exh103firstamend






Exhibit 10.3      FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT  THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT  AGREEMENT (“First Amendment”) is entered into as of August 11, 2021, among SEMTECH  CORPORATION, a Delaware corporation, as borrower (“Borrower”), the Guarantors (unless otherwise  indicated, this and each other capitalized term used in this Preamble and the following recitals having the  meaning given to it in Section 1.01) party hereto, the Lenders party to the Credit Agreement (as defined  below) as of the date hereof, and HSBC BANK USA, NATIONAL ASSOCIATION, a national banking  association (“HSBC”), in its separate capacities as Administrative Agent, for the benefit of the Secured  Parties, and as Swing Line Lender and L/C Issuer.  Capitalized terms used but not defined in this First   Amendment shall have the meaning given to them in the Credit Agreement.    RECITALS  A. Borrower, each of the Guarantors, the several financial institutions party thereto as  Lenders and HSBC, in its separate capacities as Administrative Agent and as Swing Line Lender and L/C  Issuer, have entered into that Second Amended and Restated Credit Agreement dated as of November 7,  2021 (the “Existing Credit Agreement”), pursuant to which the Lending Parties have extended and made  available certain Credit Extensions to Borrower in accordance with the terms, and subject to the  conditions, of the Existing Credit Agreement and the other Loan Documents.  B. Borrower, each of the Guarantors and the Lending Parties are willing to amend the  Existing Credit Agreement on the terms and subject to the conditions set forth in this First Amendment  (the Existing Credit Agreement as so amended is referred to herein as the “Credit Agreement”).   AGREEMENT  NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants herein  set forth, and intending to be legally bound, the parties hereto agree as follows:  SECTION 1. Amendments.  Subject to the terms and conditions of this First Amendment, the  Existing Credit Agreement is, effective as of the Effective Date (as defined below), hereby amended to (a)  delete the stricken text (indicated textually in the same manner as the following example: stricken text)  and (b) add the double-underlined text (indicated textually in the same manner as the following example:  double-underlined text), in each case, as set forth in the marked copy of the Existing Credit Agreement  attached hereto as Annex A and made a part hereof for all purposes. Any Schedule or Exhibit to the  Existing Credit Agreement not amended pursuant to the foregoing sentence shall remain in full force and  effect.  SECTION 2. Limitation of Amendment; Full Force and Effect.  The amendments set forth  in this First Amendment shall be limited precisely as written and shall not be deemed (a) to be an  amendment, consent or waiver of any other term or condition of the Existing Credit Agreement or the  other Loan Documents, to prejudice any right or remedy which the Administrative Agent or any of the  Lending Parties may now have or may have in the future under or in connection with the Credit  Agreement or the other Loan Documents; or (b) to be a consent to any future waiver, amendment, consent  or departure from the terms and conditions of the Credit Agreement or the other Loan Documents.  This  First Amendment shall be construed in connection with and as part of the Loan Documents, and all terms,  conditions, representations, warranties, covenants and agreements set forth in the Loan Documents,  except as herein waived or amended, are hereby ratified and confirmed and shall remain in full force and  effect.  





 






   -    SECTION 3. Representations and Warranties.  In order to induce the Lenders and  Administrative Agent to enter into this First Amendment, each Loan Party jointly and severally represents  and warrants to each Lender and Administrative Agent as follows:  3.1 Authorization; Enforceability.  Each Loan Party has taken all corporate, limited  liability company or other legal entity action, as applicable, required to execute, deliver and perform this  First Amendment and the Credit Agreement.  This First Amendment and the Credit Agreement  constitute valid and binding obligations of each Loan Party, enforceable against such Loan Party in  accordance with their terms, except as enforcement thereof may be limited by Debtor Relief Laws or  other applicable Laws affecting the enforcement of creditors' rights generally, and by general principles  of equity.  3.2 No Conflict.  Neither the execution and delivery of this First Amendment nor the  performance by any Loan Party of the Credit Agreement will:  contravene the Organizational Documents of any Loan Party;   violate of any Law applicable to any Loan Party, except to the extent such violation could  not reasonably be expected to have or result in a material Adverse Effect; or   result in the creation under of any Lien under any order, injunction, writ or decree of any  Governmental Authority upon any of the assets of any Loan Party, except to the extent the creation of  such Lien could not reasonably be expected to have or result in a Material Adverse Effect.  3.3 Absence of Default.  Immediately after giving effect to this First Amendment, no event  has occurred and is continuing or will result from the effectiveness of this First Amendment would  constitute a Default or an Event of Default.  3.4 Restatement of Representations and Warranties in Credit Agreement.   Each Loan  Party, with respect to the representations and warranties of such Loan Party set forth in the Credit  Agreement, including Article V thereof, represents and warrants that each of such representations and  warranties is true and correct in all material respects (except that such materiality qualifier will not be  applicable to any portion of any representation and warranty that is already qualified or modified by  materiality in the text thereof) as of the Effective Date of this First Amendment (except to the extent any  such representation or warranty specifically refers to an earlier date, in which case such representation or  warranty will be true and correct in all material respects (except that such materiality qualifier will not  be applicable to any portion of any representation and warranty that is already qualified or modified by  materiality in the text thereof) as of such earlier date).   SECTION 4. Reaffirmation by Borrower.  Borrower hereby acknowledges and reaffirms its  obligations under each Loan Document to which it is a party, including its undertaking and obligation to  timely pay the Obligations.   SECTION 5. Reaffirmation by Guarantors.  Each Guarantor acknowledges that it has  reviewed and approved this First Amendment, consents to the execution and delivery of this First  Amendment, and to performance of this First Amendment and the Credit Agreement by Borrower in all  respects, and acknowledges and reaffirms its obligations under each Loan Document to which it is a  party, including its joint and several, unconditional and irrevocable Guaranteed Obligations as set forth in  Section 10.15 of the Credit Agreement.  





 






   -     SECTION 6. Conditions to Effectiveness.  This First Amendment shall become effective  when each of the following conditions precedent set forth in this Section 6 shall have been satisfied, each  as determined by Administrative Agent and the Lenders in their sole discretion, and upon such  satisfaction shall be deemed effective as of the date (the “Effective Date”) first set forth in the preamble  of this First Amendment:    6.1 Executed First Amendment.  Administrative Agent shall have received a  counterpart of this First Amendment executed and delivered by Borrower, each Guarantor, each Lender  and by Wells Fargo in its separate capacities as Administrative Agent, Swing Line Lender and L/C Issuer,  Swing Line Lender and Administrative Agent.    6.2 Secretary’s Certificates.  Administrative Agent shall have received separate  certificates, executed by the corporate secretary, assistant secretary or other Responsible Officer of each  Loan Party on behalf of such Loan Party, certifying, (a)  that attached to such certificate are true, correct  and complete copies of (i) the Organizational Documents of such Loan Party then in full force and effect,  (ii) the resolutions then in full force and effect adopted by the Board of Directors of such Loan Party  authorizing and ratifying the execution, delivery and performance by such Loan Party of the Loan  Documents to which it is a party, including this First Amendment and the Credit Agreement, and (iii) a  certificate of good standing from the secretary of state of the state under whose laws such Loan Party was  incorporated, (b) the name(s) of the Responsible Persons of such Loan Party authorized to execute Loan  Documents on behalf of such Loan Party, together with an incumbency sample of the true signatures of  such Responsible Persons, and (c) that Administrative Agent and the Lenders may conclusively rely on  such certificate ;provided that, in lieu of the certifications and documents required by this Section 6.2  (other than clause (a)(iii), Borrower may certify to Administrative Agent that there has been not been a  change in any such items since the Second Restatement Effective Date (as defined in the Existing Credit  Agreement).     6.3 No Material Adverse Effect.  Since January 31, 2021, there has been no event  or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to  have or result in a Material Adverse Effect.    6.4 No Default or Event of Default.  No Default or Event of Default has occurred  and is continuing.   6.5 Representations and Warranties.  The representations and warranties of each  Loan Party set forth in Section 3 of this First Amendment will be true and correct in all material respects  (except that such materiality qualifier will not be applicable to any portion of any representation and  warranty that is already qualified or modified by materiality in the text thereof) on and as of the  Effective Date hereof.    6.6 Payment of Fees.  Borrower will have paid all fees, charges and disbursements  of counsel to Administrative Agent to the extent previously invoiced, plus such additional amounts of  such fees, charges and disbursements as will constitute its reasonable estimate of such fees, charges and  disbursements incurred or to be incurred by it through the closing proceedings (provided that such  estimate will not thereafter preclude a final settling of accounts between Borrower and Administrative  Agent).      6.8 Effective Date.  The Effective Date of this First Amendment shall have occurred  by August 15, 2021.  





