideration, the receipt of which is hereby acknowledged, the  parties hereto agree as follows:  SECTION 1. AMENDMENTS.  On the Second Restatement Effective Date, the  Existing Credit Agreement is hereby amended as follows:  (a) The Existing Credit Agreement is hereby amended and restated in its entirety as  set forth in Exhibit A hereto.   (b) The existing Schedules to the Existing Credit Agreement are hereby amended and  restated in their entirety as set forth in Exhibit B hereto.  (c) The existing Exhibits to the Existing Credit Agreement are hereby amended and  restated in their entirety as set forth in Exhibit C hereto.  





 






  2      (d) The existing Schedules to the Security Agreement are hereby amended and restated  in their entirety as set forth in Exhibit D hereto.  SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS.  This Agreement  shall become effective on the Second Restatement Effective Date.  SECTION 3. REPRESENTATIONS AND WARRANTIES.  In order to induce the  Lenders to enter into this Agreement, each Loan Party hereby represents and warrants to the Lenders that  as of the date hereof (a) this Agreement has been duly authorized by all necessary organizational actions  and, if required, actions by equity holders of such Loan Party, (b) this Agreement has been duly executed  and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party,  enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization,  moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity,  regardless of whether considered in a proceeding in equity or at law and (c) the representations and  warranties of the Borrower set forth in the Second Amended and Restated Credit Agreement are true and  correct in all material respects on and as of the date of this Agreement, except that (i) to the extent that such  representations and warranties specifically refer to an earlier date, they are true and correct in all material  respects as of such earlier date and (ii) to the extent that such representations and warranties are already  qualified or modified by materiality in the text thereof, they are true and correct in all respects.  SECTION 4. CONTINUING EFFECT; NO NOVATION.  Except as expressly  amended, waived or modified hereby, the Loan Documents shall continue to be and shall remain in full  force and effect in accordance with their respective terms.  This Agreement shall not constitute an  amendment, waiver or modification of any provision of any Loan Document not expressly referred to herein  and shall not be construed as an amendment, waiver or modification of any action on the part of the  Borrower or the other Loan Parties that would require an amendment, waiver or consent of the  Administrative Agent or the Lenders except as expressly stated herein, or be construed to indicate the  willingness of the Administrative Agent or the Lenders to further amend, waive or modify any provision of  any Loan Document amended, waived or modified hereby for any other period, circumstance or event.   Except as expressly modified by this Agreement, Loan Documents are ratified and confirmed and are, and  shall continue to be, in full force and effect in accordance with their respective terms.  Except as expressly  set forth herein, each Lender and the Administrative Agent reserves all of its rights, remedies, powers and  privileges under the Existing Credit Agreement, the other Loan Documents, applicable law and/or equity.   Any reference to the “Credit Agreement” in any Loan Document or any related documents shall be deemed  to be a reference to the Existing Credit Agreement as amended and restated by this Agreement and the term  “Loan Documents” in the Second Amended and Restated Credit Agreement and the other Loan Documents  shall include this Agreement.  Neither this Agreement nor the execution, delivery or effectiveness of this  Agreement shall extinguish the obligations outstanding under the Existing Credit Agreement. Nothing  herein contained shall be construed as a substitution or novation of the obligations outstanding under the  Existing Credit Agreement, which shall remain in full force and effect, except to any extent modified hereby  or by instruments executed concurrently herewith. Nothing implied in this Agreement, the Second  Amended and Restated Credit Agreement, the Security Documents, the other Loan Documents or in any  other document contemplated hereby or thereby shall be construed as a release or other discharge of any of  Borrower or any other Loan Party from any of its obligations and liabilities as a “Borrower,” “Guarantor,”  or “Loan Party,” under the Existing Credit Agreement or any other Loan Document. Each of the Existing  Credit Agreement, the Security Documents and the other Loan Documents shall remain in full force and  effect, until (as applicable) and except to any extent modified hereby or in connection herewith.  SECTION 5. GOVERNING LAW.  THIS AGREEMENT SHALL BE CONSTRUED  IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.  





 






  3      SECTION 6. SUCCESSORS AND ASSIGNS.  This Agreement shall be binding upon  and inure to the benefit of the Borrower, the other Loan Parties, the Administrative Agent, the other Agents  and the Lenders, and each of their respective successors and permitted assigns, and shall not inure to the  benefit of any third parties.  The execution and delivery of this Agreement by any Lender prior to the  Second Restatement Effective Date shall be binding upon its successors and permitted assigns and shall be  effective as to any Loans or Commitments assigned to it after such execution and delivery.  SECTION 7. ENTIRE AGREEMENT.  This Agreement, the Second Amended and  Restated Credit Agreement and the other Loan Documents represent the entire agreement of the Loan  Parties, the Administrative Agent, the Agents and the Lenders with respect to the subject matter hereof and  thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent,  any other Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to  herein or in the Second Amended and Restated Credit Agreement or the other Loan Documents.    SECTION 8. LOAN DOCUMENT.  This Agreement is a Loan Document and shall  (unless otherwise expressly indicated herein) be construed, administered and applied in accordance with  the terms and provisions of the Second Amended and Restated Credit Agreement.  SECTION 9. COUNTERPARTS.  This Agreement may be signed in any number of  counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto  were upon the same instrument. Delivery of an executed counterpart of a signature page of this Agreement  by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed  signature page shall be effective as delivery of a manually executed counterpart of this Agreement. The  words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this  Agreement, any document to be signed in connection herewith and the transactions contemplated hereby  shall be deemed to include Electronic Signatures (as defined below), electronic deliveries or the keeping of  records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a  manually executed signature, 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. “Electronic Signatures” means any  electronic symbol or process attached to, or associated with, any contract or other record and adopted by a  person with the intent to sign, authenticate or accept such contract or record.  Without limiting the generality  of the foregoing, each 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 and the Loan Parties, electronic images of this Agreement or  any other Loan Documents (in each case, including with respect to any signature pages thereto) shall have  the same legal effect, validity and enforceability as any paper original, and (ii) waives any argument,  defense or right to contest the validity or enforceability of the Loan Documents based solely on the lack of  paper original copies of any Loan Documents, including with respect to any signature pages thereto.  SECTION 10. HEADINGS.  Section headings used in this Agreement are for  convenience of reference only, are not part of this Agreement and are not to affect the construction of, or  to be taken into consideration in interpreting, this Agreement.  [Remainder of page intentionally left blank; signature pages follow]    





 






  [Signature Page to Amendment and Restatement Agreement]    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed  and delivered by their duly authorized officers as of the date first written above.  PELOTON INTERACTIVE, INC.,  as the Borrower      By: /s/ Jill Woodworth                                 Name: Jill Woodworth  Title:   Chief Financial Officer      





 






    [Signature Page to Amendment and Restatement Agreement]    JPMORGAN CHASE BANK, N.A.,  as the Administrative Agent, the Initial Term Lender, a  Revolving Lender, and an Issuing Bank      By: /s/ Lauren Shake   Name: Lauren Shake  Title:   Authorized Officer      





 






    [Signature Page to Amendment and Restatement Agreement]    GOLDMAN SACHS LENDING PARTNERS LLC,  as a Revolving Lender      By: /s/ Robert Ehudin   Name: Robert Ehudin  Title:   Authorized Signatory      





 






    [Signature Page to Amendment and Restatement Agreement]    BARCLAYS BANK PLC,  as a Revolving Lender      By: /s/ Manuel Rubiano   Name: Manuel Rubiano  Title:   Vice President    





 






    [Signature Page to Amendment and Restatement Agreement]    Citibank N.A.,  as a Revolving Lender      By: /s/ Kyle Scanlon   Name: Kyle Scanlon  Title:   Senior Vice President        





 






    EXHIBIT A     Second Amended and Restated Credit Agreement    [See attached]  





 






EXECUTION VERSION  Exhibit A to Amendment and Restatement Agreement    SECOND AMENDED AND RESTATED CREDIT AGREEMENT  dated as of  May 25, 2022  among  PELOTON INTERACTIVE, INC.,  The Lenders Party Hereto  and  JPMORGAN CHASE BANK, N.A.,  as Administrative Agent        JPMORGAN CHASE BANK, N.A.,  as Lead Arranger and Bookrunner for the Revolving Facility    BARCLAYS BANK PLC, CITIBANK, N.A. and GOLDMAN SACHS LENDING PARTNERS  LLC,  as Joint Syndication Agents for the Revolving Facility    JPMORGAN CHASE BANK, N.A. and GOLDMAN SACHS LENDING PARTNERS LLC,  as Lead Arrangers and Joint Bookrunners for the Initial Term Facility      





 






  TABLE OF CONTENTS  Page  ARTICLE 1 DEFINITIONS ............................................................................................................1   Defined Terms .............................................................................................1   Classification of Loans and Borrowings ....................................................41   Terms Generally .........................................................................................41   Accounting Terms; GAAP .........................................................................42   Interest Rates; Benchmark Notification .....................................................42   Divisions ....................................................................................................43  ARTICLE 2 THE CREDITS .........................................................................................................43   Commitments. ............................................................................................43   Loans and Borrowings ...............................................................................44   Requests for Borrowings ............................................................................44   Funding of Borrowings ..............................................................................46   Interest Elections ........................................................................................46   Termination and Reduction of Commitments ............................................47   Repayment of Loans; Evidence of Debt ....................................................48   Prepayment of Loans .................................................................................49   Fees ............................................................................................................52   Interest ........................................................................................................53   Alternate Rate of Interest ...........................................................................54   Increased Costs ..........................................................................................56   Break Funding Payments ...........................................................................58   Taxes ..........................................................................................................58   Payments Generally; Pro Rata Treatment; Sharing of Set-offs .................61   Mitigation Obligations; Replacement of Lenders ......................................63   Defaulting Lenders .....................................................................................64   Incremental Facilities .................................................................................67   Letters of Credit .........................................................................................72   Judgment Currency ....................................................................................77   Extension of Maturity Date ........................................................................78   Specified Refinancing Debt .......................................................................79   Incremental Equivalent Debt .....................................................................81  ARTICLE 3 REPRESENTATIONS AND WARRANTIES .........................................................83   Organization; Powers .................................................................................83   Authorization; Enforceability ....................................................................83   Governmental Approvals; No Conflicts ....................................................83   Financial Condition; No Material Adverse Change ...................................83   Properties ...................................................................................................84   Litigation and Environmental Matters .......................................................84   Compliance with Laws and Agreements; No Default ...............................84  





 






  ii   Investment Company Status ......................................................................85   Margin Stock ..............................................................................................85   Taxes ..........................................................................................................85   ERISA ........................................................................................................85   Disclosure ..................................................................................................87   Subsidiaries ................................................................................................87   Solvency .....................................................................................................87   Anti-Terrorism Law ...................................................................................87   Anti-Corruption Laws and Sanctions .........................................................88   Security Documents ...................................................................................89  ARTICLE 4 CONDITIONS ..........................................................................................................89   Second Restatement Effective Date ...........................................................89   Each Credit Event ......................................................................................91  ARTICLE 5 AFFIRMATIVE COVENANTS...............................................................................92   Financial Statements; Ratings Change and Other Information ..................92   Notices of Material Events .........................................................................94   Existence; Conduct of Business .................................................................94   Payment of Taxes .......................................................................................94   Maintenance of Properties; Insurance ........................................................95   Books and Records; Inspection Rights ......................................................95   ERISA Events ............................................................................................95   Compliance with Laws and Agreements ...................................................96   Use of Proceeds ..........................................................................................96   Guarantors; Additional Collateral ..............................................................96   Cash Management ......................................................................................99   Further Assurances ...................................................................................100  ARTICLE 6 NEGATIVE COVENANTS ...................................................................................100   Indebtedness .............................................................................................100   Liens .........................................................................................................101   Fundamental Changes ..............................................................................103   Investments, Loans, Advances, Guarantees and Acquisitions .................104   Restricted Payments .................................................................................106   Restrictive Agreements ............................................................................108   Transactions with Affiliates .....................................................................109   Use of Proceeds ........................................................................................109   Disposition of Property ............................................................................109   Financial Condition Covenants ................................................................111   Swap Agreements ....................................................................................111  ARTICLE 7 EVENTS OF DEFAULT ........................................................................................111  ARTICLE 8 THE AGENTS ........................................................................................................114   Appointment of Administrative Agent ....................................................114   Powers and Duties ....................................................................................115  





 






  iii   General Immunity ....................................................................................115   Administrative Agent Entitled to Act as Lender ......................................116   Lenders’ Representations, Warranties and Acknowledgment .................117   Right to Indemnity ...................................................................................117   Successor Administrative Agent ..............................................................118   Guaranty and Security Documents ..........................................................118   Certain ERISA Matters ............................................................................119   Withholding Taxes ...................................................................................120   Administrative Agent May File Bankruptcy Disclosure and Proofs  of Claim ...................................................................................................121  ARTICLE 9 MISCELLANEOUS ...............................................................................................122   Notices .....................................................................................................122   Waivers; Amendments .............................................................................124   Expenses; Indemnity; Damage Waiver ....................................................125   Successors and Assigns ............................................................................127   Survival ....................................................................................................133   Counterparts; Integration; Effectiveness; Electronic Signatures .............133   Severability ..............................................................................................135   Right of Setoff ..........................................................................................135   Governing Law; Jurisdiction; Consent to Service of Process ..................136   Waiver Of Jury Trial ................................................................................136   Headings ..................................................................................................137   Confidentiality .........................................................................................137   Interest Rate Limitation ...........................................................................138   No Advisory or Fiduciary Responsibility ................................................138   Erroneous Payments .................................................................................139   USA PATRIOT Act .................................................................................140   Releases of Guarantors and Liens ............................................................140   Acknowledgement Regarding Any Supported QFCs ..............................141   Judgment Currency ..................................................................................142   Acknowledgement and Consent to Bail-In of Affected Financial  Institutions ...............................................................................................143   Agreement as to Certain Amendments ....................................................143  





 






    SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 25,  2022, among PELOTON INTERACTIVE, INC., as Borrower, the LENDERS party hereto and  JPMORGAN CHASE BANK, N.A., as Administrative Agent.  ARTICLE 1  DEFINITIONS    Defined Terms  As used in this Agreement, the following terms have the meanings specified below:   “2021 Consenting Commitments” means the Revolving Commitments of the Consenting  Lenders, as defined in the Second Amendment. The initial amount of each Lender’s 2021  Consenting Commitment as of the Second Amendment Effective Date is set forth on Schedule  2.01. The initial aggregate amount of the Lenders’ 2021 Consenting Commitments as of the  Second Amendment Effective Date is $465,000,000.  “2021 Non-Consenting Commitments” means the Revolving Commitments of the  Lenders that are not Consenting Lenders, as defined in the Second Amendment. The initial amount  of each Lender’s 2021 Non-Consenting Commitment as of the Second Amendment Effective Date  is set forth on Schedule 2.01. The initial aggregate amount of the Lenders’ 2021 Non-Consenting  Commitments as of the Second Amendment Effective Date is $35,000,000.  “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,  or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to  the Alternate Base Rate.   “Acknowledging Party” has the meaning set forth in Section 9.20.   “Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) the Daily  Simple SOFR, plus (b) 0.10%; provided that, if Adjusted Daily Simple SOFR as so determined  would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes  of this Agreement.  “Adjusted Term SOFR Rate” means, for any Interest Period, an interest rate per annum  equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the  Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be  deemed to be equal to the Floor for the purposes of this Agreement.  “Administrative Agent” means JPMorgan Chase Bank, N.A. (or any of its designated  branch offices or affiliates), in its capacity as administrative agent for the Lenders hereunder, or  any successor administrative agent.   “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.  





 






  2  “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.   “Agent Fee Letter” means that certain Fee Letter, dated as of May 9, 2022, by and among  the Borrower and the Administrative Agent.   “Agent Parties” has the meaning set forth in Section 9.01.   “Agents” means the Administrative Agent, the Arrangers, and the Syndication Agents.  “Agreed Currency” means Dollars and any Alternative Currency.  “Agreement” means this Second Amended and Restated Credit Agreement, as the same  may hereafter be modified, supplemented, extended, amended, restated or amended and restated  from time to time.   “All-in Yield” shall mean, with respect to any Indebtedness, the yield of such  Indebtedness, whether in the form of fixed interest rate, margin, OID, upfront fees, index floors or  otherwise, in each case payable by the Borrower generally to lenders; provided that OID and  upfront fees shall be equated to the fixed interest rate or margin assuming a four year life to  maturity, and shall not include arrangement fees, structuring fees, ticking fees, commitment fees,  unused line fees, underwriting fees and any amendment and similar fees (regardless of whether  paid in whole or in part to the lenders) and any other fees not generally paid ratably to all lenders  of such Indebtedness.  “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 Term SOFR Rate for a one month Interest Period as published two U.S.  Government Securities Business Days prior to 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 Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at  approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term  SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR  Reference Rate methodology).  Any change in the Alternate Base Rate due to a change in the  Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and  including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted  Term SOFR Rate, respectively.  If the Alternate Base Rate is being used as an alternate rate of  interest pursuant to Section 2.11 (for the avoidance of doubt, only until the Benchmark  Replacement has been determined pursuant to Section 2.11 hereof), 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 it in Section 9.06(b).  





 






  3  “Alternative Currency” means Australian Dollars, Sterling, Euros, Canadian Dollars,  New Taiwan Dollars, Yen and any additional currencies determined after the Second Amendment  Effective Date by mutual agreement of the Borrower, the Revolving Lenders, Issuing Banks and  Administrative Agent; provided that each such currency is a lawful currency that is readily  available, freely transferable and not restricted, able to be converted into Dollars and available in  the London interbank deposit market.  “Alternative Currency Payment Office” of the Administrative Agent means, for each  Alternative Currency, the office, branch, affiliate or correspondent bank of the Administrative  Agent for such currency as specified from time to time by notice to the Borrower and each  Revolving Lender.  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction  applicable to the Borrower or any of its Affiliates from time to time concerning or relating to  bribery or corruption.  “Anti-Terrorism Laws” has the meaning set forth in Section 3.15(a).   “Applicable Class Percentage” means, with respect to any Lender of any Class, the  percentage of the total Commitments of such Class represented by such Lender’s Commitment of  such Class. If the Commitments of such Class have terminated or expired, the Applicable  Percentages shall be determined based upon the Commitments of such Class most recently in  effect, giving effect to any assignments.  “Applicable Percentage” means, with respect to any Lender, the percentage of the total  Commitments represented by such Lender’s Commitment. If the Commitments have terminated  or expired, the Applicable Percentages shall be determined based upon the Commitments most  recently in effect, giving effect to any assignments.   “Applicable Rate” means (a) with respect to the 2021 Non-Consenting Commitments, for  any day, (i) with respect to any ABR Loan, 1.75% per annum, (ii) with respect to any Term  Benchmark Loan, 2.75% per annum and (iii) with respect to the Commitment Fees, 0.375% per  annum, (b) with respect to the Initial Term Loans, for any day, (i) with respect to any ABR Loan,  5.50% per annum, and (ii) with respect to any Term Benchmark Loan, 6.50% per annum; provided  that, if the Borrower has not obtained a public rating (but no specific rating) for the Initial Term  Facility from at least one of S&P Global Ratings and Moody’s Investors Service, Inc. on or prior  to the date that is six months after the Second Restatement Effective Date, each of the percentages  set forth in this clause (b) shall be increased by 0.50%, and (c) with respect to the 2021 Consenting  Commitments, (i) with respect to any ABR Loan, 1.25% per annum, (ii) with respect to any Term  Benchmark Loan, 2.25% per annum and (iii) with respect to the Commitment Fee, 0.325% per  annum; provided that, with respect to this clause (c) only, from and after the delivery of the  financial statements and related Compliance Certificate for the first full fiscal quarter of the  Borrower completed after the Conversion Date pursuant to Section 5.01, the Applicable Rate for  ABR Loans, Term Benchmark Loans and the Commitment Fee shall be based on the Senior  Secured Net Leverage Ratio set forth in the most recent Compliance Certificate in accordance with  the pricing grid below:  





 






  4  Senior Secured Net  Leverage Ratio  Applicable Margin  for Term  Benchmark Loans  Applicable Margin  for ABR Loans  Commitment Fee  < 2.00:1.00 1.50% 0.50% 0.225%  > 2.00:1.00 and  < 3.00:1.00  1.75% 0.75% 0.275%  > 3.00:1.00 and  < 4.00:1.00  2.00% 1.00% 0.30%  > 4.00:1.00 2.25% 1.25% 0.325%    “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 activities 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.   “Arranger” means (a) with respect to the Revolving Facility, JPMorgan Chase Bank,  N.A., in its capacity as lead arranger and bookrunner, and any successor thereto and (b) with  respect to the Initial Term Facility, each of JPMorgan Chase Bank, N.A. and Goldman Sachs  Lending Partners LLC, each in its capacity as a lead arranger and joint bookrunner, and any  successor thereto.   “ASR Agreement” has the meaning set forth in Section 6.05(vi).  “Assignment and Assumption” means an assignment and assumption 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, in the form of Exhibit A or any other form approved  by the Administrative Agent.   “Australian Dollars” refers to the lawful money of Australia.   “Available Incremental Amount” has the meaning set forth in Section 2.18(a).   “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, 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 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 (e) of Section 2.11.  “Availability Period” means, with respect to any Class of Revolving Commitments, the  period from and including the Effective Date to but excluding the earlier of the applicable Maturity  Date and the date of termination of such Revolving Commitments.   





 






  5  “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).   “Bankruptcy Code” means Chapter 11 of Title 11 of the United States Code, as amended  from time to time and any successor statute and all rules and regulations promulgated thereunder.   “Benchmark” means, initially, with respect to any (i) RFR Loan, the Daily Simple SOFR  or (ii) Term Benchmark Loan, the Term SOFR Rate; provided that if a Benchmark Transition  Event, and the related Benchmark Replacement Date have occurred with respect to the Daily  Simple SOFR or Term SOFR Rate, as applicable, or the then-current Benchmark, then  “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark  Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.11.  “Benchmark Replacement” means, for any Available Tenor:  the sum of: (a) the alternate benchmark rate that has been selected by the  Administrative Agent and the Borrower 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 dollar-denominated syndicated credit facilities at such time in the United  States and (b) the related Benchmark Replacement Adjustment;  If the Benchmark Replacement as determined pursuant to the 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.  “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, 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  Borrower 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,  





 






  6  or method for calculating or determining such spread adjustment, for the replacement of such  Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated  syndicated credit facilities at such time.  “Benchmark Replacement Conforming Changes” means, with respect to any  Benchmark Replacement and/or any Term Benchmark Revolving Loan, any technical,  administrative or operational changes (including changes to the definition of “Alternate Base  Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities 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 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 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).  “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); or  (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 (c) and even if any  Available Tenor of such Benchmark (or such component thereof) continues to be provided  on such date.  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).  





 






  7  “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 Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an  insolvency official with jurisdiction over the administrator for such Benchmark (or such  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 2.11 and (y) ending at the time that a Benchmark Replacement has replaced such  then-current Benchmark for all purposes hereunder.  “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.  





 






  8  “Board” means the Board of Governors of the Federal Reserve System of the United States  of America.   “Borrower” means Peloton Interactive, Inc., a Delaware corporation.   “Borrowing” means a Revolving Borrowing or a Term Borrowing, as the context may  require.  “Borrowing Request” means a request by the Borrower for a Borrowing in accordance  with Section 2.03.   “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, in relation to RFR Loans and any  interest rate settings, fundings, disbursements, settlements or payments of any such RFR Loan, or  any other dealings of such RFR Loan, any such day that is only an U.S. Government Securities  Business Day.   “Canadian Dollars” or “CA$” refers to lawful money of Canada.   “Capital Lease Obligations” of any Person means the obligations of such Person to pay  rent or other amounts under any lease of (or other arrangement conveying the right to use) real or  personal property, or a combination thereof, which obligations are required to be classified and  accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of  such obligations shall be the capitalized amount thereof determined in accordance with GAAP;  provided that, for the avoidance of doubt, any obligations relating to a lease that was accounted  for by such Person as an operating lease as of the Effective Date and any similar lease entered into  after the Effective Date by such Person shall be accounted for as obligations relating to an  operating lease and not as Capital Lease Obligations.   “Cash Collateralize” means, in respect of an Obligation, to provide and pledge (as a first  priority perfected security interest) cash collateral in Dollars, at a location and pursuant to  documentation in form and substance satisfactory to the Administrative Agent and the applicable  Issuing Bank (and “Cash Collateralization” has a corresponding meaning). “Cash Collateral”  shall have a meaning correlative to the foregoing and shall include the proceeds of such cash  collateral and other credit support.  “Cash Equivalents” means any investment product set forth under the heading “Permitted  Investments” in the Investment Policy.  “Casualty Event” means any event that gives rise to the receipt by the Borrower or any  Subsidiary of any casualty insurance proceeds or condemnation awards or that gives rise to a taking  by a Governmental Authority in respect of any equipment, fixed assets or real property (including  any improvements thereon) to replace, restore or repair, or compensate for the loss of, such  equipment, fixed assets or real property.  “CFC” has the meaning assigned to it in the definition of “Excluded Subsidiary.”  “CFC Holdco” has the meaning assigned to it in the definition of “Excluded Subsidiary.”  





 






  9  “Change in Control” means the acquisition of ownership, directly or indirectly,  beneficially or of record, by any Person or group (within the meaning of the Securities Exchange  Act and the rules of the Securities and Exchange Commission thereunder), of Equity Interests in  the Borrower representing more than 50% of the aggregate ordinary voting power represented by  the issued and outstanding Equity Interests in the Borrower.   “Change in Law” means the occurrence, after the date of this Agreement, of any of the  following: (a) the adoption or taking effect of any law, 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) the making or issuance of any request,  rule, guideline or directive (whether or not having the force of law) by any Governmental  Authority; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank  Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives  thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives  promulgated by the Bank for International Settlements, the Basel Committee on Banking  Supervision (or any successor or similar authority) or the United States or foreign regulatory  authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in  Law,” regardless of the date enacted, adopted or issued.   “Charges” has the meaning set forth in Section 9.13.   “Class” when used in reference to (a) any Commitment, refers to whether such  Commitment is a Revolving Commitment, a Term Commitment, an Extended Commitment or a  Non-Extended Commitment, (b) any Loan or Borrowing, refers to whether such Loan, or the Loans  comprising such Borrowing, are Term Loans, Revolving Loans or Loans in respect of Extended  Commitments or Non-Extended Commitments and (c) any Lender, refers to whether such Lender  has a Commitment or Loan with respect to a particular Class of Commitments or Loans, in each  case as the context may require.  “CME Term SOFR Administrator” means CME Group Benchmark Administration  Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR)  (or a successor administrator).  “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.   “Collateral” means all property and rights of the Loan Parties, now owned or hereafter  acquired, upon which a Lien is purported to be created by any Security Document.  “Company Competitor” means any Person that competes with the business of the  Borrower and its Subsidiaries from time to time.  “Compliance Certificate” means a certificate delivered pursuant to Section 5.01(c).  “Consolidated Adjusted EBITDA” means, for any Measurement Period, the sum of:  (a) Consolidated Net Income for such Measurement Period; plus  





 






  10  (b)  without duplication and to the extent reflected as a charge in the statement of such  Consolidated Net Income for such Measurement Period, the sum of:  (i) interest expense, amortization or writeoff of debt discount and debt issuance costs  and commissions, discounts and other fees and charges associated with  Indebtedness (including the Loans);  (ii) income tax expense;  (iii) depreciation and amortization expense;  (iv) amortization of intangibles (including, but not limited to, goodwill);  (v) stock option and other equity-based compensation expense;  (vi) any transaction and/or integration expenses from acquisitions and other  Investments permitted by Section 6.04 and Dispositions permitted by Section  6.09;  (vii) restructuring charges and other exit and disposal costs during such period;  provided that cash payments in respect of such restructuring charges and exit and  disposal costs shall be deducted from Consolidated Adjusted EBITDA when such  payments are made; provided, further, that (A) the aggregate amount of cash  charges and costs permitted to be added back to Consolidated Adjusted EBITDA  for any Measurement Period pursuant to this clause (vii) shall not exceed 25% of  Consolidated Adjusted EBITDA for such Measurement Period (calculated after  giving effect to such addbacks) and (B) the aggregate amount of cash charges  and costs permitted to be added back to Consolidated Adjusted EBITDA for any  Measurement Period pursuant to this clause (vii), together with any amounts  included in Consolidated Adjusted EBITDA pursuant to clause (c) below, shall  not exceed 35% of Consolidated Adjusted EBITDA for such Measurement  Period (calculated after giving effect to such addbacks);  (viii) extraordinary, unusual or non-recurring losses or expenses including, without  limitation, losses related to product recalls and litigation and settlement expenses;  (ix)  adjustments permitted or required by Article 11 of Regulation S-X of the  Securities Act of 1933 and the rules and regulations of the SEC promulgated  thereunder;   (x) all expenses or charges (including deferred financing costs written off and  premiums paid) in connection with any early extinguishment of debt, including  hedging obligations or other derivative instruments;   (xi) charges resulting from purchase price adjustments with respect to acquisitions  permitted by Section 6.04 (including accruals and payments of earn-out  obligations); and  





 






  11  (xii) all charges, costs and expenses in connection with the Second Restatement and  the transactions related thereto; plus   (c) pro forma “run rate” cost savings, operating expense reductions and cost synergies  (excluding revenue synergies) related to acquisitions, dispositions and other specified transactions,  restructurings, cost savings initiatives and other similar initiatives that are reasonably quantifiable,  factually supportable and projected by the Borrower in good faith to result from actions that have  been taken or initiated or are expected to be taken (in the good faith determination of the Borrower)  within 18 months after the applicable acquisition, disposition, other specified transaction,  restructuring, cost savings initiative or other similar initiatives; provided that (A) the aggregate  amount of cost savings, operating expense reductions and synergies permitted to be included in  Consolidated Adjusted EBITDA for any period pursuant to this clause (c) shall not exceed 25% of  Consolidated Adjusted EBITDA for such period (calculated after giving effect to such addbacks)  and (B) the aggregate amount of cost savings, operating expense reductions and synergies  permitted to be included in Consolidated Adjusted EBITDA for any period pursuant to this clause  (c), together with any amounts added back to Consolidated Adjusted EBITDA pursuant to clause  (b)(vii) above, shall not exceed 35% of Consolidated Adjusted EBITDA for such period  (calculated after giving effect to such addbacks); minus  (d)  the following to the extent included in calculating such Consolidated Net Income:  (i) any extraordinary, unusual or non-recurring cash gains for such Measurement  Period; and  (ii) any reversals of non-cash restructuring charges or other non-cash exit and  disposal costs during such period.  “Consolidated Net Income” means, for any period, the consolidated net income (or loss)  of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with  GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued  prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with  the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a  Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership  interest, except to the extent that any such income is actually received by the Borrower or such  Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of  any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar  distributions by such Subsidiary is not at the time permitted by the terms of any contractual  obligation (other than under any Loan Document) or requirement of law applicable to such  Subsidiary.  “Commitment” means, with respect to any Lender, its Revolving Commitment, New  Revolving Commitment, Specified Refinancing Revolving Commitment or Term Commitment (as  the context requires).  “Commitment Fee” has the meaning set forth in Section 2.09(a).  “Communications” has the meaning set forth in Section 9.01.  





 






  12  “Connection Income Taxes” means Other Connection Taxes that are imposed on or  measured by net income (however denominated) or that are franchise Taxes or branch profits  Taxes.  “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.   “Control Account Agreement” means any tri-party agreement by and among a Loan  Party, the Administrative Agent and a depositary bank or securities intermediary at which such  Loan Party maintains a Controlled Account, in each case in form and substance reasonably  satisfactory to the Administrative Agent.  “Controlled Account” has the meaning set forth in Section 5.11.  “Conversion Date” shall mean, the first date after the Second Amendment Effective Date  on which (a) the Borrower’s Consolidated Adjusted EBITDA shall have been greater than $0 for  at least two consecutive fiscal quarters and (b) the Total Net Leverage Ratio is not greater than  4.00 to 1.00.  “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.  “Covered Liabilities” has the meaning set forth in Section 9.20.  “Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal  SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government  Securities Business Day prior to (i) if such SOFR Rate Day is a U.S. Government Securities  Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government  Securities Business Day, the U.S. Government Securities Business Day immediately preceding  such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the  SOFR Administrator’s Website.  Any change in Daily Simple SOFR due to a change in SOFR  shall be effective from and including the effective date of such change in SOFR without notice to  the Borrower.  “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,  receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other  applicable jurisdictions from time to time in effect.   “Declined Amounts” has the meaning set forth in Section 2.08(g).  “Declining Lender” has the meaning set forth in Section 2.08(g).  “Deemed LC Issuance” has the meaning set forth in Section 2.19(l).  





 






  13  “Deemed LC Request” has the meaning set forth in Section 2.19(l).  “Deemed LC Termination” has the meaning set forth in Section 2.19(l).  “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.   “Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to  (i) fund all or any portion of its Loans within two Business Days of the date such Loans were  required to be funded hereunder, unless such Lender notifies the Administrative Agent and the  Borrower in writing that such failure is the result of such Lender’s good faith determination that  one or more conditions precedent to such funding (each of which conditions precedent, together  with any applicable default, shall be specifically identified in such writing) has not been satisfied,  (ii) fund any portion of its participation in Letters of Credit hereunder within two Business Days  of the date when due or (iii) pay to the Administrative Agent, any Issuing Bank or any other Lender  any other amount required to be paid by it hereunder within two Business Days of the date when  due, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to  comply with its funding obligations hereunder, or has made a public statement to that effect (unless  such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and  states that such position is based on such Lender’s good faith determination that a condition  precedent to funding (which condition precedent, together with any applicable default, shall be  specifically identified in such writing or public statement) cannot be satisfied), (c) has failed,  within three Business Days after written request by the Administrative Agent or the Borrower, to  confirm in writing to the Administrative Agent and the Borrower that it will comply with its  prospective funding obligations hereunder (provided that such Lender shall cease to be a  Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the  Administrative Agent and the Borrower), (d) has, or has a direct or indirect parent company that  has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for  it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or  similar Person charged with reorganization or liquidation of its business or assets, including the  Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in  such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the  ownership or acquisition of any equity interest in that Lender or any direct or indirect parent  company thereof by a Governmental Authority so long as such ownership interest does not result  in or provide such Lender with immunity from the jurisdiction of courts within the United States  or from the enforcement of judgments or writs of attachment on its assets or permit such Lender  (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or  agreements made with such Lender, or (e) has become the subject of a Bail-In Action. Any  determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses  (a) through (e) above shall be conclusive and binding absent manifest error, and such Lender shall  be deemed to be a Defaulting Lender (subject to Section 2.17(b)) upon delivery of written notice  of such determination to the Borrower and each Lender.   “Disposition” means, with respect to any property or right, any sale, lease, sale and  leaseback, assignment, license, conveyance, transfer or other disposition thereof (in one  transaction or in a series of transactions and whether effected pursuant to a Division or otherwise).  “Dispose” and “Disposed of” have meanings correlative thereto.  





 






  14  “Disqualified Lender” means (a)(i) any person identified in writing to the Arrangers in  respect of the Term Facility on or prior to the Second Restatement Effective Date or, after the  Second Restatement Effective Date, to the Administrative Agent from time to time, (ii) any  Affiliate (other than any Affiliate that is a bona fide debt fund) of any person described in clause  (a)(i) above that is clearly identifiable as an Affiliate of such person solely on the basis of similarity  of such Affiliate’s name and (iii) any other Affiliate (other than any Affiliate that is a bona fide  debt fund) of any person described in clauses (a)(i) and/or (a)(ii) above that is identified in a written  notice to the Lenders or the Administrative Agent; and (b)(i) any person that is or becomes a  Company Competitor and/or any Affiliate of any Company Competitor (other than any Affiliate  that is a bona fide debt fund) and is identified as such in writing to the Administrative Agent, (ii)  any Affiliate of any person described in clause (b)(i) above (other than any Affiliate that is a bona  fide debt fund) that is reasonably identifiable as an Affiliate of such person solely on the basis of  similarity of such Affiliate’s name and (iii) any other Affiliate of any person described in clauses  (b)(i) and/or (b)(ii) above that is identified in a written notice to the Administrative Agent (it being  understood and agreed that no bona fide debt fund may be designated as a Disqualified Lender  pursuant to this clause (b)(iii)); it being understood and agreed that (i) no written notice delivered  pursuant to clauses (a)(i), (a)(iii), (b)(i) and/or (b)(iii) above shall apply retroactively to disqualify  any person that has previously acquired an assignment or participation interest in any loans and  (ii) “Disqualified Lender” shall exclude any person identified by the Borrower as no longer being  a “Disqualified Lender” by written notice to the Administrative Agent.  “Dividing Person” has the meaning assigned to it in the definition of “Division”.  “Division” means the division of the assets, liabilities and/or obligations of a Person (the  “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or  similar arrangement), which may or may not include the Dividing Person and pursuant to which  the Dividing Person may or may not survive.  “Dollars” or “$” refers to lawful money of the United States of America.   “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any  political subdivision of the United States, excluding (x) any such Subsidiary substantially all of  the assets of which consist of Equity Interests in one or more Subsidiaries that are “controlled  foreign corporations” within the meaning of Section 957 of the Code and (y) any such Subsidiary  that is owned (directly or indirectly, in whole or in part) by one or more Subsidiaries that are  “controlled foreign corporations” within the meaning of Section 957 of the Code.  “EEA Financial Institution” means (a) any credit institution or investment firm  established in any EEA Member Country which is subject to the supervision of an EEA Resolution  Authority, (b) any entity established in an EEA Member Country which is a parent of an institution  described in clause (a) of this definition, or (c) any financial institution established in an EEA  Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this  definition and is subject to consolidated supervision with its parent;  “EEA Member Country” means any of the member states of the European Union,  Iceland, Liechtenstein, and Norway.  