 






   -     For the purpose of determining satisfaction with the conditions precedent specified in this Section  6, each Lender that has signed and delivered this First Amendment shall be deemed to have accepted, and  to be satisfied with, each document or other matter required under this Section 6 unless Administrative  Agent shall have received written notice from such Lender prior to the Effective Date specifying its  objection thereto.   SECTION 7. Miscellaneous.  7.1 Reference to and Effect on the Credit Agreement and the other Loan Documents.   On and after the effective date of this First Amendment, each reference in the Credit Agreement or the  other Loan Documents to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall  mean and be a reference to such agreement after giving effect hereto.  This First Amendment shall be  deemed to be one of the Loan Documents.   The rules of construction set forth in Section 1.02 of the  Credit Agreement shall apply to this First Amendment the same as they apply to the Credit Agreement  and the other Loan Documents.    7.2 Ratification of Reimbursement and Indemnification Obligations.  Borrower ratifies  and affirms each of its reimbursement and indemnification obligations under the Loan Documents,  including Section 10.04 of the Credit Agreement, and including its obligation to pay all reasonable fees,  charges and disbursements of counsel incurred by the Administrative Agent in connection with the  negotiation, implementation, execution and enforcement of this First Amendment, and any acts  contemplated hereby and thereby.  Nothing herein shall be construed to limit, affect, modify or alter  Borrower’s reimbursement and indemnification obligations under the Credit Agreement or elsewhere  under the Loan Documents.  7.3 Headings.  Section and subsection headings in this First Amendment are included herein  for convenience of reference only and shall not constitute a part of this First Amendment for any other  purpose or be given any substantive effect.  7.4 Governing Law, Submission to Jurisdiction, Waiver of Venue, Service of Process  and Jury Trial Waiver.  Sections 10.16 and 10.17 of the Credit Agreement are incorporated herein,  mutatis mutandis, and are deemed to apply to this First Amendment as if set forth in herein in full.  7.5 Successors and Assigns.  The provisions of this First Amendment shall be binding upon  and inure to the benefit of the parties hereto and their respective successors and assigns, except that  Borrower and the Guarantors may not assign or transfer any of their rights or obligations under this First  Amendment unless in accordance with the Credit Agreement.  7.6 Counterparts.     (a) This First Amendment may be executed in counterparts (and by different parties  hereto in different counterparts), each of which shall constitute an original, but all of which when taken  together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of  this Amendment by facsimile or email (including by “pdf”) shall be effective as delivery of a manually  executed counterpart of this First Amendment.    (b) The words “execute,” “execution,” “signed,” “signature,” “delivery” and words  of like import in or related to this First Amendment or any certificate or other document to be signed or  delivered in connection with this First Amendment or the transactions contemplated hereby shall be  deemed to include Electronic Signatures or execution in the form of an Electronic Record, and contract  formations on electronic platforms approved by Administrative Agent, 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 or the use of a paper-based recordkeeping system, as the case may be, to the  extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global  and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other  similar state laws based on the Uniform Electronic Transactions Act.  Each party hereto agrees that any  Electronic Signature or execution in the form of an Electronic Record shall be valid and binding on itself  and each of the other parties hereto to the same extent as a manual, original signature.  For the avoidance  of doubt, the authorization under this Section 7.6(b) may include use or acceptance by the parties of a  manually signed paper which has been converted into electronic form (such as scanned into PDF format),  or an electronically signed paper converted into another format, for transmission, delivery and/or  retention.  Notwithstanding anything contained herein to the contrary, Administrative Agent is under no  obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by  Administrative Agent pursuant to procedures approved by it.  [remainder of page intentionally left blank]  





 






    IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Second  Amended and Restated Credit Agreement to be duly executed by their respective authorized officers as of  the day and year first above written.  BORROWER:   SEMTECH CORPORATION                By:       _/s/ Emeka N. Chukwu __________________        Name:  Emeka N. Chukwu        Title:    Executive Vice President and Chief Financial Officer    GUARANTORS:   SEMTECH CORPUS CHRISTI CORPORATION          By:       _/s/ Emeka N. Chukwu __________________        Name:  Emeka N. Chukwu        Title:    President and Chief Financial Officer    SEMTECH SAN DIEGO CORPORATION          By:       _/s/ Emeka N. Chukwu __________________        Name:  Emeka N. Chukwu        Title:    President and Chief Financial Officer    SEMTECH NEW YORK CORPORATION          By:       _/s/ Emeka N. Chukwu __________________        Name:  Emeka N. Chukwu        Title:    President and Treasurer    SEMTECH COLORADO, INC.          By:       _/s/ Emeka N. Chukwu __________________        Name:  Emeka N. Chukwu        Title:    President and Chief Financial Officer      





 






   -ii-           SIERRA MONOLITHICS, INC.          By:       _/s/ Emeka N. Chukwu __________________        Name:  Emeka N. Chukwu        Title:    President and Chief Financial Officer    SEMTECH EV, INC.          By:       _/s/ Emeka N. Chukwu __________________        Name:  Emeka N. Chukwu        Title:   President, Chief Financial Officer and Treasurer    TRIUNE SYSTEMS, L.L.C.           By:       _/s/ Emeka N. Chukwu __________________        Name:  Emeka N. Chukwu        Title:    President and Chief Financial Officer    TRIUNE IP, LLC          By:       _/s/ Emeka N. Chukwu __________________        Name:  Emeka N. Chukwu        Title:    President and Chief Financial Officer                      





 






   -iii-           ADMINISTRATIVE AGENT, SWING LINE LENDER AND L/C ISSUER:    HSBC BANK USA, NATIONAL ASSOCIATION,                                            as Administrative Agent    By: __/s/ Deirdra N. Ross_______________  Name: ___Deirdra N. Ross________________  Title: ___Associate Director_______________      HSBC BANK USA, NATIONAL ASSOCIATION,                                            as Swing Line Lender and L/C Issuer    By: _ /s/ Tomoko Hoffman ______________  Name: _____Tomoko Hoffman #22682______  Title: _____SVP________________________                        





 






   -iv-           LENDERS:   HSBC BANK USA,  NATIONAL ASSOCIATION    By: _ /s/ Tomoko Hoffman ____________________  Name: _____Tomoko Hoffman #22682_____________  Title: _____Senior Vice President________________                                          





 






   -v-             U.S. BANK NATIONAL ASSOCIATION      By: ___/s/ G. Scott Lambert _____________________  Name: ___G. Scott Lambert________________________  Title: ___Vice President__________________________                                          





 






   -vi-           BANK OF THE WEST     By: ____/s/ Tom Mortensen___________  Name: _____ Tom Mortensen____________  Title: ____Vice President ______________                                            





 






   -vii-           BBVA USA,     By: ____/s/ Chris Dowler____________________  Name: ___Chris Dowler_______________________  Title: ____Senior Vice President_______________                                            





 






   -viii-           WELLS FARGO BANK, N.A.     By: __/s/ Greg Cohn__________________  Name: _____ Greg Cohn_________________  Title: _____SVP______________________                                          





 






   -ix-           BANK OF CHINA, LOS ANGELES BRANCH     By: __/s/ Yong Ou_________________________  Name: ____Yong Ou__________________________  Title: _____SVP & Acting Branch Manager_______                                          





 






   -x-           MUFG UNION BANK, N.A.      By: ___/s/ Matthew Antioco_______________  Name: ___Matthew Antioco_________________  Title: ___Director________________________                                          





 






   -xi-             TRUIST BANK, FORMERLY KNOWN AS BRANCH BANKING AND  TRUST COMPANY      By: _/s/ Alfonso Brigham______________________  Name: __Alfonso Brigham_______________________  Title: ___Vice President_______________________                                        





 






   -xii-             COMERICA BANK     By: __/s/ Collin Butler_________________  Name: ___Collin Butler__________________  Title: ____AVP________________________                                        





 






   -xiii-             SILICON VALLEY BANK     By: _/s/ Andrea M. Jones________________________  Name: __Andrea M. Jones_________________________  Title: __Director – Corporate Banking_______________                  





 






    ANNEX A    AMENDED CREDIT AGREEMENT  (See attached)                                                      





 






EXECUTION VERSION      [COMPILED VERSION, INCLUDING THE FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT  AGREEMENT DATED AS OF AUGUST 11, 2021]                  SECOND AMENDED AND RESTATED CREDIT AGREEMENT  dated as of November 7, 2019  among  SEMTECH CORPORATION,  as Borrower,  The Subsidiaries of Borrower party hereto,  as Guarantors,  The institutional lenders party hereto and named as “Lenders” herein,  as Lenders,  HSBC BANK USA, NATIONAL ASSOCIATION,  as Administrative Agent, Swing Line Lender and L/C Issuer,    HSBC BANK USA, NATIONAL ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION,   BBVA USA, WELLS FARGO BANK, N.A. AND BANK OF THE WEST,  as Joint Lead Arrangers and Joint Bookrunners       U.S. BANK NATIONAL ASSOCIATION, BBVA USA, WELLS FARGO BANK, N.A.   AND BANK OF THE WEST,  as Co-Syndication Agents,     and    BANK OF CHINA, LOS ANGELES BRANCH,  as Documentation Agent       





 






TABLE OF CONTENTS  Page      ARTICLE I Certain Defined Terms; Certain Rules of Construction ............................................................ 2  Section 1.01  Certain Defined Terms. .......................................................................................... 2  Section 1.02  Certain Rules of Construction. ......................................................................... 4652  ARTICLE II Credit Extensions .............................................................................................................. 5259  Section 2.01  Transitional Matters; Revolving Credit Loans; Incremental Term Loans. ...... 5259  Section 2.02  Procedures for Borrowing. ............................................................................... 5462  Section 2.03  Letters of Credit. .............................................................................................. 5664  Section 2.04  Swing Line Loans. ........................................................................................... 6572  Section 2.05  Payments and Prepayments. ............................................................................ 6775  Section 2.06  Termination or Reduction of Aggregate Revolving Credit Commitments. ..... 6977  Section 2.07  Final Repayment of Revolving Credit Loans, Swing Loans and  Incremental Term Loans. .............................................................................................. 7077  Section 2.08  Interest; Applicable Margins. .......................................................................... 7077  Section 2.09  Fees. ................................................................................................................. 7279  Section 2.10  Computations of Interest and Fees. .................................................................. 7279  Section 2.11  Evidence of Indebtedness. ............................................................................... 7380  Section 2.12  Payments Generally; Right of Administrative Agent to Make Deductions  Automatically. ............................................................................................................... 7380  Section 2.13  Sharing of Payments. ....................................................................................... 7582  Section 2.14  Increase in Aggregate Commitments. .............................................................. 7683  Section 2.15  Cash Collateral. ................................................................................................ 7885  Section 2.16  Designation of Restricted and Unrestricted Subsidiaries. ................................ 7986  Section 2.17  Security for the Obligations. ............................................................................ 8087  ARTICLE III Taxes, Yield Protection and Illegality .............................................................................. 8188  Section 3.01  Taxes. ............................................................................................................... 8188  Section 3.02  Illegality. .......................................................................................................... 8491  Section 3.03  Inability to DetermineAlternate Rates of Interest. ........................................ 8592  Section 3.04  Increased Costs. ............................................................................................... 8695  Section 3.05  Compensation for Losses. ................................................................................ 8796  Section 3.06  Mitigation Obligations. .................................................................................... 8896  Section 3.07  Defaulting Lenders. ......................................................................................... 8897  Section 3.08  Replacement of Lenders. ................................................................................. 9199  Section 3.09  Survival. ......................................................................................................... 92100  ARTICLE IV Conditions Precedent ..................................................................................................... 92100  





 






TABLE OF CONTENTS  (continued)  Page     -ii-  Section 4.01  Conditions to the Effectiveness of this Agreement. ....................................... 92100  Section 4.02  Conditions to All Credit Extensions. ............................................................. 95103  ARTICLE V Representations and Warranties ...................................................................................... 96104  Section 5.01  Corporate Existence and Power. .................................................................... 96104  Section 5.02  Corporate Authorization; No Contravention. ................................................ 97104  Section 5.03  Governmental Authorization; Compliance with Laws. ................................. 97105  Section 5.04  Binding Effect. ............................................................................................... 97105  Section 5.05  Litigation. ....................................................................................................... 98105  Section 5.06  ERISA Compliance. ....................................................................................... 98106  Section 5.07  Use of Proceeds. ............................................................................................ 99107  Section 5.08  Title to Properties. .......................................................................................... 99107  Section 5.09  Taxes. ............................................................................................................. 99107  Section 5.10  Financial Condition; No Material Adverse Effect; No Event of Default....... 99107  Section 5.11  Margin Regulations. ..................................................................................... 100108  Section 5.12  Intellectual Property. .................................................................................... 100108  Section 5.13  Capitalization and Subsidiaries. ................................................................... 101108  Section 5.14  Liens on Collateral. ...................................................................................... 101109  Section 5.15  Environmental Matters. ............................................................................... 101109  Section 5.16  Solvency. ..................................................................................................... 102109  Section 5.17  Sanctions and Anti—CorruptionAnti-Corruption Laws. ........................... 102109  Section 5.18  Investment Company Status. ....................................................................... 102110  Section 5.19  Insurance. ..................................................................................................... 102110  Section 5.20  Full Disclosure. ............................................................................................ 102110  Section 5.21  Covered Entities. .......................................................................................... 103111  Section 5.22  Beneficial Ownership Certification. ............................................................ 103111  ARTICLE VI Affirmative Covenants ................................................................................................. 103111  Section 6.01  Financial Statements. ................................................................................... 103111  Section 6.02  Other Information. ....................................................................................... 105113  Section 6.03  Notices. ........................................................................................................ 107114  Section 6.04  Preservation of Existence and Entitlements. ................................................ 107115  Section 6.05  Maintenance of Properties. .......................................................................... 108115  Section 6.06  Maintenance of Insurance. ........................................................................... 108115  





 






TABLE OF CONTENTS  (continued)  Page     -iii-  Section 6.07  Compliance with Laws. ............................................................................... 108116  Section 6.08  Books and Records. ..................................................................................... 109116  Section 6.09  Inspection Rights. ........................................................................................ 109116  Section 6.10  Compliance with Environmental Laws. ....................................................... 109117  Section 6.11  Covenant to Guarantee Obligations and Give Security. .............................. 109117  Section 6.12  Payment of Taxes......................................................................................... 112119  Section 6.13  Environmental Matters. ............................................................................... 112119  Section 6.14  Post-Closing Matters. ................................................................................... 112120  Section 6.15  Further Assurances. ..................................................................................... 112120  ARTICLE VII Negative Covenants .................................................................................................... 112120  Section 7.01  Liens. ........................................................................................................... 113120  Section 7.02  Investments. ................................................................................................. 115123  Section 7.03  Indebtedness. ............................................................................................... 118125  Section 7.04  Fundamental Changes. ................................................................................. 120128  Section 7.05  [Reserved]. ................................................................................................... 121129  Section 7.06  Restricted Payments. .................................................................................... 121129  Section 7.07  [Reserved]. ................................................................................................... 122130  Section 7.08  Transactions with Affiliates. ........................................................................ 122130  Section 7.09  Burdensome Agreements. ............................................................................ 123130  Section 7.10  Use of Proceeds. .......................................................................................... 124131  Section 7.11  Maintenance of Business. ............................................................................ 124132  Section 7.12  [Reserved]. ................................................................................................... 124132  Section 7.13  Accounting Changes. ................................................................................... 125132  Section 7.14  Limitation on Issuance of Equity Interests. ................................................. 125132  Section 7.15  Financial Covenants. .................................................................................... 125133  ARTICLE VIII Events of Default and Remedies ............................................................................... 126133  Section 8.01  Events of Default. ........................................................................................ 126133  Section 8.02  Waivers of Events of Defaults. .................................................................... 128135  Section 8.03  Remedies Upon Event of Default. ............................................................... 128135  Section 8.04  Standards for Exercising Rights and Remedies. .......................................... 129136  Section 8.05  Application of Funds. .................................................................................. 130137  ARTICLE IX Administrative Agent ................................................................................................... 132139  