 






  15  “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 Affected Financial Institution.  “Effective Date” means November 3, 2017.  “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 Assignee” means any Person that meets the requirements to be an assignee under  Section 9.04(b) (subject to receipt of such consents, if any, as may be required for the assignment  of the applicable Loan and/or Commitments to such Person under Section 9.04(b)(i)).  “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,  decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into  by any Governmental Authority, relating in any way to the environment, preservation or  reclamation of natural resources, the generation, use, handling, transportation, storage, treatment,  disposal, management, release or threatened release of any Hazardous Material or to health and  safety matters.   “Environmental Liability” means any liability, contingent or otherwise (including any  liability for damages, costs of investigation, reclamation or remediation, fines, penalties or  indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon  (a) any Environmental Law, including compliance or noncompliance therewith, (b) the generation,  use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,  (c) exposure to any Hazardous Materials, (d) the presence, 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; provided that Equity Interests shall not include any  debt securities that are convertible into or exchangeable for any combination of Equity Interests  and/or cash, but excluding any debt securities convertible into or referencing any of the foregoing.   “ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended  from time to time, and the regulations promulgated and rulings issued thereunder.   “ERISA Affiliate” means any person that for purposes of Title I or Title IV of ERISA or  Section 412 of the Code would be deemed at any relevant time to be a single employer or otherwise  aggregated with the Borrower or a Subsidiary under Section 414(b), (c), (m) or (o) of the Code or  Section 4001 of ERISA.   “ERISA Event” means any one or more of the following: (a) any reportable event, as  defined in Section 4043 of ERISA, with respect to a Plan, as to which the PBGC has not waived  under subsection .22, .23, .25, .26, .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Regulation  





 






  16  Section 4043 the requirement of Section 4043(a) of ERISA that it be notified of such event; (b) the  termination of any Plan under Section 4041(c) of ERISA; (c) the institution of proceedings by the  PBGC under Section 4042 of ERISA for the termination of, or the appointment of a trustee to  administer, any Plan; (d) the failure to make a required contribution to any Plan that would result  in the imposition of a lien or other encumbrance or the provision of security under Section 430 of  the Code or Section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance; (e) the  failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of  ERISA, whether or not waived; or a determination that any Plan is considered an at-risk plan within  the meaning of Section 430 of the Code or Section 303 of ERISA; (f) engaging in a non-exempt  prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA  with respect to a Plan; (g) the complete or partial withdrawal of any Borrower, Subsidiary or any  ERISA Affiliate from a Multiemployer Plan which results in the imposition of Withdrawal  Liability or the insolvency under Title IV of ERISA of any Multiemployer Plan or (h) a  determination that any Multiemployer Plan is in endangered or critical status under Section 432 of  the Code or Section 305 of ERISA.   “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.  “Euro” and “EUR” mean the single currency of the participating member states of the  European Union.  “Event of Default” has the meaning set forth in Article 7.   “Excluded Subsidiary” means (a) each Immaterial Subsidiary, (b) any Subsidiary that is  a “controlled foreign corporation” within the meaning of the Code (a “CFC”), (c) any Subsidiary  substantially all the assets of which consist of Equity Interests of one or more CFCs (a “CFC  Holdco”), and (d) any Subsidiary of a CFC; provided that (i) in no event shall any Domestic  Subsidiary that owns any Material Intangible Asset be an Excluded Subsidiary and (ii) in no event  shall any Foreign Guarantor be an Excluded Subsidiary.  “Excluded Swap Obligation”  with respect to any Guarantor, (a) any Swap Obligation if,  and to the extent that, and only for so long as, all or a portion of the guarantee of such Guarantor  of, or the grant by such Guarantor of a security interest to secure, as applicable, such Swap  Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act  or any rule, regulation or order of the Commodity Futures Trading Commission (or the application  or official interpretation of any thereof) by virtue of such Guarantor’s failure to constitute an  “eligible contract participant,” as defined in the Commodity Exchange Act and the regulations  thereunder, at the time the guarantee of (or grant of such security interest by, as applicable) such  Guarantor becomes or would become effective with respect to such Swap Obligation. If a Swap  Obligation arises under a master agreement governing more than one Swap, such exclusion shall  apply only to the portion of such Swap Obligation that is attributable to Swaps for which such  guarantee or security interest is or becomes illegal.  “Excluded Taxes” means, with respect to the Administrative Agent, any Issuing Bank,  any Lender or any other recipient of any payment to be made by or on account of any obligation  of the Borrower hereunder, (a) Taxes imposed on (or measured by) its net income (however  





 






  17  denominated), franchise Taxes, and branch profits Taxes, in each case (i) imposed by the  jurisdiction (or any political subdivision thereof) under the laws of which such recipient is  organized 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 otherwise are Other Connection Taxes, (b) in the  case of a Lender, any U.S. federal withholding Tax that is imposed on amounts payable to such  Lender at the time such Lender becomes a party to this Agreement (other than pursuant to an  assignment request by Borrower under Section 2.16(b)) 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 Borrower with respect  to such withholding tax pursuant to Section 2.14(a), (c) Taxes attributable to such recipient’s  failure to comply with Section 2.14(f) and (d) any U.S. federal withholding Taxes imposed under  FATCA.   “Executive Order” has the meaning set forth in Section 3.15(a).   “Existing Credit Agreement” means the Amended and Restated Revolving Credit  Agreement, dated as of June 20, 2019, as amended by the First Amendment dated February 8,  2021 and the Second Amendment and as further amended, supplemented or otherwise modified  prior to the Second Restatement Effective Date.  “Existing Letters of Credit” means the letters of credit set forth on Schedule 1.01.  “Existing Maturity Date” has the meaning assigned to such term in Section 2.21(a).  “Extended Commitments” means one or more Classes of extended Commitments that  result from an Extension Amendment.  “Extending Lender” has the meaning assigned to such term in Section 2.21(b).  “Extension Amendment” means an amendment to this Agreement pursuant to Section  2.21.  “Extension Request” means a written request from the Borrower to the Administrative  Agent requesting an extension of the Maturity Date pursuant to Section 2.21.   “Facility” means the Term Facility or the Revolving Facility, as the context may require.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement  (or any amended or successor version that is substantively comparable and not materially more  onerous to comply with) and any current or future regulations or official interpretations thereof,  any agreements entered into pursuant to Section 1471(b)(1) of the Code or any published  intergovernmental agreement and any fiscal or regulatory legislation, rules or official practices  adopted pursuant to any published intergovernmental agreement entered into in connection with  the implementation of such Sections of the Code.    “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  





 






  18  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.  “Fee Letters” means, collectively, (i) the Agent Fee Letter, (ii) that certain Fee Letter,  dated May 9, 2022, by and among the Borrower, JPMorgan Chase Bank, N.A. and Goldman Sachs  Lending Partners LLC and (iii) that certain Fee Letter, dated May 9, 2022, by and among the  Borrower, JPMorgan Chase Bank, N.A. and Goldman Sachs Lending Partners LLC.  “Fiduciary Account” means (i) any account maintained in the ordinary course of business  by the Borrower or any of its Subsidiaries in order to hold, as a fiduciary or on a contractual basis,  funds owned by another Person or (ii) any escrow account.   “Financial Officer” means the chief financial officer, principal accounting officer, vice  president of finance, corporate controller or treasurer of the Borrower.  “First Lien Net Leverage Ratio” means, as of any date of determination, the ratio of (a)  Total Net Indebtedness secured by a Lien on any asset of the Borrower or any of its Subsidiaries  on an equivalent priority basis (but, in each case, without regard to the control of remedies) with  the Obligations to (b) Consolidated Adjusted EBITDA for the most recently completed  Measurement Period.  “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 Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR, as  applicable. For the avoidance of doubt, (a) with respect to the Revolving Facility, the initial Floor  for each of Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR shall be zero and (b)  with respect to the Initial Term Facility, the initial Floor for Adjusted Term SOFR Rate shall be  0.50%.  “Foreign Disposition” shall have the meaning assigned to such term in Section 2.08(h).   “Foreign IP Subsidiary” means any Foreign Subsidiary to which the Borrower or any  U.S. Subsidiary transfers intellectual property rights, including pursuant to an Investment in  accordance with Section 6.04(e) or a Disposition in accordance with Section 6.09(e).  “Foreign Guarantor” means any Foreign Subsidiary that executes and delivers a Guaranty  (or a joinder agreement to an existing Guaranty) in accordance with Section 5.10(f).   “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction  other than that in which the Borrower is located. For purposes of this definition, the United States  of America, each State thereof and the District of Columbia shall be deemed to constitute a single  jurisdiction.   “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.   “Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to any  Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding Obligations with  





 






  19  respect to Letters of Credit issued by such Issuing Bank other than such Obligations as to which  such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash  Collateralized in accordance with the terms hereof.  “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 (including any supra-national bodies such as the European Union or the European  Central Bank).   “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, or customary  indemnification obligations entered into in connection with any acquisition or disposition of assets  or of other entities (other than to the extent that the primary obligations that are the subject of such  indemnification obligation would be considered Indebtedness hereunder).   “Guarantor” means any Domestic Subsidiary (not including an Excluded Subsidiary) of  the Borrower that has delivered a Guaranty or a joinder agreement to a Guaranty pursuant to  Section 5.10 hereof, any Foreign Guarantor and, other than with respect to its own Obligations,  the Borrower.   “Guarantor Coverage Requirement” means the requirement that, with respect to each  fiscal quarter (including the final fiscal quarter of each fiscal year) for which financial statements  have been delivered pursuant to Section 5.01(a) or (b), that the Loan Parties account for (on a  consolidated basis) at least 80% of (a) Total Assets and (b) Total Revenues, in each case at the end  of such fiscal quarter, in each case, calculated excluding certain specified non-core Subsidiaries  previously disclosed to the Administrative Agent; except to the extent that the burden or cost of  providing a Guarantee outweighs the benefit afforded thereby, as determined by the Administrative  Agent in its sole discretion, after consultation with the Borrower, which determination shall be  conclusive and binding on the Lenders and the Borrower.  “Guaranty” has the meaning set forth in Section 5.10.   





 






  20  “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.    “Immaterial Subsidiary” means any Domestic Subsidiary that (a) did not, as of the last  day of the fiscal quarter of the Borrower most recently ended for which financials have been  delivered pursuant to Section 5.01(a) or (b), have (i) total assets with a value in excess of 5% of  the Total Assets of the Borrower and its Subsidiaries, on a consolidated basis in accordance with  GAAP, or (ii) revenues representing in excess of 5% of the Total Revenues of the Borrower and  its Subsidiaries, on a consolidated basis in accordance with GAAP, for the four fiscal quarters  ended as of such date and (b) taken together with all Immaterial Subsidiaries as of the last day of  the fiscal quarter of the Borrower most recently ended for which financials have been delivered  pursuant to Section 5.01(a) or (b), did not have (i) total assets with a value in excess of 10% of the  Total Assets of the Borrower and its Subsidiaries, on a consolidated basis in accordance with  GAAP, or (ii) revenues representing in excess of 10% of the Total Revenues of the Borrower and  its Subsidiaries on a consolidated basis in accordance with GAAP for the four fiscal quarters ended  as of such date.  Each Immaterial Subsidiary shall be set forth in Schedule 3.13(b), and the  Borrower shall update such Schedule from time to time after the Second Restatement Effective  Date as necessary to reflect all Immaterial Subsidiaries at such time.  “Increase Effective Date” has the meaning set forth in Section 2.18(a)(iii).  “Increased Amount Date” has the meaning set forth in Section 2.18(b).  “Incremental Equivalent Debt” has the meaning specified in Section 2.23(a).  “Incremental Equivalent Debt Arranger” has the meaning specified in Section 2.23(a).  “Incremental Equivalent Debt Documents” means, collectively, the indentures, credit  agreements, facilities agreements or other similar agreements pursuant to which any Incremental  Equivalent Debt is incurred, together with all instruments and other agreements in connection  therewith, as amended, supplemented or otherwise modified from time to time in accordance with  the terms thereof, but only to the extent permitted under the terms of the Loan Documents.  “Incremental Equivalent Term Loans” means Incremental Equivalent Debt constituting  term loans.  “Incremental Facility” means an incremental facility contemplated by Section 2.18.  “Indebtedness” of any Person at any date means, without duplication, (a) all indebtedness  of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase  price of property or services (other than current trade payables incurred in the ordinary course of  such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures  or other similar instruments, (d) all indebtedness created or arising under any conditional sale or  other title retention agreement with respect to property acquired by such Person (even though the  rights and remedies of the seller or lender under such agreement in the event of default are limited  





 






  21  to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) any  earn-out obligation except to the extent such obligation is (or is required to be) listed as a liability  on the balance sheet of such Person in accordance with GAAP, has not been paid when due and is  not disputed in good faith, (g) all obligations of such Person, contingent or otherwise, as an account  party or applicant under or in respect of bankers’ acceptances, letters of credit, surety bonds or  similar arrangements, (g) all Guarantees of such Person in respect of obligations of the kind  referred to in clauses (a) through (f) above, and (h) all obligations of the kind referred to in clauses  (a) through (g) above secured by (or for which the holder of such obligation has an existing right,  contingent or otherwise, to be secured by) any Lien on property (including accounts and contract  rights) owned or acquired by such Person, whether or not such Person has assumed or become  liable for the payment of such obligation. The Indebtedness of any Person shall include the  Indebtedness of any other entity (including any partnership in which such Person is a general  partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest  in or other relationship with such entity, except to the extent the terms of such Indebtedness  expressly provide that such Person is not liable therefor.   “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of any Loan Party under any Loan  Document and (b) to the extent not otherwise described in (a), Other Taxes.   “Indemnitee” has the meaning set forth in Section 9.03(b).   “Information” has the meaning set forth in Section 9.12(a).  “Initial Facilities” means the Revolving Facility and the Initial Term Facility.   “Initial Term Commitment” means, as to each Term Lender, its obligation to make  Initial Term Loans to the Borrower pursuant to Section 2.01(b) in an aggregate principal amount  not to exceed the amount set forth opposite such Term Lender’s name on Schedule 2.01 under  the caption “Initial Term Commitment”, as such amount may be adjusted from time to time in  accordance with this Agreement.  On the Second Restatement Effective Date, the aggregate  amount of Initial Term Commitments is $750,000,000.  “Initial Term Facility” means the term loan facility consisting of Initial Term Loans made  to the Borrower.  “Initial Term Facility Maturity Date” means the earlier of (i) May 25, 2027 and (ii) if  greater than $200,000,000 in aggregate principal amount of the Borrower’s 0% Convertible Senior  Notes due 2026 are outstanding on November 16, 2025, November 16, 2025.   “Initial Term Lender” means each financial institution listed on Schedule 2.01 (other  than any such Person that has ceased to be a party hereto pursuant to an Assignment and  Assumption in accordance with Section 9.04), as well as any Person that becomes a Lender  hereunder pursuant to Section 9.04 by assignment of any Initial Term Loans.   “Initial Term Loans” means the term loans made to the Borrower on the Second  Restatement Effective Date pursuant to Section 2.01.  





 






  22  “Intellectual Property” has the meaning set forth in the Security Agreement, as in effect  on the Effective Date.  “Interest Election Request” has the meaning set forth in Section 2.05(b).   “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each  March, June, September and December and (b) with respect to any Term Benchmark 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 Term Benchmark 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  (c) with respect to any RFR Loan, (1) each date that is on the numerically corresponding day in  each calendar month that is one month after the Borrowing of such Loan (or, if there is no such  numerically corresponding day in such month, then the last day of such month) and (2) the  applicable Maturity Date.   “Interest Period” means, with respect to any Term Benchmark 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), as the 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 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 pursuant to Section 2.11(e) 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.   “Interest Rate Determination Date” means, with respect to any Interest Period, the date  that is two Business Days prior to the first day of such Interest Period.   “Investment Policy” means the Investment Policy of the Borrower dated November 1,  2019, as amended or modified; provided that, for purposes of the definition of “Cash Equivalents”,  any amendment or modification shall become effective only if, and after, it has been provided to  the Administrative Agent; provided, further, that, for purposes of the definition of “Cash  Equivalents”, the consent of the Administrative Agent shall be required for any changes that add  types of investments not similar to those already included in the Investment Policy immediately  prior to such amendment or modification.   “IRS” means the U.S. 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  





 






  23  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.  “Issuing Bank” means, with respect to a particular Letter of Credit, (a) JPMorgan Chase  Bank, N.A. in its capacity as the issuer of such Letter of Credit, and its successors in such capacity  as provided in Section 2.19(j), (b) Silicon Valley Bank, (c) such other Lender selected by the  Borrower from time to time to issue such Letter of Credit hereunder upon receipt by the  Administrative Agent of documentation in form and substance satisfactory to the Administrative  Agent pursuant to which such Lender agrees to assume the rights and obligations of an Issuing  Bank hereunder (provided that no Lender shall be required to become an Issuing Bank pursuant to  this subclause (b) without such Lender’s consent), or any successor in such capacity as provided  in Section 2.19(j), or (d) any Lender selected by the Borrower (with the prior consent of the  Administrative Agent) to replace a Lender who is a Defaulting Lender at the time of such Lender’s  appointment as an Issuing Bank (provided that no Lender shall be required to become an Issuing  Bank pursuant to this subclause (d) without such Lender’s consent), or any successor in such  capacity as provided in Section 2.19(j).  Any Issuing Bank may, in its discretion, arrange for one  or more Letters of Credit to be issued by Affiliates or branches of such Issuing Bank, in which  case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit  issued by such Affiliate or branch.   “Joinder Agreement” means a joinder agreement in form and substance reasonably  satisfactory to the Administrative Agent.  “Latest Maturity Date” means, at any date of determination, the latest maturity or  expiration date applicable to any Loan or Commitment hereunder at such time.  “LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of  Credit.   “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all  outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements  that have not yet been reimbursed by or on behalf of the Borrower at such time.  The LC Exposure  of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.  “LC Sublimit” means the lesser of (a) (i) $250,000,000 (or such greater amount as may be  agreed by the applicable Issuing Bank from time to time in its sole discretion) and (b) the aggregate  unused amount of the Revolving Commitments then in effect; provided that no Issuing Bank shall  be required to issue Letters of Credit in an aggregate amount outstanding at any time in excess of  an amount to be agreed by such Issuing Bank in its sole discretion.   “Lender-Related Person” has the meaning assigned to it in Section 9.03(b).   “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have  become a party hereto pursuant to an Assignment and Assumption, other than any such Person that  ceases to be a party hereto pursuant to an Assignment and Assumption.  Unless the context  otherwise requires, the term “Lenders” includes the Issuing Banks.  





 






  24   “Letter of Credit” means (a) each Existing Letter of Credit and (b) any letter of credit  issued (or deemed to be issued) under and pursuant to this Agreement.  “Letter of Credit Request” means a request by the Borrower for a Letter of Credit in  accordance with Section 2.19.   “Lien” means, with respect to any asset or right, (a) any mortgage, deed of trust, lien,  pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset or right,  and (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 or right.   “LLC” means any Person that is a limited liability company under the laws of its  jurisdiction of formation.  “Loan Documents” means this Agreement (including any amendment hereto or waiver  hereunder), the Notes (if any), any Joinder Agreement, any Guaranty, any instrument of joinder to  any Guaranty delivered pursuant to Section 5.10 hereof, the Security Documents, the Fee Letters  and any other agreement, instrument or document executed after the Effective Date and designated  by its terms as a Loan Document.   “Loan Parties” means the Borrower and the Guarantors.   “Loans” means the Revolving Loans and Term Loans made by the Lenders to the  Borrower pursuant to this Agreement.   “Local Time” means (a) in the case of a Loan, Borrowing or LC Disbursement  denominated in Dollars, New York City time, and (b) in the case of a Loan, Borrowing or LC  Disbursement denominated in an Alternative Currency, local time (it being understood that such  local time shall mean London, England time unless otherwise notified by the Administrative  Agent).  “Make-Whole Premium” means the excess of (a) the present value at the applicable  prepayment date of (i) the principal amount of the Initial Term Loans to be prepaid plus (ii) all  required payments of interest due on the Initial Term Loans to be prepaid through the first  anniversary of the Second Restatement Effective Date (excluding accrued but unpaid interest to  but not including the prepayment date) plus (iii) 3.00% of the principal amount of the Initial Term  Loans subject to such prepayment or Repricing Event, in each case, computed using a discount  rate equal to the Treasury Rate (as calculated by the Administrative Agent using customary market  standards as reasonably determined by the Administrative Agent), as of such prepayment date plus  50 basis points; over (b) the principal amount of the Initial Term Loans to be prepaid.   “Material Adverse Effect” means a material adverse effect on (a) the business, property,  financial condition or results of operations of the Borrower and Subsidiaries taken as a whole,  (b) the ability of the Borrower to perform any of its payment obligations under this Agreement or  any other Loan Document or (c) the rights of or remedies available to the Agents and the Lenders  under this Agreement or any other Loan Document.    





 






  25  “Material Indebtedness” means Indebtedness (other than any Indebtedness under the  Loan Documents and Letters of Credit hereunder), or obligations in respect of one or more Swap  Agreements, of any one or more of the Borrower and its Subsidiaries in a principal amount  exceeding $75,000,000. For purposes of determining Material Indebtedness, the “principal  amount” of the obligations of the Borrower 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 Borrower or such Subsidiary would be required to pay if such Swap Agreement were  terminated at such time. For the avoidance of doubt, the term “Material Indebtedness” shall not  include any obligations under any Permitted Warrant Transaction.  “Material Intangible Assets” means, collectively (a) Material Intellectual Property and  (b) subscriber and customer lists used and maintained by the Borrower and its Subsidiaries in  connection its connected fitness and/or subscription business.  “Material Intellectual Property” means any Intellectual Property owned by or licensed  to the Borrower or any of its Subsidiaries that is related to the Borrower’s connected fitness  business and/or subscription business.  “Maturity Date” means the Revolving Maturity Date or the applicable Term Facility  Maturity Date, as the context may require.  “Maximum ASR Amount” has the meaning set forth in Section 6.05(vi).  “Maximum Rate” has the meaning set forth in Section 9.13.   “Measurement Period” means, at any date of determination, the most recently completed  four consecutive fiscal quarters of the Borrower ended on or prior to such date.   “Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral  consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure  of an Issuing Bank with respect to Letters of Credit issued and outstanding at such time and (ii)  otherwise, an amount determined by the Administrative Agent and the applicable Issuing Bank in  their sole discretion.  “Multiemployer Plan” means any multiemployer plan as defined in Section 4001(a)(3) of  ERISA, which is contributed to by (or to which there is or would be an obligation to contribute of)  the Borrower or a Subsidiary or an ERISA Affiliate, and each such plan for the five- year period  immediately following the latest date on which the Borrower, or a Subsidiary or an ERISA  Affiliate contributed to or had an obligation to contribute to such plan.    “Net Cash Proceeds” means:   (a) with respect to the Disposition of any asset by the Borrower or any Subsidiary, the excess,  if any, of (i) the sum of cash and Cash Equivalents received in connection with such  Disposition (including any cash or Cash Equivalents received by way of deferred payment  pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so  received and including any proceeds received as a result of unwinding any related Swap  Agreement in connection with such related transaction) over (ii) the sum of:  





 






  26  (i) the principal amount of any Indebtedness that is secured by a Lien on the asset  subject to such Disposition and that is required to be repaid in connection with such  Disposition (other than (x) Indebtedness under the Loan Documents and (y) if such  asset constitutes Collateral, any Indebtedness secured by such asset with a Lien  ranking pari passu with or junior to the Lien securing the Obligations), together  with any applicable premiums, penalties, interest or breakage costs,   (ii) the fees and out-of-pocket expenses incurred by the Borrower or Subsidiary in  connection with such Disposition (including attorneys’ fees, accountants’ fees,  investment banking fees, survey costs, title insurance premiums, and related search  and recording charges, transfer Taxes, deed or mortgage recording Taxes, other  customary expenses and brokerage, consultant and other customary fees actually  incurred in connection therewith),   (iii) all Taxes paid or reasonably estimated to be payable in connection with such  Disposition (or any tax distribution the Borrower or any Subsidiary may be required  to make as a result of such Disposition) and any repatriation costs associated with  receipt or distribution by the applicable taxpayer of such proceeds, and  (b) in connection with any issuance or sale of Equity Interest or any incurrence of  Indebtedness, the cash proceeds received from such issuance or incurrence, net of  attorneys’ fees, investment banking fees, auditor fees, printer fees, SEC filing fees,  brokerage fees, accountants’ fees, underwriting discounts and commissions and other  customary fees and expenses actually incurred in connection therewith (including any tax  impact).  “New Facilities” means, collectively, New Revolving Commitments and New Term  Facilities.  “New Lender” has the meaning set forth in Section 2.18(b).    “New Loan Commitments” means, collectively, New Revolving Commitments and New  Term Commitments.  “New Loans” means the loans under any New Facility.    “New Revolving Commitment” has the meaning set forth in Section 2.18(a).  “New Revolving Loan” has the meaning set forth in Section 2.18(b).  “New Taiwan Dollars” or “NT$” refers to lawful money of the Republic of China  (Taiwan).  “New Term Commitment” shall have the meaning assigned to such term in Section  2.18(a).   “New Term Facility” has the meaning set forth in Section 2.18(a).  





 






  27   “New Term Loan” means any loan under a New Term Facility.   “New York UCC” has the meaning set forth in the Security Agreement.  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver  or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance  with the terms of Section 9.02 and (ii) has been approved by the Required Lenders.   “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender  at such time.   “Non-U.S. Plan” means any plan, fund (including, without limitation, any superannuation  fund) or other similar program established, contributed to (regardless of whether through direct  contributions or through employee withholding) or maintained outside the United States by the  Borrower or one or more Subsidiaries primarily for the benefit of employees of the Borrower or  such Subsidiaries residing outside the United States, which plan, fund or other similar program  provides, or results in, retirement income, a deferral of income in contemplation of retirement or  payments to be made upon termination of employment, and which plan is not subject to ERISA or  the Code.   “Non-Extended Commitments” means the Commitments hereunder of any Non- extending Lender.   “Non-Extending Lender” has the meaning assigned to such term in Section 2.21(a).  “Note” has the meaning set forth in Section 2.07.   “NYFRB” means the Federal Reserve Bank of New York.  “NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or  any successor source.  “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. on such day received to the Administrative  Agent from a Federal funds broker of recognized standing selected by it; provided, further, that if  any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes  of this Agreement.  “Obligations” means all amounts owing by any Loan Party (or, in the case of Specified  Cash Management Agreements, any Loan Party or Subsidiary thereof) to the Administrative  Agent, any Issuing Bank or any Lender (or, in the case of (x) Specified Cash Management  Agreements, any Affiliate of any Lender and (y) Specified Swap Agreements, any Person that was  a Lender or an Affiliate of a Lender at the time the relevant Swap Agreement was entered into)  pursuant to the terms of this Agreement or any other Loan Document, including any obligation to  provide Cash Collateral, or in respect of any Letter of Credit, any Specified Swap Agreement or  





 






  28  any Specified Cash Management Agreement (including all interest which accrues after the  commencement of any case or proceeding in bankruptcy after the insolvency of, or for the  reorganization of the Borrower or any of its Subsidiaries, whether or not allowed in such case or  proceeding).   “OID” means any “original issue discount” or upfront fees payable or deducted in  connection with incurrence of Indebtedness.  “Other Connection Taxes” means, with respect to the Administrative Agent, any Issuing  Bank, any Lender or any other recipient of any payment to be made by or on account of any  obligation of the Borrower hereunder, Taxes imposed as a result of a present or former connection  between such Administrative Agent, Issuing Bank, Lender or other recipient and the jurisdiction  imposing such Tax (other than connections arising solely from such Administrative Agent, Issuing  Bank, Lender or 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 any and all present or future stamp, court or documentary taxes or  any other excise, property, intangible, recording, filing or similar Taxes which arise from any  payment made, from the execution, delivery, performance, enforcement or registration of, from  the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement  and the other Loan Documents; excluding, however, such Taxes that are Other Connection Taxes  imposed with respect to an assignment (other than such Taxes imposed with respect to an  assignment that occurs as a result of the Borrower’s request pursuant to Section 2.16(b)).   “Overnight Bank Funding Rate” means, for any day, the rate comprised of both  overnight federal funds and overnight eurodollar transactions denominated in Dollars 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.  “Participant” has the meaning set forth in Section 9.04(c)(i).   “Participant Register” has the meaning set forth in Section 9.04(c)(iii).  “Payment” has the meaning assigned to it in Section 9.15.  “Payment Notice” has the meaning assigned to it in Section 9.15.  “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in  ERISA and any successor entity performing similar functions.   “Pension Plan” means any “employee pension benefit plan” within the meaning of  Section 3(2) of ERISA, other than a Multiemployer Plan, that is subject to Title IV of ERISA,  Section 412 of the Code or Section 302 of ERISA and is maintained in whole or in part by the  Borrower, any Subsidiary or any ERISA Affiliate or with respect to which any of the Borrower,  any Subsidiary or any ERISA Affiliate has actual or contingent liability.   





 






  29  “Permitted Bond Hedge Transaction” means any call or capped call option (or  substantively equivalent derivative transaction) relating to the Borrower’s common stock (or other  securities or property following a merger event or other change of the common stock of the  Borrower) purchased by the Borrower in connection with the issuance of any Permitted  Convertible Indebtedness; provided that the purchase price for such Permitted Bond Hedge  Transaction, less the proceeds received by the Borrower from the sale of any related Permitted  Warrant Transaction, does not exceed the net proceeds received by the Borrower from the sale of  such Permitted Convertible Indebtedness issued in connection with such Permitted Bond Hedge  Transaction.  “Permitted Convertible Indebtedness” means senior, unsecured Indebtedness of the  Borrower that is convertible into shares of common stock of the Borrower (or other securities or  property following a merger event or other change of the common stock of the Borrower) (and  cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of  such common stock or such other securities).  “Permitted Encumbrances” means:  (a) Liens imposed by law for taxes, assessments or governmental charges or levies that  are not yet delinquent or are being contested in compliance with Section 5.04;   (b) carriers’, warehousemen’s, mechanics’, materialmen’s, landlord’s, supplier’s,  repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and  securing obligations that are not overdue by more than 90 days or are being contested in  compliance with Section 5.04;   (c) pledges and deposits made in the ordinary course of business in compliance with  workers’ compensation, unemployment insurance and other social security laws or regulations;   (d) deposits to secure the performance of bids, trade contracts, leases, statutory  obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in  each case incurred in the ordinary course of business and to secure surety and appeal bonds in  respect of judgments that do not constitute an Event of Default under clause (k) of Article 7;   (e) judgment liens in respect of judgments that do not constitute an Event of Default  under clause (k) of Article 7;   (f) easements, zoning restrictions, rights-of-way, encroachments and similar  encumbrances on real property imposed by law or arising in the ordinary course of business that  do not secure any monetary obligations and do not materially detract from the value of the affected  property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary; and   (g) Uniform Commercial Code financing statements filed (or similar filings under  applicable law) solely as a precautionary measure in connection with operating leases.  “Permitted Third Party Bank” means any bank or other financial institution, other than  the Lenders, with whom any Loan Party, with the written consent of the Administrative Agent,  maintains a Controlled Account and with whom a Control Account Agreement has been executed.  





 






  30  “Permitted Warrant Transaction” means any call option, warrant or right to purchase  (or substantively equivalent derivative transaction) relating to the Borrower’s common stock (or  other securities or property following a merger event or other change of the common stock of the  Borrower) and/or cash (in an amount determined by reference to the price of such common stock)  sold by the Borrower substantially concurrently with any purchase by the Borrower of a Permitted  Bond Hedge Transaction.  “Person” means any natural person, corporation, limited liability company, trust, joint  venture, association, company, partnership, Governmental Authority or other entity.   “Plan” means any “employee benefit plan” as defined in Section 3 of ERISA (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 maintained or contributed to by the Borrower, a Subsidiary or any ERISA  Affiliate or to which the Borrower, a Subsidiary or an ERISA Affiliate has or would have an  obligation to contribute, and each such plan subject to the provisions of Title IV of ERISA or  Section 412 of the Code or Section 302 of ERISA for the five-year period immediately following  the latest date on which the Borrower, a Subsidiary or an ERISA Affiliate maintained, contributed  to or had an obligation to contribute to (or is deemed under Section 4069 of ERISA to have  maintained or contributed to or to have had an obligation to contribute to, or otherwise to have  liability with respect to) such plan.   “Plan Asset Regulation” means 29 CFR § 2510.3-101, as modified by Section 3(42) of  ERISA.  “Platform” has the meaning set forth in Section 9.01.   “POP Facility” means the manufacturing and logistics facility being developed by the  Borrower in Troy Township, Ohio, referred to as “Peloton Output Park”.   “Prepayment Amount” has the meaning set forth in Section 2.08(g).  “Prepayment-Based Incremental Amount” has the meaning set forth in Section 2.18(a).  “Prepayment-Based Incremental Facility” has the meaning set forth in Section 2.18(a).  “Prepayment Date” has the meaning set forth in Section 2.08(g).   “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 determined by the Administrative Agent) or any similar release  by the Board (as 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.  





 






  31  “Principal Office” means the office of the Administrative Agent as set forth in Section  9.01, or such other office or office of a third party or sub-agent, as appropriate, as the  Administrative Agent may from time to time designate in writing to Borrower and each Lender.  “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.  “Purchase Money Indebtedness” means Indebtedness incurred to finance the acquisition,  construction or improvement of any fixed or capital asset to the extent incurred prior to or within  180 days following such acquisition, construction or improvement.   “Qualifying Issuance” has the meaning set forth in Section 2.06(d).  “Ratio-Based Incremental Amount” has the meaning set forth in Section 2.18(a).  “Ratio-Based Incremental Facility” has the meaning set forth in Section 2.18(a).  “Reference Time” with respect to any setting of the then-current Benchmark means (1) if  such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two Business  Days preceding the date of such setting, (2) if the RFR for such Benchmark is Daily Simple SOFR,  then four Business Days prior to such setting or (3) if such Benchmark is none of the Term SOFR  Rate or Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable  discretion.  “Refinancing Amendment” means an amendment to this Agreement, in form and  substance reasonably satisfactory to the Administrative Agent, among the Borrower, the  Administrative Agent and the Lenders providing Specified Refinancing Debt, effecting the  incurrence of such Specified Refinancing Debt in accordance with Section 2.22.   “Register” has the meaning set forth in Section 9.04(b).   “Reinvestment Cap” has the meaning set forth in Section 2.08(f).  “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” means, the Federal Reserve Board and/or the NYFRB,  the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened  by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.  “Relevant Rate” means (i) with respect to any Term Benchmark Borrowing, the Adjusted  Term SOFR Rate or (ii) with respect to any RFR Borrowing, the Adjusted Daily Simple SOFR, as  applicable.  “Replacement Lender” has the meaning assigned to such term in Section 2.21(c).  





 






  32  “Repricing Event” means (i) any prepayment or repayment of the Initial Term Loans, in  whole or in part, with the proceeds of, or conversion of any portion of the Initial Term Loans into,  any new or replacement facility of syndicated term loans of the Loan Parties under credit facilities  of a like currency with the Initial Term Loans prepaid or converted or incurred for the primary  purpose of repaying, refinancing or replacing Initial Term Loans with loans of such currency  bearing interest with an All-in Yield less than the All-in Yield applicable to such portion of the  Initial Term Loans (as such comparative yields are determined in the reasonable judgment of the  Administrative Agent consistent with generally accepted financial practices) and (ii) any  amendment to the Term Facility with respect to Initial Term Loans which reduces the All-in Yield  applicable to such Initial Term Loans; provided that a Repricing Event shall not include any event  described above that is not consummated for the primary purpose of lowering the effective interest  cost or weighted average yield applicable to the applicable Term Facility.   “Required Additional Debt Terms” means, with respect to any Indebtedness, such  Indebtedness (i) shall not mature prior to the Latest Maturity Date, (ii) either (x) shall not require  any payment of principal prior to the Latest Maturity Date or (y) shall not require payments of  principal in an aggregate amount per annum in excess of 2.5% of the principal amount thereof and  (iii) contains terms customary for similar issuances of Indebtedness at such time (as determined in  good faith by the Borrower) (it being understood that, other than in the case of any issuance of a  debt security, such terms shall be no more restrictive, taken as a whole (as determined in good  faith by the Borrower), than the Loans, and in any event no such Indebtedness (including any debt  securities) shall contain a financial maintenance covenant more restrictive than any financial  maintenance covenant contained herein)).  “Required Lenders” means, at any time:  (1) with respect to (i) any amendment or other modification of Section 6.10 (or for the  purposes of determining compliance with Section 6.10, any defined terms used therein), (ii) any  waiver or consent to any Default or Event of Default resulting from a breach of Section 6.10,  (iii) any alteration of the rights or remedies of the Required Revolving Lenders arising pursuant to  Article 7 as a result of a breach of Section 6.10 or (iv) any waiver of any condition precedent set  forth in Section 4.02 with respect to any extension of credit involving a Revolving Credit Facility,  means the Required Revolving Lenders only;   (2) to the extent clause (1) is not applicable, means (i) both the Required Revolving  Lenders and Lenders having Revolving Credit Exposures, Term Loans and unused Commitments  representing more than 50% of the sum of the total Revolving Credit Exposures, outstanding Term  Loans and unused Commitments of all Lenders at such time, or (ii) at any time after the  Commitments of all Lenders shall have been terminated, both clause (b) of Required Revolving  Lenders and Lenders holding more than 50% of the total Revolving Credit Exposures and Term  Loans at such time;   provided that, for purposes of this definition of “Required Lenders”, a Lender and its  Affiliates shall be deemed to be one Lender. The Revolving Credit Exposure, Term Loan and  Commitment of any Defaulting Lender shall be disregarded in determining Required Lenders at  any time.  





 






  33  “Required Revolving Lenders” means, at any time, at least two unaffiliated Lenders (a)  having Revolving Credit Exposures and unused Revolving Commitments representing more than  50% of the sum of the total Revolving Credit Exposures and unused Revolving Commitments of  all Lenders at such time, or (b) at any time after the Revolving Commitments of all Lenders shall  have been terminated, holding more than 50% of the total Revolving Credit Exposures at such  time; provided that, for purposes of this definition of “Required Revolving Lenders”, a Lender and  its Affiliates shall be deemed to be one Lender. The Revolving Credit Exposure and Commitment  of any Defaulting Lender shall be disregarded in determining Required Revolving Lenders at any  time.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  “Response Date” has the meaning assigned to such term in Section 2.21(a).  “Responsible Officer” means any of the President, Chief Executive Officer, Chief  Financial Officer, Vice President of Finance and any Financial Officer of the applicable Loan  Party, or any person designated by any such Loan Party in writing to the Administrative Agent  from time to time, acting singly.   “Restatement Effective Date” means June 20, 2019.  “Restricted Cash” means, at any time, the cash and Cash Equivalents of the Borrower to  the extent (a) classified (or required to be classified) as restricted cash or restricted cash equivalents  on the balance sheet of the Borrower in accordance with GAAP or (b) such cash or Cash  Equivalents are subject to any Lien (including, without limitation, Liens permitted by Section  6.02(n)) other than Liens in favor of the Secured Parties pursuant to the Security Documents  (including pursuant to any Control Account Agreement).  “Restricted Payment” means any dividend or other distribution (whether in cash,  securities or other property) with respect to any Equity Interests in the Borrower or any Subsidiary,  or any payment (whether in cash, securities or other property), including any sinking fund or  similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or  termination of any such Equity Interests in the Borrower. For the avoidance of doubt, neither (i)  the receipt or acceptance by the Borrower or any Subsidiary of the return of Equity Interests issued  by the Borrower or any Subsidiary to the seller of a Person, business or division as consideration  for the purchase of such Person, business or division, which return is in settlement of  indemnification claims owed by such seller in connection with such acquisition, nor (ii) the non- cash withholding of Equity Interests issuable pursuant to a stock option or other equity incentive  compensation award, to satisfy any exercise price and/or tax withholding obligation associated  with such stock option or other equity incentive compensation award, shall be deemed to be a  Restricted Payment.   “Reuters” means, as applicable, Thomson Reuters Corp., Refinitiv, or any successor  thereto.  





 






  34  “Revolving Borrowing” means a borrowing under the Revolving Facility consisting of  simultaneous Revolving Loans of the same Type and having the same Interest Period made by  each of the Revolving Lenders pursuant to Section 2.01(a).  “Revolving Commitment” means, with respect to each Lender, the commitment of such  Lender to make Loans and to acquire participations in Letters of Credit hereunder, expressed as  an amount representing the maximum aggregate amount of such Lender’s Revolving Credit  Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to  Section 2.06 and (b) reduced or increased from time to time pursuant to assignments by or to such  Lender pursuant to Section 9.04.   “Revolving Commitment Increase Lender” has the meaning specified in Section  2.18(a)(v).  “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of  the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure at such  time.   “Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’  Revolving Commitments at such time.   “Revolving Lender” means, at any time, any Lender that has a Revolving Commitment  at such time (and after the termination of all Revolving Commitments, any Lender that holds any  Revolving Credit Exposure).  “Revolving Loan” means an advance made by a Revolving Lender under the Revolving  Facility.  “Revolving Maturity Date” means, as of the Second Restatement Effective Date (a) with  respect to 2021 Non-Consenting Commitments, June 20, 2024, and (b) with respect to 2021  Consenting Commitments, the earlier of (i) December 10, 2026 and (ii) if greater than  $200,000,000 in aggregate principal amount of the Borrower’s 0% Convertible Senior Notes due  2026 are outstanding on November 16, 2025, November 16, 2025; provided that, on the Term  Facility Satisfaction Date, the Revolving Maturity Date with respect to the 2021 Consenting  Commitments will automatically revert to December 10, 2026.   “RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such  Borrowing.  “RFR Loan” means a Loan that bears interest at a rate based on the Adjusted Daily Simple  SOFR.   “Sanctioned Country” means, at any time, a country, region or territory which is the  subject or target of any Sanctions (and, as of the Effective Date, the Crimea, the so-called Donetsk  People’s Republic, and the so-called Luhansk People’s Republic regions of Ukraine, Cuba, Iran,  North Korea, and Syria).   