 






TABLE OF CONTENTS  (continued)  Page     -iv-  Section 9.01  Appointment and Authorization of Administrative Agent. ......................... 132139  Section 9.02  Rights as a Lender. ....................................................................................... 132139  Section 9.03  Exculpatory Provisions. ............................................................................... 133140  Section 9.04  Reliance by Administrative Agent. .............................................................. 134141  Section 9.05  Delegation of Duties. ................................................................................... 134141  Section 9.06  Resignation of Administrative Agent. ......................................................... 135142  Section 9.07  Non-Reliance on Administrative Agent and Other Lenders. ....................... 136143  Section 9.08  No Other Duties, Etc. ................................................................................... 136143  Section 9.09  Administrative Agent May File Proofs of Claim. ........................................ 137144  Section 9.10  Collateral Matters. ....................................................................................... 138145  Section 9.11  Certain ERISA Matters. ............................................................................... 139146  Section 9.12  Agency for Perfection. ................................................................................. 140147  Section 9.13  Legal Representation of Administrative Agent. .......................................... 140147  Section 9.14  Erroneous Payments. ......................................................................................... 147  ARTICLE X General Provisions ........................................................................................................ 140150  Section 10.01  Amendments, Etc. ........................................................................................ 140150  Section 10.02  Notices; Effectiveness; Electronic Communications. .................................. 143152  Section 10.03  No Waiver; Cumulative Remedies; Enforcement. ....................................... 145154  Section 10.04  Expenses; Indemnity; Damage Waiver. ....................................................... 146155  Section 10.05  Marshalling; Payments Set Aside. ............................................................... 148157  Section 10.06  Successors and Assigns. .............................................................................. 148157  Section 10.07  Treatment of Certain Information; Confidentiality. ..................................... 154163  Section 10.08  Right of Setoff. ............................................................................................ 155164  Section 10.09  Interest Rate Limitation. .............................................................................. 155164  Section 10.10  Counterparts; Integration; Effectiveness. ....................... 156; Electronic Execution. 164  Section 10.11  Collateral Matters. ....................................................................................... 156165  Section 10.12  Severability. ................................................................................................. 156166  Section 10.13  Lender-Creditor Relationship. ..................................................................... 157166  Section 10.14  USA Patriot Act Notice. .............................................................................. 157166  Section 10.15  Guaranty. ..................................................................................................... 157166  Section 10.16  Governing Law; Jurisdiction; Etc. ............................................................... 163173  Section 10.17  Waiver of Right to Jury Trial. ...................................................................... 164173  





 






TABLE OF CONTENTS  (continued)  Page     -v-  Section 10.18  Survival. ....................................................................................................... 165174  Section 10.19  Judgment Currency. ..................................................................................... 166175  Section 10.20  Cashless Settlement. .................................................................................... 166176  Section 10.21  Acknowledgement and Consent to Bail-In of EEAAffected Financial  Institutions.  .............................................................................................................. 166176  Section 10.22  Acknowledgement Regarding Any Supported QFCs. ................................. 167176  Section 10.23 Effect of Amendment and Restatement of the First Restated Credit  Agreement.  ............................................................................................................... 168177  SCHEDULES  1.01-A Existing Senior Credit Facilities  1.01-B Initial Unrestricted Subsidiaries  2.01 Lenders; Commitments; Percentage Shares  5.05 Litigation  5.06 Pension Plans  5.12 Intellectual Property  5.13, Part (a) Equity Interests  5.13, Part (b) Investments  5.15 Environmental Matters  6.14 Post-Closing Matters  7.01 Existing Liens  7.02 Existing Investments  7.03 Existing Indebtedness  7.08 Transactions with Affiliates  7.09 Burdensome Agreements  10.02 Administrative Agent’s Office; Certain Addresses for Notices  EXHIBITS  A Form of Assignment and Assumption  B Form of Compliance Certificate  C Form of Joinder Agreement  D Form of Loan Notice  E-1 Form of Revolving Credit Note  E-2 Form of Incremental Term Loan Note  E-3 Form of Swing Line Loan Note  F Form of Swing Line Loan Notice  G-1 Form of U.S. Tax Compliance Certificate  G-2 Form of U.S. Tax Compliance Certificate  G-3 Form of U.S. Tax Compliance Certificate  G-4 Form of U.S. Tax Compliance Certificate      





 






   -1-         SECOND AMENDED AND RESTATED CREDIT AGREEMENT  This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”),  dated as of November 7, 2019, is entered among SEMTECH CORPORATION, a Delaware corporation,  as borrower (“Borrower”), the Guarantors (unless otherwise indicated, this and each other capitalized  term used in this Preamble and the following recitals having the meaning given to it in Section 1.01)  party hereto, Lenders party hereto from time to time, and HSBC BANK USA, NATIONAL  ASSOCIATION, a national banking association (“HSBC”), in its separate capacities as Administrative  Agent, for the benefit of the Secured Parties, and as Swing Line Lender and L/C Issuer.  This Agreement  amends, restates, supersedes and replaces in its entirety the First Restated Credit Agreement and is not  intended to, and will not, act as a novation of all or any portion of the Obligations (as defined in the First  Restated Credit Agreement) or any other indebtedness, liabilities or other obligations, including the  Guaranteed Obligations (as defined in the First Restated Credit Agreement) of each Guarantor (as defined  in the First Restated Credit Agreement), evidenced thereby or otherwise arising or existing thereunder or  under any of the other First Restated Loan Documents.  RECITALS  A. Borrower and each of the Guarantors party hereto have entered into the Amended and  Restated Credit Agreement dated as of November 15, 2016, as amended, modified and supplemented  from time to time up to the Second Restatement Effective Date (as amended, modified and supplemented,  the “First Restated  Credit Agreement”), with the lenders party thereto (the “Existing Lenders”), HSBC  in its separate capacities as administrative agent and as letter of credit issuer (the “”Existing L/C Issuer”)  and swing line lender (the “Existing Swing Line Lender”), pursuant to which the Existing Lenders,  together with Existing L/C Issuer and Existing Swing Line Lender, have extended and made available to  Borrower a revolving credit facility in the aggregate principal amount of up to $250,000,000 outstanding  at any one time, including a $40,000,000 sublimit for Credits (as defined in the First Restated Credit  Agreement) and a $25,000,000 sublimit for swing line advances, and a term loan facility in the original  principal amount of $150,000,000 (the “Existing Senior Credit Facilities”).  B. Borrower desires to renew and extend the maturity of, and to restructure, the Existing  Senior Credit Facilities and to amend the First Restated Credit Agreement in certain other respects, and,  as so amended, to restate the First Restated Credit Agreement in its entirety as well as to amend, amend  and restate or otherwise to reaffirm the other First Restated Loan Documents executed or delivered  pursuant to or otherwise existing in support of the First Restated Credit Agreement and the Existing  Senior Credit Facilities outstanding thereunder.  C. It is the intent of Borrower, the Guarantors, the Lenders and HSBC in its separate  capacities as Administrative Agent and as L/C Issuer and Swing Line Lender, that, except as hereinafter  expressly provided, the First Restated Obligations outstanding under the First Restated Credit Agreement  and the other First Restated Loan Documents will not be deemed to be repaid or terminated upon the  effectiveness of this Agreement, but will continue to remain outstanding as Obligations under this  Agreement and will be due and payable at the time and in the manner provided by this Agreement.  NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants  contained herein and for other good and valuable consideration (the receipt and sufficiency of which are  hereby acknowledged), the parties agree as follows:  





 