 






  35  “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related  list of designated Persons maintained by the Office of Foreign Assets Control of the U.S.  Department of the Treasury, the U.S. Department of State, the United Nations Security Council,  the European Union, any EU member state, Her Majesty’s Treasury of the United Kingdom or any  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 (a) – (b),  and (d) any Person otherwise the subject or target of Sanctions.  “Sanctions” means 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 the Office of Foreign Assets Control of the U.S. Department of the Treasury or  the U.S. Department of State, or (b) the United Nations Security Council, the European Union,  Her Majesty’s Treasury of the United Kingdom, or any other relevant sanctions authority.   “SEC” means the Securities and Exchange Commission or any Governmental Authority  succeeding to any of its principal functions.  “Second Amendment” means the Second Amendment, dated as of the Second  Amendment Effective Date, to the Existing Credit Agreement.    “Second Amendment Effective Date” means December 10, 2021.   “Second Restatement” means the Amendment and Restatement Agreement, dated as of  the Second Restatement Effective Date, to this Agreement.   “Second Restatement Effective Date” means the date on which the conditions specified  in Section 4.01 are satisfied (or waived in accordance with Section 9.02), which date is May 25,  2022.  “Secured Parties” has the meaning assigned to such term in the Security Agreement.  “Security Agreement” means the Security Agreement, dated as of the Effective Date,  between the Borrower and the Administrative Agent for the benefit of the Secured Parties, as  amended, supplemented or otherwise modified from time to time, including by each joinder  agreement thereto.  “Security Documents” means the collective reference to the Security Agreement, the  Control Account Agreements and all other security documents hereafter delivered to the  Administrative Agent by a Loan Party granting or perfecting a Lien on any property or right of  any person to secure the obligations and liabilities of any Loan Party under any Loan Document.  “Senior Secured Net Leverage Ratio” means, as of any date of determination, the ratio  of (a) Senior Secured Indebtedness as of such date to (b) Consolidated Adjusted EBITDA for the  most recently completed Measurement Period.  “Senior Secured Indebtedness” means the aggregate principal amount of Total Net  Indebtedness that is secured by a Lien on any asset of the Borrower or any of its Subsidiaries.  





 






  36  “Similar Business” means any connected fitness and subscription business engaged or  proposed to be engaged in by the Borrower and its Subsidiaries on the Second Restatement  Effective Date and any similar, corollary, related, ancillary, incidental, related to or  complementary business or business activities or a reasonable extension, development or  expansion thereof or ancillary thereto.  “SOFR” means a rate equal to the secured overnight financing rate as administered by the  SOFR Administrator.  “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.  “SOFR Determination Date” has the meaning specified in the definition of “Daily Simple  SOFR”.  “SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.  “Solvent” means, with respect to the Borrower and its Subsidiaries on a particular date,  that on such date (a) the fair value of the present assets of the Borrower and its Subsidiaries, taken  as a whole, is greater than the total amount of liabilities, including, without limitation, contingent  liabilities, of the Borrower and its Subsidiaries, taken as a whole, (b) the present fair saleable value  of the assets of the Borrower and its Subsidiaries, taken as a whole, is not less than the amount that  will be required to pay the probable liability of the Borrower and its Subsidiaries, taken as a whole,  on their debts as they become absolute and matured, (c) the Borrower and its Subsidiaries, taken  as a whole, do not intend to, and do not believe that they will, incur debts or liabilities (including  current obligations and contingent liabilities) beyond their ability to pay such debts and liabilities  as they mature in the ordinary course of business and (d) the Borrower and its Subsidiaries, taken  as a whole, are not engaged in business or a transaction, and are not about to engage in business  or a transaction, in relation to which their property would constitute an unreasonably small capital.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light  of all 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  (ASC 450)).   “Specified Cash Management Agreement” means any agreement providing for treasury,  depositary, purchasing card or cash management services, including in connection with any  automated clearing house transfers of funds or any similar transactions between the Borrower or  any Subsidiary and any Lender or affiliate thereof, which is in effect as of the Second Amendment  Effective Date or which has been designated by such Lender and the Borrower, by notice to the  Administrative Agent upon the earlier of (i) 90 days after Second Amendment Effective Date and  (ii) the execution and delivery by the Borrower or such Subsidiary, as a “Specified Cash  Management Agreement”.  





 






  37   “Specified Refinancing Debt” has the meaning specified in Section 2.22(a).  “Specified Refinancing Revolving Commitment” has the meaning specified in Section  2.22(a).  “Specified Refinancing Revolving Loans” means Specified Refinancing Debt  constituting revolving loans.  “Specified Refinancing Term Commitment” has the meaning specified in Section  2.22(a).  “Specified Refinancing Term Loans” means Specified Refinancing Debt constituting  term loans.  “Specified Swap Agreement” means any Swap Agreement in respect of interest rates or  currency exchange rates entered into by the Borrower or any Guarantor and any Person that is a  Lender or an Affiliate of a Lender at the time such Swap Agreement is entered into (regardless of  whether such Person subsequently ceases to be a Lender of Affiliate of a Lender).  “Sterling” and “£” mean the lawful currency of the United Kingdom.  “Subsidiary” means any subsidiary of the Borrower.   “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 and which is required by GAAP to be  consolidated in the consolidated financial statements of the parent.   “Swap” means any agreement, contract, or transaction that constitutes a “swap” within the  meaning of section 1a(47) of the Commodity Exchange Act.  “Swap Agreement” means any agreement with respect to any swap, forward, future or  derivative transaction or option or similar agreement involving, or settled by reference to, one or  more rates, currencies, commodities, equity or debt instruments or securities, or economic,  financial or pricing indices or measures of economic, financial or pricing risk or value or any  similar transaction or any combination of these transactions (including any Permitted Bond Hedge  Transactions and Permitted Warrant Transactions); provided that no phantom stock or similar plan  providing for payments only on account of services provided by current or former directors,  officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.   





 






  38  “Swap Obligation” means, with respect to any Person, any obligation to pay or perform  under any Swap.  “Syndication Agents” means Barclays Bank PLC, Citibank, N.A. and Goldman Sachs  Lending Partners LLC.   “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,  charges, withholdings (including backup withholding), assessments, fees or other charges imposed  by any Governmental Authority, including any interest, additions to tax or penalties applicable  thereto.   “Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether  such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by  reference to the Adjusted Term SOFR Rate.  “Term Borrowing” means Term Loans of the same Type, made, converted or continued  on the same date and, in the case of Term Benchmark Loans, as to which a single Interest Period  is in effect.  “Term Commitment” means, as to each Term Lender, (i) its Initial Term Commitment,  (ii) its Term Commitment Increase, (iii) its New Term Commitment or (iv) its Specified  Refinancing Term Commitment. The amount of each Lender’s Initial Term Commitment is as set  forth in the definition thereof and the amount of each Lender’s other Term Commitments shall be  as set forth in the Assignment and Assumption, or in the amendment or agreement relating to the  respective Term Commitment Increase, New Term Commitment or Specified Refinancing Term  Commitment pursuant to which such Lender shall have assumed its Term Commitment, as the  case may be, as such amounts may be adjusted from time to time in accordance with this  Agreement.  “Term Commitment Increase” has the meaning assigned thereto in Section 2.18(a).  “Term Facility” means any of the Initial Term Facility, any Term Commitment Increase  with respect to the foregoing (and the Loans made in respect thereof), any New Term Facility (and  the Loans made in respect thereof) and any Specified Refinancing Term Commitment or Specified  Refinancing Term Loans.  “Term Facility Maturity Date” means the Initial Term Facility Maturity Date or the  maturity date applicable to any New Term Facility or any Specified Refinancing Term Loans, as  the context may require.  “Term Facility Satisfaction Date” means the earlier of (i) the Term Facility Maturity Date  or (ii) the date on which all Obligations in respect of the Term Loans have been repaid in full and  no Term Loans remain outstanding.   “Term Lender” means any Lender that holds Term Loans and/or Term Commitments.  “Term Loan” means an advance made by a Term Lender under a Term Facility.  





 






  39   “Term SOFR Determination Day” has the meaning assigned to it under the definition  of Term SOFR Reference Rate.  “Term SOFR Rate” means, with respect to any Term Benchmark Borrowing and for any  tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at  approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to  the commencement of such tenor comparable to the applicable Interest Period, as such rate is  published by the CME Term SOFR Administrator.  “Term SOFR Reference Rate”  means, for any day and time (such day, the “Term SOFR  Determination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars  and for any tenor comparable to the applicable Interest Period, the rate per annum determined by  the Administrative Agent as the forward-looking term rate based on SOFR.  If by 5:00 pm (New  York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for  the applicable tenor has not been published by the CME Term SOFR Administrator and a  Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the  Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR  Reference Rate as published in respect of the first preceding U.S. Government Securities Business  Day for which such Term SOFR Reference Rate was published by the CME Term SOFR  Administrator, so long as such first preceding Business Day is not more than five Business Days  prior to such Term SOFR Determination Day.     “Total Assets” means the total assets of the Borrower and its Subsidiaries on a  consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the  Borrower delivered pursuant to Section 5.01(a) or (b).   “Total Liquidity” means, at any time, the sum of (a) all cash and Cash Equivalents  (except, for the avoidance of doubt, any Restricted Cash) held by the Borrower and its Subsidiaries  at such time and (b) the aggregate unused amount of the Revolving Commitments then in effect.  “Total Net Indebtedness” means (a) the aggregate principal amount of Indebtedness of  the Borrower and its Subsidiaries, as determined on a consolidated basis in accordance with GAAP  less (b) the aggregate amount of cash and Cash Equivalents (in each case, free and clear of all liens  other than Liens permitted pursuant to Section 6.02), excluding cash and Cash Equivalents which  are listed as “restricted” on the consolidated balance sheet of the Borrower as of such date;  provided that, other than for the purposes of calculating the Senior Secured Net Leverage Ratio to  determine compliance with the financial covenant set forth in Section 6.10(b), the aggregate  amount of cash and Cash Equivalents deducted under this clause (b) shall not exceed  $250,000,000.  “Total Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Total  Net Indebtedness as of such date to (b) Consolidated Adjusted EBITDA for the most recently  completed Measurement Period.  “Total Revenues” means the gross revenues of the Borrower and its Subsidiaries,  determined on a consolidated basis in accordance with GAAP, as shown on the most recent income  statement of the Borrower delivered pursuant to Section 5.01(a) or (b).  





 






  40  “Transactions” means the execution, delivery and performance by the Loan Parties of  each Loan Document to which it is a party, the borrowing of Loans and the issuance of Letters of  Credit hereunder.   “Treasury Rate” means, as of any prepayment date, the yield to maturity as of such  prepayment date of the United States Treasury securities with a constant maturity (as compiled  and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become  publicly available at least two Business Days prior to the prepayment date (or, if such Statistical  Release is no longer published, any publicly available source of similar market data)) most nearly  equal to the period from the prepayment date to the first anniversary of the Second Restatement  Effective Date; provided that if the period from the prepayment date to the first anniversary of the  Second Restatement Effective Date is shorter than one year, the weekly average yield on actually  traded United States Treasury securities adjusted to a constant maturity of one year will be used.  “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of  interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to  the Adjusted Term SOFR Rate or the Alternate Base Rate or Adjusted Daily Simple SOFR.   “UK Financial Institutions” 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” means the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.  “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities  under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,  determined in accordance with the assumptions used for funding the Pension Plan pursuant to  Section 412 of the Code for the applicable plan year.   “Unrestricted Account” has the meaning set forth in Section 5.11.  “USA Patriot Act” means the Uniting and Strengthening America by Providing  Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L.  No. 107-56 (signed into law October 26, 2001)), as amended from time to time.   “U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii)  a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association  recommends that the fixed income departments of its members be closed for the entire day for  purposes of trading in United States government securities.  





 






  41  “U.S. Person” means any Person that is a “United States Person” as defined in  Section 7701(a)(30) of the Code.    “Weighted Average Life to Maturity” means, when applied to any Indebtedness, at any  date, the number of years (and/or portion thereof) obtained by dividing: (a) the sum of the products  obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial  maturity or other required payments of principal, including payment at final maturity, in respect  of such Indebtedness by (ii) the number of years (calculated to the nearest one-twelfth) that will  elapse between such date and the making of such payment; by (b) the then outstanding principal  amount of such Indebtedness.  “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 Title IV of  ERISA.   “Withholding Agent” means any Loan Party and the Administrative Agent.   “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.  “Yen” or “¥” mean the lawful currency of Japan.   Classification of Loans and Borrowings  For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a  “Term Benchmark Loan”). Borrowings also may be classified and referred to by Type (e.g., a  “Term Benchmark Borrowing”).    Terms Generally  The definitions of terms herein shall apply equally to the singular and plural forms of the  terms defined. Whenever the context may require, any pronoun shall include the corresponding  masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be  deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to  have the same meaning and effect as the word “shall.” Unless the context requires otherwise  (a) any definition of or reference to any agreement, instrument or other document herein shall be  construed as referring to such agreement, instrument or other document as from time to time  amended, restated, amended and restated, supplemented or otherwise modified (subject to any  restrictions on such amendments, amendments and restatements, supplements or modifications set  





 






  42  forth herein), (b) any reference herein to any Person shall be construed to include such Person’s  successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar  import, shall be construed to refer to this Agreement in its entirety and not to any particular  provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be  construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement,  (e) the words “asset” and “property” shall be construed to have the same meaning and effect and  to refer to any and all tangible and intangible assets and properties, including cash, securities,  accounts and contract rights and (f) any reference to any law shall include all statutory and  regulatory provisions consolidating, amending, replacing or interpreting such law and any  reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation  as amended, modified or supplemented from time to time.    Accounting Terms; GAAP  Except as otherwise expressly provided herein, 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 Borrower notifies the Administrative Agent that the Borrower requests an amendment to any  provision hereof to eliminate the effect of any change occurring after the Effective Date in GAAP  or in the application thereof on the operation of such provision (or if the Administrative Agent  notifies the Borrower that the Required Lenders request an amendment to any provision hereof for  such purpose), regardless of whether any such notice is given before or after such change in GAAP  or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in  effect and applied immediately before such change shall have become effective until such notice  shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding  the foregoing, all financial covenants contained herein shall be calculated (1) without giving effect  to any election under the Statement of Financial Accounting Standards No. 159 (ASC 825) (or any  similar accounting principle) permitting or requiring a Person to value its financial liabilities or  Indebtedness at the fair value thereof and (2) without giving effect to any treatment of Indebtedness  in respect of convertible debt instruments under Accounting Standards Codification 470-20 (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. Prior to the first delivery of financial statements pursuant to Section 5.01(a) or (b) on or  after the Second Restatement Effective Date, any reference in this Agreement to the financial  statements delivered pursuant to Section 5.01(a) or (b) or similar reference to the same effect shall  be deemed to refer to the most recently delivered financial statements pursuant to Section 5.01(a)  or (b) of the Existing Credit Agreement.   Interest Rates; Benchmark Notification  The interest rate on a Loan denominated in dollars may be derived from an interest rate  benchmark that may be discontinued or is, or may in the future become, the subject of regulatory  reform.  Upon the occurrence of a Benchmark Transition Event, Section 2.11 provides a  mechanism for determining an alternative rate of interest.  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 any interest rate used in  this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate  





 






  43  thereof, 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 existing interest rate being replaced or have the same volume or  liquidity as did any existing interest rate 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 interest rate used in this Agreement or 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 Borrower.  The Administrative Agent may select  information sources or services in its reasonable discretion to ascertain any interest rate used in  this Agreement, 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 Borrower, 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.   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.  ARTICLE 2  THE CREDITS    Commitments.   Subject to the terms and conditions set forth herein, (a) each Revolving Lender  severally agrees to make Revolving Loans in Dollars and, after any Alternative Currency Effective  Date, each applicable Alternative Currency, to the Borrower from time to time during the  applicable Availability Period in an aggregate principal amount that will not result in (i) the Dollar  Equivalent of such Revolving Lender’s Revolving Credit Exposure exceeding such Revolving  Lender’s Revolving Commitment or (ii) the sum of the Dollar Equivalents of the total Revolving  Credit Exposures of all Revolving Lenders exceeding the total Revolving Commitments of all  Revolving Lenders and (b) each Initial Term Lender severally agrees to make to the Borrower  Initial Term Loans in an amount equal to such Initial Term Lender’s Initial Term Commitment on  the Second Restatement Effective Date. Within the foregoing limits and subject to the terms and  conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.  Amounts repaid or prepaid in respect of Term Loans may not be reborrowed (it being understood,  however, that prepayments will be taken into account for purposes of any Prepayment-Based  Incremental Facility to the extent provided by Section 2.18).  





 






  44  Notwithstanding anything to the contrary herein or in any other Loan Document, the  Borrower and the Administrative Agent may amend or supplement this Agreement from time to  time to the extent necessary to add or amend provisions effectuating and/or relating to Revolving  Loans and Letters of Credit denominated in any Alternative Currency (except as otherwise agreed  by the Borrower and the Administrative Agent with respect to any applicable Alternative Currency  as to which a Revolving Lender is unable to fund (and in no event shall Citibank, N.A. or Barclays  Bank plc be required to make Loans denominated in New Taiwan Dollars without its consent)),  which amendment or supplement shall become effective at 5:00 p.m., New York City time, on the  date that is five Business Days after the date on which such amendment or supplement is provided  to the Revolving Lenders, so long as the Administrative Agent has not received, by such time,  written notice of objection thereto from Lenders comprising the Required Revolving Lenders (the  effective date of any such amendment in respect of an Alternative Currency, an “Alternative  Currency Effective Date”).   Loans and Borrowings  (a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class  made by the Lenders of such Class in accordance with their respective Applicable Class  Percentages. 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.   (b) Subject to Section 2.11, (i) each Borrowing of Term Loans shall be comprised  entirely of ABR Loans or Term Benchmark Loans and (ii) each Borrowing of Revolving Loans  shall be comprised entirely of ABR Loans or Term Benchmark Loans or RFR Loans as the  Borrower may request in accordance herewith. Each Lender at its option may make any Loan by  causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided  that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan  in accordance with the terms of this Agreement.   (c) At the commencement of each Interest Period for any Term Benchmark Borrowing,  such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not  less than $5,000,000. At the time that each ABR Borrowing and/or RFR Borrowing is made, such  Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less  than $5,000,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to  the entire unused balance of the total Commitments of the applicable Class or that is required to  finance the reimbursement of an LC Disbursement as contemplated by Section 2.19(e).  Borrowings of more than one Type may be outstanding at the same time; provided that there shall  not at any time be more than a total of ten Term Benchmark Borrowings or RFR Borrowings  outstanding.   (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be  entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested  with respect thereto would end after the applicable Maturity Date.    Requests for Borrowings  





 






  45  To request a Borrowing, the Borrower shall notify the Administrative Agent of such  request by telephone or telecopy (a) in the case of a Term Benchmark Borrowing, not later than  12:00 noon, New York City time, three Business Days before the date of the proposed Borrowing  or in the case of an RFR Borrowing, not later than 11:00 a.m., New York City time, five Business  Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later  than 12:00 noon, New York City time, one Business Day prior to the date of the proposed  Borrowing; provided that any such notice of an ABR Borrowing to finance the reimbursement of  an LC Disbursement as contemplated by Section 2.19(e) may be given not later than 10:00 a.m.  New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing  Request shall be confirmed promptly by delivery to the Administrative Agent of a written  Borrowing Request in substantially the form of Exhibit B-1 attached hereto and signed by the  Borrower. Each such telephonic and written Borrowing Request shall specify the following  information in compliance with Section 2.02:   (i) the Class of such Borrowing;  (ii) the aggregate 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 or a Term  Benchmark Borrowing or an RFR Borrowing;   (v) in the case of a Term Benchmark Borrowing, the initial Interest Period  to be applicable thereto, which shall be a period contemplated by the definition of the term  “Interest Period”; and   (vi) the location and number of the account or accounts to which funds are to  be disbursed, which shall comply with the requirements of Section 2.04.   If no election as to the Type of Borrowing is specified, then the requested Borrowing shall  be an ABR Borrowing. If no Interest Period is specified with respect to any requested Term  Benchmark Borrowing, then the Borrower shall be deemed to have selected an Interest Period of  one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this  Section, the Administrative Agent shall advise each applicable Lender of the details thereof and  of the amount of such Lender’s Loan to be made as part of the requested Borrowing. Except as  otherwise provided herein, a Borrowing Request for a Term Benchmark Borrowing shall be  irrevocable on and after the related Interest Rate Determination Date, and the Borrower shall be  bound to make a borrowing in accordance therewith.  As soon as practicable after 10:00 a.m., New  York City time, on each Interest Rate Determination Date, Administrative Agent shall determine  (which determination shall, absent manifest error, be final, conclusive and binding upon all parties)  the interest rate that shall apply to the Term Benchmark Borrowing for which an interest rate is  then being determined for the applicable Interest Period and shall promptly give notice thereof (in  writing or by telephone confirmed in writing) to the Borrower and each applicable Lender.  





 






  46   Funding of Borrowings  (a) Each Lender of the applicable Class specified in the Borrowing Request for such  Borrowing shall make each Loan to be made by it hereunder on the proposed date thereof by wire  transfer of immediately available funds by 12:00 noon, New York City time, to the account of the  Administrative Agent most recently designated by it for such purpose by notice to the Lenders.  The Administrative Agent will make such Loans available to the Borrower by promptly crediting  the amounts so received, in like funds, to an account or accounts designated by the Borrower in  the applicable Borrowing Request; provided that ABR Loans made to finance the reimbursement  of an LC Disbursement as provided in Section 2.19(e) shall be remitted by the Administrative  Agent to the applicable Issuing Bank.   (b) Unless the Administrative Agent shall have received notice from a Lender prior to  the proposed date of any Borrowing that such Lender will not make available to the Administrative  Agent such Lender’s Applicable Class Percentage of such Borrowing, the Administrative Agent  may assume that such Lender has made such Applicable Class Percentage available on such date  in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make  available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made  its Applicable Class Percentage of the applicable Borrowing available to the Administrative Agent,  then the applicable Lender and the 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 the Borrower to but excluding the date of  payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal  Funds Effective Rate and a rate determined by the Administrative Agent in accordance with  banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest  rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then  such amount shall constitute such Lender’s Loan included in such Borrowing.    Interest Elections  (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing  Request and, in the case of a Term Benchmark Borrowing, shall have an initial Interest Period as  specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such  Borrowing to a different Type or to continue such Borrowing and, in the case of a Term Benchmark  Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may  elect different options with respect to different portions of the affected Borrowing, in which case  each such portion shall be allocated among the Lenders holding the Loans comprising such  Borrowing in accordance with their respective Applicable Class Percentages, and the Loans  comprising each such portion shall be considered a separate Borrowing.   (b) To make an election pursuant to this Section, the Borrower shall notify the  Administrative Agent of such election by telephone by the time that a Borrowing Request would  be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting  from such election to be made on the effective date of such election. Each such telephonic request  shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the  Administrative Agent of a written request (an “Interest Election Request”) in substantially the  form of Exhibit C attached hereto and signed by the Borrower.   





 






  47  (c) Each telephonic and written Interest Election Request shall specify the following  information in compliance with Section 2.02:   (i) the Borrowing to which such Interest Election Request applies and, if  different options are being elected with respect to different portions thereof, the portions thereof  to be allocated to each resulting Borrowing (in which case the information to be specified  pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);   (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 Term  Benchmark Borrowing or an RFR Borrowing; and   (iv) if the resulting Borrowing is a Term Benchmark Borrowing, the Interest  Period to be applicable thereto after giving effect to such election, which shall be a period  contemplated by the definition of the term “Interest Period.”   If any such Interest Election Request requests a Term Benchmark Borrowing but does not specify  an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one  month’s duration.   (d) Promptly following receipt of an Interest Election Request, the Administrative  Agent shall advise each applicable Lender of the details thereof and of such Lender’s portion of  each resulting Borrowing.  Except as otherwise provided herein, an Interest Election Request for  conversion to, or continuation of, any Term Benchmark Borrowing shall be irrevocable on and  after the related Interest Rate Determination Date, and the Borrower shall be bound to effect a  conversion or continuation in accordance therewith.    (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a  Term Benchmark Borrowing prior to the end of the Interest Period applicable thereto, then, unless  such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing  shall be continued as a Term Benchmark Borrowing with an Interest Period of one month’s  duration. Notwithstanding any contrary provision hereof, if an Event of Default under clause (h)  or (i) of Article VII or, upon request of the Required Lenders, any other Event of Default has  occurred and is continuing, (i) no outstanding Borrowing may be converted to or continued as a  Term Benchmark Borrowing and (ii) unless repaid, (a) each Term Benchmark Borrowing and (B)  each RFR Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period  applicable thereto.    Termination and Reduction of Commitments  (a) The Commitments in respect of any Term Facility shall be automatically and  permanently reduced to zero on the date of the initial incurrence of Term Loans under such Term  Facility, which in the case of the Initial Term Commitments shall be the Second Restatement  Effective Date. Unless previously terminated, the Commitments shall terminate on the applicable  Maturity Date.   





 






  48  (b) The Borrower may at any time terminate, or from time to time reduce, the  Commitments of any Class; provided that (i) each reduction of Commitments shall be in an amount  that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall  not terminate or reduce any Class of Commitments if, after giving effect to any concurrent  prepayment of the Loans of such Class in accordance with Section 2.08, the sum of the Dollar  Equivalents of the Revolving Credit Exposures with respect to such Class would exceed the total  Commitments of such Class.   (c) The Borrower shall notify the Administrative Agent of any election to terminate or  reduce the Commitments of any Class under paragraph (b) of this Section at least three Business  Days prior to the effective date of such termination or reduction, specifying such election and the  effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall  advise the applicable Lenders of the contents thereof. Each notice delivered by the Borrower  pursuant to this Section shall be irrevocable; provided that a notice of termination of the  Commitments of any Class delivered by the Borrower may state that such notice is conditioned  upon the effectiveness of other credit facilities or another transaction, in which case such notice  may be revoked by the Borrower (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 any Class shall be applied to the  applicable Lenders in accordance with their respective Applicable Class Percentages.  (d) Upon any issuance of Equity Interests in any form pursuant to which the Borrower  receives Net Cash Proceeds in excess of $750,000,000 (such transaction, a “Qualifying  Issuance”), the Revolving Commitments shall automatically be reduced by an amount equal to  the Net Cash Proceeds received by the Borrower from such Qualifying Issuance and such reduction  will be effective on the date such Net Cash Proceeds are received; provided that the aggregate  amount of Revolving Commitment reductions pursuant to this clause (d) shall not exceed  $100,000,000; provided, further, that this requirement shall automatically become inapplicable  and without further effect upon the occurrence of the Term Facility Satisfaction Date.   Repayment of Loans; Evidence of Debt  (a) The Borrower hereby unconditionally promises to pay to Administrative Agent for the  account of each Initial Term Lender (i) on the last Business Day of each March, June, September  and December, commencing with September 30, 2022, an aggregate principal amount of Initial  Term Loans incurred on the Second Restatement Effective Date equal to 0.25% of the aggregate  principal amount of all Initial Term Loans outstanding on the Second Restatement Effective Date  and (ii) on the Maturity Date for the Initial Term Loans, the aggregate principal amount of all  Initial Term Loans outstanding on such date.  (b) The Borrower hereby unconditionally promises to pay to the Administrative Agent  for the account of each Revolving Lender of any Class the then unpaid principal amount of each  Revolving Loan of such Class on the applicable Maturity Date.  (c) Each Lender shall maintain in accordance with its usual practice an account or  accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan  





 






  49  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 and Type thereof and the Interest Period  applicable thereto, (ii) the amount of any principal or interest due and payable or to become due  and payable from the Borrower to each Lender hereunder 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 the  Borrower to repay the Loans in accordance with the terms of this Agreement.   (f) Any Lender may request that Loans made by it be evidenced by a promissory note  (each such promissory note being called a “Note” and all such promissory notes being collectively  called the “Notes”). In such event, the Borrower shall prepare, execute and deliver to such Lender  a Note payable to the order of such Lender (or, if requested by such Lender, to such Lender and  its registered assigns) in substantially the form of Exhibit D attached hereto. Thereafter, the Loans  evidenced by such 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 payable to the order  of the payee named therein (or, if such promissory note is a registered note, to such payee and its  registered assigns).    Prepayment of Loans  (a) The Borrower shall have the right at any time and from time to time to prepay any  Borrowing in whole or in part, without premium or penalty except as set forth in Section 2.08(e)  (subject to the requirements of Section 2.13), subject to prior notice in accordance with paragraph  (b) of this Section.   (b) The Borrower shall notify the Administrative Agent by telephone (confirmed by  telecopy or delivery of written notice) or telecopy of any prepayment hereunder (i) in the case of  prepayment of (1) a Term Benchmark Borrowing, not later than 12:00 noon, New York City time,  three Business Days before the date of prepayment or (2) an RFR Revolving Borrowing, not later  than 11:00 a.m., New York City time, four Business Days before the date of prepayment, or (ii) in  the case of prepayment of an ABR Borrowing, not later than 12:00 noon, New York City time,  one Business Day before 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 2.06, then such notice of  prepayment may be revoked if such notice of termination is revoked in accordance with  Section 2.06. Promptly following receipt of any such notice relating to a Borrowing, the  Administrative Agent shall advise the applicable 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  





 






  50  advance of a Borrowing of the same Type as provided in Section 2.02. Each prepayment of a  Borrowing shall be applied ratably to the Loans of the applicable Lenders in accordance with their  respective Applicable Class Percentages or, in the case of any Term Loans, in accordance with the  aggregate principal amount of Term Loans of such Class, and applied to the remaining  amortization payments as directed by the Borrower (and absent such direction, in direct order of  maturity). Prepayments shall be accompanied by accrued interest to the extent required by  Section 2.10 and any costs incurred as contemplated by Section 2.13.   (c) The Borrower shall from time to time prepay the Revolving Loans to the extent  necessary so that the aggregate principal amount of all outstanding Revolving Loans shall not at  any time exceed the Revolving Commitments of such Class then in effect.   (d) If at any time, (i) other than as a result of fluctuations in currency exchange rates,  the Dollar Equivalent of the relevant Lenders’ aggregate Revolving Credit Exposures in respect of  any Class (calculated, with respect to any LC Exposure denominated in an Alternative Currency,  as of the most recent Revaluation Date with respect to such LC Exposure) exceeds the aggregate  Revolving Commitments of such Class then in effect, or (ii) solely as a result of fluctuations in  currency exchange rates, the Dollar Equivalent of the relevant Lenders’ aggregate Revolving  Credit Exposures in respect of any Class (so calculated), as of the most recent Revaluation Date,  exceeds one hundred ten percent (110%) of the aggregate Revolving Commitments of such Class  then in effect, the Borrower shall immediately repay Borrowings and/or cash collateralize LC  Exposure in accordance with the procedures set forth in Section 2.17(d) in an aggregate principal  amount sufficient to cause the Dollar Equivalent of the relevant Lenders’ aggregate Revolving  Credit Exposures in respect of such Class (so calculated) to be less than or equal to the aggregate  Revolving Commitments of such Class then in effect.  (e) If, with respect to the Term Loans, the Borrower (A) makes a voluntary prepayment  of any Initial Term Loans pursuant to Section 2.08(a) or makes any prepayment of or refinances  any Initial Term Loans pursuant to Section 2.22, (B) makes a repayment or prepayment of any  Initial Term Loans pursuant to Section 2.08(f)(ii) or (C) effects any prepayment, refinancing or  amendment with respect to the Initial Term Loans in connection with any Repricing Event (x) on  or prior to the first anniversary of the Second Restatement Effective Date, the Borrower shall pay  to the Administrative Agent, for the ratable account of the applicable Term Lenders a prepayment  premium in an amount equal to the Make-Whole Premium as calculated by the Borrower for such  prepayment date with respect to the outstanding principal amount of any such Initial Term Loans  so refinanced, prepaid or amended, as the case may be, (y) after the first anniversary of the Second  Restatement Effective Date but on or prior to the second anniversary of the Second Restatement  Effective Date, the Borrower shall pay to the Administrative Agent, for the ratable account of the  applicable Term Lenders a prepayment premium in an amount equal to 3.00% of the aggregate  principal amount of any such Initial Term Loans so refinanced, prepaid or amended, as the case  may be, and (z) the Borrower shall not be obligated to pay any prepayment premium in connection  with any such refinancing, prepayment or amendment, as the case may be, on and after the date  that is two years after the Second Restatement Effective Date.  For the avoidance of doubt, a  repayment of any Initial Term Loans pursuant to Section 2.08(f)(i) due to the Reinvestment Cap  being exceeded shall not require any prepayment premium in connection with such repayment.  





 






  51  (f) (i) If (A) the Borrower or any Subsidiary of the Borrower Disposes of any property  or assets pursuant to Section 6.09(e), (i) or (l) or (B) any Casualty Event occurs, in each case,  which results in the realization or receipt by the Borrower or any Subsidiary of Net Cash Proceeds  in excess of the greater of $30,000,000 and 6.0% of Consolidated Adjusted EBITDA for the most  recently completed Measurement Period for which financial statements have been delivered  pursuant to Section 5.01(a) or (b), the Borrower shall cause to be offered to be prepaid, on or prior  to the date which is ten Business Days after the date of the realization or receipt by the Borrower  or any Subsidiary of such Net Cash Proceeds, Term Loans in an aggregate principal amount equal  to the Net Cash Proceeds received (it being understood, for the avoidance of doubt, that any such  prepayment shall not be required to be made with the actual Net Cash Proceeds of any such  Disposition and may be made with other available cash of the Borrower and its Subsidiaries);  provided that, in the case of any Net Cash Proceeds received from a Disposition described in clause  (i) above, if the Borrower or any of its Subsidiaries invests (or commits to invest) the Net Cash  Proceeds from such Disposition (or a portion thereof) within 365 days after receipt of such Net  Cash Proceeds in assets (other than current assets) used or useful in the business of the Borrower  and the Subsidiaries (including any Investments in a Similar Business permitted under Section  6.04), then no prepayment shall be required pursuant to this paragraph in respect of such Net Cash  Proceeds (or the applicable portion of such Net Cash Proceeds, if applicable) except to the extent  of any such Net Cash Proceeds therefrom that have not been so invested (or committed to be  invested) by the end of such 365 day period (or if committed to be so invested within such 365 day  period, have not been so invested within 545 days after receipt thereof), at which time a  prepayment shall be required in an amount equal to such Net Cash Proceeds that have not been so  invested (or committed to be invested); provided, however, that the aggregate amount of Net Cash  Proceeds permitted to be reinvested in accordance with the foregoing clause (i) shall not exceed  $650,000,000 (such amount, the “Reinvestment Cap”), and any Net Cash Proceeds in excess of  the Reinvestment Cap shall be required to be offered to prepay Term Loans and (ii) upon the  incurrence or issuance by the Borrower or its Subsidiaries of any Specified Refinancing Debt  (other than Specified Refinancing Debt in respect of Revolving Loans), any Specified Refinancing  Term Loans or any Indebtedness not expressly permitted to be incurred or issued pursuant to  Section 6.01, the Borrower shall prepay an aggregate principal amount of Term Loans in an  amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt  thereof by the Borrower.   (g) At the Borrower’s option, the Borrower shall notify the Administrative Agent of  any event giving rise to a prepayment under Section 2.08(f)(i) at least five Business Days (or such  shorter period of time as the Administrative Agent may agree in its reasonable discretion) prior to  the date of such prepayment.  Each such notice shall specify the date of such prepayment and  provide a reasonably detailed calculation of the amount of such prepayment that is required to be  made under Section 2.08(f)(i) (the “Prepayment Amount”). The Administrative Agent will  promptly notify each applicable Lender of the contents of any such prepayment notice so received  from the Borrower, including the date on which such prepayment is to be made (the “Prepayment  Date”).  Any applicable Lender may decline to accept all (but not less than all) of its share of any  such prepayment (any such Lender, a “Declining Lender”) by providing written notice to the  Administrative Agent no later than four Business Days after the date of such Lender’s receipt of  notice from the Administrative Agent regarding such prepayment.  If any Lender does not give a  notice to the Administrative Agent on or prior to such fourth Business Day informing the  Administrative Agent that it declines to accept the applicable prepayment, then such Lender will  





 






  52  be deemed to have accepted such prepayment.  On any Prepayment Date, an amount equal to the  Prepayment Amount minus the portion thereof allocable to Declining Lenders, in each case for  such Prepayment Date, shall be paid to the Administrative Agent by the Borrower and applied by  the Administrative Agent ratably to prepay Term Loans under the Term Facility owing to the  applicable Lenders (other than Declining Lenders) in the manner described in Section 2.08(f) for  such prepayment.  Any amounts that would otherwise have been applied to prepay Term Loans,  New Term Loans or Specified Refinancing Term Loans owing to Declining Lenders shall be  retained by the Borrower (such amounts, “Declined Amounts”).  (h) Notwithstanding any other provisions of this Section 2.08, to the extent that any or  all of the Net Cash Proceeds of any asset sale or other Disposition by a Subsidiary (a “Foreign  Disposition”) giving rise to a prepayment event pursuant to Section 2.08(f) is prohibited, restricted  or delayed by applicable local law (including, without limitation, financial assistance and corporate  benefit restrictions and fiduciary and statutory duties of any directors or officers of such  Subsidiaries) from being repatriated to the Borrower or such repatriation would present a material  risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material  risk of breach of fiduciary or statutory duties by any director or officer), the portion of such Net  Cash Proceeds so affected will not be required to be applied to repay Term Loans at the times  provided in this Section 2.08 but may be retained by the applicable Subsidiary (it being understood  and agreed that the Borrower shall be under no obligation to cause or to attempt to cause the  applicable Subsidiary to promptly take any actions reasonably required by the applicable local law  to permit such repatriation, to monitor any such circumstances or to reserve cash for future  repatriation after it has provided notice to the Administrative Agent of such prohibition, restriction,  delay or risk).    (i) Notwithstanding any other provisions of this Section 2.08, to the extent that the  Borrower has determined in good faith that repatriation of any or all of the Net Cash Proceeds of  any Foreign Disposition giving rise to a prepayment event pursuant to Section 2.08(f) would have  an adverse Tax, accounting or regulatory cost or consequence (taking into account any foreign Tax  credit or benefit actually realized in connection with such repatriation) with respect to such Net  Cash Proceeds, the Net Cash Proceeds so affected may be retained by the applicable Subsidiary.   Fees  (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender  (other than any Defaulting Lender) a commitment fee (the “Commitment Fee”), which shall  accrue at the relevant percentage set forth in the row entitled “Commitment Fee” in the definition  of “Applicable Rate” on the average daily amount of the unused Revolving Commitment of such  Lender during the period from and including the Restatement Effective Date to but excluding the  date on which such Revolving Commitment terminates. Accrued commitment fees shall be  payable in arrears on the last day of March, June, September and December of each year and on  the date on which the Revolving Commitments terminate, commencing on June 30, 2019; provided  that any commitment fees accruing after the date on which the Revolving Commitments terminate  shall be payable on demand. All commitment fees shall be computed on the basis of a year of 360  days and shall be payable for the actual number of days elapsed (including the first day but  excluding the last day).   





 






  53  (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each  Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue  at the same Applicable Rate used to determine the interest rate applicable to Term Benchmark  Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof  attributable to unreimbursed LC Disbursements) during the period from and including the  Restatement Effective Date to but excluding the later of the date on which such Lender’s  Revolving Commitment terminates and the date on which such Lender ceases to have any LC  Exposure, and (ii) to the applicable Issuing Bank a fronting fee, which shall accrue at the rate or  rates per annum separately agreed upon between the Borrower and such Issuing Bank on the  average daily amount of the LC Exposure (excluding any portion thereof attributable to  unreimbursed LC Disbursements) during the period from and including the Restatement 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 such Issuing Bank’s standard fees  with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing  of drawings thereunder.  Accrued participation fees and fronting fees shall be payable on the last  day of March, June, September and December of each year, commencing on the first such date to  occur after the Restatement 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 any Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand.  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).  (c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees  payable in the amounts and at the times separately agreed upon between the Borrower and the  Administrative Agent in the Agent Fee Letter.   (d) All fees payable hereunder shall be paid on the dates due, in immediately available  funds, to the Administrative Agent (or to the applicable Issuing Bank, in the case of fees payable  to it) for distribution, in the case of commitment fees and participation fees, to the Lenders. Fees  paid shall not be refundable under any circumstances.    Interest  (a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base  Rate plus the Applicable Rate.   (b) The Loans comprising each Term Benchmark Borrowing shall bear interest at the  Adjusted Term SOFR Rate 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 Adjusted Daily  Simple SOFR plus the Applicable Rate.  (d) Notwithstanding the foregoing, at all times when an Event of Default listed in  paragraph (a) or (b) of Article 7 has occurred hereunder and is continuing, all overdue amounts  





 






  54  outstanding hereunder 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  overdue 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 upon termination of the Commitments and upon the applicable Maturity  Date; provided that (i) interest accrued pursuant to paragraph (c) 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 applicable Availability Period), accrued interest on the  principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment  and (iii) in the event of any conversion of any Term Benchmark Loan prior to the end of the current  Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of  such conversion.   (f) All interest hereunder shall be computed on the basis of a year of 360 days, except  that interest computed by reference to 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), and in each case shall be payable for the actual number of days elapsed (including  the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted Term SOFR  Rate, Term SOFR Rate, Adjusted Daily Simple SOFR or Daily Simple SOFR shall be determined  by the Administrative Agent, and such determination shall be conclusive absent manifest error.    Alternate Rate of Interest  (a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if prior to the  commencement of any Interest Period for a Term Benchmark Borrowing:  (i) the Administrative Agent determines (which determination shall be  conclusive absent manifest error) that adequate and reasonable means do not exist for  ascertaining the Adjusted Term SOFR Rate or the Term SOFR for such Interest Period  (including, without limitation, because the Term SOFR Reference Rate is not available or  published on a current basis); or   (ii) the Administrative Agent is advised by the Required Lenders that the  Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the  cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in  such Borrowing for such Interest Period;   then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by  telephone or telecopy as promptly as practicable thereafter and, until (x) the Administrative Agent  notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer  exist, with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election  Request in accordance with the terms of Section 2.10 or a new Borrowing Request in accordance  with the terms of Section 2.03, (1) any Interest Election Request that requests the conversion of  any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing and any  





 






  55  Borrowing Request that requests a Term Benchmark Borrowing shall instead be deemed to be an  Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so  long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or (ii) above  or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section  2.11(a)(i) or (ii) above and (2) any Borrowing Request that requests an RFR Borrowing shall  instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing, 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 Term Benchmark Loan or RFR Loan  is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent  referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term  Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower and  the Lenders that the circumstances giving rise to such notice no longer exist with respect to the  relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance  with the terms of Section 2.10 or a new Borrowing Request in accordance with the terms of Section  2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such  Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by  the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted  Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or (ii) above or (y) an ABR Loan  if the Adjusted Daily Simple SOFR also is the subject of Section 2.11(a)(i) or (ii) above, on such  day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent  to, and shall constitute an ABR Loan.  (b) Notwithstanding anything to the contrary herein or in any other Loan Document  (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this  Section 2.11), if a Benchmark 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  such Benchmark Replacement will replace such Benchmark for all 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,  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.  (d) The Administrative Agent will promptly notify the Borrower and the Lenders of  (i) any occurrence of a Benchmark Transition Event, (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  





 






  56  (or group of Lenders) pursuant to this Section 2.11, 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 2.11.  (e) 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 the Term SOFR 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 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.  (f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark  Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing or  RFR Borrowing of, conversion to or continuation of Term Benchmark Loans to be made,  converted or continued during any Benchmark Unavailability Period and, failing that, the  Borrower will be deemed to have converted any request for a Term Benchmark Borrowing into a  request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily  Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the  Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event.  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 Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of  notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant  Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark  Replacement is implemented pursuant to this Section 2.11, (1) any Term Benchmark Loan shall  on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day  if such day is not a Business Day), be converted by the Administrative Agent to, and shall  constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject  of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the  subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from  such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.    Increased Costs  





 






  57  (a) If any Change in Law shall:   (i) impose, modify or deem applicable any reserve, special deposit,  compulsory loan, insurance charge or similar requirement against assets of, deposits with or for  the account of, or credit extended by, any Lender (except any such reserve requirement reflected  in the Adjusted Term SOFR Rate) or any Issuing Bank;   (ii) subject the Administrative Agent, any Issuing Bank or any Lender or any  other recipient of any payment to be made by or on account of any obligation of the Borrower  hereunder, to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses  (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes, but  excluding any capital or other non-income taxes) on its loans, loan principal, letters of credit,  commitments, or other obligations, or its deposits, reserves, other liabilities or capital  attributable thereto; or   (iii) impose on any Lender or Issuing Bank or the applicable offshore  interbank market any other condition, cost or expense (other than Indemnified Taxes and  Excluded Taxes) affecting this Agreement or Term Benchmark Loans made by such Lender or  any Letter of Credit or participation therein; and the result of any of the foregoing shall be to  increase the cost to such Lender or Issuing Bank of making, continuing, converting to or  maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase  the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of  Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing  Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such  Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or  Issuing Bank for such additional costs incurred or reduction suffered.   (b) If any Lender or Issuing Bank 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 Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding  company, if any, as a consequence of this Agreement, the Commitments hereunder or the Loans  made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued  by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such  Lender’s or such Issuing Bank’s holding company would have achieved but for such Change in  Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such  Lender’s or Issuing Bank’s holding company with respect to capital adequacy or liquidity), then  from time to time the Borrower will pay to such Lender or Issuing Bank such additional amount  or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s  holding company for any such reduction suffered.   (c) A certificate of a Lender or Issuing Bank setting forth in reasonable detail the  amount or amounts necessary to compensate such Lender or 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  Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or  Issuing Bank the amount shown as due on any such certificate within 10 days after receipt thereof.   





 






  58  (d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation  pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to  demand such compensation; provided that the Borrower shall not be required to compensate a  Lender or Issuing Bank pursuant to this Section for any increased costs or reductions incurred  more than 180 days prior to the date that such Lender or Issuing Bank notifies the Borrower of the  Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing  Bank’s intention to claim compensation therefore; provided further that, if the Change in Law  giving rise to such increased costs or reductions is retroactive (or has retroactive effect), then the  180-day period referred to above shall be extended to include the period of retroactive effect  thereof.    Break Funding Payments  (a) With respect to Loans that are not RFR Loans, in the event of (i) the payment or  prepayment of any principal of any Term Benchmark Loan other than on the last day of an Interest  Period applicable thereto (whether voluntary, mandatory, automatic, by reason of acceleration, or  otherwise), (ii) the conversion of any Term Benchmark Loan other than on the last day of the  Interest Period applicable thereto, (iii) the failure to borrow, convert, continue or prepay any Term  Benchmark Loan on the date specified in any notice delivered pursuant hereto (regardless of  whether such notice may be revoked under Section 2.08(b) and is revoked in accordance  therewith), or (iv) the assignment of any Term Benchmark Loan other than on the last day of the  Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.16,  then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense  attributable to such event. A certificate of any Lender setting forth in reasonable detail any amount  or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the  Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the  amount shown as due on any such certificate within 10 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 an optional or mandatory prepayment of Loans), (ii) the failure to borrow 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(b) and is revoked in accordance therewith ( or )iii (  the assignment of any RFR Loan other than on the Interest Payment Date applicable thereto as a  result of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower  shall compensate each Lender for the loss, 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 shall be delivered to the Borrower and shall be conclusive absent manifest  error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within  10 days after receipt thereof.   Taxes  (a) Any and all payments by or on account of any obligation of any Loan Party under any  Loan Document shall be made free and clear of and without deduction or withholding for any  Taxes, except as required by law. If any applicable law (as determined in the good faith discretion  of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any  





 






  59  such payment by a Withholding Agent, then the applicable Withholding Agent shall make such  deduction or withholding and timely pay the full amount deducted or withheld to the relevant  Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax,  then the sum payable by the Borrower shall be increased as necessary so that after making such  deduction or withholding for Indemnified Taxes (including such deductions and withholdings for  Indemnified Taxes applicable to additional sums payable under this Section) the Administrative  Agent, Issuing Bank or Lender (as the case may be) receives an amount equal to the sum it would  have received had no such deduction or withholding for Indemnified Taxes been made.   (b) In addition, the Loan Parties shall timely pay any Other Taxes to the relevant  Governmental Authority in accordance with applicable law.   (c) The Loan Parties shall jointly and severally indemnify the Administrative Agent,  each Issuing Bank and each Lender, within 10 days after demand therefore, for the full amount of  any Indemnified Taxes paid by the Administrative Agent, such Issuing Bank or such Lender, as  the case may be, or required to be withheld or deducted from any payment to such recipient by or  on account of any obligation of the Borrower hereunder (including Indemnified 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 Borrower by  an Issuing Bank or a Lender (with a copy to the Administrative Agent), or by the Administrative  Agent on its own behalf or on behalf of an Issuing Bank or a Lender, shall be conclusive absent  manifest error.   (d) Each Lender shall severally indemnify the Administrative Agent, within 10 days  after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the  extent that the Loan Parties have not already indemnified the Administrative Agent for such  Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes  attributable to such Lender’s failure to comply with the provisions of Section 9.04 relating to the  maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in  each case, that are paid by the Administrative Agent in connection with any Loan Document, and  any reasonable expenses arising therefrom or with respect thereto, whether or not such 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 any Lender by the Administrative Agent  shall be conclusive 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 (d).   (e) As soon as practicable after any payment of Taxes by any Loan Party to a  Governmental Authority, 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.   





 






  60  (f) Any Foreign Lender, if it is legally entitled to do so, shall deliver to the Borrower  and the Administrative Agent (in such number of copies as shall be required by law or 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 as required by law or upon the reasonable request  of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to  do so), whichever of the following is applicable:   (i) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as  applicable, claiming eligibility for benefits of an income tax treaty to which the United States  of America is a party;   (ii) executed originals of IRS Form W-8ECI;   (iii) 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 to the effect that such  Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code,  (B) a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of  the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the  Code and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable;  (iv) to the extent a Foreign Lender is not the beneficial owner, executed  originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS  Form W-8BEN-E, a portfolio interest certificate in compliance with Section 2.14(f)(iii), 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 certificate in compliance with Section 2.14(f)(iii) on behalf of such direct or indirect  partner or partners; or   (v) 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 the  Borrower to determine the withholding or deduction required to be made unless, in the Foreign  Lender’s reasonable determination, such completion would subject such Foreign Lender to any  material cost or expense or would materially prejudice the legal or commercial position of such  Foreign Lender.   In addition, any Lender that is a U.S. Person shall deliver to the 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 as required by law or upon the reasonable request of  the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that  such Lender is exempt from U.S. federal backup withholding. In addition, each Lender shall  deliver such forms (including those forms required pursuant to Section 2.14(g)) promptly upon the  obsolescence or invalidity of any form previously delivered by such Lender or promptly notify the  Borrower and the Administrative Agent in writing of its legal inability to do so.   





 






  61  (g) If a payment made to a Lender under any Loan Document would be subject to U.S.  federal withholding Tax imposed by FATCA if such Lender failed to comply with the applicable  reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the  Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at  the time or times prescribed by law and at such time or times reasonably requested by the Borrower  or the Administrative Agent such documentation prescribed by applicable law (including as  prescribed by Section 1471(b)(3)(C)(i) of the Code) and such other documentation reasonably  requested by the Borrower and the Administrative Agent sufficient for the Administrative Agent  and the Borrower to comply with their obligations under FATCA and to determine that such  Lender has complied with such Lender’s obligations under FATCA or to determine the amount to  deduct and withhold from such payment. Solely for purposes of this Section 2.14(g), “FATCA”  shall include any amendments made to FATCA after the date of this Agreement.  (h) If any Lender, any Issuing Bank or the Administrative Agent determines, in its sole  discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been  indemnified by any Loan Party pursuant to this Section (including by the payment of additional  amounts pursuant to this Section), it shall pay to the applicable Loan Party an amount equal to  such refund (but only to the extent of indemnity payments made under this Section with respect to  the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such  indemnified party and without interest (other than any interest paid by the relevant Governmental  Authority with respect to such refund); provided, however, that (w) any Lender, any Issuing Bank  or the Administrative Agent may determine, in its sole discretion exercised in good faith consistent  with the policies of such Lender, such Issuing Bank or the Administrative Agent, whether to seek  a refund for any Taxes; (x) any Taxes that are incurred by a Lender, a Issuing Bank or the  Administrative Agent as a result of a disallowance or reduction of any Tax refund with respect to  which such Lender, such Issuing Bank or the Administrative Agent has made a payment to the  Loan Party pursuant to this Section shall be treated as an Indemnified Tax for which the Loan  Party is obligated to indemnify such Lender, such Issuing Bank or the Administrative Agent  pursuant to this Section without any exclusions or defenses; (y) nothing in this Section shall require  any Lender, any Issuing Bank or the Administrative Agent to disclose any confidential information  to a Loan Party (including, without limitation, its tax returns); and (z) neither any Lender, any  Issuing Bank nor the Administrative Agent shall be required to pay any amounts pursuant to this  Section for so long as a Default or Event of Default exists. Notwithstanding anything to the  contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount  to an indemnifying party pursuant to this paragraph (h), the payment of which would place the  indemnified party in a less favorable net after-Tax position than the indemnified party 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.   (i) Each party’s obligations under this Section 2.14 shall survive the resignation or  replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a  Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all  obligations under any Loan Document.   Payments Generally; Pro Rata Treatment; Sharing of Set-offs  





 






  62  (a) The 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  Sections 2.12, 2.13 or 2.14, or otherwise) in Dollars prior to 12:00 noon, Local Time, on the date  when due, in immediately available funds, without set off or counterclaim. Any amounts received  after such time on any date may, in the discretion of the Administrative Agent, be deemed to have  been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the Administrative Agent (i) in the case of payments  denominated in Dollars, at its Principal Office and (ii) in the case of payments denominated in an  Alternative Currency, at its Alternative Currency Payment Office for such Alternative Currency;  provided that payments pursuant to Sections 2.12, 2.13 or 2.14 and Section 9.03 shall be made  directly to the Persons entitled thereto. The Administrative Agent shall distribute any such  payments received by it for the account of any other Person to the appropriate recipient promptly  following receipt thereof. If any payment or performance hereunder shall be due on a day that is  not a Business Day, the date for payment or performance 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. All payments hereunder of principal or interest in respect of any  Loan or LC Disbursement shall, except as otherwise expressly provided herein, be made in the  currency of such Loan or LC Disbursement, and all other payments hereunder and under each  other Loan Document shall be made in Dollars.  Notwithstanding the foregoing provisions of this  Section, if, after the making of any LC Disbursement in any Alternative Currency, currency control  or exchange regulations are imposed in the country which issues such Alternative Currency with  the result that such Alternative Currency no longer exists or the Borrower is not able to make  payment to the Administrative Agent for the account of the Lenders in such Alternative Currency,  then all payments to be made by the Borrower hereunder in such Alternative Currency shall instead  be made when due in a currency that replaced such Alternative Currency or, if no such replacement  currency exists, in Dollars in an amount equal to the Dollar Equivalent (as of the date of repayment)  of such payment due, it being the intention of the parties hereto that the Borrower takes all risks  of the imposition of any such currency control or exchange regulations.   (b) If at any time insufficient funds are received by and available to the Administrative  Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees  then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then  due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest  and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed  LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance  with the amounts of principal and unreimbursed LC Disbursements then due to such parties.   (c) 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 of a given Class or  participations in LC Disbursements resulting in such Lender receiving payment of a greater  proportion of the aggregate amount of its Loans of such Class and participations in LC  Disbursements and accrued interest thereon than the proportion received by any other Lender with  outstanding Loans of the same Class, then the Lender receiving such greater proportion shall  purchase (for cash at face value) participations in the Loans of such Class and participations in LC  Disbursements 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 of such Class and participations in LC Disbursements;  





 






  63  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 the Borrower pursuant to and in  accordance with the express terms of this Agreement (including the application of funds arising  from the existence of a Defaulting Lender) 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 to any assignee or participant, other than to the Borrower or any Subsidiary or  Affiliate thereof (as to which the provisions of this paragraph shall apply). The 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 the  Borrower rights of set-off and counterclaim with respect to such participation as fully as if such  Lender were a direct creditor of the Borrower in the amount of such participation.  (d) Unless the Administrative Agent shall have received notice from the Borrower prior  to the date on which any payment is due to the Administrative Agent for the account of the Lenders  or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the  Administrative Agent may assume that the Borrower has made such payment on such date in  accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the  amount due. In such event, if the Borrower has not in fact made such payment, then each of the  Lenders or the applicable 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 NYFRB Rate.   (e) If any Lender shall fail to make any payment required to be made by it pursuant to  Section 2.04(b), paragraph (d) or (e) of Section 2.19, or paragraph (d) of this Section, then the  Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply  any amounts thereafter received by the Administrative Agent for the account of such Lender to  satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully  paid.    Mitigation Obligations; Replacement of Lenders  (a) If any Lender requests compensation under Section 2.12, or if the Borrower is required  to pay any additional amount to any Lender or any Governmental Authority for the account of any  Lender pursuant to Section 2.14, then such Lender 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, such designation or assignment (i) would eliminate or reduce amounts payable pursuant  to Section 2.12 or Section 2.14, as the case may be, in the future and (ii) would not subject such  Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such  Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any  Lender in connection with any such designation or assignment.   (b) If (i) any Lender requests compensation under Section 2.12, (ii) the Borrower is  required to pay any additional amount to any Lender or any Governmental Authority for the  





 






  64  account of any Lender pursuant to Section 2.14 or (iii) any Lender is a Defaulting Lender or a  Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such  Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse  (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights  and obligations under this Agreement and the other Loan Documents to an assignee that shall  assume such obligations (which assignee may be another Lender, if a Lender accepts such  assignment); provided that (i) the Borrower shall have received the prior written consent of the  Administrative Agent (and if a Revolving Commitment is being assigned, the Issuing Banks),  which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment  of an amount equal to the outstanding principal of its Loans and participations in LC  Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder  and under the other Loan Documents, from the assignee (to the extent of such outstanding principal  and accrued interest and fees so assigned) or the Borrower (in the case of all other amounts so  assigned), (iii) in the case of any such assignment resulting from a claim for compensation under  Section 2.12 or payments required to be made pursuant to Section 2.14, such assignment will result  in a reduction in such compensation or payments, (iv) such assignment does not conflict with  applicable law and (v) in the case of any assignment resulting from a Lender becoming a Non- Consenting Lender, (x) the applicable assignee shall have consented to, or shall consent to, the  applicable amendment, waiver or consent and (y) the Borrower exercises its rights pursuant to this  clause (b) with respect to all Non-Consenting Lenders relating to the applicable amendment,  waiver or consent; provided, further, that in the event such Lender shall have received payment of  the amount referred to in clause (ii) above, such Lender shall be deemed to have so assigned and  delegated all its interests, rights and obligations under this Agreement and the other Loan  Documents pursuant to the terms set forth in Exhibit A hereto. A Lender shall not be required to  make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or  otherwise, the circumstances entitling the Borrower to require such assignment and delegation  cease to apply.    Defaulting Lenders  (a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender  becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting  Lender, to the extent permitted by applicable law:   (i) Such Defaulting Lender’s right to approve or disapprove any  amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in  the definition of Required Lenders, Required Revolving Lenders and in Section 9.02.   (ii) 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 Article 7 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  Banks hereunder; third, to Cash Collateralize each Issuing Bank’s Fronting Exposure with  respect to such Defaulting Lender in accordance with Section 2.17(d); fourth, as the Borrower  





 






  65  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 Borrower, to be held in a non-interest bearing 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 each Issuing  Bank’s future Fronting Exposure with respect to such Defaulting Lender with respect to future  Letters of Credit issued under this Agreement, in accordance with Section 2.17(d); sixth, to the  payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment  of a court of competent jurisdiction obtained by any Lender or any Issuing Bank against such  Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this  Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any  amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction  obtained by the Borrower against such Defaulting Lender as a result of such Defaulting  Lender’s breach of its obligations under this Agreement; 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 reimbursement obligations with respect  to Letters of Credit 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 4.02 were satisfied or waived, such payment  shall be applied solely to pay the Loans of, and reimbursement obligations with respect to  Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied  to the payment of any Loans of, or reimbursement obligations with respect to Letters of Credit  owed to, such Defaulting Lender until such time as all Loans and funded and unfunded  participations in Letters of Credit are held by the Lenders pro rata in accordance with the  Revolving Commitments without giving effect to Section 2.17(a)(iv). 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  2.17(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender  irrevocably consents hereto.   (iii) (A) No Defaulting Lender shall be entitled to receive any commitment  fee pursuant to Section 2.09(a) or participation fees pursuant to Section 2.09(b)(i) for any period  during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay  any such fee that otherwise would have been required to have been paid to that Defaulting  Lender); provided that such Defaulting Lender shall be entitled to receive participation fees  pursuant to Section 2.09(b)(i) for any period during which that Lender is a Defaulting Lender  only to extent allocable to its Applicable Percentage of the stated amount of Letters of Credit  for which it has provided Cash Collateral pursuant to Section 2.17(d); and (B) with respect to  any fees not required to be paid to any Defaulting Lender pursuant to clause (A) above, the  Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise  payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in  Letters of Credit that has been reallocated to such Non-Defaulting Lender pursuant to clause  (iv) below, (y) pay to each Issuing Bank the amount of any such fee otherwise payable to such  Defaulting Lender to the extent allocable to such Issuing Bank’s Fronting Exposure to such  Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.  





 






  66  (iv) So long as no Event of Default shall have occurred and be continuing, all  or any part of such Defaulting Lender’s participation in Letters of Credit shall be reallocated  among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages  (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the  extent that such reallocation does not cause the Dollar Equivalent of the aggregate Revolving  Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s  Revolving Commitment.  No reallocation hereunder shall constitute a waiver or release of any  claim of any party hereunder against a Defaulting Lender arising from that Lender having  become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of  such Non-Defaulting Lender’s increased exposure following such reallocation.  (v) If the reallocation described in clause (iv) above cannot, or can only  partially, be effected, the Borrower shall, without prejudice to any right or remedy available to  it hereunder or under law, Cash Collateralize each Issuing Bank’s Fronting Exposure in  accordance with the procedures set forth in Section 2.17(d).   (b) If the Borrower, the Administrative Agent and each Issuing Bank agree in writing  that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties  hereto, whereupon as of the effective date specified in such notice and subject to any conditions  set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender  will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders  or take such other actions as the Administrative Agent may determine to be necessary to cause the  Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis  by the Lenders in accordance with their respective Applicable Percentages (without giving effect  to Section 2.17(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that  no adjustments will be made retroactively with respect to fees accrued or payments made by or on  behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that  except to the extent otherwise expressly agreed by the affected parties, no change hereunder from  Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder  arising from that Lender’s having been a Defaulting Lender.   (c) So long as any Lender is a Defaulting Lender, each Issuing Bank shall not be  required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that the  participations in any then existing Letters of Credit as well as the new, extended, renewed or  increased Letter of Credit has been or will be fully allocated among the Non-Defaulting Lenders  in a manner consistent with clause (a)(iv) above and such Defaulting Lender shall not participate  therein except to the extent such Defaulting Lender’s participation has been or will be fully Cash  Collateralized in accordance with Section 2.17(d).  (d) At any time that there shall exist a Defaulting Lender, within one Business Day  following the written request of the Administrative Agent or any Issuing Bank (with a copy to the  Administrative Agent), the Borrower shall Cash Collateralize such Issuing Bank’s Fronting  Exposure with respect to such Defaulting Lender (determined after giving effect to Section  2.17(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less  than the Minimum Collateral Amount.  





 






  67  (i) The Borrower, and to the extent provided by any Defaulting Lender, such  Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing  Banks, and agrees to maintain, a first priority security interest in all such Cash Collateral as  security for the Defaulting Lenders’ obligation to fund participations in respect of Letters of  Credit, to be applied pursuant to clause (ii) below.  If at any time the Administrative Agent  determines that Cash Collateral is subject to any right or claim of any Person other than the  Administrative Agent and the Issuing Banks as herein provided, or that the total amount of such  Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon  demand by the Administrative Agent, pay or provide to the Administrative Agent additional  Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any  Cash Collateral provided by the Defaulting Lender).  (ii) Notwithstanding anything to the contrary contained in this Agreement,  Cash Collateral provided under this Section 2.17 in respect of Letters of Credit shall be applied  to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of  Letters of Credit (including, as to Cash Collateral provided by a Defaulting Lender, any interest  accrued on such obligation) for which the Cash Collateral was so provided, prior to any other  application of such property as may otherwise be provided for herein.  (iii) Cash Collateral (or the appropriate portion thereof) provided to reduce  each Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral  pursuant to this Section 2.17 following (i) the elimination of the applicable Fronting Exposure  (including by the termination of Defaulting Lender status of the applicable Lender) or (ii) the  determination by the Administrative Agent and such Issuing Bank that there exists excess Cash  Collateral; provided that, subject to the other provisions of this Section 2.17, the Person  providing Cash Collateral and such Issuing Bank may agree that Cash Collateral shall be held  to support future anticipated Fronting Exposure or other obligations.   Incremental Facilities  (a)   (i) At any time after the Second Restatement Effective Date and prior to the  Term Facility Satisfaction Date, the Borrower may, from time to time upon notice by the  Borrower to Administrative Agent specifying the proposed amount thereof, request one or more  increases to an existing Class of Revolving Commitments (any such increase, the “New  Revolving Commitments”), one or more increases to an existing Class of Term Loans (a  “Term Commitment Increase”) or the addition of one or more new term loan facilities (each,  a “New Term Facility” and the commitments in respect thereof, together with the commitments  in respect of any Term Commitment Increase, the “New Term Commitments”) for itself or  any Guarantor by an amount not to exceed:  (A) solely with respect to New Revolving Commitments established after any  termination of Revolving Commitments pursuant to Section 2.06(d), an amount such that, on a  pro forma basis after giving to any such New Revolving Commitments, the aggregate amount  of all Revolving Commitments does not exceed $500,000,000, plus  





 






  68  (B) an unlimited amount, so long as, on a pro forma basis after giving effect to  the incurrence of any such New Facility (and after giving effect to any acquisition or other  transaction consummated in connection therewith), (A)  with respect to indebtedness secured  by the Collateral on a pari passu lien basis with the Initial Facilities, the First Lien Net Leverage  Ratio is equal to or less than 3.50 to 1.00, (B) with respect to indebtedness secured by the  Collateral on a junior lien basis to the Initial Facilities, the Senior Secured Net Leverage Ratio  is equal to or less than 4.00 to 1.00, or (C) with respect to unsecured indebtedness or  indebtedness that is expressly subordinated to the Initial Facilities, (and, for the avoidance of  doubt, unsecured) either (1) the Fixed Charge Coverage Ratio is greater than or equal to 2.00 to  1.00 or (2) the Total Net Leverage Ratio is equal to or less than 5.00 to 1.00 (the “Ratio-Based  Incremental Facility”, and such amount, the “Ratio-Based Incremental Amount”), plus   (B) except to the extent funded with the proceeds of long-term debt, an amount  equal to all voluntary prepayments and repurchases of Term Loans pursuant to Section 2.08  (the “Prepayment-Based Incremental Facility”, and such amount, the “Prepayment-Based  Incremental Amount” and, together with the Ratio Incremental Amount, the “Available  Incremental Amount”);   provided that that for purposes of any New Loan Commitments established pursuant to this  Section 2.18 and Incremental Equivalent Debt incurred pursuant to Section 2.23 (x) the  Borrower shall be deemed to have used amounts under the Ratio-Based Incremental Facility (to  the extent permitted by the pro forma calculation of the applicable ratio) prior to utilization of  the Prepayment-Based Incremental Facility, (y) loans may be incurred under the Ratio-Based  Incremental Facility and/or the Prepayment-Based Incremental Facility, and proceeds from any  such incurrence under the Ratio-Based Incremental Facility and/or the Prepayment-Based  Incremental Facility may be utilized in a single transaction by first calculating the incurrence  under the Ratio-Based Incremental Facility (without inclusion of any amounts to be utilized  under the Prepayment-Based Incremental Facility) and then calculating the incurrence under  the Prepayment-Based Incremental Facility and (z) in the event that any incremental loans (or  a portion thereof) incurred under the Prepayment-Based Incremental Facility subsequently  meets the criteria of indebtedness incurred under the Ratio-Based Incremental Facility, then at  such time such incremental loans or commitments shall automatically be divided, if applicable,  and reclassified as indebtedness incurred under the Ratio-Based Incremental Facility, and the  Prepayment-Based Incremental Facility shall be deemed to be increased by the amount so  reclassified); provided, further, that, solely for the purpose of calculating the First Lien Net  Leverage Ratio, Senior Secured Net Leverage Ratio, Fixed Charge Coverage Ratio or Total Net  Leverage Ratio to determine the availability under the New Facilities at the time of incurrence,  any cash proceeds from a New Facility being incurred at such test date in calculating such First  Lien Net Leverage Ratio, Senior Secured Net Leverage Ratio or Total Net Leverage Ratio shall  be excluded for the purposes of netting (however, to the extent the proceeds thereof are used to  repay indebtedness, pro forma effect shall be given to such repayment of indebtedness).   (ii) Any Lender approached to participate in any New Loan Commitments  may elect or decline, in its sole discretion, to participate in such increase or new facility.  The  Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the  Administrative Agent and, solely in connection with a New Revolving Commitment, with the  consent of the Administrative Agent and, in the case of any New Revolving Commitment, each  





 






  69  Issuing Bank under the Revolving Facility subject to such increase (to the extent the consent of  the Administrative Agent or any of the foregoing Issuing Bank, as applicable, would be required  to assign Revolving Loans to such Eligible Assignee, which consent shall not be unreasonably  withheld or delayed) to become Lenders pursuant to a joinder agreement to this Agreement.   The Administrative Agent (in its capacity as such) shall not be required to execute, accept or  acknowledge any joinder agreement pursuant to this Section 2.18 and such execution shall not  be required for any such joinder agreement to be effective; provided that, with respect to any  New Loan Commitments, the Borrower must provide to the Administrative Agent the  documentation providing for such New Loan Commitments; provided further, that the Borrower  may appoint any person to arrange such Incremental Facilities and provide such arranger any  titles with respect to such facilities as it deems appropriate.    (iii) If (i) an existing Revolving Facility or Term Facility is increased in  accordance with this Section 2.18 or (ii) a New Term Facility is added in accordance with this  Section 2.18, the Administrative Agent and the Borrower shall determine the effective date (the  “Increase Effective Date”) and the final allocation of such increase or New Term Facility  among the applicable Lenders.  The Administrative Agent shall promptly notify the applicable  Lenders of the final allocation of such increase or New Term Facility and the Increase Effective  Date.  In connection with (i) any increase in an existing Term Facility or Revolving Facility or  (ii) any addition of a New Term Facility pursuant to this Section 2.18, this Agreement and the  other Loan Documents may be amended in a writing (which may be executed and delivered by  the Borrower and the Administrative Agent (and the Lenders hereby authorize any such  Administrative Agent to execute and deliver any such documentation)) in order to establish the  New Term Facility or to effectuate the increases to the Term Facility or Revolving Facility and  to reflect any technical changes necessary, advisable or appropriate to give effect to such  increase or new facility in accordance with its terms as set forth herein pursuant to the  documentation relating to such New Term Facility. As of the Increase Effective Date, in the  case of an increase to an existing Term Facility, the amortization schedule for the Term Loan  Facility then increased set forth in Section 2.07 (or any other applicable amortization schedule  for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which  may be executed and delivered by the Borrower and the Administrative Agent (and the Lenders  hereby authorize any such Administrative Agent to execute and deliver any such  documentation)) to (x) add any call protection applicable to any existing Term Facility being  increased and/or (y) increase the then-remaining unpaid installments of principal by an  aggregate amount equal to the additional Loans under such Term Facility being made on such  date, such aggregate amount to be applied to increase such installments ratably in accordance  with the amounts in effect immediately prior to the Increase Effective Date.  (iv) With respect to any New Revolving Commitment, Term Commitment  Increase or addition of New Term Facility pursuant to this Section 2.18, (i) no Event of Default  under clause (a), (b), (h) or (i) of Article VII would exist immediately after giving effect to such  increase; (ii) (A) in the case of any New Revolving Commitment, (1) the final maturity shall be  the same as the Maturity Date applicable to the Revolving Facility, (2) no amortization or  mandatory commitment reduction prior to the Maturity Date applicable to the Revolving  Facility shall be required and (3) the terms and documentation applicable to the Revolving  Facility shall apply, (B) in the case of any Term Commitment Increase, the final maturity of the  Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date  





 






  70  for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than  the longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans  and (C) in the case of any New Term Facility, such New Term Facility shall have a final  maturity no earlier than the then Latest Maturity Date of any Term Facility and the Weighted  Average Life to Maturity of such New Term Facility shall be no shorter than that of any existing  Term Facility; provided that in no event shall any New Term Facility at the time of  establishment thereof mature prior to the Maturity Date of the Revolving Facility then in effect  and (iii) any such New Term Facility shall have the same terms as any Term Facility; provided  that, notwithstanding the foregoing, such terms may differ from the terms of any Term Facility  so long as agreed between the Borrower and the lenders providing such New Term Facility and  so long as such different terms (w) to the extent more favorable to the existing Lenders than  comparable terms existing in the Loan Documents, as reasonably determined by the Borrower  in consultation with the Administrative Agent, are incorporated into this Agreement (or any  other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable  to such Lender) without further amendment requirements, including, for the avoidance of doubt,  at the option of the Borrower, any increase in the Applicable Rate relating to any existing Term  Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility  with such existing Term Facility, (x) are applicable only to periods after the Latest Maturity  Date of the Term Facilities existing at the time of the incurrence of such indebtedness, (y) reflect  market terms and conditions (taken as a whole) at the time of incurrence or issuance (as  determined by the Borrower in good faith) or (z) are reasonably satisfactory to the Borrower  and the Administrative Agent.  Subject to the foregoing, the conditions precedent to each such  increase or New Loan Commitment shall be solely those agreed to by the Lenders providing  such increase or New Loan Commitment, as applicable, and the Borrower.  (v) On the Increase Effective Date with respect to an increase to the existing  Revolving Facility, (x) each Revolving Lender immediately prior to such increase will  automatically and without further act be deemed to have assigned to each Lender providing a  portion of the increase to the Revolving Commitments (each, a “Revolving Commitment  Increase Lender”), and each such Revolving Commitment Increase Lender will automatically  and without further act be deemed to have assumed, a portion of such Revolving Lender’s  participations hereunder in outstanding LC Exposure such that, after giving effect to each such  deemed assignment and assumption of participations, the percentage of the aggregate  outstanding participations hereunder in LC Exposure will equal the percentage of the aggregate  Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s  Revolving Commitment and (y) if, on the date of such increase, there are any Revolving Loans  outstanding, such Revolving Loans shall on or prior to the Increase Effective Date be prepaid  from the proceeds of Revolving Loans made hereunder (reflecting such increase in Revolving  Commitments), which prepayment shall be accompanied by accrued interest on the Revolving  Loans being prepaid and any costs incurred by any Lender in accordance with 2.13.  The  Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata  borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not  apply to the transactions effected pursuant to the immediately preceding sentence. Term Loans  in respect of any Term Commitment Increases shall be made by the applicable Lenders  participating therein pursuant to the procedures set forth in Sections 2.02 and 2.03 and on the  date of the making of such New Term Loans, and notwithstanding anything to the contrary set  forth in Sections 2.02 and 2.03, such New Term Loans shall be added to (and form part of) each  





 






  71  Borrowing of outstanding Term Loans under the applicable Term Facility on a pro rata basis  (based on the relative sizes of the various outstanding Borrowings), so that each Lender under  such Term Facility will participate proportionately in each then outstanding Borrowing of Term  Loans under the Term Facility.  (vi) Any New Facility shall rank pari passu in right of payment with the other  Facilities, not be Guaranteed by any Person that is not the Borrower or Guarantor under each of  the other Facilities, and be unsecured, secured either on a first lien “equal and ratable” basis  with the other Facilities or on a “junior” basis to the other Facilities, in each case over the same  (or less) Collateral that secures the Facilities (and in each case, the application of any proceeds  of the Collateral securing such New Facility shall, if documented in an agreement that is  separate from this Agreement, be subject to an intercreditor agreement in form and in substance  reasonably acceptable to the Administrative Agent), but if unsecured or secured on a “junior”  basis to the other Facilities, such New Facility shall be documented in an agreement that is  separate from this Agreement, (ii) any New Facility shall, for purposes of prepayments, be  treated substantially the same as (and in any event no more favorably than) any Term Facility  or Revolving Facility, as the case may be, unless the Borrower otherwise elects (but in any event  no more favorably than the existing Term Loans with respect to mandatory prepayments) and  (iii) with respect to any Dollar-denominated New Term Facility secured by the Collateral on a  pari passu basis with the Obligations in respect of the Initial Facilities, the All-in Yield payable  by the Borrower applicable to such New Term Facility shall be determined by the Borrower and  the Lenders providing such New Term Facility and shall not be more than 50 basis points higher  than the corresponding All-in Yield payable by the Borrower for the Initial Term Loans, unless  the All-in Yield with respect to the Initial Term Loans is increased to the amount necessary so  that the difference between the All-in Yield with respect to such New Term Facility and the  corresponding All-in Yield on the Initial Term Loans is equal to 50 basis points (provided that,  to the extent such increase in All-in Yield is the result of a Term SOFR rate “floor” with respect  to such New Term Facility, the increase in All-in Yield for the Initial Term Loans shall be  effected solely through an increase in such “floor” applicable to the Initial Term Loans to the  extent of the All-in Yield differential).  (b)   (i) On and after the Term Facility Satisfaction Date, the Borrower may by  written notice to the Administrative Agent elect to request prior to the applicable Revolving  Maturity Date, New Revolving Commitments, by an amount not in excess of $250,000,000 in  the aggregate and not less than $10,000,000 individually (or such lesser amount which shall be  approved by the Administrative Agent or such lesser amount that shall constitute the difference  between $250,000,000 and all such New Revolving Commitments obtained prior to such date),  and in integral multiples of $5,000,000 in excess of that amount.  Each such notice shall specify  (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the  New Revolving Commitments shall be effective, which shall be a date not less than ten Business  Days (or such shorter period of time as the Administrative Agent may agree in its reasonable  discretion) after the date on which such notice is delivered to the Administrative Agent (unless  otherwise agreed by the Administrative Agent in its sole discretion) and (B) the identity of each  Lender or other Person that is an eligible assignee under Section 9.04(b), subject to approval  thereof by the Administrative Agent in the case of a Person that is not a Lender (such approval  





 






  72  not to be unreasonably withheld or delayed) (each, a “New Lender”), to whom the Borrower  proposes any portion of such New Revolving Commitments be allocated and the amounts of  such allocations; provided that the Administrative Agent may elect or decline to arrange such  New Revolving Commitments in its sole discretion and any Lender approached to provide all  or a portion of the New Revolving Commitments may elect or decline, in its sole discretion, to  provide a New Revolving Commitment.  Such New Revolving Commitments shall become  effective as of such Increased Amount Date; provided that (1) on such Increased Amount Date  before or after giving effect to such New Revolving Commitments, each of the conditions set  forth in Section 4.02 shall be satisfied; (2) the New Revolving Commitments shall be effected  pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the New  Lenders and the Administrative Agent, and each of which shall be recorded in the Register and  each New Lender shall be subject to the requirements set forth in Section 2.14; (3) the Borrower  shall make any payments required pursuant to Sections 2.12 and 2.13 in connection with the  New Revolving Commitments; and (4) the Borrower shall deliver or cause to be delivered any  legal opinions or other documents reasonably requested by the Administrative Agent in  connection with any such transaction.   (ii) On any Increased Amount Date on which New Revolving Commitments  are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the  Lenders of the applicable Class shall assign to each of the New Lenders, and each of the New  Lenders shall purchase from each of the Lenders of such Class, at the principal amount thereof  (together with accrued interest), such interests in the Loans of such Class outstanding on such  Increased Amount Date as shall be necessary in order that, after giving effect to all such  assignments and purchases, such Loans will be held by existing Lenders of such Class and New  Lenders ratably in accordance with their Revolving Commitments after giving effect to the  addition of such New Revolving Commitments to the Revolving Commitments, (ii) each New  Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each  Revolving Loan made thereunder (a “New Loan”) shall be deemed, for all purposes, a  Revolving Loan and (iii) each New Lender shall become a Lender for all purposes hereunder.  (iii) The Administrative Agent shall notify Lenders promptly upon receipt of  the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the New  Revolving Commitments and the New Lenders, and (ii) the respective interests in such Lender’s  Loans, in each case subject to the assignments contemplated by this Section 2.18.   (iv) The terms and provisions (including pricing) of the New Loans shall be  identical to the existing Revolving Loans of the applicable Class.  Notwithstanding anything in  Section 9.02 to the contrary, each Joinder Agreement 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 opinion of the Administrative Agent to effect the provision of  this Section 2.18.   Letters of Credit  (a) General.  Subject to the terms and conditions set forth herein, the Borrower may request  the issuance of (and subject to the terms of this Section 2.19, the Issuing Bank shall issue) Letters  of Credit as the applicant thereof for the support of its or its Subsidiaries’ obligations, in a form  





 






  73  reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time  and from time to time during the Availability Period.  In the event of any inconsistency between  the terms and conditions of this Agreement and the terms and conditions of any form of letter of  credit application or other agreement submitted by the Borrower to, or entered into by the Borrower  with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this  Agreement shall control. Notwithstanding anything herein to the contrary, (i) the Borrower shall  not request, and no Issuing Bank shall issue, any Letter of Credit the proceeds of which would be  made to any Person (A) to fund any activity or business of or with any Sanctioned Person, or in  any country, region or territory, that at the time of such funding is a Sanctioned Country or (B) in  any manner that would result in a violation of any Sanctions by any party to this Agreement, (ii)  no Issuing Bank shall have any obligation hereunder to issue any Letter of Credit if the issuance  of such Letter of Credit would violate one or more policies of such Issuing Bank now or hereafter  in effect applicable to letters of credit generally, (iii) the Borrower shall not request, and no Issuing  Bank shall issue, any Letter of Credit if (A) the Dollar Equivalent of the aggregate outstanding  amount of Letters of Credit issued by such Issuing Bank would exceed such amount as has been  agreed by such Issuing Bank in its sole discretion (or $100,000,000, in the case of JPMorgan Chase  Bank, N.A. in its capacity as an Issuing Bank) or (B) after giving effect to such issuance of a Letter  of Credit, (1) the Dollar Equivalent of any Lender’s Revolving Credit Exposure would exceed  such Lender’s Revolving Commitment or (2) the sum of the Dollar Equivalents of the total  Revolving Credit Exposures of all Lenders would exceed the total Revolving Commitments of all  Lenders and (iv) in no event shall Goldman Sachs Lending Partners LLC be required to issue any  Letters of Credit denominated in New Taiwan Dollars.   (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To  request the issuance of a Letter of Credit (or the amendment, renewal or extension of an  outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic  communication, if arrangements for doing so have been approved by the applicable Issuing Bank)  to the applicable Issuing Bank and the Administrative Agent (reasonably in advance of the  requested date of issuance, amendment, renewal or extension, but in any event no less than three  Business Days) a written Letter of Credit Request in substantially the form of Exhibit B-2 attached  hereto and signed by the Borrower requesting the issuance of a Letter of Credit, or identifying the  Letter of Credit to be amended, renewed or extended, and specifying the date of issuance,  amendment, renewal or extension (which shall be a Business Day), the date on which such Letter  of Credit is to expire (which shall comply with paragraph (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, renew or extend such  Letter of Credit.  If requested by the applicable Issuing Bank, the Borrower also shall submit a  letter of credit application on such Issuing Bank’s standard form in connection with any request  for a Letter of Credit.  A Letter of Credit shall be issued, amended, renewed or extended only if  (and upon issuance, amendment, renewal or extension of each Letter of Credit, the Borrower shall  be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal  or extension (i) the Dollar Equivalent of the LC Exposure shall not exceed the LC Sublimit, (ii) the  sum of the Dollar Equivalents of the total Revolving Credit Exposures shall not exceed the total  Revolving Commitments, (iii) the Dollar Equivalent of the LC Exposure of the applicable Issuing  Bank shall not exceed the LC Sublimit applicable to such Issuing Bank and (iv) the Dollar  Equivalent of the Revolving Credit Exposure of the applicable Issuing Bank shall not exceed the  Revolving Commitment of such Issuing Bank.  