   -2-         AGREEMENT  ARTICLE I  Certain Defined Terms; Certain Rules of Construction  Section 1.01 Certain Defined Terms.  As used in this Agreement, the following terms will mean the following:  “Acquisition” means any transaction or series of related transactions resulting, directly or  indirectly, in (a) the acquisition by Borrower or by any Restricted Subsidiary of (i) all or substantially all  of the assets of another Person or (ii) any business unit or division of another Person (other than a Person  that is a Subsidiary of Borrower), (b) the acquisition by Borrower or any Restricted Subsidiary of the  Equity Interests of another Person (other than a Person that is a Subsidiary of Borrower) resulting in the  acquiring Person having the ability to Control the acquired Person, or otherwise causing any other Person  to become a Subsidiary of such Person or (c) a merger or consolidation, or any other combination, of  Borrower or any Restricted Subsidiary with another Person (other than a Person that is a Subsidiary of  Borrower) pursuant to which Borrower or such Restricted Subsidiary is the surviving entity.  “Acquisition Consideration” means, in connection with any Acquisition by Borrower or any  Restricted Subsidiary of any Target, the consideration paid or payable in Cash or other property,  including the issuance of Equity Interests of Borrower or any of its Subsidiaries (with the value of such  other property determined as of the closing date of such Acquisition) in connection with such Acquisition  or series of related Acquisitions (such consideration, including any deferred portion thereof constituting  Deferred Purchase Price Obligations).   “Additional Alternative Currency” has the meaning given such term in Section 1.02(l).  “Additional Commitment Documentation” has the meaning given such term in Section 2.14(c).  “Additional Commitments Effective Date” has the meaning given such term in Section 2.14(b).  “Additional Revolving Credit Commitment” means the commitment of an Additional Revolving  Credit Lender to make Additional Revolving Credit Loans pursuant to Section 2.14.  “Additional Revolving Credit Lender” means, at any time, any lender providing an Additional  Revolving Credit Commitment, other than any such Person that thereafter ceases to be a party hereto  pursuant to an Assignment and Assumption.  “Additional Revolving Credit Loans” means any loans made in respect of Additional Revolving  Credit Commitments.  “Adjusted EURIBOR Rate” means, with respect to any Eurocurrency Rate Loan denominated in  Euros for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100  of 1%) equal to (a) the EURIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve  Rate.  “Adjusted LIBO Rate” means, with respect to any Eurocurrency Rate Loan denominated in  Dollars, Sterling or Swiss Francs for any Interest Period, an interest rate per annum (rounded upwards,  if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by  (b) the Statutory Reserve Rate.  





 






   -3-         “Adjusted TIBOR Rate” means, with respect to any Eurocurrency Rate Loan denominated in Yen  for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of  1%) equal to (a) the TIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.  “Administrative Agent” means, at any time, the administrative and collateral agent for the  Secured Parties under the Loan Documents as appointed pursuant to Article IX (which, initially, will be  HSBC).  “Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate,  account as set forth on Schedule 10.02, or such other address or account as Administrative Agent may  from time to time notify Borrower and each Lending Party.  “Administrative Detail Form” means an administrative detail form in a form supplied by, or  otherwise acceptable to, Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.  “Affiliate” means, with respect to any 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 (excluding any trustee under, or any committee with responsibility for administering, any  Employee Benefit Plan).  “Agent Parties” has the meaning given such term in Section 10.02(b)(iii).  “Aggregate Incremental Term Loan Commitments” means, at any time, the combined  Incremental Term Loan Commitments of all Incremental Term Loan Lenders.  “Aggregate Commitments” means, at any time, the sum of:  (a) the Aggregate Revolving Credit  Commitments plus (b) if applicable, the Aggregate Incremental Term Loan Commitments.  “Aggregate Revolving Credit Commitments” means, at any time, the combined Revolving Credit  Commitments of all Revolving Credit Lenders.  As of the Second Restatement Effective Date, the  Aggregate Revolving Credit Commitments of all Revolving Credit Lenders total $600,000,000.  “Agreed Currencies” means Dollars and each Alternative Currency.  “Agreement” has the meaning given such term in the Preamble to this Agreement.  “Alternative Currency” means Sterling, Euros, Canadian Dollars, Swiss Francs, Yen and each  Additional Alternative Currency (other than Dollars) that is approved from time to time in accordance  with Section 1.02(l).  “Alternative Currency Available Credit” means, as of any date of determination, the lesser of (a)  $40,000,000 less (i) the Dollar Equivalent of the aggregate of all EurodollarEurocurrency Rate Loans then  outstanding denominated in an Alternative Currency, (ii) the Dollar Equivalent of the aggregate of all  Credit Obligations then outstanding in respect of Credits denominated in an Alternative Currency and (iii)  the Alternative Currency Reserve as of such date, and (b) the amount by which (i) the Aggregate  Revolving Credit Commitments then in effect exceeds (ii) the Total Revolving Credit Outstandings plus  the Alternative Currency Reserve as of such date.  





 






   -4-         “Alternative Currency Reserve” has the meaning given such term in Section 2.01(b).  “Announcements” has the meaning given such term in Section 1.02(s).  “Applicable Margin” means, at any time with respect to, and as included in the computation of,   (a) the rate of interest for EurodollarEurocurrency Rate Loans and Base Rate Loans, (b) Credit Fees and  (c) Commitment Fees, as the context requires and as otherwise provided in this Agreement, the applicable  rate percentage per annum set forth in the grid below, each such percentage being based, subject to  Section 2.08(d), upon the corresponding Consolidated Leverage Ratio maintained by Borrower, measured  as of the end of the most recent Fiscal Period for which Borrower has furnished a Compliance Certificate  to Administrative Agent and the Lenders pursuant to Section 6.01(d).  Pricing  Level  (Tier)  Consolidated  Leverage Ratio  Applicable Margin for  EurodollarEurocurrency  Rate Loans (and Credit  Fees)  Applicable  Margin for Base  Rate Loans    Applicable  Margin for  Commitment  Fees  I Less than 1.25:1.00 1.250% 0.250% 0.200%  II Equal to or greater  than 1.25:1.00 and less  than 2.00:1.00  1.500% 0.500% 0.250%  III Equal to or greater  than 2.00:1.00 and less  than 2.75:1.00  1.750% 0.750% 0.300%  IV Equal to or greater  than 2.75:1.00 and less  than 3.25:1.00  2.000% 1.000% 0.350%  V Equal to or greater  than 3.25:1.00  2.250% 1.250% 0.350%    Notwithstanding anything to the contrary contained in this definition, the determination of the  Applicable Margin for any period and at any time will be subject to the provisions of Section 2.08(d).  “Applicable Time” means, with respect to any Borrowings and payments in any Alternative  Currency, the local time in the place of settlement for such Alternative Currency as may be reasonably  determined by Administrative Agent to be necessary for timely settlement on the relevant date in  accordance with normal banking procedures in the place of payment.  “Approved Fund” means any Fund 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 and includes HSBC, U.S. Bank National Association, BBVA USA, Wells  Fargo Bank, N.A. and Bank of the West in their capacities as joint lead arrangers and joint bookrunners  for the Transactions contemplated by the Loan Documents.  “Assignment and Assumption” means an assignment and assumption entered into by a Lending  Party and an Eligible Assignee (with the consent of any party whose consent is required by Section  





 






   -5-         10.06(b)), and accepted by Administrative Agent, in substantially the form of Exhibit A or any other form  approved by Administrative Agent.  “Attributable Debt” means, on any date of determination, (a) in respect of any Capitalized Lease  of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person  prepared as of such date in accordance with GAAP and (b) in respect of any Synthetic Lease Obligation,  the capitalized amount of the remaining lease payments under the relevant lease that would appear on a  balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were  accounted for as a Capitalized Lease.  “Automatic Extension Letter of Credit” means a Letter of Credit that has automatic extension  provisions.  “Availability Period” means the period from the Second Restatement Effective Date to the date  that is (a) for Revolving Credit Loans, the Revolving Credit Maturity Date, and (b) for Swing Line Loans,  one Business Day prior to the Revolving Credit Maturity Date.  “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 payment period for interest calculated with  reference to such Benchmark, as applicable, that is or may be used for determining the length of an  Interest Period 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  Section 3.03(b).  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEAAffected 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 Lawlaw, rule, regulation 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).  “Bank Undertaking” means any independent undertaking of L/C Issuer within the meaning of,  and complying with the requirements of, 12 C.F.R. §7.1016 as to which the issuer’s obligation to honor  depends upon the presentation of specified documents and not upon non-documentary conditions or  resolution of any questions of fact or law, issued hereunder pursuant to Section 2.03.  Bank Undertakings  may be issued in Dollars or an Alternative Currency as permitted by this Agreement.  “Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101  et seq.), and the Bankruptcy Rules promulgated thereunder.  “Base Rate” means, for any day, the greatest of (a) the Prime Rate in effect on such day, (b) the  Federal Funds Rate for such day plus one-half of one percent (0.50%) and (c) the Daily One Month  LIBOR Rate for such day (determined on a daily basis as set forth below) plus one percent (1.00%).  As  used in this definition of “Base Rate”, the “Daily One Month LIBOR Rate” means, with respect to any  interest rate calculation for a Loan or other Obligation bearing interest at the Base Rate, the rate per  annum (rounded upwards, as necessary, to the nearest 1/100th of one percent (0.01%)) determined by  





 






   -6-         Administrative Agent to be the rate appearing on the Reuters “LIBOR01” screen displaying interest rates  for Dollar deposits in the London interbank market for a one month interest period (or, in the event that  such rate does not appear on such screen or on any successor or substitute screen provided by Reuters, or  any successor to or commercially available substitute for such service providing rate quotations  comparable to those provided on such Reuters screen, the LIBO Interpolated Rate as determined by  Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days  prior to the applicable day as the rate for Dollar deposits in the London interbank market with a maturity  of one month; provided that if the Daily One Month LIBOR Rate, as determined above with respect to  any interest rate calculation, shall be less than zero, such rate shall be deemed to be zero for purposes of  this Agreement.  If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03,  (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant  to  Section 3.03(b)), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be  determined without reference to clause (c) above.  Each determination by Administrative Agent pursuant  to this definition will be conclusive absent manifest error.  “Base Rate Loan” means a Loan that bears interest based upon the Base Rate.  “Benchmark” means, initially, the applicable Relevant Rate; provided that if a Benchmark  Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date  have occurred with respect to such Relevant Rate 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 Sections 3.03(b) or (c).  “Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the  order below that can be determined by Administrative Agent for the applicable Benchmark Replacement  Date; provided that, in the case of any Loan denominated in Euros, Yen or Canadian Dollars,  “Benchmark Replacement” shall mean the alternative set forth in clause (3) below:  (1) (a) in the case of any Loan denominated in Dollars, the sum of: (i) Term SOFR and  (ii) the related Benchmark Replacement Adjustment;  (b) in the case of any Loan denominated in Sterling, the sum of (i) Daily Simple  SONIA and (ii) the related Benchmark Replacement Adjustment;   (c) in the case of any Loan denominated in Swiss Francs, the sum of (i) Daily Simple  SARON and (ii) the related Benchmark Replacement Adjustment;  (2) (A) in the case of any Loan denominated in Dollars, the sum of (i) Daily Simple SOFR  and (ii) the related Benchmark Replacement Adjustment; and   “Benchmark Replacement” means (3) the sum of: (a) the alternate benchmark rate (which may  include Term SOFR) that has been selected by 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 of interest as a replacement to LIBOR for U.S. dollar-denominatedfor  the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed  Currency at such time and (b) the related Benchmark Replacement Adjustment; provided that, if .  





 






   -7-         If the Benchmark Replacement, as so determined pursuant to any of clauses (1), (2) or (3) above,  would be less than zero, the Benchmark Replacement will be deemed to be zerothe Floor for the purposes  of this Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment” means, with respect to any replacement of LIBORthe  then-current Benchmark with an Unadjusted Benchmark Replacement for eachany applicable Interest  Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:  (1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement” set  forth in this Section 1.01, the first alternative set forth in the order below that can be determined by  Administrative Agent:  (a) the spread adjustment, or method of calculating or determining such spread  adjustment (which may be a positive or negative value or zero), in each case as of the Reference Time  such Benchmark Replacement is first set for such Interest Period that has been selected or recommended  by the Relevant Governmental Body for the replacement of such Benchmark with the applicable  Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;  (b) the spread adjustment (which may be a positive or negative value or zero) as of  the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to  the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an  index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and  ,(2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread  adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or  negative value or zero) that has been selected by 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 LIBORsuch Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant  Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then- prevailing market convention for determining a spread adjustment, or method for calculating or  determining such spread adjustment, for the replacement of LIBORsuch Benchmark with the applicable  Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities denominated in  the applicable Agreed Currency at such time.;  provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other  information service that publishes such Benchmark Replacement Adjustment from time to time as  selected by Administrative Agent in its reasonable discretion.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the definition of  “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of  determining rates and making payments of interest and other, 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 Administrative Agent decides  may bein its reasonable discretion is appropriate to reflect the adoption and implementation of such  Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner  substantially consistent with market practice (or, if Administrative Agent decides that adoption of any  portion of such market practice is not administratively feasible or if Administrative Agent determines that  no market practice for the administration of thesuch Benchmark Replacement exists, in such other manner  





 






   -8-         of administration as 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 earlierearliest to  occur of the following events with respect to LIBORsuch then-current Benchmark:  (a1) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” set  forth in this Section 1.01, the later of (ia) the date of the public statement or publication of information  referenced therein and (iib) the date on which the administrator of LIBORsuch Benchmark (or the  published component used in the calculation thereof) permanently or indefinitely ceases to provide  LIBOR; or all Available Tenors of such Benchmark (or such component thereof);  (b2) in the case of clause (cb) of the definition of “Benchmark Transition Event,” the date of  the public statement or publication of information referenced therein.; or   (3) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice  of such Early Opt-in Election is provided to the Lenders, so long as Administrative Agent has not  received, by 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Early Opt-in Election  is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders  comprising Required Lenders.  “Benchmark Transition Event” means the occurrence of one or more of the following events  with respect to LIBOR:   For the avoidance of doubt, (a) 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 (b) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or  (2) above 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).  (a)  a public statement or publication of information by or on behalf of the administrator of  LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently or  indefinitely, provided that, at the time of such statement or publication, there is no successor administrator  that will continue to provide LIBOR;   (b)  “Benchmark Transition Event” means, with respect to any then-current Benchmark, the  occurrence of a public statement or publication of information by the or on behalf of the administrator of  the then-current Benchmark, the regulatory supervisor for the administrator of LIBOR, the U.S.such  Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New  York, an insolvency official with jurisdiction over the administrator for LIBORsuch Benchmark, a  resolution authority with jurisdiction over the administrator for LIBORsuch Benchmark or a court or an  entity with similar insolvency or resolution authority over the administrator for LIBOR, which states that  thesuch Benchmark, announcing or stating that (a) such administrator of LIBOR has ceased or will cease  on a specified date to provide LIBORall Available Tenors of such Benchmark, permanently or  indefinitely, provided that, at the time of such statement or publication, there is no successor administrator  that will continue to provide LIBOR; or any Available Tenor of such Benchmark or (b) all Available  Tenors of such Benchmark are or will no longer be representative of the underlying market and economic  reality that such Benchmark is intended to measure and that representativeness will not be restored.  (c) a public statement or publication of information by the regulatory supervisor for the  administrator of LIBOR announcing that LIBOR is no longer representative.  





 






   -9-         “Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the  earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is  a public statement or publication of information of a prospective event, the 90th day prior to the expected  date of such event as of such public statement or publication of information (or if the expected date of  such prospective event is fewer than ninety days after such statement or publication, the date of such  statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by  Administrative Agent or Required Lenders, as applicable, by notice to the Borrower, Administrative  Agent (in the case of such notice by the Required Lenders) and the Lenders.  “Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related  Benchmark Replacement Date have occurred with respect to LIBOR and solely to the extent that LIBOR  has not been replaced with aany Benchmark Replacement, the period (if any) (a) beginning at the time  that sucha Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition (as set forth in  this Section 1.01) has occurred if, at such time, no Benchmark Replacement has replaced LIBORsuch  then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with the  Section titled “Effect of Benchmark Transition Event”3.03, and (b) ending at the time that a Benchmark  Replacement has replaced LIBORsuch then-current Benchmark for all purposes hereunder pursuant to  theand under any Loan Document in accordance with Section titled “Effect of Benchmark Transition  Event.”3.03.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership  required by the Beneficial Ownership Regulation.   “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.   “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.  “Board of Directors” means, as to any Person, the board of directors (or comparable managers)  of such Person (or, if applicable, the managing entity of such Person), or any committee thereof duly  authorized to act on behalf of the board of directors (or comparable managers).  “Borrower” has the meaning given such term in the Preamble.  “Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing or an Incremental  Term Loan Borrowing, as the context may require.  “Business Day” means any day (i) other than a Saturday, Sunday or other day on which  commercial banks are authorized to close under the Laws of, or are in fact closed in, New York, New  York or such other city and state where Administrative Agent’s Office is located, and (ii)provided that:  (a) if such day relates to any interest rate settings as to a EurodollarEurocurrency Rate Loan  denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of  any such EurodollarEurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to  this Agreement in respect of any such EurodollarEurocurrency Rate Loan, that is also a London Banking  Day;  (b) if such day relates to any interest rate settings as to a EurodollarEurocurrency Rate Loan  denominated in EuroEuros, any fundings, disbursements, settlements and payments in Euro in respect of  any such EurodollarEurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to  this Agreement in respect of any such EurodollarEurocurrency Rate Loan, that is also a TARGET Day;  