 






  74  (c) Expiration Date.  Each Letter of Credit shall expire (or be subject to termination by  notice from the applicable 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 renewal or extension thereof, one year after such renewal or extension);  provided that any Letter of Credit issued in connection with a lease by the Borrower in respect of  real property that provides for annual payments in an amount greater than or equal to $5,000,000  may have a longer tenor as agreed upon by the Borrower and the applicable Issuing Bank, and  (ii) the date that is five Business Days prior to the applicable Revolving Maturity Date.  (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 any Issuing  Bank or the Lenders, the applicable Issuing Bank hereby grants to each Lender, and each Lender  hereby acquires from the applicable 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; provided that the Lenders’ participations in a Letter of Credit shall terminate upon  giving effect to any Deemed LC Termination in respect of such Letter of Credit.  In consideration  and in furtherance of the foregoing, each Lender hereby absolutely, unconditionally and  irrevocably agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such  Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not  reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any  reimbursement payment required to be refunded to the Borrower for any reason.  Each Lender  acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in  respect of Letters of Credit is absolute, unconditional and irrevocable and shall not be affected by  any circumstance whatsoever, including any amendment, renewal or extension of any Letter of  Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving  Commitments, and that each such payment shall be made without any offset, abatement,  withholding or reduction whatsoever.  (e) Reimbursement.  If any Issuing Bank shall make any LC Disbursement in respect  of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the  Administrative Agent an amount equal to such LC Disbursement in the applicable Agreed  Currency (i) not later than 12:00 noon, Local Time, on the date that such LC Disbursement is  made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m.,  Local Time, on such date, or (ii) if such notice has not been received by the Borrower prior to such  time on such date, then not later than 12:00 noon, Local Time, on the Business Day immediately  following the day that the Borrower receives such notice, if such notice is not received prior to  such time on the day of receipt; provided that the Borrower may, subject to the conditions to  borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed  with an ABR Borrowing in an amount equal to the Dollar Equivalent of such LC Disbursement  and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged  and replaced by the resulting ABR Borrowing.  If the Borrower fails to make such payment when  due, (x) any LC Disbursement denominated in an Alternative Currency shall automatically be  converted to an LC Disbursement denominated in Dollars in an amount equal to the Dollar  Equivalent of such LC Disbursement at such time and (y) the Administrative Agent shall notify  each Lender of the applicable LC Disbursement, the payment then due from the Borrower in  respect thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of  such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the  





 






  75  payment then due from the Borrower, in the same manner as provided in Section 2.04 with respect  to Loans made by such Lender (and Section 2.04 shall apply, mutatis mutandis, to the payment  obligations of the Lenders), and the Administrative Agent shall promptly pay to the applicable  Issuing Bank the amounts so received by it from the Lenders.  Promptly following receipt by the  Administrative Agent of any payment from the Borrower pursuant to this paragraph, the  Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent  that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then  to such Lenders and such Issuing Bank as their interests may appear.  Any payment made by a  Lender pursuant to this paragraph to reimburse any Issuing Bank for any LC Disbursement (other  than the funding of ABR Loans as contemplated above) shall not constitute a Loan and shall not  relieve the Borrower of its obligation to reimburse such LC Disbursement. If the Borrower’s  reimbursement of, or obligation to reimburse, any amounts in any Alternative Currency would  subject the Administrative Agent, any Issuing Bank or any 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 Borrower shall, at its option, either (x) pay the amount of any such tax  requested by the Administrative Agent, such Issuing Bank or such Lender or (y) reimburse each  LC Disbursement made in such Alternative Currency in Dollars, in an amount equal to the Dollar  Equivalent of such LC Disbursement on the date such LC Disbursement is made.  (f) Obligations Absolute.  The Borrower’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 or this Agreement, or any term or provision therein, (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) payment by any Issuing Bank  under a Letter of Credit against presentation of a draft or other document that does not comply  with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether  or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute  a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations  hereunder.  Neither the Administrative Agent, the Lenders nor the Issuing Banks, nor any of their  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 or any consequence arising  from causes beyond the control of any Issuing Bank; provided that the foregoing shall not be  construed to excuse any Issuing Bank from liability to the Borrower to the extent of any direct  damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of  which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by  the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining  whether drafts and other documents presented under a Letter of Credit comply with the terms  thereof.  The parties hereto expressly agree that, in the absence of gross negligence or willful  misconduct on the part of any Issuing Bank (as finally determined by a court of competent  jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination.   In furtherance of the foregoing and without limiting the generality thereof, the parties agree that,  





 






  76  with respect to documents presented which appear on their face to be in substantial compliance  with the terms of a Letter of Credit, any 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.  Each Issuing Bank shall, promptly following its receipt  thereof, examine all documents purporting to represent a demand for payment under a Letter of  Credit.  Such Issuing Bank shall promptly notify the Administrative Agent by telephone  (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has made or  will make an LC Disbursement thereunder and, upon receipt of such notice, the Administrative  Agent shall promptly notify the Borrower by telephone (confirmed by telecopy) of the same;  provided that any failure to give or delay by the Issuing Bank or the Administrative Agent in giving  such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the  Lenders with respect to any such LC Disbursement.  (h) Interim Interest.  If any Issuing Bank shall make any LC Disbursement, then, unless  the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is  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 reimbursement is due and payable at  the rate per annum then applicable to ABR Loans; provided that, if the Borrower fails to reimburse  such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.10(c)  shall apply.  Interest accrued pursuant to this paragraph shall be for the account of such Issuing  Bank, except that interest accrued on and after the date of payment by any Lender pursuant to  paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such  Lender to the extent of such payment.  (i) Cash Collateralization.  If any Event of Default shall occur and be continuing, on  the Business Day that the Borrower receives notice from the Administrative Agent, any Issuing  Bank or the Required Revolving Lenders (or, if the maturity of the Loans has been accelerated,  Lenders with LC Exposure representing greater than 50.0% of the total LC Exposure) demanding  the deposit of Cash Collateral pursuant to this paragraph, the Borrower shall provide Cash  Collateral in an amount equal to the LC Exposure as of such date plus any accrued and unpaid  interest thereon; provided that the obligation to deposit such Cash Collateral shall become effective  immediately, and such deposit shall become immediately due and payable, without demand or  other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower  described in clause (h) or (i) of Article 7.  Such Cash Collateral shall be held by the Administrative  Agent as collateral for the payment and performance of the obligations of the Borrower under this  Agreement.  The Administrative Agent shall have exclusive dominion and control, including the  exclusive right of withdrawal, over such account.  Other than any interest earned on the investment  of such deposits, which investments shall be made at the option and sole discretion of the  Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest.   Interest or profits, if any, on such investments shall accumulate in such account.  Moneys in such  account shall be applied by the Administrative Agent to reimburse the applicable Issuing Bank for  LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be  held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at  such time or, if the maturity of the Loans has been accelerated (but subject to the consent of each  





 






  77  Issuing Bank), be applied to satisfy other obligations of the Borrower under this Agreement.  If  the Borrower 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 Borrower within three Business Days after all Events of Default have been cured  or waived.  (j) Replacement of an Issuing Bank.  Any Issuing Bank may be replaced at any time  by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank  and the successor Issuing Bank.  The Administrative Agent shall notify the Lenders of any such  replacement of any Issuing Bank.  At the time any such replacement shall become effective, the  Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant  to Section 2.09(b).  From and after the effective date of any such replacement, (i) the successor  Issuing Bank shall have all the rights and obligations of an 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 issued by it prior to such replacement, but shall not be required to issue  additional Letters of Credit.  (k)  Resignation of an Issuing Bank.  Any Issuing Bank may resign at any time that  such Issuing Bank (or its applicable Affiliate) ceases to hold a Revolving Commitment hereunder.   The Administrative Agent shall notify the Lenders of any such resignation of any Issuing Bank.   After the resignation of an Issuing Bank hereunder, the resigning 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 issued by it prior to such resignation, but shall not be  required to issue additional Letters of Credit.  (l) Deemed Letter of Credit Requests. The Borrower may, from time to time, request  (a “Deemed LC Request”) that (i) any undrawn Letter of Credit issued hereunder be deemed to  be terminated and issued under a separate letter of credit facility with the applicable Issuing Bank  (a “Deemed LC Termination”) or (ii) any undrawn letter of credit issued under a separate letter  of credit facility with an Issuing Bank be deemed to be terminated and issued hereunder as a Letter  of Credit (a “Deemed LC Issuance”). Any such Deemed LC Request shall identify the applicable  Letter of Credit, and the Deemed LC Termination or Deemed LC Issuance specified therein shall,  subject to the prior written consent of each of the Administrative Agent and the applicable Issuing  Bank (which consent may be withheld in its sole discretion) and, in the case of any Deemed LC  Issuance, the satisfaction of the conditions set forth in Section 4.02, be effective upon receipt of  such written consent.   Judgment Currency  If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due  from the 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 the Administrative Agent  





 






  78  could, in accordance with normal banking procedures applicable to arm’s length transactions,  purchase the specified currency with such other currency at the Administrative Agent’s Principal  Office on the Business Day immediately preceding that on which final, non-appealable judgment  is given. The obligations of the Borrower in respect of any sum due to the Administrative Agent,  any Issuing Bank or any Lender 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 the Administrative Agent, such Issuing Bank or such Lender of any sum adjudged to be  so due in such other currency, the Administrative Agent, such Issuing Bank or such Lender 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 the Administrative Agent, such Issuing Bank or such Lender in the specified  currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate  obligation and notwithstanding any such judgment, to indemnify the Administrative Agent, such  Issuing Bank or such Lender against such loss, and if the amount of the specified currency so  purchased exceeds (a) the sum originally due to the Administrative Agent, such Issuing Bank or  such Lender 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 2.15(c),  the Administrative Agent, such Issuing Bank or such Lender agrees to remit such excess to the  Borrower.   Extension of Maturity Date    (a) The Borrower may, by delivering an Extension Request to the Administrative  Agent (who shall promptly deliver a copy to each of the Lenders), not less than 10 days in advance  of the Maturity Date in effect with respect to any Class of Commitments at such time (the  “Existing Maturity Date”), request that the Lenders of such Class extend the Existing Maturity  Date. Each such Lender, acting in its sole discretion, shall, by written notice to the Administrative  Agent given not later than the date that is the 5th day after the date of the Extension Request, or if  such date is not a Business Day, the immediately following Business Day (the “Response Date”),  advise the Administrative Agent in writing whether or not such Lender agrees to the requested  extension.  Each Lender that advises the Administrative Agent that it will not extend the Existing  Maturity Date is referred to herein as a “Non-Extending Lender”; provided that any Lender that  does not advise the Administrative Agent of its consent to such requested extension by the  Response Date and any Lender that is a Defaulting Lender on the Response Date shall be deemed  to be a Non-Extending Lender.  The Administrative Agent shall notify the Borrower, in writing,  of the Lenders’ elections promptly following the Response Date.  The election of any Lender to  agree to such an extension shall not obligate any other Lender to so agree.  The Maturity Date may  be extended no more than two times pursuant to this Section 2.21.  (b) Effective as of the Existing Maturity Date, the Maturity Date for each Lender of the  applicable Class that has agreed to extend the Existing Maturity Date (each such consenting  Lender, an “Extending Lender”) shall be extended to the date set forth in the applicable Extension  Request (subject to satisfaction of the conditions set forth in Section 2.21(d)). In the event of such  extension , the Commitment of such Class of each Non-Extending Lender shall terminate on the  Existing Maturity Date in effect for such Non-Extending Lender prior to such extension and the  outstanding principal balance of all Loans and other amounts payable in respect of such Class  hereunder to such Non-Extending Lender shall become due and payable on such Existing Maturity  





 






  79  Date and, subject to Section 2.21(c) below, the total Commitments of such Class hereunder shall  be reduced by the applicable Commitments of the Non-Extending Lenders so terminated on such  Existing Maturity Date.  (c) In the event of any extension of the Existing Maturity Date pursuant to  Section 2.21(b)(ii), the Borrower shall have the right on or before the Existing Maturity Date, at  its own expense, to require any Non-Extending Lender to transfer and assign without recourse (in  accordance with and subject to the restrictions contained in Section 9.04) all its interests, rights  (other than its rights to payments pursuant to Section 2.12, Section 2.13, Section 2.14 or  Section 9.03 arising prior to the effectiveness of such assignment) and obligations in respect of  such Class under this Agreement to one or more banks or other financial institutions identified to  the Non-Extending Lender by the Borrower, which may include any existing Lender (each a  “Replacement Lender”); provided that (i) such Replacement Lender, if not already a Lender  hereunder, shall be subject to the approval of the Administrative Agent and each Issuing Bank  (such approvals to not be unreasonably withheld) to the extent the consent of the Administrative  Agent or the Issuing Banks would be required to effect an assignment under Section 9.04)b(, (ii)  such assignment shall become effective as of a date specified by the Borrower (which shall not be  later than the Existing Maturity Date in effect for such Non-Extending Lender prior to the effective  date of the requested extension) and (iii) the Replacement Lender shall pay to such Non-Extending  Lender in immediately available funds on the effective date of such assignment the principal of  and interest accrued to the date of payment on the outstanding principal amount Loans of such  Class made by it hereunder and all other amounts accrued and unpaid for its account or otherwise  owed to it hereunder on such date.  (d) As a condition precedent to each such extension of the Existing Maturity Date  pursuant to Section 2.21(b), the Borrower shall (i) deliver to the Administrative Agent a certificate  of the Borrower dated as of the Existing Maturity Date signed by a Responsible Officer of the  Borrower certifying that, as of such date, both before and immediately after giving effect to such  extension, (A) the representations and warranties of the Borrower set forth in this Agreement shall  be true and correct and (B) no Default shall have occurred and be continuing and (ii) first make  such prepayments of the outstanding Loans of such Class and second provide such cash collateral  (or make such other arrangements satisfactory to the applicable Issuing Bank) with respect to the  outstanding Letters of Credit as shall be required such that, after giving effect to the termination  of the Commitments of such Class of the Non-Extending Lenders pursuant to Section 2.21(a) and  any assignment pursuant to Section 2.21(c), the aggregate Revolving Credit Exposure less the face  amount of any Letter of Credit supported by any such cash collateral (or other satisfactory  arrangements) so provided does not exceed the aggregate amount of Commitments being extended.  (e) For the avoidance of doubt, (i) no consent of any Lender (other than the existing  Lenders participating in the extension of the Existing Maturity Date) shall be required for any  extension of the Maturity Date pursuant to this Section 2.21 and (ii) the operation of this Section  2.21 in accordance with its terms is not an amendment subject to Section 9.02.   Specified Refinancing Debt  (a) At any time after the Second Restatement Effective Date and prior to the Term  Facility Satisfaction Date, the Borrower may, from time to time, add one or more new term loan  





 






  80  facilities and new revolving facilities to the Facilities (“Specified Refinancing Debt”; and the  commitments in respect of such new term facilities, the “Specified Refinancing Term  Commitment” and the commitments in respect of such new revolving facilities, the “Specified  Refinancing Revolving Commitment”) pursuant to procedures reasonably specified by the  Administrative Agent and reasonably acceptable to the Borrower, to refinance (i) all or any portion  of any Term Loans then outstanding under this Agreement and (ii) all or any portion of the  Revolving Facility, in each case pursuant to a Refinancing Amendment; provided that such  Specified Refinancing Debt: (i) will rank pari passu in right of payment as the other Loans and  Commitments hereunder; (ii) will not have obligors other than the Loan Parties or entities who  shall have become Loan Parties; (iii) will be (x) unsecured or (y) secured by all or a portion of the  Collateral on a first lien “equal and ratable” basis with the Liens on the Collateral securing the  Obligations or on a “junior” basis to the Liens on the Collateral securing the Obligations in each  case over the same (or less) Collateral that secures the Obligations (in each case, if documented in  an agreement that is separate from this Agreement, subject to an intercreditor agreement in form  and substance reasonably acceptable to the Administrative Agent); (iv) will have such other terms  and conditions (including pricing and optional prepayment terms) as may be agreed by the  Borrower and the applicable Lenders thereof; (v) (x) to the extent constituting revolving facilities,  will not have a maturity date (or have mandatory commitment reductions or amortization) that is  prior to the scheduled Maturity Date of the Revolving Facility being refinanced and (y) to the  extent constituting term loan facilities, will have a maturity date that is not prior to the date that is  the scheduled Maturity Date of, and will have a Weighted Average Life to Maturity that is not  shorter than the Weighted Average Life to Maturity of, the Term Loans being refinanced; (vi) the  Net Cash Proceeds of such Specified Refinancing Debt shall be applied, substantially concurrently  with the incurrence thereof, to the prepayment of outstanding Loans being so refinanced (and, in  the case of Revolving Loans, a corresponding amount of Revolving Commitments shall be  permanently reduced), in each case pursuant to Section 2.06 and/or 2.08, as applicable, and the  payment of fees, expenses and premiums, if any, payable in connection therewith.  Any Lender  approached to provide all or a portion of any Specified Refinancing Debt may elect or decline, in  its sole discretion, to provide such Specified Refinancing Debt.  To achieve the full amount of a  requested issuance of Specified Refinancing Debt, and subject to the approval of the  Administrative Agent and each applicable Issuing Bank in the case of Specified Refinancing  Revolving Commitments (to the extent the consent of any of the Administrative Agent or  foregoing Issuing Bank, as applicable, would be required to assign any Loans subject to such  refinancing to such Eligible Assignee, which consent shall not be unreasonably withheld or  delayed), the Borrower may also invite additional Eligible Assignees to become Lenders in respect  of such Specified Refinancing Debt pursuant to a joinder agreement to this Agreement in form and  substance reasonably satisfactory to the Administrative Agent.  (b) The effectiveness of any Refinancing Amendment shall be subject to conditions as  are mutually agreed with the participating lenders providing such Specified Refinancing Debt  (which may include receipt by the Administrative Agent of legal opinions, board resolutions,  officers’ certificates and/or reaffirmation agreements with respect to the Borrower and the  Guarantors, including any supplements or amendments to the Collateral Documents providing for  such Specified Refinancing Debt to be secured thereby, consistent with those delivered on the  Second Restatement Effective Date pursuant to this Agreement or delivered from time to time  pursuant to Section 5.10 (other than changes to such legal opinions resulting from a change in  Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the  





 






  81  Administrative Agent)).  The Lenders hereby authorize the Administrative Agent to enter into  amendments to this Agreement and the other Loan Documents with the Borrower as may be  necessary, desirable or appropriate in order to establish new tranches of Specified Refinancing  Debt and to make such technical amendments as may be necessary, desirable or appropriate in the  reasonable opinion of the Administrative Agent and the Borrower in connection with the  establishment of such new tranche, in each case on terms consistent with and/or to effect the  provisions of this Section 2.22.  (c) The Administrative Agent shall promptly notify each Lender as to the effectiveness  of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the  effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the  extent (but only to the extent) necessary to reflect the existence and terms of the Specified  Refinancing Debt incurred pursuant thereto (including the addition of such Specified Refinancing  Debt as a separate Class hereunder and treated in a manner consistent with the Facilities being  refinanced, including for purposes of prepayments and voting). Any Refinancing Amendment  may, without the consent of any Person other than the Borrower, the Administrative Agent and the  Lenders providing such Specified Refinancing Debt, effect such amendments to this Agreement  and the other Loan Documents as may be necessary, desirable or appropriate, in the reasonable  opinion of the Administrative Agent and the Borrower, to effect the provisions of or consistent  with this Section 2.22.  In addition, if so provided in the relevant Refinancing Amendment and  with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the  scheduled Maturity Date in respect of a Revolving Loan shall be reallocated from Lenders holding  Revolving Commitments to Lenders holding extended revolving commitments in accordance with  the terms of such Refinancing Amendment; provided, however, that such participation interests  shall, upon receipt thereof by the relevant Lenders holding extended revolving commitments, be  deemed to be participation interests in respect of such extended revolving commitments and the  terms of such participation interests (including the commission applicable thereto) shall be  adjusted accordingly.    Incremental Equivalent Debt.  (a) At any time after the Second Restatement Effective Date and prior to the Term  Facility Satisfaction Date, the Borrower may, from time to time, upon notice by the Borrower to  the Administrative Agent, specifying in reasonable detail the proposed terms thereof, request to  issue or incur one or more series of senior secured, senior unsecured, senior subordinated or  subordinated notes or loans or any other indebtedness (which notes or loans or other indebtedness,  if secured, shall be secured by the Collateral on a first lien “equal and ratable” basis to the Liens  on the Collateral securing the Obligations or on a “junior” basis with the Liens on the Collateral  securing the Obligations in each case over the same (or less) Collateral that secures the  Obligations) and guaranteed only by Loan Parties or entities who become Loan Parties (such notes  or loans or other indebtedness, collectively, “Incremental Equivalent Debt”) in an amount not to  exceed the Available Incremental Amount (at the time of incurrence). The Borrower may appoint  any Person that is not an Affiliate of the Borrower as arranger of such Incremental Equivalent Debt  (such Person (who may be the Administrative Agent, if it so agrees), the “Incremental Equivalent  Debt Arranger”).    





 






  82  (b) As a condition precedent to the incurrence of any Incremental Equivalent Debt  pursuant to this Section 2.23, (i) such Incremental Equivalent Debt shall not be Guaranteed by any  Person that is not a Loan Party or that does not become a Loan Party, (ii) to the extent secured by  the Collateral, such Incremental Equivalent Debt shall be subject to an intercreditor agreement in  form and in substance reasonably acceptable to the Administrative Agent, (iii) such Incremental  Equivalent Debt shall have a final maturity no earlier than the then Latest Maturity Date of the  Term Facilities, (iv) the Weighted Average Life to Maturity of such Incremental Equivalent Debt  shall not be shorter than that of any then-existing Term Loans, (v) such Incremental Equivalent  Debt, shall, for purposes of prepayments, be treated substantially the same as (and in any event no  more favorably than) any Term Facility unless the Borrower otherwise elect (but in any event no  more favorably than the existing Term Loans with respect to mandatory prepayments), (vi) such  Incremental Equivalent Debt shall not require mandatory prepayments to be made except to the  extent required to be applied first pro rata (or greater than pro rata) to the Term Facility and any  pari passu secured Incremental Equivalent Debt, (vii) subject to clauses (iii) and (iv) above with  respect to final maturity and Weighted Average Life to Maturity, the amortization schedules, any  fees payable in connection with such Incremental Equivalent Debt and all other terms of such  Incremental Equivalent Debt will be as agreed between the Borrower and the applicable providers  of such Incremental Equivalent Debt and (viii) with respect to any Dollar-denominated  Incremental Equivalent Debt secured by the Collateral on a pari passu basis with the Obligations  in respect of the Initial Facilities, the All-in Yield payable by the Borrower applicable to such  Incremental Equivalent Debt shall be determined by the Borrower and the Lenders providing such  Incremental Equivalent Debt and shall not be more than 50 basis points higher than the  corresponding All-in Yield payable by the Borrower for the Initial Term Loans, unless the All-in  Yield with respect to the Initial Term Loans is increased to the amount necessary so that the  difference between the All-in Yield with respect to such Incremental Equivalent Debt and the  corresponding All-in Yield on the Initial Term Loans is equal to 50 basis points (provided that, to  the extent such increase in All-in Yield is the result of a Term SOFR rate “floor” with respect to  such Incremental Equivalent Debt, the increase in All-in Yield for the Initial Term Loans shall be  effected solely through an increase in such “floor” applicable to the Initial Term Loans to the extent  of the All-in Yield differential); provided that, notwithstanding the foregoing, such Incremental  Equivalent Debt shall not have covenants and events of default (excluding pricing and optional  prepayment and redemption terms) that are materially more restrictive (as determined by the  Borrower in good faith) when taken as a whole than the covenants and events of default applicable  to the then existing Term Facility unless such more restrictive covenants and/or events of default  (w) are incorporated into this Agreement (or any other applicable Loan Document) for the benefit  of all existing Lenders of Term Loans (to the extent applicable to such Lender of Term Loans)  without further amendment requirements (which amendment may be effected by only the  Borrower and the Administrative Agent), (x) are applicable only to periods after the Latest  Maturity Date of the Term Facility existing at the time of incurrence of such Incremental  Equivalent Debt, (y) reflect market terms and conditions (taken as a whole) at the time of  incurrence or issuance (as determined by the Borrower in good faith) or (z) are reasonably  satisfactory to the Borrower and the Administrative Agent.  Subject to the foregoing, the conditions  precedent to each such incurrence shall be agreed to by the applicable creditors providing such  Incremental Equivalent Debt and the Borrower.  For the avoidance of doubt, Incremental  Equivalent Debt shall not be subject to any “most favored nation” protections.  





 






  83  ARTICLE 3  REPRESENTATIONS AND WARRANTIES   The Borrower represents and warrants to the Lenders that:    Organization; Powers  Each of the Borrower and its Subsidiaries is duly organized, validly existing and (to the  extent the concept is applicable in such jurisdiction) in good standing 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, would not  reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is  in good standing in, every jurisdiction where such qualification is required.    Authorization; Enforceability  The Transactions are within the Borrower’s and each Guarantor’s corporate or other  organizational powers and have been duly authorized by all necessary corporate or other  organizational and, if required, equity holder action. Each of the Borrower and the Guarantors has  duly executed and delivered each of the Loan Documents to which it is party, and each of such  Loan Documents constitute its legal, valid and binding obligations, enforceable in accordance with  its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws  affecting creditors’ rights generally and subject to general principles of equity, regardless of  whether considered in a proceeding in equity or at law.    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 (i) such as have been obtained or made  and are in full force and effect and (ii) those approvals, consents, registrations, filings or other  actions, the failure of which to obtain or make would not reasonably be expected to have a Material  Adverse Effect, (b) except as would not reasonably be expected to have a Material Adverse Effect,  will not violate any applicable law or regulation or any order of any Governmental Authority,  (c) will not violate any charter, by-laws or other organizational document of the Borrower or any  of its Subsidiaries, (d) except as would not reasonably be expected to have a Material Adverse  Effect, will not violate or result in a default under any indenture, agreement or other instrument  (other than the agreements and instruments referred to in clause (c)) binding upon the Borrower or  any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be  made by the Borrower or any of its Subsidiaries, and (e) will not result in the creation or imposition  of any Lien on any asset of the Borrower or any of its Subsidiaries (other than liens arising pursuant  to the Security Documents).    Financial Condition; No Material Adverse Change  (a) The Borrower has heretofore furnished to the Administrative Agent (i) its consolidated  balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal  years ended June 30, 2018 and June 30, 2017, reported on by Ernst & Young LLP, independent  public accountants and (ii) its consolidated balance sheet and related statements of operations,  





 






  84  stockholders’ equity and cash flows as of the end of and for the fiscal quarters ended September  30, 2018 and December 31, 2018 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. Such financial statements  present fairly, in all material respects, the financial position and results of operations and cash  flows of the Borrower and its consolidated Subsidiaries as of such dates and for such periods in  accordance with GAAP.   (b) Since June 30, 2018, no event, development or circumstance exists or has occurred  that has had or would reasonably be expected to have a Material Adverse Effect.    Properties  (a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests  in or rights to use, 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 of the Borrower and its Subsidiaries owns, or has the valid and enforceable  right to use, all Intellectual Property material to its business as currently conducted, free and clear  of all Liens other than Liens permitted by Section 6.02, and the operation of such business or the  use of such Intellectual Property rights by the Borrower and its Subsidiaries does not infringe upon,  misappropriate, or otherwise violate the rights of any other Person, except for any such  infringements, misappropriations, or violations that, individually or in the aggregate, would not  reasonably be expected to result in a Material Adverse Effect.    Litigation and Environmental Matters  Except as set forth on Schedule 3.06, there are no actions, suits or proceedings by or before  any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower,  threatened in writing (including “cease and desist” letters and invitations to take a patent license)  against or affecting the Borrower or any of its Subsidiaries (i) that would reasonably be expected,  individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve this  Agreement, any other Loan Document or the Transactions.   Except with respect to any matter that, individually or in the aggregate, would not  reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its  Subsidiaries (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, or (iii) has received notice of any claim with respect to any  Environmental Liability.    Compliance with Laws and Agreements; No Default  Each of the Borrower and its Subsidiaries is in compliance with all laws, rules, regulations  and orders of any Governmental Authority applicable to it or its property and rights and all  indentures, agreements, and other instruments binding upon it or its property and rights, except  





 






  85  where the failure to do so, individually or in the aggregate, would not reasonably be expected to  result in a Material Adverse Effect. No Default has occurred and is continuing.    Investment Company Status  None of the Borrower or any Subsidiary is or is required to be registered as an “investment  company” under the Investment Company Act of 1940.    Margin Stock  None of the Borrower or any Subsidiary is engaged in the business of extending credit for  the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued  by the Board), and no proceeds of any Loan will be used to purchase or carry any margin stock or  to extend credit to others for the purpose of purchasing or carrying any margin stock in violation  of Regulation U or Regulation X issued by the Board and all official rulings and interpretations  thereunder or thereof.    Taxes   Except as set forth on Schedule 3.10 or as would not reasonably be expected to result in a  Material Adverse Effect, (i) each of the Borrower and its Subsidiaries has timely filed or caused  to be filed all Tax returns and reports required to have been filed with respect to income, properties  or operations of the Borrower and its Subsidiaries, (ii) such returns accurately reflect in all material  respects all liability for Taxes of the Borrower and its Subsidiaries as a whole for the periods  covered thereby and (iii) each of the Borrower and its Subsidiaries has paid or caused to be paid  all Taxes required to have been paid by it, except Taxes that are being contested in good faith by  appropriate proceedings and, to the extent required by GAAP, for which the Borrower or such  Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP.    ERISA  (a) Each Plan is in compliance in form and operation with its terms and with ERISA and  the Code (including without limitation the Code provisions compliance with which is necessary  for any intended favorable tax treatment) and all other applicable laws and regulations, except  where any failure to comply would not reasonably be expected to result in any Material Adverse  Effect. Each Plan (and each related trust, if any) which is intended to be qualified under  Section 401(a) of the Code has received a favorable determination letter from the IRS to the effect  that it meets the requirements of Sections 401(a) and 501(a) of the Code covering all applicable  tax law changes or is comprised of a master or prototype plan that has received a favorable opinion  letter from the IRS, and, nothing has occurred since the date of such determination that would  adversely affect such determination (or, in the case of a Plan with no determination, nothing has  occurred that would materially adversely affect the issuance of a favorable determination letter or  otherwise materially adversely affect such qualification). No ERISA Event has occurred, or is  reasonably expected to occur, other than as would not, individually or in the aggregate, reasonably  be expected to result in any Material Adverse Effect).   (b) There exists no Unfunded Pension Liability with respect to any Plan, except as  would not reasonably be expected to result in a Material Adverse Effect.   





 






  86  (c) None of the Borrower, any Subsidiary or any ERISA Affiliate is making or accruing  an obligation to make contributions, or has within any of the five calendar years immediately  preceding the date this assurance is given or deemed given, made or accrued an obligation to make  contributions to any Multiemployer Plan.   (d) There are no actions, suits or claims pending against or involving a Plan (other than  routine claims for benefits) or, to the knowledge of the Borrower, any Subsidiary or any ERISA  Affiliate, threatened, which would reasonably be expected to be asserted successfully against any  Plan and, if so asserted successfully, would reasonably be expected either singly or in the aggregate  to result in any Material Adverse Effect.   (e) The Borrower, its Subsidiaries and its ERISA Affiliates have made all contributions  to or under each Plan and Multiemployer Plan required by law within the applicable time limits  prescribed thereby, the terms of such Plan or Multiemployer Plan, respectively, or any contract or  agreement requiring contributions to a Plan or Multiemployer Plan save where any failure to  comply, individually or in the aggregate, would not reasonably be expected to result in any  Material Adverse Effect.   (f) No Plan which is subject to Section 412 of the Code or Section 302 of ERISA has  applied for or received an extension of any amortization period, within the meaning of Section 412  of the Code or Section 302 or 304 of ERISA. The Borrower, any Subsidiary, and any ERISA  Affiliate have not ceased operations at a facility so as to become subject to the provisions of  Section 4062(e) of ERISA, withdrawn as a substantial employer so as to become subject to the  provisions of Section 4063 of ERISA or ceased making contributions to any Plan subject to  Section 4064(a) of ERISA to which it made contributions. None of the Borrower, any Subsidiary  or any ERISA Affiliate have incurred or reasonably expect to incur any liability to PBGC except  as would not reasonably be expected to result in a Material Adverse Effect, save for any liability  for premiums due in the ordinary course or other liability which would not reasonably be expected  to result in a Material Adverse Effect, and no lien imposed under the Code or ERISA on the assets  of the Borrower or any Subsidiary or any ERISA Affiliate exists or, to the knowledge of the  Borrower, is likely to arise on account of any Plan. None of the Borrower, any Subsidiary or any  ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to  Section 4069 or 4212(c) of ERISA.   (g) Each Non-U.S. Plan has been maintained in compliance with its terms and with the  requirements of any and all applicable laws, statutes, rules, regulations and orders and has been  maintained, where required, in good standing with applicable regulatory authorities, except as  would not reasonably be expected to result in a Material Adverse Effect. All contributions required  to be made with respect to a Non-U.S. Plan have been timely made, except as would not reasonably  be expected to result in a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries  has incurred any obligation in connection with the termination of, or withdrawal from, any Non- U.S. Plan, except as would not reasonably be expected to result in a Material Adverse Effect. The  present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan,  determined as of the end of the Borrower’s most recently ended fiscal year on the basis of actuarial  assumptions, each of which is reasonable, did not exceed the current value of the assets of such  Non-U.S. Plan allocable to such benefit liabilities, except as would not reasonably be expected to  result in a Material Adverse Effect.   





 






  87   Disclosure  (a) As of the Second Restatement Effective Date, all written information provided by  any Responsible Officer of the Borrower in formal presentations or in any formal meeting or  conference call (other than any projected financial information and other than information of a  general economic or industry specific nature) 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 and when taken as a whole and together with any  information disclosed in the Borrower’s public filings with the Securities and Exchange  Commission, does not contain any material misstatement of fact or omit to state any material fact  necessary to make the statements therein, in light of the circumstances under which they were  made, not materially misleading; provided that, with respect to any projected financial information,  the Borrower represents only that such information was prepared in good faith based upon  assumptions believed to be reasonable at the time furnished (it being understood that such  projected financial information and all information concerning future proposed and intended  activities are forward-looking statements by their nature and are is subject to significant  uncertainties and contingencies, any of which are beyond the Borrower’s control, that no assurance  can be given that any particular projections will be realized and that actual results during the period  or periods covered by any such projected financial information may differ significantly from the  projected results and such differences may be material).   (b) As of the Second Restatement Effective Date, to the best knowledge of the  Borrower, the information included in the Beneficial Ownership Certification provided on or prior  to the Second Restatement Effective Date to any Lender in connection with this Agreement is true  and correct in all respects.   Subsidiaries  Schedule 3.13(a) sets forth as of the Second Restatement Effective Date a list of all  Subsidiaries, together with (a) the percentage ownership (directly or indirectly) of the Borrower  therein and (b) whether such Subsidiary is a Guarantor or an Excluded Subsidiary. Except as would  not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect,  the shares of capital stock or other ownership interests of all Subsidiaries of the Borrower are fully  paid and non-assessable and are owned by the Borrower, directly or indirectly, free and clear of  all Liens other than Liens permitted under Section 6.02.    Solvency  As of the Second Restatement Effective Date, the Borrower is, individually and together  with its Subsidiaries, and after giving effect to the incurrence of any Indebtedness and obligations  being incurred in connection herewith will be, Solvent.    Anti-Terrorism Law  (a) To the extent applicable, neither the Borrower nor any of its Subsidiaries, nor, to the  knowledge of the Borrower, any of its Affiliates, is in violation of any legal requirement relating  to Sanctions or any laws with respect to terrorism or money laundering (collectively, “Anti- 





 






  88  Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing effective  September 24, 2001 (the “Executive Order”) and the USA Patriot Act.   (b) None of (x) the Borrower, any of its Subsidiaries or any of their respective directors,  officers or employees, or (y) to the knowledge of the Borrower, any agent or Affiliate of the  Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the  credit facility established hereby, is any of the following:   (i) a Person that is listed in the annex to, or is otherwise subject to the  provisions of, the Executive Order;   (ii) a Person owned or controlled by, or acting for or on behalf of, any Person  that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;   (iii) a Person with which any Lender is prohibited from dealing or otherwise  engaging in any transaction by any Anti-Terrorism Law;   (iv) a Person that commits, threatens or conspires to commit or supports  “terrorism” as defined in the Executive Order; or   (v) a Sanctioned Person.   (c) Neither the Borrower nor any of its Subsidiaries, nor, to the knowledge of the  Borrower, any of its Affiliates, (i) conducts any business with, or engages in making or receiving  any contribution of funds, goods or services to or for the benefit of, a Person described in  Section 3.15(b)(i)-(v) above, except as permitted under U.S. law, (ii) deals in, or otherwise  engages in any transaction relating to, any property or interests in property blocked pursuant to the  Executive Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids,  or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth  in any Anti-Terrorism Law.   (d) The Borrower will not use, and will not permit any of its Subsidiaries or Affiliates  to use, the proceeds of the Loans or Letters of Credit or otherwise make available such proceeds  to any Person described in Section 3.15(b)(i)-(v) above, for the purpose of financing the activities  of any Person described in Section 3.15(b)(i)-(v) above, in any Sanctioned Country or in any other  manner that would violate any Anti-Terrorism Laws or Sanctions by any party hereto.    Anti-Corruption Laws and Sanctions  (a)        No part of the proceeds of the Loans or Letters of Credit will be used by the  Borrower or any of its Subsidiaries, or, to the knowledge of the Borrower, any of its Affiliates,  directly or indirectly, for any payments to any governmental official or employee, political party,  official of a political party, candidate for political office, or anyone else acting in an official  capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation  of the United States Foreign Corrupt Practices Act of 1977, as amended, or any applicable Anti- Corruption Law.  





 






  89  (b) The Borrower has implemented and maintains in effect policies and procedures  designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors,  officers, employees, Affiliates and agents with Anti-Corruption Laws and applicable Sanctions,  and the Borrower, its Subsidiaries and their respective directors, officers and employees, and, to  the knowledge of the Borrower, its Affiliates and agents, are in compliance with Anti-Corruption  Laws and applicable Sanctions in all material respects.   Security Documents  The Security Documents are effective to create in favor of the Administrative Agent, for  the benefit of the Lenders, a legal, valid and enforceable security interest (subject to Liens  permitted by Section 6.02) in the Collateral described therein and proceeds thereof. In the case of  the Pledged Stock described in the Security Agreement, when stock certificates representing such  Pledged Stock are delivered to the Administrative Agent (together with a properly completed and  signed stock power or endorsement), and in the case of the other Collateral described in the  Security Agreement, when financing statements and other filings specified on Schedule 3 to the  Security Agreement in appropriate form are filed in the offices specified on Schedule 3 to the  Security Agreement, the Security Agreement shall constitute a fully perfected Lien on, and security  interest (subject to Liens permitted by Section 6.02) in, all right, title and interest of the Loan  Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each case  prior and superior in right to any other Person (except, in the case of Collateral other than Pledged  Stock, Liens permitted by Section 6.02).  ARTICLE 4  CONDITIONS    Second Restatement Effective Date  The obligations of the Lenders to make Loans 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 from each party  hereto, including Lenders constituting the “Required Lenders” under the Existing Credit  Agreement, either (i) a counterpart of the Second Restatement signed on behalf of such party or  (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or  electronic transmission of a signed signature page of the Second Restatement) that such party has  signed a counterpart of the Second Restatement.   (b) The Administrative Agent shall have received (i) a reaffirmation agreement in  respect of the Security Agreement, executed and delivered by the Borrower and in form and  substance reasonably acceptable to the Administrative Agent, and (ii) a Note executed by the  Borrower in favor of each Lender requesting a Note in advance of the Second Restatement  Effective Date.   (c) The Administrative Agent shall have received favorable written opinions  (addressed to the Administrative Agent and the Lenders and dated the Second Restatement  Effective Date) of Latham & Watkins LLP, counsel for the Borrower, in form and substance  





 






  90  reasonably satisfactory to the Administrative Agent. The Borrower hereby requests each such  counsel to deliver such opinion.   (d) The Administrative Agent shall have received (i) certified copies of the resolutions  of the board of directors of the Borrower and the Guarantors approving the transactions  contemplated by the Loan Documents to which each such Loan Party is a party and the execution  and delivery of such Loan Documents to be delivered by such Loan Party on the Second  Restatement Effective Date, and all documents evidencing other necessary organizational action  and governmental approvals, if any, with respect to the Loan Documents and (ii) all other  documents reasonably requested by the Administrative Agent relating to the organization,  existence and good standing of the Guarantors and the Borrower and authorization of the  transactions contemplated hereby.   (e) The Administrative Agent shall have received a certificate of the Secretary or an  Assistant Secretary of the Borrower and each Guarantor certifying the names and true signatures  of the officers of such entity authorized to sign the Loan Documents to which it is a party, to be  delivered by such entity on the Second Restatement Effective Date and the other documents to be  delivered hereunder on the Second Restatement Effective Date.   (f) The Administrative Agent shall have received (i) a certificate, dated the Second  Restatement Effective Date and signed on behalf of the Borrower by a Responsible Officer of the  Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of  Section 4.02 as of the Second Restatement Effective Date, and (ii) a certificate, dated the Second  Restatement Effective Date and signed on behalf of the Borrower by a Financial Officer of the  Borrower, certifying that, as of the Second Restatement Effective Date, the Borrower is,  individually and together with its Subsidiaries, and after giving effect to the incurrence of any  Indebtedness and obligations being incurred in connection herewith will be, Solvent.   (g) The Lenders, the Administrative Agent and the Arranger shall have received all  fees required to be paid by the Borrower on the Second Restatement Effective Date, and all  expenses required to be reimbursed by the Borrower for which invoices have been presented at  least three business days prior to the Second Restatement Effective Date, on or before the Second  Restatement Effective Date.   (h) (i) The Administrative Agent shall have received, to the extent reasonably  requested by any of the Lenders at least five Business Days prior to the Second Restatement  Effective Date, all documentation and other information required by bank regulatory authorities  under applicable “know-your-customer” and anti-money laundering rules and regulations,  including the USA Patriot Act and (ii) to the extent the Borrower qualifies as a “legal entity  customer” under the Beneficial Ownership Regulation, at least five days prior to the Second  Restatement Effective Date, any Lender that has requested, in a written notice to the Borrower at  least 10 days prior to the Second Restatement Effective Date, a Beneficial Ownership Certification  in relation to the Borrower shall have received such Beneficial Ownership Certification (provided  that, upon the execution and delivery by such Lender of its signature page to the Second  Restatement, the condition set forth in this clause (ii) shall be deemed to be satisfied).  





 






  91  (i) The Administrative Agent shall have received (i) audited consolidated financial  statements of the Borrower for the two most recent fiscal years ended at least 90 days prior to the  Second Restatement Effective Date as to which such financial statements are available, (ii)  unaudited interim consolidated financial statements of the Borrower for each quarterly period  ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of  this paragraph and at least 30 days prior to the Second Restatement Effective Date as to which  such financial statements are available and (iii) reasonably detailed projections of the Borrower  for its fiscal years ending June 30, 2022, June 30, 2023, June 30, 2024 and June 30, 2025.  (j) All outstanding Equity Interests owned by or on behalf of any Loan Party shall have  been pledged pursuant to the Security Agreement, and the Administrative Agent shall have  received certificates or other instruments representing all such Equity Interests (if any), together  with undated stock powers or other instruments of transfer with respect thereto endorsed in blank.  (k) The Administrative Agent shall have received the results of a recent Lien search  with respect to each Loan Party, and such search shall reveal no Liens on any of the assets of the  Loan Parties except for Liens permitted by Section 6.02 or discharged on or prior to the Second  Restatement Effective Date pursuant to documentation satisfactory to the Administrative Agent.  (l) Each document (including any Uniform Commercial Code financing statement)  required by the Security Documents or under law or reasonably requested by the Administrative  Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent,  for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and  superior in right to any other Person (other than with respect to Liens expressly permitted by  Section 6.02), shall be in proper form for filing, registration or recordation.    The Administrative Agent shall notify the Borrower and the Lenders of the Second  Restatement Effective Date, and such notice shall be conclusive and binding. Without limiting the  generality of the provisions of Article 8, for purposes of determining compliance with the  conditions specified in this Section, each Lender that has signed the Second Restatement shall be  deemed to have consented to, approved or accepted or to be satisfied with, each document or other  matter required thereunder to be consented to or approved by or acceptable or satisfactory to a  Lender unless the Administrative Agent shall have received notice from such Lender prior to the  proposed Second Restatement Effective Date specifying its objection thereto.    Each Credit Event  The obligation of each Lender to make a Loan on the occasion of any Borrowing (provided  that a conversion or a continuation shall not constitute a “Borrowing” for purposes of this Section  4.02), and of the applicable Issuing Bank to issue, amend, renew or extend any Letter of Credit, is  subject to the satisfaction of the following conditions:   (a) The representations and warranties of the Borrower set forth in this Agreement and  the other Loan Documents shall be true and correct in all material respects on and as of the date of  such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit,  as applicable, except that (i) for purposes of this Section, the representations and warranties  contained in Section 3.04(a) shall be deemed to refer to the most recent statements furnished  





 






  92  pursuant to clauses (a) and (b) (subject, in the case of unaudited financial statements furnished  pursuant to clause (b), to year-end audit adjustments and the absence of footnotes), respectively,  of Section 5.01, (ii) to the extent that such representations and warranties specifically refer to an  earlier date, they shall be true and correct in all material respects as of such earlier date and (iii) to  the extent that such representations and warranties are already qualified or modified by materiality  in the text thereof, they shall be true and correct in all respects;   (b) At the time of and immediately after giving effect to such Borrowing or the  issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall  have occurred and be continuing;   (c) In the case of any Borrowing or any issuance, amendment, renewal or extension of  a Letter of Credit prior to the Conversion Date, the Borrower shall be in compliance with the  covenant set forth in Section 6.10(a)(i) on the date of, and after giving pro forma effect to, such  Borrowing or such issuance, amendment, renewal or extension of such Letter of Credit; and  (d) In the case of any Borrowing or issuance, amendment, renewal or extension of a  Letter of Credit, as applicable, occurring on or after the Conversion Date, the Borrower shall be in  compliance with the covenant set forth in 6.10(b) on the date of and after giving pro forma effect  to such Borrowing or such issuance, amendment, renewal or extension of such Letter of Credit, as  applicable.  Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit  shall be deemed to constitute a representation and warranty by the Borrower that the conditions  specified in paragraphs (a), (b) and (b) of this Section have been satisfied as of the date thereof.   ARTICLE 5  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, in each case, without any pending draw, or shall have been Cash  Collateralized in an amount not less than the Minimum Collateral Amount, and all LC  Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders  that:    Financial Statements; Ratings Change and Other Information  The Borrower will furnish to the Administrative Agent (for distribution to each Lender):   (a) on or before the date on which such financial statements are required to be filed  with the SEC (after giving effect to any extension of the annual financial statement reporting  deadline granted by the SEC or other applicable regulatory body and generally applicable to all  non-accelerated filers) (or, if such financial statements are not required to be filed with the SEC,  within 120 days after the end of each fiscal year of the Borrower), 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  





 






  93  national standing (without a “going concern” or like qualification or exception (other than a  qualification related to the maturity of the Commitments and the Loans at the applicable Maturity  Date) and without any qualification or exception as to the scope of such audit) to the effect that  such consolidated financial statements present fairly in all material respects the financial condition  and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis  in accordance with GAAP consistently applied;   (b) on or before the date on which such financial statements are required to be filed  with the SEC (after giving effect to any extension of the quarterly financial statement reporting  deadline granted by the SEC or other applicable regulatory body and generally applicable to all  non-accelerated filers) (or, if such financial statements are not required to be filed with the SEC,  within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the  Borrower), 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 Borrower and its consolidated Subsidiaries on a  consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit  adjustments and the absence of footnotes;  (c) commencing with June 30, 2022, concurrently with any delivery of financial  statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower in  substantially the form of Exhibit F attached hereto (i) certifying as to whether a Default has  occurred and is continuing as of the date thereof and, if a Default has occurred and is continuing  as of the date thereof, specifying the details thereof and any action taken or proposed to be taken  with respect thereto, (ii) demonstrating compliance with Sections 6.10(a) and (b), to the extent  applicable, (iii) if and to the extent that any change in GAAP that has occurred since the date of  the audited financial statements referred to in Section 3.04 had an impact on such financial  statements, specifying the effect of such change on the financial statements accompanying such  certificate and (iv) setting forth a description of any registered patents, registered trademarks or  registered copyrights acquired, exclusively licensed or developed by the Borrower and its  Subsidiaries since the Second Restatement Effective Date or the date of the most recent certificate  delivered pursuant to this Section 5.01(c) prior to the date thereof, as applicable;  (d) promptly after the same become publicly available, copies of all periodic and other  reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the  Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of  the functions of said Commission, or with any national securities exchange, as the case may be, in  each case that is not otherwise required to be delivered to the Administrative Agent pursuant  hereto; and   (e) promptly following any request in writing (including any electronic message)  therefor, (i) such other information regarding the operations, business affairs and financial  condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement or  any other Loan Document, as the Administrative Agent or any Lender (through the Administrative  Agent) may reasonably request and (ii) information and documentation reasonably requested by  





 






  94  the Administrative Agent or any Lender for purposes of compliance with applicable “know your  customer” and anti-money laundering rules and regulations, including the USA Patriot Act and the  Beneficial Ownership Regulation.   Information required to be delivered pursuant to Section 5.01(a) or Section 5.01(b) may be  delivered electronically and if so delivered, shall be deemed to have been delivered on the date on  which such information is posted on the Borrower’s behalf on an Internet or intranet website, if  any, to which the Lenders and the Administrative Agent have been granted access (whether a  commercial, third-party website or whether sponsored by the Administrative Agent).    Notices of Material Events  The Borrower will furnish to the Administrative Agent (for distribution to each Lender)  prompt written notice of the following:   (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 Borrower or any Subsidiary thereof  that would reasonably be expected to result in a Material Adverse Effect;  (c) any other development that results in, or would reasonably be expected to result in,  a Material Adverse Effect; and  (d) 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 be in writing, (ii) shall contain a heading  or a reference line that reads “Notice under Section 5.02 of Second Amended and Restated  Revolving Credit Agreement dated May 25, 2022” and (iii) shall be accompanied by a statement  of a Responsible Officer or other executive officer of the Borrower setting forth the details of the  event or development requiring such notice and any action taken or proposed to be taken with  respect thereto.    Existence; Conduct of Business  The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all  things necessary to preserve, renew and keep in full force and effect its legal existence in its  jurisdiction of organization and the rights, licenses, permits, privileges and franchises material to  the conduct of its business; provided that (i) the foregoing shall not prohibit any merger,  consolidation, liquidation or dissolution permitted under Section 6.03 and (ii) none of the  Borrower or any of its Subsidiaries shall be required to preserve, renew or keep in full force and  effect its rights, licenses, permits, privileges or franchises where failure to do so would not  reasonably be expected to result in a Material Adverse Effect.    Payment of Taxes  





 






  95  The Borrower will, and will cause each of its Subsidiaries to, pay all Tax liabilities,  including all Taxes imposed upon it or upon its income or profits or upon any properties belonging  to it that, if not paid, would reasonably be expected to result in a Material Adverse Effect, before  the same shall become delinquent or in default, and all lawful claims other than Tax liabilities that,  if unpaid, would become a Lien upon any properties of the Borrower or any of its Subsidiaries not  otherwise permitted under Section 6.02, in both cases except where (a) the validity or amount  thereof is being contested in good faith by appropriate proceedings and (b) to the extent required  by GAAP, the Borrower or such Subsidiary has set aside on its books adequate reserves with  respect thereto in accordance with GAAP.    Maintenance of Properties; Insurance  The Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain all  property used in the conduct of its business in good working order and condition, ordinary wear  and tear and casualty events excepted, except to the extent that failure to do so would not  reasonably be expected to have a Material Adverse Effect, and (b) maintain insurance with  financially sound and reputable insurance companies in such amounts and against such risks as are  customarily maintained by companies engaged in the same or similar businesses operating in the  same or similar locations.    Books and Records; Inspection Rights  The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record  and account in which entries full, true and correct in all material respects are made and are  sufficient to prepare financial statements in accordance with GAAP. The Borrower will, and will  cause each of its Subsidiaries to, permit any representatives designated by the Administrative  Agent or any Lender (pursuant to the request made through the Administrative Agent), upon  reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its  books and records to the extent reasonably necessary, and to discuss its affairs, finances and  condition with its officers and independent accountants (provided that the Borrower or such  Subsidiary shall be afforded the opportunity to participate in any discussions with such  independent accountants), all at such reasonable times and as often as reasonably requested (but  no more than once annually if no Event of Default exists). Notwithstanding anything to the  contrary in this Section, none of the Borrower or any of its Subsidiaries shall be required to  disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any  document, information or other matter that (i) constitutes non-financial trade secrets or non- financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent  or any Lender (or their respective representatives) is prohibited by applicable law or any third party  contract legally binding on the Borrower or its Subsidiaries or (iii) is subject to attorney, client or  similar privilege or constitutes attorney work-product.   ERISA Events  The Borrower will furnish to the Administrative Agent and each Lender prompt written  notice of the occurrence of any ERISA Event that, alone or together with any other ERISA Events  that have occurred, would reasonably be expected to result in a Material Adverse Effect.  





 






  96   Compliance with Laws and Agreements  The Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules,  regulations and orders of any Governmental Authority applicable to it or its property and rights  and all indentures, agreements, and other instruments binding upon it or its property and rights,  except where the failure to do so, individually or in the aggregate, would not reasonably be  expected to result in a Material Adverse Effect. The Borrower will maintain in effect and enforce  policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their  respective directors, officers, employees and agents with Anti-Corruption Laws, Anti-Terrorism  Laws and applicable Sanctions.   Use of Proceeds  The proceeds of the Loans and Letters of Credit will be used only for working capital and  general corporate purposes, including, without limitation, capital expenditures, for stock  repurchases under stock repurchase programs approved by the Borrower and for acquisitions not  prohibited hereunder. No part of the proceeds of any Loan or Letter of Credit 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.    Guarantors; Additional Collateral  (a) If, as of the date of the most recently available financial statements delivered pursuant  to Section 5.01(a) or (b), as the case may be, any Person shall have become a Domestic Subsidiary  (other than an Excluded Subsidiary), then the Borrower shall, within 30 days (or such longer period  of time as the Administrative Agent may agree in its reasonable discretion) after delivery of such  financial statements, cause such Domestic Subsidiary to (i) enter into a guaranty agreement (a  “Guaranty”) in substantially the form of Exhibit E hereto, or, if a Guaranty has previously been  entered into by a Domestic Subsidiary (and remains in effect), a joinder agreement in form and  substance reasonably satisfactory to the Administrative Agent to such Guaranty and (ii) (A) enter  into a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent  to the Security Agreement and (B) take such actions necessary or advisable to grant to the  Administrative Agent for the benefit of the Lenders a perfected first priority security interest  (subject to Liens permitted by Section 6.02) in the Collateral described in the Security Agreement  with respect to such Domestic Subsidiary, including the filing of Uniform Commercial Code  financing statements in such jurisdictions, and filings with the United States Copyright Office, as  may be required by the Security Agreement or by law or as may be requested by the Administrative  Agent and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal  opinions consistent with the legal opinions delivered on the Second Restatement Effective Date,  which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the  Administrative Agent; provided that the Borrower and its Subsidiaries shall not be required to take  any action under this Section 5.10(a) if prior to the end of such 30 day period (or such longer  period of time as the Administrative Agent may agree in its reasonable discretion) such Person  ceases to be a Domestic Subsidiary as a result of a transfer of assets from such Person to the  Borrower in a transaction or transactions permitted under this Agreement; provided, further, that  in the event that any Person owning Material Intangible Assets becomes a Subsidiary after the  Second Restatement Effective Date, either (x) such Material Intangible Assets (to the extent not  





 






  97  already owned by the Borrower or a Guarantor) shall be transferred to the Borrower or any  Guarantor within 60 days (or such longer period as the Administrative Agent may agree in its  reasonable discretion) of the consummation of the transaction pursuant to which such Person  became a Subsidiary or (y) the Person which owns such Material Intangible Assets (to the extent  not already a Guarantor) shall become a Guarantor within 30 days (or such longer period as the  Administrative Agent may agree in its reasonable discretion) after the consummation of the  transaction pursuant to which such Person became a Subsidiary.   (b)  If, as of the date of the most recently available financial statements delivered  pursuant to Section 5.01(a) or (b), as the case may be, any Foreign Subsidiary (not including any  Immaterial Subsidiary) that is a direct Subsidiary of any Loan Party shall have been created or  acquired after the Second Restatement Effective Date by any Loan Party, the Borrower will, or  will cause the applicable Guarantor to, within 30 days (or such longer period of time as the  Administrative Agent may agree in its reasonable discretion) after delivery of such financial  statements, (i) execute and deliver to the Administrative Agent such amendments to the Security  Agreement as the Administrative Agent deems necessary or advisable to grant to the  Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest  (subject to Liens permitted by Section 6.02) in 66% of the total outstanding voting Equity Interests  of any such Foreign Subsidiary, (ii) deliver to the Administrative Agent any certificates  representing such Equity Interests, together with undated stock powers, in blank, executed and  delivered by a duly authorized officer of the relevant Loan Party, and take such other action as  may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the  Administrative Agent’s security interest therein, and (iii) if requested by the Administrative Agent,  deliver to the Administrative Agent legal opinions consistent with the legal opinions delivered on  the Second Restatement Effective Date, which opinions shall be in form and substance, and from  counsel, reasonably satisfactory to the Administrative Agent.  (c) If, as of the date of the most recently available financial statements delivered  pursuant to Section 5.01(a) or (b), as the case may be, any property shall be acquired by any Loan  Party (other than (x) any property described in paragraphs (a) or (b) above or paragraph (d) below  and (y) any property subject to a Lien expressly permitted by Section 6.02) as to which the  Administrative Agent, for the benefit of the Lenders, does not have a perfected Lien, the Borrower  will, or will cause the applicable Loan Party to, within 30 days (or such longer period of time as  the Administrative Agent may agree in its reasonable discretion) after the delivery of such financial  statements (i) execute and deliver to the Administrative Agent such amendments to the Security  Agreement or such other documents as the Administrative Agent deems necessary or advisable to  grant to the Administrative Agent, for the benefit of the Lenders, a security interest in such property  and (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit  of the Lenders, a perfected first priority security interest in such property, including the filing of  Uniform Commercial Code financing statements in such jurisdictions as may be required by the  Security Agreement or by law or as may be requested by the Administrative Agent.  (d) If, as of the date of the most recently available financial statements delivered  pursuant to Section 5.01(a) or (b), as the case may be, any fee interest in any real property having  a value (together with improvements thereof) of at least $500,000 shall be acquired by any Loan  Party (other than any such real property subject to a Lien expressly permitted by Section 6.02), the  Borrower will, or will cause the applicable Loan Party to, within 30 days (or such longer period of  





 






  98  time as the Administrative Agent may agree in its reasonable discretion) after the delivery of such  financial statements (i) execute and deliver a first priority mortgage, in favor of the Administrative  Agent, for the benefit of the Lenders, covering such real property, (ii) if requested by the  Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering  such real property in an amount at least equal to the purchase price of such real property (or such  other amount as shall be reasonably specified by the Administrative Agent) as well as a current  ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels  reasonably deemed necessary or advisable by the Administrative Agent in connection with such  mortgage, each of the foregoing in form and substance reasonably satisfactory to the  Administrative Agent and (iii) if requested by the Administrative Agent, deliver to the  Administrative Agent legal opinions relating to the matters described above, which opinions shall  be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.  (e) Subject to Section 5.10(f) with respect to any Foreign Guarantors, none of the  Borrower or its Subsidiaries shall be required to take any action outside of the United States to  create or perfect any security interest in the Collateral (including the registration of Intellectual  Property in, and the execution of any agreement, document or other instrument governed by the  law of, any jurisdiction other than the United States, any State thereof or the District of Columbia).   (f) Notwithstanding anything herein or in any other Loan Document to the contrary,  the Borrower shall, no later than 30 days (or such longer period of time as the Administrative  Agent may agree in its reasonable discretion) after each date on which financial statements are  delivered (or, if earlier, are required to be delivered) pursuant to Section 5.01(a) or (b), as the case  may be, take such actions as are necessary to cause the Guarantor Coverage Requirement to be  satisfied as of the last day of the most recently ended fiscal quarter of the Borrower (determined  as if any additional Loan Parties had been Loan Parties on such date), including by (i) causing each  Domestic Subsidiary to execute and deliver, or cause to be executed and delivered, each document  referred to in Section 5.10(a) and (ii) if, after giving effect to the addition of each Domestic  Subsidiary as a Loan Party pursuant to the foregoing clause (i) (if any, and without prejudice to  the obligation to cause all such Domestic Subsidiaries to become Loan Parties prior to the addition  of any Foreign Guarantors), the Guarantor Coverage Requirement would not be satisfied, causing  one or more Foreign Subsidiaries, as selected by the Borrower, to execute and deliver a Guaranty  (or an agreement in form and substance reasonably satisfactory to the Administrative Agent to any  existing Guaranty) in order to satisfy the Guarantor Coverage Requirement and take all actions  necessary or advisable, including the execution and filing of such agreements, documents and other  instruments governed by the law of the jurisdiction of organization of such Foreign Guarantor as  the Administrative Agent may reasonably request, to grant to the Administrative Agent, for the  benefit of the Lenders, a perfected first priority security interest in 100% of the Equity Interests in  such Foreign Guarantor and the assets and property of such Foreign Guarantors, and, if requested  by the Administrative Agent, deliver to the Administrative Agent legal opinions, which opinions  shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative  Agent; provided that no Foreign Guarantor shall be required to grant security interests in its  property or assets so long as (x) the Administrative Agent, on behalf of the Secured Parties, shall  have received a perfected pledge of 100% of the Equity Interests in such Foreign Guarantor and  (y) such Foreign Guarantor does not have any Indebtedness for borrowed money (other than  intercompany indebtedness owing to the Borrower or any other Guarantor) or any Liens securing  any such Indebtedness (and, for the avoidance of doubt, Foreign Guarantors will be considered  





 






  99  Loan Parties for purposes of the Guarantor Coverage Requirement only to the extent they are in  compliance with each of the foregoing clauses (x) and (y)) and provided further, no Foreign  Subsidiary shall be required to be added as a Guarantor hereunder if any such joinder would  reasonably be expected to result in material adverse tax consequences to the Borrower or any of  its Subsidiaries, as determined by both the Borrower and the Administrative Agent.  (g) Within the time periods after the Second Restatement Effective Date specified in  Schedule 5.10(g) (or such later date as the Administrative Agent may reasonably agree), the  Borrower shall deliver the documents specified on Schedule 5.10(g).   Cash Management  The Borrower shall, and shall cause each Guarantor to:  (a) maintain all cash management and treasury business with the Administrative Agent  and Permitted Third Party Banks, including, without limitation, all deposit accounts, disbursement  accounts, investment accounts and lockbox accounts (other than (i) any account in which the  aggregate average daily maximum balance over a 30-day period does not at any time exceed  $250,000, provided that the aggregate average daily maximum balance over a 30-day period of all  such accounts described in this clause (i) shall not at any time exceed $3,000,000, (ii) zero-balance  accounts solely for the purpose of managing local disbursements, payroll and withholding, (iii)  Fiduciary Accounts (collectively, the “Unrestricted Accounts”), all of which the Loan Parties  may maintain without restriction (with the exception of those restrictions permitted under 6.02(n)),  and (iv) accounts specified in Schedule 5.11, for the period stated therein), in each case subject to  the terms of any Control Account Agreement (each such deposit account, disbursement account,  investment account and lockbox account, a “Controlled Account”); each Controlled Account  shall be a cash collateral account, with all cash, checks and other similar items of payment in such  account securing payment of the Obligations, in which the Borrower and each of its Subsidiaries  shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured  Parties, and, which shall be subject to a Control Account Agreement; provided that any account  with the Administrative Agent shall not be required to be subject to a Control Account Agreement;  if any Event of Default has occurred and is continuing and, other than in the case of any Event of  Default under clause (a), (b), (h) or (i) of Article VII, such Event of Default has continued for ten  Business Days, the Administrative Agent may in its reasonable discretion, and is hereby authorized  to, cause the applicable depositary bank or securities intermediary to honor the instructions of the  Administrative Agent with respect to any Controlled Account in accordance with the terms of the  applicable Control Account Agreement; provided that within 120 days of the Second Restatement  Effective Date (or such longer period of time as the Administrative Agent may agree in its  reasonable discretion), the Borrower will move any accounts exceeding the $250,000 threshold in  clause (i) to accounts maintained with the Administrative Agent (such time period, the “Cash  Management Post Closing Period)”; and  (b) after the Cash Management Post Closing Period has elapsed, deposit, no later than  ten Business Days after the date of receipt thereof, all cash, checks, drafts or other similar items of  payment relating to or constituting payments made in respect of any and all accounts and other  Collateral into Controlled Accounts, in each case except for (i) cash and Cash Equivalents the  aggregate value of which does not exceed, collectively with any amounts held in Unrestricted  





 






  100  Accounts (other than amounts described in clause (ii) of this sentence), $3,000,000 at any time,  (ii) amounts held in any Unrestricted Account solely for the purposes of managing local  disbursements, payroll and withholding and any amounts held in a Fiduciary Account and (iii)  accounts specified in Schedule 5.11, for the period stated therein.   Further Assurances  Promptly upon request by the Administrative Agent, or any Lender through the  Administrative Agent, the Borrower will (a) correct any error that may be discovered in any Loan  Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute,  acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further  acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any  Lender through the Administrative Agent, may reasonably require from time to time in order to (i)  perfect and maintain the validity, effectiveness and priority of any of the Security Documents and  any of the Liens created thereunder and (ii) assure, preserve, protect and confirm more effectively  unto the Lenders, or the Administrative Agent for the benefit of the Lenders, the rights granted to  the Lenders, or the Administrative Agent for the benefit of the Lenders, under any Loan Document  or under any other instrument executed in connection with any Loan Document to which any Loan  Party or any of its Subsidiaries is or is to be a party.  ARTICLE 6  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 terminated, in each case, without any pending draw, or shall have been Cash Collateralized in  an amount not less than the Minimum Collateral Amount, and all LC Disbursements shall have  been reimbursed, the Borrower covenants and agrees with the Lenders that:    Indebtedness  The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or  permit to exist any Indebtedness other than:   (a) Indebtedness existing on the Second Restatement Effective Date and set forth in  Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness that do not  increase the outstanding principal amount thereof;  (b) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the  Borrower or any other Subsidiary;  (c) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any  Subsidiary of Indebtedness of the Borrower or any other Subsidiary;  (d) Indebtedness of the Borrower or any Subsidiary (other than any Foreign IP  Subsidiary) constituting Capital Lease Obligations and Purchase Money Indebtedness; provided  that the aggregate principal amount of Indebtedness outstanding pursuant to this clause (d) at any  time shall not exceed (i) prior to the Term Facility Satisfaction Date, the greater of (A) $15,000,000  





 






  101  and (B) 3.0% of Consolidated Adjusted EBITDA for the most recently completed Measurement  Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) and  (ii) on and after the Term Facility Satisfaction Date, the greater of (A) $15,000,000 and (B) 2.5%  of the Total Assets of the Borrower and its Subsidiaries;  (e) Indebtedness constituting letters of credit not to exceed $500,000,000 at any time  outstanding;  (f) Indebtedness of the Borrower or any Subsidiary (other than any Foreign IP  Subsidiary) in an aggregate principal amount at any time outstanding not to exceed (i) prior to the  Term Facility Satisfaction Date, the greater of (A) $75,000,000 and (B) 15% of Consolidated  Adjusted EBITDA for the most recently completed Measurement Period for which financial  statements have been delivered pursuant to Section 5.01(a) or (b) and (ii) on and after the Term  Facility Satisfaction Date, the greater of (A) $75,000,000 and (B) 10% of the Total Assets of the  Borrower and its Subsidiaries (provided that any Indebtedness incurred in reliance on this clause  (f) shall be subject to the Required Additional Debt Terms);  (g) Obligations under the Loan Documents (including Obligations in respect of the  Revolving Facility, the Initial Term Facility and any Incremental Facility permitted to be incurred  pursuant to Section 2.18), Specified Refinancing Debt permitted to be incurred pursuant to Section  2.22 and Incremental Equivalent Debt permitted to be incurred pursuant to Section 2.23;  (h) Indebtedness of the Borrower or any Subsidiary constituting Capital Lease  Obligations and/or Purchase Money Indebtedness, in each case, in respect of the POP Facility and  in an aggregate amount not to exceed (i) prior to the Term Facility Satisfaction Date, $25,000,000  and (ii) on and after the Term Facility Satisfaction Date, $325,000,000; and  (i) Indebtedness of the Borrower or any Subsidiary that is unsecured; provided that,  (x) the aggregate principal amount of such Indebtedness shall not exceed, (i) prior to the  Conversion Date, $1,000,000,000, and (ii) on and after the Conversion Date, the amount that may  be incurred without causing the Total Net Leverage Ratio to exceed 4.50 to 1.00 after giving effect  to the incurrence of such Indebtedness (as if such Indebtedness had been incurred on the last day  of the most recently completed fiscal quarter of the Borrower ending prior to such date) and (y)  such Indebtedness shall be subject to the Required Additional Debt Terms;  Notwithstanding the foregoing, any Indebtedness owed by a Loan Party to a Subsidiary  that is not a Loan Party shall be permitted only to the extent subordinated to the Obligations on  customary terms reasonably satisfactory to the Administrative Agent.   Liens  The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or  permit to exist any Lien on any property or asset now owned or hereafter acquired by it except:   (a) Permitted Encumbrances;   (b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the  Second Restatement Effective Date and set forth in Schedule 6.02 and any modifications, renewals  





 






  102  and extensions thereof and any Lien granted as a replacement or substitute therefor; provided that  (i) such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary other  than improvements thereon or proceeds thereof and (ii) such Lien shall secure only those  obligations which it secures on the Second Restatement Effective Date and any refinancing,  extension, renewal or replacement thereof that does not increase the outstanding principal amount  thereof except by an amount equal to a reasonable premium or other reasonable amount paid, and  fees and expenses reasonably incurred, in connection with such refinancing, extensions, renewals  or replacements;   (c) any Lien existing on any property or asset prior to the acquisition thereof by the  Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a  Subsidiary after the Second Restatement Effective Date 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 Borrower or any Subsidiary 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 any refinancing, extension, renewal or  replacement thereof that does not increase the outstanding principal amount thereof except by an  amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses  reasonably incurred, in connection with such refinancing, extensions, renewals or replacements;   (d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower  or any Subsidiary; provided that (i) such security interests secure Indebtedness that is not  prohibited by Section 6.01, (ii) such security interests and the Indebtedness secured thereby are  initially incurred prior to or within 180 days after such acquisition or the completion of such  construction or improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the  cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security  interests shall not apply to any other property or assets of the Borrower or any Subsidiary other  than additions, accessions, parts, attachments or improvements thereon or proceeds thereof;   (e) licenses, sublicenses, leases or subleases granted to others in the ordinary course of  business not interfering in any material respect with the business of the Borrower and its  Subsidiaries, taken as a whole;  (f) the interest and title of a lessor under any lease or sublease entered into by the  Borrower or any Subsidiary in the ordinary course of its business and other statutory and common  law landlords’ Liens under leases;   (g) in connection with the sale or transfer of any assets in a transaction not prohibited  hereunder, customary rights and restrictions contained in agreements relating to such sale or  transfer pending the completion thereof;   (h) Liens securing Indebtedness to finance insurance premiums owing in the ordinary  course of business to the extent such financing is not prohibited hereunder;   (i) Liens on earnest money deposits of cash or cash equivalents made in connection  with any acquisition not prohibited hereunder;   





 