 






   -10-         (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan  denominated in Yen, any fundings, disbursements, settlements and payments in Yen in respect of any  such Eurocurrency Rate Loan, or any other dealings in Yen to be carried out pursuant to this Agreement  in respect of any such Eurocurrency Rate Loan, that is also a day (other than a Saturday or Sunday) on  which banks are open for business in Japan;  (cd) if such day relates to any interest rate settings as to a EurodollarEurocurrency Rate Loan  denominated in Canadian Dollars, any fundings, disbursements, settlements and payments in Canadian  Dollars in respect of any such EurodollarEurocurrency Rate Loan, or any other dealings in Canadian  Dollars to be carried out pursuant to this Agreement in respect of any such EurodollarEurocurrency Rate  Loan, that it is also a day on which banks are open for foreign exchange business in both London and  Toronto;  (de) if such day relates to any interest rate settings as to a EurodollarEurocurrency Rate Loan  denominated in a currency other than Dollars, EuroSterling, Euros, Yen or Canadian Dollars, that it is  also a day on which dealings in deposits in the relevant currency are conducted by and between banks in  the London or other applicable offshore interbank market for such currency; and  (ef) if such day relates to any fundings, disbursements, settlements and payments in a  currency other than Dollars, Sterling, Euro, Yen or Canadian Dollars in respect of a  EurodollarEurocurrency Rate Loan denominated in a currency other than Dollars, EuroSterling, Euros,  Yen or Canadian Dollars, or any other dealings in any currency other than Dollars, EuroSterling, Euros,  Yen or Canadian Dollars to be carried out pursuant to this Agreement in respect of any such  EurodollarEurocurrency Rate Loan (other than any interest rate settings), that it is also a day on which  banks are open for foreign exchange business in the principal financial center of the country of such  currency.  “Canadian Dollars” means the lawful currency of Canada.  “Capital Expenditures” means, as determined for any Person for any period, all expenditures  by such Person which should be capitalized in accordance with GAAP and shown on the Consolidated  balance sheet of such Person.   “Capitalized Leases” means all leases that have been or are required to be, in accordance with  GAAP, recorded as capitalized leases; provided that any lease would have been accounted for as an  operating lease under GAAP prior to the adoption of FASB Accounting Standards Codification Topic  842, Leases (or any similar substitute accounting pronouncement), may, in the sole discretion of the  Borrower, be accounted for as an operating lease and not as a Capitalized Lease.  “Cash” means money, currency or a credit balance in a deposit account.  “Cash Collateralize” means to pledge and deposit with or deliver to Administrative Agent, for  the benefit of Administrative Agent or the applicable L/C Issuer, as the case may be, and the Lenders, as  collateral for Credit Obligations, Obligations or obligations of Lenders to fund participations in respect of  either thereof (as the context may require), Cash or, if the L/C Issuer (in the case of Credit Obligations)  will agree in its sole discretion, either (a) other credit support to be received and held or maintained under  the control and dominion of Administrative Agent within the United States or (b) a “backstop” letter of  credit, in each case pursuant to documentation in form and substance satisfactory to (i) Administrative  Agent and (ii) the L/C Issuer, as the case may be.  “Cash Collateral” will have a meaning correlative to  the foregoing and will include the proceeds of such cash collateral and other credit support.  





 






   -11-         “Cash Equivalents” means, as to any Person, any of the following: (a) readily marketable  obligations issued or directly and fully guaranteed or insured by the United States of America or any  agency or instrumentality thereof (but only so long as the full faith and credit of the United States of  America is pledged in support thereof) having maturities of not more than one year from the date of  acquisition; (b) domestic and EurodollarEurocurrency certificates of deposit, time or demand deposits or  bankers’ acceptances maturing within one year after the date of acquisition issued or guaranteed by or  placed with, and money market deposit accounts issued or offered by any Lender or by any nationally or  state chartered commercial bank or any branch or agency of a foreign bank licensed to conduct business  in the United States having combined capital and surplus of not less than $250,000,000 (at the time of  acquisition thereof) whose short-term securities are rated (at the time of acquisition thereof) at least A or  the equivalent thereof by S&P or at least A2 or the equivalent thereof by Moody’s; (c) fully collateralized  repurchase obligations with a term of not more than 30 days for underlying securities of the types  described in clause (a) of this definition entered into with any bank meeting the qualifications specified in  clause (d) of this definition (at the time of acquisition thereof); (d) commercial paper issued by the parent  corporation of any Lender or any commercial bank (provided that such parent corporation or bank is a  U.S. Person) having capital and surplus in excess of $250,000,000 (at the time of acquisition thereof) and  commercial paper issued by any Person incorporated in the United States, which commercial paper is  rated (at the time of acquisition thereof) at least A-1 or the equivalent thereof by S&P or at least P-1 or  the equivalent thereof by Moody’s, and in each case maturing not more than one year after the date of  acquisition by such Person; (e) investments, classified in accordance with GAAP as current assets of  Borrower or any of its Subsidiaries, in money market investment programs registered under the  Investment Company Act of 1940, which are administered by financial institutions that have the highest  rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to  investments of the character, quality and maturity described in clauses (a) through (d) of this definition;  and (f) in the case of Foreign Subsidiaries, other investments utilized by such Foreign Subsidiaries in  accordance with customary cash management practices in the jurisdictions in which such Foreign  Subsidiaries are organized or are conducting business.  “Cash Management Bank” has the meaning given such term in the definition of “Secured Cash  Management Obligations” set forth in this Section 1.01.  “Cash Management Obligations” means all liabilities and other obligations of Borrower or any  of its Subsidiaries in respect of any overdraft and related liabilities arising from treasury, depository, cash  pooling arrangements and cash management services or any automated clearing house transfers of funds,  netting services, employee credit or purchase card programs and similar arrangements.  “CDOR Rate” means for any Interest Period with respect to a EurodollarEurocurrency Rate Loan  requested by Borrower pursuant to Section 2.02 to be funded in Canadian Dollars, the rate per annum  (rounded upwards, as necessary, to the nearest 1/100th of one percent (0.01%)) determined by  Administrative Agent to be the Canadian dollar offered rate which, in turn, means, as determined as of  any day, the rate equal to the sum of: (a) the rate determined by Administrative Agent with reference to  the arithmetic average of the discount rate quotations of all institutions listed in respect of the relevant  interest period for CAD Dollar-denominated bankers' acceptances displayed and identified as such on the  "Reuters Screen CDOR Page" as defined in the International Swap Dealer Association, Inc. definitions, as  modified and amended from time to time, as of 10:00 a.m., Toronto time on such day, and if such day is  not a Business Day, then on the immediately preceding Business Day (as adjusted by Administrative  Agent after 10:00 a.m., Toronto time, to reflect any error in the posted rate of interest or in the posted  average annual rate of interest), and (b) 0.10% per annum; provided that if such rates are not available on  the Reuters Screen CDOR Page on any particular day, then the Canadian deposit offered rate component  of such rate on that day will be calculated to be the rate determined by Administrative Agent to be the  annual discount rate (rounded upwards, as necessary, to the nearest 1/100th of one percent (0.01%)) as of  





 