  103  (j) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect  to cash and cash equivalents on deposit in one or more accounts maintained by the Borrower or  any Subsidiary, in each case granted in the ordinary course of business in favor of the banks,  securities intermediaries or other depository institutions with which such accounts are maintained,  securing amounts owing to such institutions with respect to cash management and operating  account arrangements;   (k) Liens in the nature of the right of setoff in favor of counterparties to contractual  agreements not otherwise prohibited hereunder with the Borrower or any of its Subsidiaries in the  ordinary course of business;  (l) Liens created pursuant to the Security Documents (including Liens securing the  Revolving Facility, the Initial Term Facility and any Incremental Facility permitted to be secured  (and with the priority permitted) pursuant to Section 2.18), Liens securing Specified Refinancing  Debt permitted to be secured (and with the priority permitted) pursuant to Section 2.22 and  Incremental Equivalent Debt permitted to be secured (and with the priority permitted) pursuant to  Section 2.23;  (m) other Liens securing obligations (other than Indebtedness of any Foreign IP  Subsidiary) in an aggregate amount at any time outstanding (i) prior to the Term Facility  Satisfaction Date and (A) prior to the Conversion Date, not to exceed $15,000,000 and (B) on and  after the Conversion Date, not to exceed the greater of (x) $100,000,000 and (y) 20% of  Consolidated Adjusted EBITDA for the most recently completed Measurement Period for which  financial statements have been delivered pursuant to Section 5.01(a) or (b) and (ii) on and after the  Term Facility Satisfaction Date and (A) prior to the Conversion Date, not to exceed the greater of  (x) $15,000,000 and (y) 2.5% of the Total Assets of the Borrower and its Subsidiaries and (B) on  an after the Conversion Date, not to exceed the greater of (x) $100,000,000 and (y) 2.5% of the  Total Assets of the Borrower and its Subsidiaries;  (n) Liens on cash and Cash Equivalents securing letters of credit in an aggregate face  amount at any time outstanding not to exceed (i) prior to the Term Facility Satisfaction Date,  $100,000,000 and (ii) on and after the Term Facility Satisfaction Date, $250,000,000; provided  that the aggregate amount of Liens at any time outstanding pursuant to this clause (n) shall not  exceed 103% (or, in the case of any letters of credit issued in a currency other than Dollars and  cash collateralized in Dollars, 110%) of the aggregate face amount of the letters of credit so  secured; and  (o) Any customary encumbrance or restriction (including put and call arrangements)  with respect to capital stock of any joint venture or similar customary arrangement pursuant to any  joint venture or similar agreement.    Fundamental Changes  (a) The Borrower will not, and will not permit any Subsidiary to, (x) merge into or  consolidate with any other Person, or permit any other Person to merge into or consolidate with it,  (y) otherwise Dispose of (in one transaction or in a series of transactions) all or substantially all of  its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether  





 






  104  now owned or hereafter acquired), or (z) liquidate or dissolve, except that, if at the time thereof  and immediately after giving effect thereto no Default shall have occurred and be continuing:   (i) any Subsidiary or any other Person may merge into or consolidate with  the Borrower in a transaction in which the Borrower is the surviving corporation;   (ii) any Person (other than the Borrower) may merge into or consolidate with  any Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that any  such merger or consolidation involving a Guarantor must result in a Guarantor as the surviving  entity or the surviving entity becoming a Guarantor as part of the transaction);   (iii) any Subsidiary that is not a Loan Party may Dispose of its assets to the  Borrower or to another Subsidiary;   (iv) any Loan Party may Dispose of its assets to any other Loan Party;   (v) in connection with any Investment permitted under Section 6.04, any  Subsidiary may merge into or consolidate with any other Person, so long as the Person surviving  such merger or consolidation shall be a Subsidiary (provided that any such merger or  consolidation involving a Guarantor must result in a Guarantor as the surviving entity or the  surviving entity becoming a Guarantor as part of the transaction);  (vi) subject to compliance with Section 6.04(d), any Loan Party may Dispose  of its assets in order to effect any Investment permitted under Section 6.04(d); and  (vii) any Subsidiary may liquidate or dissolve if the Borrower determines in  good faith that such liquidation or dissolution is in the best interests of the Borrower and is not  materially disadvantageous to the Lenders; and  (viii) any Subsidiary may consummate a Division as the Dividing Person if,  immediately upon the consummation of the Division, all the assets of the applicable Dividing  Person are held by one or more Subsidiaries at such time; provided that, if the applicable Dividing  Person is a Loan Party, all of the assets of such Dividing Person shall be held by one or more Loan  Parties at such time;  provided that any such 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.  (b) The Borrower 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 Borrower and  its Subsidiaries on the date of execution of the Existing Credit Agreement and businesses  reasonably related thereto and any Similar Business.    Investments, Loans, Advances, Guarantees and Acquisitions  The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or  acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary  





 






  105  prior to such merger) any capital stock, evidences of indebtedness or other securities (including  any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any  loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or  any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a  series of transactions) any assets of any other Person constituting a business unit (each, an  “Investment”), except:  (a) Investments in cash and Cash Equivalents;  (b) Investments by the Borrower existing on the date hereof in the capital stock of its  Subsidiaries;  (c) loans or advances made by the Borrower to any Subsidiary and made by any  Subsidiary to the Borrower or any other Subsidiary;  (d) Investments made by the Borrower in any Subsidiary, or by any Subsidiary in any  other Subsidiary, provided that the aggregate of such Investments made by the Loan Parties in  Subsidiaries that are not Loan Parties pursuant to this clause (d) shall not exceed (i) prior to the  Term Facility Satisfaction Date, the greater of (i) $10,000,000 and (ii) 2.5% of Consolidated  Adjusted EBITDA for the most recently completed Measurement Period for which financial  statements have been delivered pursuant to Section 5.01(a) or (b) and (ii) on and after the Term  Facility Satisfaction Date, the greater of (A) $10,000,000 and (B) 5% of the Total Assets of the  Borrower and its Subsidiaries;  (e) Investments in the form of Indebtedness of, or equity interests in, Foreign  Subsidiaries that are not Loan Parties representing consideration for licenses of (i) any non-U.S.  Intellectual Property and (ii) any Intellectual Property rights covering or relating solely to  jurisdictions outside the United States; provided that the Equity Interests in the Foreign Subsidiary  to which such license is granted (or in the parent company of such Foreign Subsidiary, if such  parent company does not have any assets other than Indebtedness of, or equity interests in, such  Foreign Subsidiary) have been pledged to the Administrative Agent in accordance with Section  5.10(b) and the Loan Parties retain ownership of such Intellectual Property and all rights required  for or material to the operation of their businesses in the United States;  (f) Investments received in settlement of debts, claims or disputes owed to the  Borrower or any Subsidiary that arose out of transactions in the ordinary course of business;  (g) advances and extensions of credit in the nature of accounts receivable arising from  the sale or lease of goods or services or the licensing of property in the ordinary course of business;  (h) Guarantees constituting Indebtedness permitted by Section 6.01;   (i) so long as no Default or Event of Default then exists or would result therefrom, the  Borrower may make acquisitions and other Investments (i) prior to the Term Facility Satisfaction  Date and (x) prior to the Conversion Date, in an aggregate amount not to exceed $100,000,000 and  (y) on and after the Conversion Date, in an unlimited amount so long as, immediately prior to the  consummation of such Investment and after giving pro forma effect to such Investment, the Senior  Secured Net Leverage Ratio is not greater than 3.00 to 1.00 and (ii) on and after the Term Facility  





 






  106  Satisfaction Date, in an unlimited amount (x) prior to the Conversion Date, if Total Liquidity  immediately prior to the consummation of such Investment and after giving pro forma effect to  such Investment is equal to or greater than $500,000,000 and (y) on and after the Conversion Date,  if, immediately prior to the consummation of such Investment and after giving pro forma effect to  such Investment, the Senior Secured Net Leverage Ratio is not greater than 3.00 to 1.00;  (j) Investments in the form of Swap Agreements permitted under Section 6.11;   (k) so long as no Default or Event of Default then exists or would result therefrom, the  Borrower may make acquisitions and other Investments in an amount not to exceed $25,000,000  in the aggregate for any fiscal year of the Borrower; and  (l) Investments in the form of intercompany payables and receivables or the  forgiveness of intercompany payables or receivables owed to the Borrower or any Subsidiary or  between any Subsidiaries, in each case, arising from transactions in the ordinary course of  business.  Notwithstanding anything to the contrary here or in any other Loan Document, any transfer  (including by way of exclusive licenses) of Material Intangible Assets by the Borrower or any  Domestic Subsidiary to any Person other than a Loan Party (other than non-exclusive licenses to  third parties and to Foreign Subsidiaries, in each case, in the ordinary course of business) shall  only be permitted to the extent made in reliance on Section 6.09(l).   Restricted Payments  The Borrower will not, and will not permit any of its Subsidiaries to, declare or make any  Restricted Payments with respect to the Borrower or any of its Subsidiaries, except:   (i) any Subsidiary of the Borrower may make Restricted Payments to the  Borrower or to any direct or indirect wholly-owned Subsidiary of the Borrower, and any non- wholly-owned Subsidiary may make Restricted Payments to the Borrower or any of its other  Subsidiaries and to each other owner of Equity Interests of such Subsidiary ratably based on  their relative ownership interests of the relevant class of Equity Interests;   (ii) the Borrower may declare and make dividends payable solely in  additional shares of the Borrower’s Equity Interests;   (iii) the Borrower may repurchase fractional shares of its Equity Interests  arising out of stock dividends, splits or combinations, business combinations or conversions of  convertible securities or, so long as no Default or Event of Default then exists or would result  therefrom, make cash settlement payments upon the exercise of warrants to purchase its Equity  Interests, or “net exercise” or “net share settle” warrants;   (iv) the Borrower may redeem or otherwise cancel Equity Interests or rights  in respect thereof granted to (or make payments on behalf of) directors, officers, employees or  other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy  tax withholding obligations relating to the vesting, settlement or exercise of such Equity  Interests or rights;   





 






  107  (v) following an IPO, the Borrower may make any Restricted Payment that  has been declared by the Borrower, so long as (A) such Restricted Payment would be otherwise  permitted under clause (ix) of this Section 6.05 at the time so declared (and shall be deemed to  be a utilization of such capacity from and after such time) and (B) such Restricted Payment is  made within 60 days of such declaration;  (vi) following an IPO, the Borrower may make any repurchase (or deemed  repurchase) of Equity Interests pursuant to any accelerated stock repurchase or similar  agreement (each, an “ASR Agreement”) publicly announced by the Borrower and specifying  the maximum aggregate amount of the stock to be repurchased pursuant to such ASR  Agreement (the “Maximum ASR Amount”); provided that, at the time such ASR Agreement  is publicly announced, the Maximum ASR Amount would otherwise have been permitted as a  Restricted Payment on such date under clause (ix) of this Section 6.05 and shall be deemed to  be a utilization of such capacity from and after such time until the repurchases pursuant to such  ASR Agreement shall have been completed (up to the Maximum ASR Amount) or such ASR  Agreement is terminated prior to the completion thereof, at which time any unused amount  under such ASR Agreement shall be available to be used for other Restricted Payments under  such clause;  (vii) the Borrower may make Restricted Payments pursuant to and in  accordance with stock option plans or other benefit plans or agreements for directors,  management, employees or other eligible service providers of the Borrower or its Subsidiaries,  including the repurchase of Equity Interests or rights in respect thereof granted to directors,  management, employees or other eligible service providers of the Borrower or its Subsidiaries  pursuant to a right of repurchase set forth in any such stock option plans or other benefit plans  or agreements in connection with a cessation of service; provided that the aggregate amount of  payments made in reliance on this clause (vii) after the Second Restatement Effective Date and  prior to the Term Facility Satisfaction Date shall not exceed $5,000,000 in any fiscal year on a  non-cumulative carryforward basis; provided, however, that such restriction shall not apply to  non-cash payments made in connection with an exchange offer program implemented in  accordance with such plans or agreement;   (viii) so long as no Default or Event of Default then exists or would result  therefrom, the Borrower may make Restricted Payments not otherwise permitted under this  Section 6.05 in an amount not to exceed the amount of proceeds of any substantially concurrent  issuance of Equity Interests;   (ix) so long as no Default or Event of Default then exists or would result  therefrom, the Borrower may declare or make Restricted Payments (i) prior to the Term Facility  Satisfaction Date, in an aggregate amount not to exceed $15,000,000 and (ii) on an after the  Term Facility Satisfaction Date, in an unlimited amount so long as (a) prior to the Conversion  Date, Total Liquidity immediately prior to the declaration of such Restricted Payment and after  giving pro forma effect to such Restricted Payment is equal to or greater than $500,000,000,  and (b) on and after the Conversion Date, the Senior Secured Net Leverage Ratio immediately  prior to the declaration of such Restricted Payment and after giving pro forma effect to such  Restricted Payment is not greater than 2.75 to 1.00;   





 






  108  (x) the Borrower may make any Restricted Payments and/or payments or  deliveries in shares of common stock (or other securities or property following a merger event  or other change of the common stock of the Borrower) (and cash in lieu of fractional shares)  and/or cash pursuant to the terms of, and otherwise perform its obligations under, any Permitted  Convertible Indebtedness (including, without limitation, making payments of interest and  principal there-on, making payments due upon required repurchase or redemption thereof  and/or making payments and deliveries due upon conversion thereof);  (xi) the Borrower may pay the premium in respect of, and otherwise perform  its obligations under, any Permitted Bond Hedge Transaction;   (xii) the Borrower may make any Restricted Payments and/or payments or  deliveries required by the terms of, and otherwise perform its obligations under, any Permitted  Warrant Transaction (including, without limitation, making payments and/or deliveries due  upon exercise and settlement or termination thereof); and  (xiii) so long as no Default or Event of Default then exists or would result  therefrom, the Borrower may declare or make Restricted Payments with the proceeds from  substantially concurrent issuances of Equity Interests and Permitted Convertible Indebtedness.  The Borrower will not, and will not permit any of its Subsidiaries to, at any time prior to  the Term Facility Satisfaction Date, make any principal payment on, or redeem, repurchase,  defease or otherwise acquire or retire, in each case, using any cash or Cash Equivalents prior to  any scheduled repayment, sinking fund payment or maturity, any of the Borrower’s 0.00%  Convertible Senior Notes due 2026 (other than any refinancing thereof with any unsecured  Indebtedness that satisfies the Required Additional Debt Terms), unless after giving pro forma  effect thereto the Total Net Leverage Ratio is less than or equal to 5.00 to 1.00.   Restrictive Agreements  The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly,  enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or  imposes any condition upon (a) the ability of the Borrower or any Subsidiary to create, incur or  permit to exist any Lien upon any of its property or assets to secure the Obligations, or (b) the  ability of any Subsidiary to pay dividends or other distributions with respect to any shares of its  capital stock or to make or repay loans or advances to the Borrower or any other Subsidiary or of  any Subsidiary to Guarantee Indebtedness of the Borrower or any other Subsidiary under the Loan  Documents; provided that (i) the foregoing shall not apply to restrictions and conditions imposed  by law or by this Agreement or any other Loan Document, (ii) the foregoing shall not apply to  restrictions and conditions existing on the Second Restatement Effective Date identified on  Schedule 6.06 (and shall apply to any extension or renewal of, or any amendment or modification  materially expanding the scope of, any such restrictions or conditions taken as a whole), (iii) the  foregoing shall not apply to customary restrictions and conditions contained in agreements relating  to the sale of a Subsidiary or assets of the Borrower or any Subsidiary pending such sale, provided  such restrictions and conditions apply only to the Subsidiary or assets to be sold and such sale is  not prohibited hereunder, (iv) the foregoing shall not apply to any agreement or restriction or  condition in effect at the time any Subsidiary becomes a Subsidiary of the Borrower, so long as  





 






  109  such agreement was not entered into solely in contemplation of such Person becoming a Subsidiary  of the Borrower, (v) the foregoing shall not apply to customary provisions in joint venture  agreements and other similar agreements applicable to joint ventures, (vi) 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, (vii) clause (a) of the foregoing shall not apply  to customary provisions in leases, licenses, subleases and sublicenses and other contracts  restricting the assignment thereof, (viii) the foregoing shall not apply to restrictions or conditions  set forth in any agreement governing Indebtedness not prohibited by Section 6.01; provided that  such restrictions and conditions are customary for such Indebtedness, and (ix) the foregoing shall  not apply to restrictions on cash or other deposits (including escrowed funds) imposed under  contracts entered into in the ordinary course of business.    Transactions with Affiliates  The Borrower 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 (other than between  or among the Borrower and its Subsidiaries and not involving any other Affiliate except as  otherwise permitted hereunder), except (a) on terms and conditions not less favorable to the  Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third  parties, (b) payment of customary directors’ fees, reasonable out-of-pocket expense  reimbursement, indemnities (including the provision of directors and officers insurance) and  compensation arrangements for members of the board of directors, officers or other employees of  the Borrower or any of its Subsidiaries, (c) transactions approved by a majority of the disinterested  directors of the Borrower’s board of directors, (d) any transaction involving amounts less than  $250,000 individually and $2,500,000 in the aggregate and (e) any Restricted Payment permitted  by Section 6.05.    Use of Proceeds  The Borrower will not request any Borrowing or Letter of Credit, and the Borrower shall  not use, and 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 (a) 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, (b) for  the purpose of funding, financing or facilitating any activities, business or transaction of or with  any Sanctioned Person, or in any Sanctioned Country, or (c) in any manner that would result in  the violation of any Sanctions applicable to any party hereto.   Disposition of Property  The Borrower will not, and will not permit any of its Subsidiaries to, Dispose of any of its  property, whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell  any shares of such Subsidiary’s Equity Interests to any Person, except:   (a) the Disposition of obsolete or worn out property in the ordinary course of business;  





 






  110  (b) the sale of inventory in the ordinary course of business;  (c) Dispositions to a Loan Party;  (d) Dispositions that constitute Investments that are permitted under Section 6.04;  (e) Dispositions of (i) any non-U.S. Intellectual Property and (ii) any Intellectual  Property rights covering or relating solely to jurisdictions outside the United States, in each case  to any foreign Subsidiary so long as the Equity Interests in such foreign Subsidiary (or in the parent  company of such foreign subsidiary, if such parent company does not have any assets other than  Indebtedness of, or equity interests in, such foreign Subsidiary) have been pledged to the  Administrative Agent in accordance with Section 5.10(b) and the Loan Parties retain all rights  required for or material to the operation of their businesses in the United States;  (f) Dispositions permitted by clause (iii) or (iv) of Section 6.03(a);  (g) the grant in the ordinary course of business of any non-exclusive license of patents,  trademarks, registrations therefor and other similar intellectual property;  (h) the sale or issuance of any Subsidiary’s Equity Interests to the Borrower or any  Guarantor that is a wholly owned Subsidiary;   (i) the Disposition of other property having a fair market value not to exceed  $10,000,000 in the aggregate for any fiscal year of the Borrower;   (j) the issuance and sale of notes constituting Permitted Convertible Indebtedness  pursuant to Section 6.01(i);   (k) early unwind, settlement or termination of any Permitted Bond Hedge Transactions  or Permitted Warrant Transactions; and  (l)  Dispositions of property to Persons (including (x) the sale or issuance of Equity  Interests of a Subsidiary and (y) any sale and leaseback transaction) for fair market value; provided  that (A) at least 75% of the total consideration for any such Disposition received by the Borrower  and its Subsidiaries shall be in the form of cash or Cash Equivalents, (B) no Event of Default then  exists or would result from such Disposition, (C) the Borrower shall be in compliance with the  then applicable financial covenant(s) set forth in Section 6.10 on a pro forma basis after giving  effect to such Disposition and (D) to the extent any such Disposition includes any Material  Intellectual Property, the Borrower and its Subsidiaries shall in any event retain ownership of (x)  all Material Intellectual Property related to the “Peloton” business and (y) Material Intellectual  Property sufficient to operate the connected fitness business and subscription business on a  continuing basis and without any material impact thereon; provided, further, for the avoidance of  doubt, that the Net Cash Proceeds received from such Dispositions must be reinvested or offered  to prepay Term Loans in accordance with Section 2.08(f).   Notwithstanding anything to the contrary, any Disposition or transfer (including by way  of exclusive license) of Material Intangible Assets by the Borrower or any Domestic Subsidiary  to any Person other than a Loan Party (other than non-exclusive licenses to third parties and to  





 






  111  Foreign Subsidiaries, in each case, in the ordinary course of business) shall only be permitted to  the extent made in reliance on Section 6.09(l).    Financial Condition Covenants  Solely for the benefit of the Revolving Facility,  (a)   (i) Prior to the Conversion Date, the Borrower will not, and will not permit any of its  Subsidiaries to, permit Total Liquidity, at any time, to be less than $250,000,000.  (ii) Prior to the Conversion Date, the Borrower will not, and will not permit any of its  Subsidiaries to, permit Total Revenues for any Measurement Period to be less than  $3,000,000,000.  (iii) Notwithstanding anything to the contrary herein or in any other Loan Document,  on and after the Conversion Date, the covenants set forth in the foregoing clauses  (a)(i) and (a)(ii) shall cease to be in effect for any purpose of the Loan Documents.  (b)       With respect to each Measurement Period ending on or after the Conversion Date,  the Borrower will not permit the Senior Secured Net Leverage Ratio as of the last day of such  Measurement Period to be greater than 3.00 to 1.00.    Swap Agreements  Neither the Borrower nor any other Guarantor will enter into any Swap Agreement, other  than (a) any Swap Agreement in respect of interest rates that is entered into to hedge or mitigate  risks, and not for speculative purposes, in the ordinary course of the Borrower or such Guarantor’s  business or in order to effectively cap, collar or exchange interest rates (from floating to fixed  rates, from one floating rate to another floating rate or otherwise) with respect to any interest- bearing liability or investment of the Borrower or such Guarantor, (b) any Swap Agreement in  respect of currency exchange rates that is not entered into for speculative purposes, (c) any  Permitted Bond Hedge Transaction and (d) any Permitted Warrant Transaction.  ARTICLE 7  EVENTS OF DEFAULT   If any of the following events (each, an “Event of Default”) shall occur:   (a) the 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, or shall fail  to Cash Collateralize any Obligation when and as required pursuant to the terms of this Agreement;   (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other  amount (other than an amount referred to in clause (a) of this Article) payable under any of the  





 






  112  Loan Documents, when and as the same shall become due and payable, and such failure shall  continue unremedied for a period of five Business Days;   (c) any representation or warranty made or deemed made by or on behalf of the  Borrower or any Subsidiary 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, any other Loan Document or any amendment or modification hereof or  thereof or waiver hereunder or thereunder, shall prove to have been incorrect in any material  respect when made or deemed made;   (d) the Borrower shall fail to observe or perform any covenant, condition or agreement  contained in Section 5.02, Section 5.03 (solely with respect to the Borrower’s existence),  Section 5.09 or in Article 6; provided, that a Default under Section 6.10 (a “Financial Covenant  Event of Default”) shall not constitute an Event of Default with respect to the Term Facilities  unless and until the Required Revolving Lenders shall have terminated their Revolving Credit  Commitments and declared all amounts outstanding under the Revolving Credit Facility to be due  and payable;  (e) the Borrower shall fail to observe or perform any covenant, condition or agreement  contained in any of the Loan Documents (other than those specified in clause (a), (b) or (d) of this  Article of this Agreement), and such failure shall continue unremedied for a period of 30 days after  notice thereof from the Administrative Agent to the Borrower (which notice will be given at the  request of any Lender);   (f) the Borrower 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 (whether by scheduled maturity, required prepayment,  acceleration, demand, or otherwise) and such failure shall have continued after the applicable grace  period, if any;   (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, but with all applicable grace periods in respect of such event or condition  under the documentation representing such Material Indebtedness having expired) 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  (w) any requirement to, or any offer, to repurchase, prepay or redeem Indebtedness of a Person  acquired in an acquisition permitted hereunder, to the extent such offer is required as a result of,  or in connection with, such acquisition, so long as such requirement is satisfied at the time of such  acquisition, (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer  of the property or assets securing such Indebtedness, (y) any redemption, repurchase, conversion  or settlement with respect to any convertible debt instrument (including any termination of any  related Swap Agreement) pursuant to its terms unless such redemption, repurchase, conversion or  settlement results from a default thereunder or an event of the type that constitutes an Event of  Default or (z) an early payment requirement, unwinding or termination with respect to any Swap  





 






  113  Agreement except (i) an early payment, unwinding or termination that results from a default or  non-compliance thereunder by the Borrower or any Subsidiary, or another event of the type that  would constitute an Event of Default or (ii) an early termination of such Swap Agreement by the  counterparty thereto; provided further that this clause (g) shall not apply to any Permitted  Convertible Indebtedness to the extent such event or condition occurs as a result of (x) the  satisfaction of a conversion contingency, (y) the exercise by a holder of Permitted Convertible  Indebtedness of a conversion right resulting from the satisfaction of a conversion contingency or  (z) a required repurchase under such Permitted Convertible 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 Borrower or any  Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Law or (ii) the  appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the  Borrower or any Subsidiary or for a substantial part 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) except as may otherwise be permitted under Section 6.03, the Borrower or any  Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation,  reorganization or other relief under any Debtor Relief Law, (ii) consent to the institution of, or fail  to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of  this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian,  sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial  part 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 Borrower or any Subsidiary shall become unable, 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 excess of $75,000,000 in the  aggregate shall be rendered against the Borrower, any Subsidiary or any combination thereof (to  the extent not paid or covered by a reputable and solvent independent third-party insurance  company which has not disputed coverage) and the same shall remain undischarged for a period  of 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 Borrower or any  Subsidiary to enforce any such judgment and such action shall not be stayed;   (l) one or more ERISA Events shall have occurred, other than as would not reasonably  be expected to result, individually or in the aggregate, in a Material Adverse Effect;   (m) a Change in Control shall occur; or   (n) any Loan Document, at any time after its execution and delivery and for any reason  other than as expressly permitted hereunder or thereunder or satisfaction in full of all the  obligations hereunder or thereunder, ceases to be in full force and effect; or any Loan Party contests  in any manner the validity or enforceability of any Loan Document; or any Lien created by any of  





 






  114  the Security Documents shall cease to be enforceable and of the same effect and priority (subject  to Liens permitted by Section 6.02) to be created thereby,  then, and in every such event (other than an event with respect to the Borrower described in clause  (h) or (i) of this Article), and at any time thereafter during the continuance of such event, (x) the  Administrative Agent may, and at the request of the Required Revolving Lenders shall, by notice  to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate  the Revolving Commitments, and thereupon the Revolving Commitments shall terminate  immediately, (ii) cash collateralize any outstanding Letters of Credit in accordance with Section  2.10(i) and (iii) declare the Revolving 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 Revolving Loans so declared  to be due and payable, together with accrued interest thereon and all fees and other obligations of  the Borrower accrued hereunder, shall become due and payable immediately, and (y) the  Administrative Agent may, and at the request of the Required Lenders shall, by notice to the  Borrower, take any or all of the following actions, at the same or different times: (i) terminate the  Commitments, and thereupon the Commitments shall terminate immediately, (ii) cash collateralize  any outstanding Letters of Credit in accordance with Section 2.10(i) and (iii) 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 obligations of the Borrower accrued hereunder, shall become due and  payable immediately, in each case, without presentment, demand, protest or other notice of any  kind, all of which are hereby waived by the Borrower; and in case of any event with respect to the  Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically  terminate and the principal of the Loans then outstanding, together with accrued interest thereon  and all fees and other obligations of the Borrower accrued hereunder, shall automatically become  due and payable, without presentment, demand, protest or other notice of any kind, all of which  are hereby waived by the Borrower.   ARTICLE 8  THE AGENTS   Appointment of Administrative Agent  JPMorgan Chase Bank, N.A. is hereby appointed Administrative Agent hereunder and  under the other Loan Documents and each Lender hereby authorizes JPMorgan Chase Bank, N.A.  to act as Administrative Agent in accordance with the terms hereof and the other Loan Documents.   Each Agent hereby agrees to act in its capacity as such upon the express conditions contained  herein and the other Loan Documents, as applicable.  The provisions of this Article 8 are solely  for the benefit of the Agents and Lenders and no Loan Party shall have any rights as a third party  beneficiary of any of the provisions thereof.  In performing its functions and duties hereunder,  each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed  to have assumed any obligation towards or relationship of agency or trust with or for the Borrower  or any of its Subsidiaries.  As of the Effective Date and the Second Restatement Effective Date,  none of the Arranger or the Syndication Agents in such capacity shall have any obligations but  shall be entitled to all benefits of this Article 8.  The Arranger and the Syndication Agents may  





 






  115  resign from such role at any time, with immediate effect, by giving prior written notice thereof to  the Administrative Agent and the Borrower.   Powers and Duties  Each Lender irrevocably authorizes each Agent to take such action on such Lender’s behalf  and to exercise such powers, rights and remedies hereunder and under the other Loan Documents  as are specifically delegated or granted to such Agent by the terms hereof and thereof, together  with such powers, rights and remedies as are reasonably incidental thereto.  Each Agent shall have  only those duties and responsibilities that are expressly specified herein and the other Loan  Documents.  Each Agent may exercise such powers, rights and remedies and perform such duties  by or through its agents or employees.  No Agent shall have, by reason hereof or any of the other  Loan Documents, a fiduciary relationship in respect of any Lender or any other Person; and nothing  herein or any of the other Loan Documents, expressed or implied, is intended to or shall be so  construed as to impose upon any Agent any obligations in respect hereof or any of the other Loan  Documents except as expressly set forth herein or therein.   General Immunity  (a) No Agent shall be responsible to any Lender for the execution, effectiveness,  genuineness, validity, enforceability, collectability or sufficiency hereof or any other Loan  Document or for any representations, warranties, recitals or statements made herein or therein or  made in any written or oral statements or in any financial or other statements, instruments, reports  or certificates or any other documents furnished or made by any Agent to Lenders or by or on  behalf of any Loan Party to any Agent or any Lender in connection with the Loan Documents and  the transactions contemplated thereby or for the financial condition or business affairs of any Loan  Party or any other Person liable for the payment of any Obligations, nor shall any Agent be required  to ascertain or inquire as to the performance or observance of any of the terms, conditions,  provisions, covenants or agreements contained in any of the Loan Documents or as to the use of  the proceeds of the Loans or as to the existence or possible existence of any Event of Default or  Default or to make any disclosures with respect to the foregoing.  Anything contained herein to  the contrary notwithstanding, the Administrative Agent shall not have any liability arising from  confirmations of the amount of outstanding Loans, the Revolving Credit Exposures or the  component amounts thereof or any Dollar Equivalent.  (b) No Agent nor any of its officers, partners, directors, employees or agents shall be  liable to Lenders for any action taken or omitted by any Agent under or in connection with any of  the Loan Documents except to the extent caused by such Agent’s gross negligence or willful  misconduct, as determined by a final, non-appealable judgment of a court of competent  jurisdiction.  Each Agent shall be entitled to refrain from any act or the taking of any action  (including the failure to take an action) in connection herewith or any of the other Loan Documents  or from the exercise of any power, discretion or authority vested in it hereunder or thereunder  unless and until such Agent shall have received instructions in respect thereof from Required  Lenders or Required Revolving Lenders, as applicable (or such other Lenders as may be required  to give such instructions under Section 9.02), and, upon receipt of such instructions from Required  Lenders or Required Revolving Lenders (or such other Lenders, as the case may be), such Agent  shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power,  





 






  116  discretion or authority, in accordance with such instructions, including for the avoidance of doubt  refraining from any action that, in its opinion or the opinion of its counsel, may be in violation of  the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or  termination of property of a Defaulting Lender in violation of any Debtor Relief Law.  Without  prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be  fully protected in relying, upon any communication, instrument or document believed by it to be  genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be  entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may  be attorneys for Borrower and its Subsidiaries), accountants, experts and other professional  advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against any  Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder  or any of the other Loan Documents in accordance with the instructions of Required Lenders or  Required Revolving Lenders, as applicable (or such other Lenders as may be required to give such  instructions under Section 9.02).  (c) The Administrative Agent may perform any and all of its duties and exercise its  rights and powers under this Agreement 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 and all of its duties and exercise its rights and powers by or  through their respective Affiliates. The exculpatory, indemnification and other provisions of this  Section 8.03 and of Section 8.06 shall apply to any the Affiliates of the Administrative Agent and  shall apply to their respective activities in connection with the syndication of the credit facilities  provided for herein as well as activities as the Administrative Agent.  All of the rights, benefits,  and privileges (including the exculpatory and indemnification provisions) of this Section 8.03 and  of Section 8.06 shall apply to any such sub-agent and to the Affiliates of any such sub-agent, and  shall apply to their respective activities as sub-agent as if such sub-agent and Affiliates were named  herein.  Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed  by the Administrative Agent, (i) such sub-agent shall be a third party beneficiary under this  Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and  rights to indemnification) and shall have all of the rights and benefits of a third party beneficiary,  including an independent right of action to enforce such rights, benefits and privileges (including  exculpatory rights and rights to indemnification) directly, without the consent or joinder of any  other Person, against any or all of Loan Parties and the Lenders, (ii) such rights, benefits and  privileges (including exculpatory rights and rights to indemnification) shall not be modified or  amended without the consent of such sub-agent, and (iii) such sub-agent shall only have  obligations to the Administrative Agent and not to any Loan Party, Lender or any other Person and  no Loan Party, Lender or any other Person shall have any rights, directly or indirectly, as a third  party beneficiary or otherwise, against such sub-agent.  (d)  No Agent or its Affiliates shall have any responsibility or liability for monitoring  the list or identities of, or enforcing provisions relating to, Disqualified Lenders.   Administrative Agent Entitled to Act as Lender  The agency hereby created shall in no way impair or affect any of the rights and powers  of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender  hereunder.  With respect to its participation in the Loans, each Agent shall have the same rights  





 






  117  and powers hereunder as any other Lender and may exercise the same as if it were not performing  the duties and functions delegated to it hereunder, and the term “Lender” shall, unless the context  clearly otherwise indicates, include each Agent in its individual capacity.  Any Agent and its  Affiliates may accept deposits from, lend money to, own securities of, and generally engage in any  kind of banking, trust, financial advisory or other business with the Borrower or any of its Affiliates  as if it were not performing the duties specified herein, and may accept fees and other consideration  from the Borrower for services in connection herewith and otherwise without having to account  for the same to Lenders.   Lenders’ Representations, Warranties and Acknowledgment  (a) Each Lender represents and warrants that it has made its own independent investigation  of the financial condition and affairs of the Borrower and its Subsidiaries in connection with Loans  hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness  of the Borrower and its Subsidiaries.  No Agent shall have any duty or responsibility, either initially  or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders  or to provide any Lender with any credit or other information with respect thereto, whether coming  into its possession before the making of the Loans or at any time or times thereafter, and no Agent  shall have any responsibility with respect to the accuracy of or the completeness of any information  provided to Lenders.  (b) Each Lender, by delivering its signature page to the Second Restatement, an  Assignment and Assumption or a Joinder Agreement and funding its Loans on or after the  Effective Date or by the funding of any New Loans, as the case may be, shall be deemed to have  acknowledged receipt of, and consented to and approved, each Loan Document and each other  document required to be approved by any Agent, Issuing Bank or Lender, as applicable on the  Second Restatement Effective Date or as of the date of funding of such New Loans.   Right to Indemnity  Each Lender, in proportion to its Applicable Percentage or, in the case of any Term Lender,  in proportion to its Term Loans, severally agrees to indemnify each Agent, to the extent that such  Agent shall not have been reimbursed by any Loan Party, for and against any and all liabilities,  obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including  counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be  imposed on, incurred by or asserted against such Agent in exercising its powers, rights and  remedies or performing its duties hereunder or under the other Loan Documents or otherwise in  its capacity as such Agent in any way relating to or arising out of this Agreement or the other Loan  Documents; provided, no Lender shall be liable for any portion of such liabilities, obligations,  losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting  from such Agent’s gross negligence or willful misconduct, as determined by a final, non- appealable judgment of a court of competent jurisdiction.  If any indemnity furnished to any Agent  for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such Agent  may call for additional indemnity and cease, or not commence, to do the acts indemnified against  until such additional indemnity is furnished; provided, in no event shall this sentence require any  Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action,  judgment, suit, cost, expense or disbursement in excess of such Lender’s Applicable Percentage  





 






  118  thereof or, in the case of any Term Lender, the percentage thereof in proportion to its Term Loans;  and provided further, this sentence shall not be deemed to require any Lender to indemnify any  Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense  or disbursement described in the proviso in the immediately preceding sentence.   Successor Administrative Agent  The Administrative Agent shall have the right to resign at any time by giving prior written  notice thereof to Lenders and the Borrower.  The Administrative Agent shall have the right to  appoint a financial institution to act as the Administrative Agent hereunder, subject to the  reasonable satisfaction of the Borrower and the Required Lenders, and the Administrative Agent’s  resignation shall become effective on the earliest of (i) 30 days after delivery of the notice of  resignation (regardless of whether a successor has been appointed or not), (ii) the acceptance of  such successor Administrative Agent by the Borrower and the Required Lenders or (iii) such other  date, if any, agreed to by the Required Lenders.  Upon any such notice of resignation, if a successor  Administrative Agent has not already been appointed by the retiring Administrative Agent,  Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor  Administrative Agent.  If neither the Required Lenders nor the Administrative Agent have  appointed a successor Administrative Agent, the Required Lenders shall be deemed to have  succeeded to and become vested with all the rights, powers, privileges and duties of the retiring  Administrative Agent.  Upon the acceptance of any appointment as Administrative Agent  hereunder by a successor Administrative Agent, that successor Administrative Agent shall  thereupon succeed to and become vested with all the rights, powers, privileges and duties of the  retiring Administrative Agent and the retiring Administrative Agent shall promptly (i) transfer to  such successor Administrative Agent all sums held under the Loan Documents, together with all  records and other documents necessary or appropriate in connection with the performance of the  duties of the successor Administrative Agent under the Loan Documents, and (ii) take such other  actions, as may be necessary or appropriate in connection with the assignment to such successor  Administrative Agent of the Loan Documents, whereupon such retiring Administrative Agent shall  be discharged from its duties and obligations hereunder or under the other Loan Documents (if not  already discharged therefrom as provided above in this Article).  After any retiring Administrative  Agent’s resignation hereunder as Administrative Agent, the provisions of this Article 8 and Section  9.03 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was  Administrative Agent hereunder.   Guaranty and Security Documents  (a) Each Lender hereby further authorizes the Administrative Agent, on behalf of and for  the benefit of the Lenders, to be the agent for and representative of the Lenders with respect to the  Guaranty and the Loan Documents.  Subject to Section 9.02, without further written consent or  authorization from any Lender, the Administrative Agent may execute any documents or  instruments necessary to release any Guarantor from the Guaranty pursuant to Section 9.17 or with  respect to which Required Lenders (or such other Lenders as may be required to give such consent  under Section 9.02) have otherwise consented.  (b) Anything contained in any of the Loan Documents to the contrary notwithstanding,  the Borrower, the Administrative Agent and each Lender hereby agree that no Lender shall have  





 






  119  any right individually to enforce the Guaranty or the Security Documents, it being understood and  agreed that all powers, rights and remedies hereunder and under any of the Loan Documents may  be exercised solely by the Administrative Agent, for the benefit of the Lenders in accordance with  the terms hereof and thereof.  (c) Notwithstanding anything to the contrary contained herein or any other Loan  Document, when all Obligations (other than obligations under or in respect of Specified Swap  Agreements or Specified Cash Management Agreements) have been paid in full and all  Commitments have terminated or expired and no Letter of Credit shall be outstanding or subject  to any pending draw, upon request of the Borrower, the Administrative Agent shall take such  actions as shall be required to release all guarantee obligations provided for in and Liens created  by any Loan Document.  Any such release of guarantee obligations shall be deemed subject to the  provision that such guarantee obligations shall be reinstated if after such release any portion of any  payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be  restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of  the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor  or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial  part of its property, or otherwise, all as though such payment had not been made.   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, each Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of  doubt, to or for the benefit of the Borrower 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 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 and the conditions of  such exemption 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,  (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  





 






  120  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 either (1) clause (i) of Section 8.09(a) is true with respect to a  Lender or (2) a Lender has provided another representation, warranty and covenant in accordance  with clause (iv) of Section 8.09(a), such Lender further (i) represents and warrants, as of the date  such Person became a Lender party hereto, to, and (ii) 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, each Arranger and their respective Affiliates, and not, for the  avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the  Administrative Agent, or any Arranger or any of their respective Affiliates is a fiduciary with  respect to the Collateral or 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 to hereto or thereto).  (c) The Administrative Agent and each Arranger hereby informs the Lenders that each  such Person is not undertaking to provide 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 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.   Withholding Taxes  To the extent required by any applicable law, the Administrative Agent may withhold from  any payment to any Lender an amount equivalent to any applicable withholding Tax.  If the  Internal Revenue Service or any other Governmental Authority asserts a claim that the  Administrative Agent did not properly withhold Tax from amounts paid to or for the account of  any Lender because the appropriate form was not delivered or was not properly executed or  because such Lender failed to notify the Administrative Agent of a change in circumstance which  rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason,  





 






  121  or if the Administrative Agent reasonably determines that a payment was made to a Lender  pursuant to this Agreement without deduction of applicable withholding tax from such payment,  such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or  indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest  and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket  expenses) incurred.   Administrative Agent May File Bankruptcy Disclosure and Proofs of  Claim  In case of the pendency of any proceeding under any Debtor Relief Laws relative to any  Loan Party, The Administrative Agent (irrespective of whether the principal of any Loan or  Obligation under a Letter of Credit shall then be due and payable as herein expressed or by  declaration or otherwise and irrespective of whether the Administrative Agent shall have made  any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention  in such proceeding or otherwise:  (a)   to file a verified statement pursuant to rule 2019 of the Federal Rules  of Bankruptcy Procedure that, in its sole opinion, complies with such rule’s disclosure  requirements for entities representing more than one creditor;  (b)   to file and prove a claim for the whole amount of the principal and  interest owing and unpaid in respect of the Loans 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 Banks and the Administrative Agent (including  any claim for the reasonable compensation, expenses, disbursements and advances of the  Administrative Agent and its respective agents and counsel and all other amounts due  Administrative Agent under Sections 2.09 and 9.03 allowed in such judicial proceeding;  and  (c)   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 judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such  payments to Administrative Agent and, in the event that Administrative Agent shall consent to the  making of such payments directly to the Lenders and the Issuing Banks, to pay to the  Administrative Agent any amount due for the reasonable compensation, expenses, disbursements  and advances of the Administrative Agent and its agents and counsel, and any other amounts due  to the Administrative Agent under Sections 2.09 and 9.03.  To the extent that the payment of any  such compensation, expenses, disbursements and advances of the Administrative Agent, its agents  and counsel, and any other amounts due to the Administrative Agent under Sections 2.09 and 9.03  out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall  be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money,  securities and other properties that the Lenders or the Issuing Banks may be entitled to receive in  such proceeding whether in liquidation or under any plan of reorganization or arrangement or  otherwise.   





 






  122  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 any plan of reorganization, arrangement,  adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the  Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.  ARTICLE 9  MISCELLANEOUS    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 the Borrower, to it at:  Peloton Interactive, Inc.  441 Ninth Avenue, 6th Floor  New York, NY  10001  Attention: Chief Financial Officer and Treasurer  Email: jill.woodworth@onepeloton.com and  michael.stanton@onepeloton.com, with a copy to  legal@onepeloton.com  (ii) if to the Administrative Agent, to it at:  JPMorgan Chase Bank, N.A.  10 South Dearborn, Floor L2S  Chicago, IL, 60603  Attention: Briahna Amos  Email: briahna.amos@jpmorgan.com,  jpm.agency.cri@jpmorgan.com, and   cb-nast@tls.ldsprod.com  Reference: Peloton Interactive, Inc.  Telephone: (312) 954-1388  Fax: (844) 490-5663  (iii) if to any other Lender, to it at its address (or telecopy number) set forth  in its Administrative Questionnaire.   (iv) if to JPMorgan Chase Bank, N.A., as an Issuing Bank, to it at:  JPMorgan Chase Bank, N.A.  10 South Dearborn, Floor L2S  Chicago, IL, 60603  Attention: Briahna Amos  





 






  123  Email: briahna.amos@jpmorgan.com,  jpm.agency.cri@jpmorgan.com, and   cb-nast@tls.ldsprod.com  Reference: Peloton Interactive, Inc.  Telephone: (312) 954-1388  Fax: (844) 490-5663    With a copy to:  Lauren Daley  237 Park Avenue, Floor 6  New York, NY, 10017-3140  Email: lauren.daley@chase.com   Telephone: (212) 622-9563    (v) With respect to any other Issuing Bank, at its address provided by notice  to the other parties hereto.  Notices and other communications sent by hand or overnight courier service, or mailed by  certified or registered mail, shall be deemed to have been given when received; notices and other  communications sent by telecopier 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 and other  communications delivered through electronic communications to the extent provided in subsection  (b) below, shall be effective as provided in such subsection (b).   (b) Notices and other communications to the Lenders and the Issuing Banks hereunder  may be delivered or furnished by electronic communications pursuant to procedures approved by  the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article  2 unless otherwise agreed by the Administrative Agent and the applicable Lender. The  Administrative Agent or the Borrower 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. 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.   (c) Any party hereto may change its address or telecopy number for notices and other  communications hereunder by notice to the other parties hereto.   





 






  124  (d) The Borrower agrees that the Administrative Agent may make the Communications  (as defined below) available to the Lenders and the Issuing Banks by posting the Communications  on Debt Domain, IntraLinks, Syndtrak, or another similar electronic system (the “Platform”).  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” The Agent Parties (as  defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for  errors or omissions in the communications effected thereby (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 any Agent Party in connection with the Communications or the  Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the  “Agent Parties”) be responsible or liable for damages arising from the unauthorized use by others  of information or other materials obtained through internet, electronic, telecommunications or  other information transmission, except to the extent that such damages have resulted from the  willful misconduct or gross negligence of such Agent Party (as determined in a final, non- appealable judgment by a court of competent jurisdiction).    Waivers; Amendments  (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in  exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or  partial exercise of any such right or power, or any abandonment or discontinuance of steps to  enforce such a right or power, preclude any other or further exercise thereof or the exercise of any  other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and  the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they  would otherwise have. No waiver of any provision of this Agreement or any other Loan Document  or consent to any departure by the Borrower 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 Issuing  Bank or any Lender may have had notice or knowledge of such Default at the time.   (b) Subject to Section 2.11(b) and Section 9.02(c) below, none of this Agreement, any  other Loan Document or any provision hereof or thereof may be waived, amended or modified  except pursuant to an agreement or agreements in writing entered into by the Borrower and the  Required Lenders or by the Borrower and the Administrative Agent with the consent of the  Required Lenders; provided, however, that no such amendment, waiver or consent shall: (i) amend  the definition of “Applicable Percentage” without the consent of each Lender, or extend or 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,  (iii) postpone the scheduled date of 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; provided,  however, that notwithstanding clause (ii) or (iii) of this Section 9.02(b), only the consent of the  Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the  





 






  125  default rate set forth in Section 2.10(c), (iv) change Section 2.15(b), Section 2.15(c) or any other  Section hereof providing for the ratable treatment of the Lenders, in each case in a manner that  would alter the pro rata sharing of payments required thereby, without the written consent of each  Lender, (v) release all or substantially all of the value of any Guaranty or release all or substantially  all of the Collateral, without the written consent of each Lender, except to the extent the release of  any Guarantor or the Collateral is permitted pursuant to Article 8 or Section 9.17 (in which case  such release may be made by the Administrative Agent acting alone), (vi) change any of the  provisions of this Section or the percentage referred to in the definition of “Required 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 or (vii) waive any condition set forth in Section 4.01  (other than as it relates to the payment of fees and expenses of counsel), or, in the case of any  Loans made on the Restatement Effective Date, Section 4.02, without the written consent of each  Lender. Notwithstanding anything to the contrary herein, no such agreement shall amend, modify  or otherwise affect the rights or duties of the Administrative Agent or any Issuing Bank hereunder  without the prior written consent of the Administrative Agent or such Issuing Bank, as the case  may be.   (c) This Agreement may be amended as contemplated by (i) Section 2.18 to effect New  Commitments pursuant to a Joinder Agreement with the consent only of the Administrative Agent,  the Borrower and the New Lenders providing New Commitments and (ii) Section 2.21 to effect  Extended Commitments pursuant to an Extension Amendment with the consent only of the  Administrative Agent, the Borrower and the Extending Lenders providing such Extended  Commitments. If the Administrative Agent and the Borrower acting together identify any  ambiguity, omission, mistake, typographical error or other defect in any provision of this  Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall  be permitted to amend, modify or supplement such provision to cure such ambiguity, omission,  mistake, typographical error or other defect, and such amendment shall become effective without  any further action or consent of any other party to this Agreement. Any waiver, amendment or  modification of this Agreement that by its terms affects the rights or duties under this Agreement  of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans  or Commitments of any other Class) may be effected by an agreement or agreements in writing  entered into solely by the Borrower, the Administrative Agent and the requisite percentage in  interest of the affected Class of Lenders that would be required to consent thereto under this  Section as if such Class of Lenders were the only Class of Lenders hereunder at the time.     Expenses; Indemnity; Damage Waiver  (a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the  Administrative Agent and its Affiliates, including, without limitation, the reasonable fees,  disbursements and other charges of counsel for the Administrative Agent in connection with the  syndication of the credit facilities provided for herein, the preparation, execution, delivery and  administration of this Agreement, any other Loan Document 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) costs, expenses, assessments and other charges incurred by  any Lender in connection with any filing, registration, recording, or perfection of any security  interest contemplated by this Agreement, (iii) all reasonable out-of-pocket expenses incurred by  





 






  126  any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter  of Credit or any demand for payment thereunder and (iv) all out-of-pocket expenses incurred by  the Administrative Agent, any Issuing Bank or any Lender, including, without limitation, the fees,  disbursements and other charges of any counsel for the Administrative Agent, any Issuing Bank  or any Lender, in connection with the enforcement or protection of its rights in connection with  this Agreement or 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 incurred during any workout, restructuring or negotiations in respect of such  Loans or Letters of Credit.   (b) To the extent permitted by applicable law (i) the Borrower and any Loan Party shall  not assert, and the Borrower and each Loan Party hereby waives, any claim against the  Administrative Agent, any Arranger, any Syndication Agent, any 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) no party  hereto shall assert, and each such party hereby waives, any Liabilities against any other party  hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as  opposed to direct or actual damages) arising out of, in connection with, or as a result of, 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 Borrower and each Loan Party of any  obligation it may have to indemnify an Indemnitee, as provided in Section 9.03(c), against any  special, indirect, such punitive damages asserted against consequential or  Indemnitee by a third  party.  (c) The Borrower shall indemnify the Administrative Agent, the Arranger, any Issuing  Bank and each Lender, and each Related Party, successor, partner, representative or assign of any  of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each  Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,  including the fees, charges and disbursements of any counsel for any 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 this Agreement, any other Loan Document or any agreement or instrument  contemplated hereby or thereby, the performance by the parties hereto of their respective  obligations hereunder or thereunder or the consummation of the Transactions or any other  transactions contemplated hereby, or, in the case of the Administrative Agent (and any sub-agent  thereof) and its Related Parties only, the administration of this Agreement and the other Loan  Documents, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any  refusal by any 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, leased or operated by the Borrower or any of its Subsidiaries, or any  Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any  actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing,  whether or not such claim, litigation, investigation or proceeding is brought by the Borrower or its  equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort  





 






  127  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, (x) with respect to Taxes and amounts  relating thereto (other than any Taxes that represent losses, claims, damages, etc. arising from any  non-Tax claim), the indemnification for which shall be governed solely and exclusively by  Section 2.14, or (y) to the extent that such losses, claims, damages, liabilities or related expenses  are determined by a court of competent jurisdiction by final and non-appealable judgment to have  resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee.   (d) To the extent that the Borrower fails to pay any amount required to be paid by it to  the Administrative Agent or any Issuing Bank under paragraph (a) or (b) of this Section, each  Lender severally agrees to pay to the Administrative Agent and the applicable Issuing Bank, 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; provided that the  unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case  may be, was incurred by or asserted against the Administrative Agent or such Issuing Bank in their  capacity as such; provided, further, that, notwithstanding anything to the contrary herein, no  Lender shall be liable for any portion of any such unreimbursed expenses or indemnified loss,  claim, damage, liability or related expense, as the case may be, of the Administrative Agent and/or  the Issuing Banks (or, in each case, any Affiliate thereof) as a result of the bad faith, gross  negligence or willful misconduct of the relevant Person or Persons, as determined by a court of  competent jurisdiction by a final or non-appealable judgment.  (e) Without limiting in any way the indemnification obligations of the Borrower  pursuant to Section 9.03(b) or of the Lenders pursuant to Section 8.06, to the extent permitted by  applicable law, each party hereto shall not assert, and hereby waives, any claim against any  Indemnitee or the Borrower or any of its Subsidiaries, on any theory of liability, for special,  indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out  of, in connection with, or as a result of, this Agreement, any other Loan Document or any  agreement or instrument contemplated hereby or thereby, the Transactions or any Loan or Letter  of Credit or the use of the proceeds thereof; provided that nothing in this clause (d) shall relieve  the Borrower of any obligation it may have to indemnify an Indemnitee against special, indirect,  consequential or punitive damages asserted against such Indemnitee by a third party. No  Indemnitee shall be liable for any damages arising from the use by unintended recipients of any  information or other materials distributed to such unintended recipients by such Indemnitee  through telecommunications, electronic or other information transmission systems in connection  with this Agreement or the other Loan Documents or the transactions contemplated hereby or  thereby other than for direct or actual damages resulting from the gross negligence or willful  misconduct of such Indemnitee as determined by a final and non-appealable judgment of a court  of competent jurisdiction.   (f) All amounts due under this Section shall be payable promptly after written demand  therefor.    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  





 






  128  of any Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may not assign  or otherwise transfer any of its rights or obligations hereunder without the prior written consent of  each Lender (and any attempted assignment or transfer by the Borrower without such consent shall  be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations  hereunder except in accordance with this Section. Nothing in this Agreement, expressed or  implied, shall be construed to confer upon any Person (other than the parties hereto, their respective  successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of  this Section) and, to the extent expressly contemplated hereby (including any Affiliate of any  Issuing Bank that issues any Letter of Credit), the Related Parties of each of the Administrative  Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or  by reason of this Agreement.   (b) (i)  Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may  assign to one or more assignees (but not to the Borrower or an Affiliate thereof or any Disqualified  Lender; provided that such list of Disqualified Lenders shall not be published in any format and  shall only be made available to Lenders, Participants, prospective Lenders or Participants and  prospective assignees to the extent requested) all or a portion of its rights and obligations under  this Agreement (including all or a portion of its Commitment of any Class, participations in Letters  of Credit and the Loans of any Class at the time owing to it) with the prior written consent (such  consent not to be unreasonably withheld or delayed) of:   (A) the Borrower; provided that no consent of the Borrower shall be  required for an assignment (1) to a Lender, an Affiliate of a Lender or an Approved Fund  or (2) (I) in the case of any assignment of Revolving Commitments or Revolving Loans,  (x) if an Event of Default, other than an Event of Default under clause (a), (b), (h) or (i) of  Article VII, has occurred and is continuing, to any assignee that is regulated bank or other  regulated financial institution (including Chase Lincoln First Commercial Corporation) or  any subsidiary of a regulated bank or other regulated financial institution (including Chase  Lincoln First Commercial Corporation) or (y) if an Event of Default under clause (a), (b),  (h) or (i) of Article VII has occurred and is continuing, to any other assignee  (other than a  Disqualified Lender), or (II) in the case of any assignment of Term Loans, if an Event of  Default under clause (a), (b), (h) or (i) of Article VII has occurred and is continuing, to any  other assignee (other than a Disqualified Lender); and provided further that the Borrower  shall be deemed to have consented to any such assignment of Revolving Commitments and  Revolving Loans unless it shall object thereto by written notice to the Administrative Agent  within ten Business Days after having received notice thereof, and the Borrower shall be  deemed to have consented to any such assignment of Term Loans unless it shall object  thereto by written notice to the Administrative Agent within ten Business Days after having  received notice thereof;   (B) the Administrative Agent; provided that no consent of the  Administrative Agent shall be required for an assignment of any Commitment to an  assignee that is a Lender with a Commitment immediately prior to giving effect to such  assignment, an Affiliate of a Lender, or an Approved Fund; and  (C) each Issuing Bank.   





 






  129  (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 assignment of the entire remaining amount of the assigning Lender’s  Commitment or Loans, the amount of the Revolving Commitment or Revolving 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 (or a greater amount that is an  integral multiple of $1,000,000) and the amount of the Term 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 $1,000,000 (or a greater amount that is an integral multiple of $1,000,000), in each  case unless each of the Borrower and the Administrative Agent otherwise consent;  provided that no such consent of the Borrower shall be required if an Event of Default has  occurred and is continuing, in the case of any assignment of Revolving Commitments and  Revolving Loans, or if an Event of Default under clause (a), (b), (h) or (i) of Article VII  has occurred and is continuing, in the case of any assignment of Term Loans;   (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;   (C) the parties to each assignment shall execute and deliver to the  Administrative Agent an Assignment and Assumption, together with a processing and  recordation fee of $3,500;    (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 Borrower and its Related Parties or their  respective securities) will be made available and who may receive such information in  accordance with the assignee’s compliance procedures and applicable laws, including  Federal and state securities laws;   (E) no such assignment shall be made to (i) any Loan Party nor any  Affiliate of a Loan Party, (ii) any Defaulting Lender or any of its subsidiaries, or any  Person, who, upon becoming a Lender hereunder, would constitute any of the foregoing  Persons described in this clause (ii), (iii) any natural person or (iv) any Disqualified Lender;  and   (F) in connection with any assignment of rights and obligations of any  Defaulting Lender hereunder, no such assignment shall be effective unless and until, in  addition to the other conditions thereto set forth herein, the parties to the assignment shall  make such additional payments to the Administrative Agent in an aggregate amount  sufficient, upon distribution thereof as appropriate (which may be outright payment,  purchases by the assignee of participations or subparticipations, or other compensating  actions, including funding, with the consent of the Borrower and the Administrative Agent,  





 






  130  the applicable pro rata share of Loans previously requested but not funded by the  Defaulting Lender, to each of which the applicable assignee and assignor hereby  irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such  Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest  accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all  Loans of each applicable Class in accordance with its Applicable Class Percentage.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations  of any Defaulting Lender hereunder shall become effective under applicable Law without  compliance with the provisions of this paragraph, then the assignee of such interest shall  be deemed to be a Defaulting Lender for all purposes of this Agreement until such  compliance occurs.   (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 Section 2.12, Section 2.13, Section 2.14 and Section 9.03);  provided, that except to the extent otherwise expressly agreed by the affected parties, no  assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party  hereunder arising from that Lender’s having been a Defaulting Lender. Subject to  Section 9.04(e), any assignment or transfer by a Lender of rights or obligations under this  Agreement that does not comply with this Section shall be treated for purposes of this  Agreement as a sale by such Lender of a participation in such rights and obligations in  accordance with paragraph (c) of this Section.   (iv) The Administrative Agent, acting for this purpose as an agent of the  Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption  delivered to it and a register for the recordation of the names and addresses of the Lenders, and  the Commitment of, and amounts on the Loans and LC Disbursements owing to, each Lender  pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall  be conclusive (absent manifest error), and the Borrower, the Administrative Agent, the Issuing  Banks 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 Borrower, any  Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable  prior notice. The Borrower agrees to indemnify the Administrative Agent from and against any  and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on,  asserted against or incurred by the Administrative Agent in performing its duties under this  Section 9.04(b)(iv), except to the extent that such losses, claims, damages or liabilities are  determined by a court of competent jurisdiction by final and non-appealable judgment to have  resulted from the gross negligence or willful misconduct of the Administrative Agent. The  Loans (including principal and interest) are registered obligations and the right, title, and interest  





 






  131  of any Lender or its assigns in and to such Loans shall be transferable only upon notation of  such transfer in the Register.   (v) Upon its receipt of a duly completed Assignment and Assumption  executed by an assigning Lender and an assignee, the assignee’s completed Administrative  Questionnaire (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 2.04(b), Section 2.15(d) or Section 8.06,  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, or notice to (provided that the  Borrower may request that any such selling Lender provide notice of such participations following  consummation of such participation), the Borrower or the Administrative Agent or any Issuing  Bank, sell participations to one or more banks or other entities (but not to the Borrower or an  Affiliate thereof or any Disqualified Lender (provided that such list of Disqualified Lenders shall  not be published in any format and shall only be made available to Lenders, Participants,  prospective Lenders or Participants and prospective assignees to the extent requested)) (a  “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement  (including all or a portion of its Commitment of any Class and 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 Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall  continue to deal solely and directly with such Lender in connection with such Lender’s rights and  obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells  such a participation shall provide that such Lender shall retain the sole right to enforce 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 paragraph (c)(ii) of  this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections  2.12, 2.13 and 2.14 to the same extent as if it were a Lender and had acquired its interest by  assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each  Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided  such Participant agrees to be subject to Section 2.15(c) as though it were a Lender.   (ii) A Participant shall not be entitled to receive any greater payment under  Sections 2.12 or 2.14 than the applicable Lender would have been entitled to receive with  respect to the participation sold to such Participant except to the extent such entitlement to  receive a greater payment results from a Change in Law requiring a payment under Section 2.12  that occurs after the Participant acquired the applicable participation. Participants entitled to the  





 






  132  benefits of Sections 2.12, 2.13 and 2.14 are entitled to such benefits subject to the requirements  and limitations therein, including the requirements under Section 2.14(f) (it being understood  that the documentation required under Section 2.14(f) shall be delivered to the participating  Lender).   (iii) Each Lender that sells a participation shall, acting solely for this purpose  as a nonfiduciary 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 Loans or other obligations under the Loan Documents (the “Participant  Register”); provided that no Lender shall have any obligation to disclose all or any portion of  the Participant Register (including the identity of any Participant or any information relating to  a Participant’s interest in any commitments, loans, letters of credit or its other obligations under  any Loan Document) to any Person except to the extent that such disclosure is necessary to  establish that such commitment, loan, letter of credit or other obligation is in registered form  under Section 5f.103-1(c) and Proposed Section 1.163-5(b) of the United States Treasury  Regulations and except if to the Borrower upon the Borrower’s request to the extent such Lender  shall agree. 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 (other than to a  Disqualified Lender) 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 or any other central bank having jurisdiction over such Lender, 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)  The Borrower shall have the right (i) at the sole expense of any Lender that is a  Disqualified Lender, to seek to replace such Disqualified Lender or other Lender as a Lender by  causing such Lender to (and such Lender shall be obligated to) assign (without recourse) any or  all of its Commitments and/or Loans and its rights and obligations under this Agreement to one or  more Eligible Assignees; provided that (1) the Administrative Agent shall not have any obligation  to the Borrower to find such a replacement Lender and (2) the assignee shall pay to such  Disqualified Lender or other Lender concurrently with such assignment an amount (which  payment shall be deemed payment in full) equal to the lesser of (x) the face principal amount of  the Commitments and/or Loans so assigned and (y) the amount that such Disqualified Lender or  other Lender paid to acquire such Commitments and/or Loans, in each case without interest  thereon (it being understood that if the effective date of such assignment is not an Interest Payment  Date, such assignee shall be entitled to receive on the next succeeding Interest Payment Date  interest on the principal amount of the Loans so assigned that has accrued and is unpaid from the  Interest Payment Date last preceding such effective date (except as may be otherwise agreed  between such assignee and the Company)), or (ii) to prepay any Loans held by such Disqualified  Lender or other Lender, in whole or in part, by paying an amount (which payment shall be deemed  payment in full) equal to the lesser of (x) the face principal amount of the Commitments and/or  





 






  133  Loans so prepaid and (y) the amount that such Disqualified Lender or other Lender paid to acquire  such Loans, (in each case without interest thereon), and if applicable, terminate the Commitments  of such Disqualified Lender, in whole or in part.  In connection with any such replacement, (1) if  the Disqualified Lender does not execute and deliver to the Administrative Agent a duly completed  Assignment and Assumption and/or any other documentation necessary or appropriate (in the good  faith determination of the Administrative Agent or the Borrower, which determination shall be  conclusive) to reflect such replacement by the later of (a) the date on which the replacement Lender  executes and delivers such Assignment and Assumption and/or such other documentation and (b)  the date as of which the Disqualified Lender shall be paid by the assignee Lender the amount  required pursuant to this Section 9.04(e), then such Disqualified Lender or other Lender shall be  deemed to have executed and delivered such Assignment and Assumption and/or such other  documentation as of such date and the Borrower shall be entitled (but not obligated) to execute  and deliver such Assignment and Assumption and/or such other documentation on behalf of such  Disqualified Lender or other Lender, and the Administrative Agent shall record such assignment  in the Register, and (2) each Lender that is a Disqualified Lender agrees to disclose to the Borrower  and the Administrative Agent the amount it paid to acquire the Commitments and/or Loans held  by it.   Survival  . All covenants, agreements, representations and warranties made by the Borrower herein  and in the certificates or other instruments delivered in connection with or pursuant to this  Agreement shall be considered to have been relied upon by the other parties hereto and shall  survive the execution and delivery of this Agreement 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, any Issuing Bank or any Lender may  have had notice or knowledge of any Default or incorrect representation or warranty at the time  any credit is extended hereunder, and shall continue in full force and effect as long as the principal  of or any accrued interest on any Loan or any fee or any other amount payable under this  Agreement is outstanding and unpaid or any Letter of Credit is outstanding or subject to any  pending draw and so long as the Commitments have not expired or terminated. The provisions of  Section 2.12, Section 2.13, Section 2.14 and Section 9.03 and Article 8 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, the resignation of the Administrative Agent, the replacement of any Lender, or the  termination of this Agreement or any provision hereof.    Counterparts; Integration; Effectiveness; Electronic Signatures  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  





 






  134  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 this  Agreement by telecopy or other electronic imaging means shall be effective as delivery of a  manually executed counterpart of this Agreement.   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, (1) 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 Borrower 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 (2) 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 Borrower and each Loan Party hereby (a)  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, and the Borrower and the 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, (b) 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), (c) 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 respect to any signature pages thereto and (d) waives any claim against any Lender- Related Person for any Liabilities arising solely from the Administrative Agent’s and/or any  





 






  135  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 Borrower and/or any Loan Party to  use any available security measures in connection with the execution, delivery or transmission of  any Electronic Signature.     Severability  Any provision of this Agreement held to be invalid, illegal or unenforceable in any  jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality  or unenforceability without affecting the validity, legality and enforceability of the remaining  provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not  invalidate such provision in any other jurisdiction. Without limiting the foregoing provisions of  this Section, if and to the extent that the enforceability of any provisions in this Agreement relating  to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the  Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not  so limited.    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, in whatever currency) at any time held by, and other obligations (in whatever currency) at  any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower  against any of and all the obligations of the Borrower now or hereafter existing under this  Agreement held by such Lender, irrespective of whether or not such Lender shall have made any  demand under this Agreement and although such obligations may be unmatured; provided that in  the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set  off shall be paid over immediately to the Administrative Agent for further application in  accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by  such Defaulting Lender from its other funds and deemed held in trust for the benefit of the  Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to  the Administrative Agent a statement describing in reasonable detail the obligations owing to such  Defaulting Lender as to which it exercised such right of setoff. 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 agrees to notify the Borrower 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. Notwithstanding the foregoing, to the extent  prohibited by applicable law as described in the definition of “Excluded Swap Obligation,” no  amounts received from, or set off with respect to, any Guarantor shall be applied to any Excluded  Swap Obligations of such Guarantor.  





 






  136   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.   (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its  property, to the exclusive jurisdiction of any Federal court of the United States of America sitting  in New York County, Borough of Manhattan (or, in the event such court lacks subject matter  jurisdiction, the Supreme Court of the State of New York sitting in New York County, Borough  of Manhattan) and any appellate court from any thereof, in any action or proceeding arising out of  or relating to this Agreement, 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 be heard and determined in such New York State or, to the extent  permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in  any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by  suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall  affect any right that the Administrative Agent, any Issuing Bank or any Lender may otherwise  have to bring any action or proceeding relating to this Agreement against the Borrower or its  properties in the courts of any jurisdiction.   (c) The Borrower 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 in any court  referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives,  to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of  such action or proceeding in any such court.   (d) Each party to this Agreement irrevocably consents to service of process in the  manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any  party to this Agreement to serve process in any other manner permitted by law.    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 (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 AGREEMENT BY, AMONG OTHER THINGS, THE  MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.   





 






  137   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.    Confidentiality  (a) Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain  the confidentiality of the Information (as defined below) and to not use the Information for any  purpose except in connection with the Loan Documents, except that Information may be disclosed  (i) to its and its Affiliates’ directors, officers, employees, and agents, including accountants, legal  counsel and other professionals, experts or advisors, or to any credit insurance provider relating to  the Borrower and its obligations, in each case whom it reasonably determines needs to know such  information in connection with this Agreement and the transactions contemplated hereby and who  are informed of the confidential nature of such Information and instructed to keep such Information  confidential, (ii) to the extent requested by any rating agency or regulatory authority, examiner  regulating banks or banking, or other self-regulatory authority having or claiming oversight over  the Administrative Agent, any Issuing Bank, any Lender or any of their respective Affiliates,  (iii) pursuant to the order of any court or administrative agency or in any pending legal, judicial or  administrative proceeding, or otherwise as required by applicable laws or regulations or by any  subpoena or similar legal process based on the advice of counsel (in which case the Administrative  Agent, such Issuing Bank or such Lender, as applicable, agrees, to the extent permitted by  applicable law, to inform the Borrower promptly thereof), (iv) to any other party to this  Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or  proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an  agreement containing provisions substantially the same as those of this Section, to (A) any  assignee of or Participant in, or any prospective assignee of or prospective Participant in, any of  its rights or obligations under this Agreement or (B) any actual or prospective counterparty (or its  advisors) to any swap or derivative transaction relating to the Borrower and its obligations,  (vii) with the consent of the Borrower, (viii) to the extent such Information (A) becomes publicly  available other than as a result of a breach of this Section, (B) becomes available to the  Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis from a source  other than the Borrower or (C) is independently developed by the Administrative Agent, an Issuing  Bank or a Lender or (ix) for purposes of establishing a “due diligence” defense. In addition, the  Administrative Agent, the Issuing Banks and the Lenders may disclose the existence of this  Agreement and information about this Agreement to market data collectors, similar service  providers to the lending industry and service providers to the Administrative Agent, the Issuing  Banks and the Lenders in connection with the administration of this Agreement, the other Loan  Documents, the Letters of Credit and the Loans. For the purposes of this Section, “Information”  means all memoranda or other information received from or on behalf of the Borrower relating to  the Borrower or its business that is clearly identified by the Borrower as confidential, other than  any such information that is available to the Administrative Agent, any Issuing Bank or any Lender  on a nonconfidential basis prior to disclosure by the Borrower. Any Person required to maintain  the confidentiality of Information as provided in this Section shall be considered to have complied  with its obligation to do so if such Person has exercised the same degree of care to maintain the  





 






  138  confidentiality of such Information as such Person would accord to its own confidential  information.   (b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN  SECTION 9.12(A) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE  MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS  RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT  HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL  NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON- PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND  APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.   (c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND  AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT  PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL  BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON- PUBLIC INFORMATION ABOUT THE BORROWER AND ITS RELATED PARTIES OR ITS  SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND  THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE  QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT  MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS  COMPLIANCE PROCEDURES AND APPLICABLE LAW.    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 Federal Funds Effective Rate to the date of repayment, shall  have been received by such Lender.    No Advisory or Fiduciary Responsibility  In connection with all aspects of each Transaction contemplated hereby (including in  connection with any amendment, waiver or other modification hereof or of any other Loan  Document), the Borrower acknowledges and agrees, and acknowledges its Subsidiaries’  understanding, that: (a) (i) the arranging and other services regarding this Agreement provided by  the Administrative Agent, the Arranger, the Syndication Agents, the Issuing Banks and the  Lenders are arm’s-length commercial transactions between the Borrower and its Affiliates, on the  one hand, and the Administrative Agent, the Arranger, the Syndication Agents, the Issuing Banks  





 






  139  and the Lenders, on the other hand, (ii) the Borrower has consulted its own legal, accounting,  regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower is  capable of evaluating, and understands and accepts, the terms, risks and conditions of the  Transactions contemplated hereby and by the other Loan Documents; (b) (i) each of the  Administrative Agent, the Arranger, the Syndication Agents. the Issuing Banks and the Lenders is  and has been acting solely as a principal and, except as expressly agreed in writing by the relevant  parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower  or any of its Subsidiaries, or any other Person and (ii) neither the Administrative Agent, the  Arranger, any Syndication Agent, any Issuing Bank, nor any Lender has any obligation to the  Borrower or any of its Affiliates with respect to the Transactions contemplated hereby except those  obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative  Agent, the Arranger, the Syndication Agents, the Issuing Banks and the Lenders and their  respective Affiliates may be engaged in a broad range of transactions that involve interests that  differ from those of the Borrower and its Affiliates, and neither the Administrative Agent, the  Arranger, any Syndication Agent, any Issuing Bank, nor any Lender has any obligation to disclose  any of such interests to the Borrower or its Affiliates. The Borrower, on behalf of itself and each  of its Subsidiaries, agrees that nothing in the Loan Documents or otherwise will be deemed to  create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the  Administrative Agent, the Arranger, the Syndication Agents, any Issuing Bank or any Lender, on  the one hand, and the Borrower, any of its Subsidiaries, or their respective stockholders or  affiliates, on the other.   Erroneous Payments  (1) 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 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 9.15  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  





 






  140  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 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 Borrower 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 owed by the Borrower or any other Loan  Party.  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.    USA PATRIOT Act  Each Lender and each Issuing Bank that is subject to the requirements of the USA Patriot  Act hereby notifies the Borrower and each Guarantor that pursuant to the requirements of the USA  Patriot Act, it is required to obtain, verify and record information that identifies the Borrower and  each Guarantor, which information includes the name and address of the Borrower and each  Guarantor and other information that will allow such Lender or such Issuing Bank to identify the  Borrower and each Guarantor in accordance with the USA Patriot Act. The Borrower and each  Guarantor shall, promptly following a request by the Administrative Agent, any Issuing Bank or  any Lender, provide all documentation and other information that the Administrative Agent, such  Issuing Bank or such Lender requests in order to comply with its ongoing obligations under  applicable “know your customer” and anti-money laundering rules and regulations, including the  USA Patriot Act.    Releases of Guarantors and Liens  (a) In the event that all the Equity Interests in any Guarantor are sold, transferred or  otherwise disposed of to a Person other than the Borrower or its Subsidiaries in a transaction  permitted under this Agreement or in the event that a Guarantor ceases to be a Subsidiary, the  Administrative Agent shall, at the Borrower’s expense, promptly take such action and execute  such documents as the Borrower may reasonably request to terminate the guarantee of such  Guarantor and to release the Collateral owned by such Guarantor from the Liens created by the  Security Documents (it being understood that no Guarantor shall be released from its Guarantee  





 






  141  solely as a result of a failure of such Guarantor to be a wholly owned Subsidiary of the Borrower  if (i) any transfer of the Equity Interests in such Guarantor is to an Affiliate of the Borrower or any  Subsidiary other than for a bona fide business purpose or (ii) there is no bona fide business purpose  for the transaction that otherwise would result in such release).     (b)  In the event that any of the Collateral shall be sold, transferred or otherwise  disposed of by any Loan Party to a Person other than the Borrower or its Subsidiaries in a  transaction permitted under Section 6.09 of this Agreement, the Administrative Agent shall, at the  Borrower’s expense, promptly take such action and execute such documents as the Borrower may  reasonably request to release the Liens created by the Security Documents on such Collateral.  (c) At such time as all Obligations (other than inchoate indemnity obligations and  obligations under or in respect of Specified Swap Agreements or Specified Cash Management  Agreements) have been paid in full and all Commitments have terminated or expired and no Letter  of Credit shall be outstanding or subject to any pending draw, the Collateral shall be released from  the Liens created by the Security Documents, and the Security Documents and all obligations  (other than those expressly stated to survive such termination) of the Administrative Agent and  each Loan Party under the Security Documents shall terminate, all without delivery of any  instrument or performance of any act by any Person.   Acknowledgement Regarding Any Supported QFCs  To the extent that the Loan Documents provide support, through a guarantee or otherwise,  for any Swap Agreement 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):   (a)   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  





 






  142  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.    (b)   As used in this Section 9.18, the following terms have the following  meanings:  “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.    “Covered Entity” means any of the following:  (i) a “covered entity” as that term  is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a  “covered bank” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted  in accordance with, 12 C.F.R. § 382.2(b).    “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.    “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).     Judgment Currency.    If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due  hereunder or any other Loan Document in one currency into another currency, the rate of exchange  used shall be that at which in accordance with normal banking procedures the Administrative  Agent could purchase the first currency with such other currency on the Business Day preceding  that on which final judgment is given.  The obligation of the Borrower in respect of any such sum  due from it to the Administrative Agent or any Lender hereunder or under the other Loan  Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other  than that in which such sum is denominated in accordance with the applicable provisions of this  Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business  Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum  adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the  case may be, may in accordance with normal banking procedures purchase the Agreement  Currency with the Judgment Currency.  If the amount of the Agreement Currency so purchased is  less than the sum originally due to the Administrative Agent or any Lender from the Borrower in  the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any  such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against  such loss.  If the amount of the Agreement Currency so purchased is greater than the sum originally  due to the Administrative Agent or any Lender in such Currency, the Administrative Agent or such  Lender, as the case may be, agrees to return the amount of any excess to the Borrower (or to any  other Person who may be entitled thereto under applicable law).  





 






  143   Acknowledgement and Consent to Bail-In of Affected Financial  Institutions.    Notwithstanding anything to the contrary herein or in any other Loan Document, each  Borrower, each Lender and the Administrative Agent (each, an “Acknowledging Party”)  acknowledges that any liability of any Lender that is an Affected Financial Institution arising  hereunder or under any other Loan Document, to the extent such liability is unsecured and solely  relates to the Loans and not to any other Person, including any other party hereto or any other Loan  Document (and not to any other obligations), to such Acknowledging Party (all such liabilities, the  “Covered Liabilities”) 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 to any Covered  Liability arising hereunder or under any other Loan Document which may be payable to it by any  Lender party hereto that is an Affected Financial Institution; and  (b) the effects of any Bail-In Action on any such Covered Liability, including, if  applicable:  (i) a reduction in full or in part or cancellation of any such Covered Liability;  (ii) a conversion of all, or a portion of, such Covered Liability into shares or  other instruments of ownership in such Affected Financial Institution, its parent undertaking, or  a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or  other instruments of ownership will be accepted by it in lieu of any rights with respect to any  such Covered Liability under this Agreement or any other Loan Document; or  (iii) the variation of the terms of such Covered Liability in connection with  the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.   Notwithstanding anything to the contrary herein, nothing contained in this Section 9.20  shall modify or otherwise alter the rights or obligations under this Agreement or any other Loan  Document of any Person party hereto (other than an Acknowledging Party to the extent set forth  in this Section 9.20) or with respect to any liability that is not a Covered Liability.   Agreement as to Certain Amendments.  For the benefit of each Agent  and each Lender, the Borrower and each Lender (including Lenders constituting the Required  Lenders) and their successors and assigns hereby agree not to (and the Lenders (including  Lenders constituting the Required Lenders) hereby instruct the Administrative Agent not to)  enter into any amendment, waiver or consent in respect of this Agreement, any other Loan  Document or any provision hereof or thereof that shall (x) subordinate the Liens on a material  portion of the Collateral that secures the Obligations to any other Indebtedness for borrowed  money, (y) contractually subordinate the right of payment of the Obligations to the right of  payment of any other Indebtedness for borrowed money, or (z) amend any provision of this  Section 9.21, in each case, without the written consent of each Lender directly and adversely  affected thereby.  





 






  144  [Remainder of page intentionally left blank; signature pages intentionally removed]  





 






    EXHIBIT B    Schedules to Second Amended and Restated Credit Agreement    [***]  





 






    EXHIBIT C    Exhibits to Second Amended and Restated Credit Agreement    [***]    





 






    EXHIBIT D    Schedules to Security Agreement    [***]