   -12-         10:00 A.M. on such day, and if such day is not a Business Day, then on the immediately preceding  Business Day, at which a Canadian chartered bank listed on Schedule I of the Bank Act (Canada) as  selected by Administrative Agent is then offering to purchase Canadian Dollar bankers’ acceptances  accepted by it having a tenor equal (or as close as possible) to such specified Interest Period; and provided  that if the CDOR Rate, as determined above with respect to any interest rate calculation, shall be less than  zero, such rate shall be deemed to be zerothe Floor for purposes of this Agreement.  Each determination  by Administrative Agent pursuant to this definition will be conclusive absent manifest error.  “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, (i) the Dodd-Frank Wall Street Reform and Consumer  Protection Act of 2010 and all requests, rules, guidelines or directives thereunder or issued in connection  therewith and (ii) 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, implemented or issued.  “Change of Control” means any of the following occurs:  (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the  Exchange Act) is or shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under  the Exchange Act), directly or indirectly, of 30% or more on a fully diluted basis of the economic or  voting interests in Borrower’s capital stock;  (b) during any period of twenty-four (24) consecutive months, a majority of the  members of the Board of Directors of Borrower cease to be composed of individuals (i) who  were members of that Board of Directors on the first day of such period, (ii) whose election or  nomination to that Board of Directors was approved by individuals referred to in the preceding  clause (i) constituting at the time of such ꞏelection or nomination at least a majority of that Board of  Directors or (iii) whose election or nomination to that Board of Directors was approved by  individuals referred to in the preceding clauses (i) and (ii) (inclusive of, in the case of clause (ii),  any such members of the Board of Directors who themselves were also previously approved in  accordance with the preceding clause (ii)) constituting at the time of such election or nomination at  least a majority of that Board of Directors; or  (c) except as expressly permitted by Section 7.04, Borrower fails to own and control,  directly or indirectly, 100% of the Equity Interests of (i) each other Loan Party that is wholly owned,  directly or indirectly, by Borrower as of the Second Restatement Effective Date, and (ii) Semtech  (International); or   (d) the occurrence of any “Change in Control” as defined in (or any covenant or other  obligation having the equivalent effect under) any loan agreement, indenture or other agreement or  instrument evidencing any Specified Permitted Indebtedness or in the documentation governing any  Qualified Preferred Stock, to the extent such Change of Control requires an offer to purchase or redeem  Specified Permitted Indebtedness or Qualified Preferred Stock or permits the holders thereof to require  the payment thereof prior to the stated maturity thereof.  “Code” means the Internal Revenue Code of 1986.  





 






   -13-         “Collateral” means all property and rights in property and proceeds thereof now owned or  hereafter acquired by any Loan Party in or upon which a Lien now or hereafter exists in favor of  Administrative Agent to secure all or any portion of the Obligations, whether under this Agreement or  under any other Collateral Document.  “Collateral Documents” means, individually and collectively, the Security Agreement, the  Grants of IP Security Interests, the Swiss Pledge Agreement and the Financing Statements and such other  agreements (including deposit and securities account control agreements), assignments, documents and  instruments as are from time to time executed and delivered by any Loan Party granting, assigning or  transferring or otherwise evidencing or relating to any Lien granted, assigned or transferred to  Administrative Agent, for the benefit of the Secured Parties, pursuant to or in connection with the  transactions contemplated by this Agreement.  “Commitment” means, as to any Lender, such Lender’s Revolving Credit Commitment,   Additional Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and as  to Swing Line Lender, Swing Line Lender’s Swing Line Commitment.  “Commodity Exchange Act” means the Commodity Exchange Act of 1936 (7 U.S.C. §§ 1 et  seq.).  “Communications” means any Specified Materials distributed to Administrative Agent or any  Lending Party by means of electronic communications pursuant to Section 10.02(b), including through an  Electronic Platform.  “Competitor” means any Person that is a bona fide direct competitor of Borrower or any of its  Restricted Subsidiaries in the same industry or a substantially similar industry which offers a substantially  similar product or service as Borrower or any of its Restricted Subsidiaries.  “Compliance Certificate” means a certificate substantially in the form of Exhibit B.  “Consolidated” refers, with respect to any Person, to the consolidation of accounts of such Person  and its Subsidiaries (except to the extent otherwise expressly provided herein) in accordance with GAAP.  “Consolidated EBITDA” means, as calculated for Borrower and its Restricted Subsidiaries on a  Consolidated basis for any period, Consolidated Net Income for such period, plus (a) the following to the  extent deducted in calculating such Consolidated Net Income for such period (without duplication), all (i)  Consolidated Interest Expense, (ii) amounts treated as expenses for such period for depreciation and   amortization, (iii) provision for Federal, state, local and foreign taxes on or measured by income and  foreign withholding taxes of Borrower and its Restricted Subsidiaries for such period, (iv) Transaction  Costs to the extent paid in Cash and not capitalized, (v) fees and expenses incurred and associated with  the Existing Senior Credit Facilities, (vi) reasonable and customary costs and expenses incurred in such  period in connection with an actual or contemplated Permitted Acquisition or an Investment permitted by  Section 7.02(q) or Section 7.02(p), whether or not such Permitted Acquisition or Investment is  consummated, (vii) reasonable and customary costs and expenses incurred in such period in connection  with the actual or contemplated issuance, prepayment or amendment or refinancing of Indebtedness  expressly permitted under the Loan Documents or the issuance of any Equity Interests not prohibited  under the Loan Documents, whether or not such transaction is consummated, (viii) extraordinary losses  for such period, (ix) unusual or non-recurring losses, charges or expenses, (x) losses from the sales of  assets other than inventory sold in the ordinary course of business, (xi) other non-Cash charges of  Borrower and its Restricted Subsidiaries for such period other than Non-Cash charges Borrower elects to  exclude from this clause (xi), (xii) restructuring costs, expenses, charges or reserves and severance,  





 






   -14-         retention and relocation expenses, business optimization costs and integration costs (including any bonus,  retention or success payments) incurred during such period, and (xiii) costs and expenses (including  settlements or judgments) of any actual or threatened litigation, arbitration or other adversarial dispute  (for purposes of this subclause (xiii), inclusive of all related matters or claims with respect to the same or  affiliated parties, an “Adversary Matter”), which does not arise from ordinary course employee relations  (provided that amounts added pursuant to this clause for any particular Adversary Matter shall not exceed  $10,000,000); and minus (b) the following to the extent included in calculating such Consolidated Net  Income for such period (without duplication), all (i) extraordinary gains for such period, (ii) non-recurring  gains for such period, (iii) any gains from sales of assets other than inventory sold in the ordinary course  of business, (iv) non-Cash income or non-Cash gains for such period (excluding ordinary course accruals)  and (v) Cash payments made (or incurred) on account of any non-cash charges added back to  Consolidated EBITDA pursuant to preceding subclause (a)(xi) in a previous period; and plus (c) the  annualized amount of net cost savings, operating expense reductions and synergies reasonably projected  by the Borrower in good faith to be realized as a result of specified actions (x) taken since the beginning  of such period in respect of which Consolidated EBITDA is being determined or (y) initiated prior to or  during such period or (z) reasonably anticipated to be taken in connection with or following an  Acquisition or other Investment that is permitted under the Loan Documents (in each case, which cost  savings, operating expense reductions and synergies shall be added to Consolidated EBITDA until fully  realized, but in no event for more than five fiscal quarters) (calculated on a pro forma basis as though  such annualized cost savings, operating expense reductions and synergies had been realized on the first  day of such period, net of the amount of actual benefits realized during such period from such actions);  provided that (1) such cost savings, operating expense reductions and synergies are reasonably  identifiable, quantifiable and factually supportable in the good faith judgment of the Borrower and (2) no  cost savings, operating expense reductions and synergies shall be added pursuant to this clause (c) to the  extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA for such period;  provided further, that the aggregate amount added back to Consolidated EBITDA pursuant to this clause  (c) shall not exceed in the aggregate 15% of Consolidated EBITDA (provided that the aggregate amount  added back to Consolidated EBITDA pursuant to this clause (c) with respect to such cost savings,  operating expense reductions and synergies related to internal restructurings and not in connection with an  Acquisition or other Investment shall not exceed in the aggregate 10% of Consolidated EBITDA) for any  such period (determined after giving effect to this clause (c); and provided further, that projected (and not  yet realized) amounts may no longer be added in calculating Consolidated EBITDA pursuant to this  clause (c) to the extent occurring more than five full fiscal quarters after the specified action taken or  initiated  in order to realize such projected cost savings, operating expense reductions and synergies (or to  the extent relating to a Permitted Acquisition or other Investment and added pursuant to clause (z) above,  to the extent occurring more than five full fiscal quarters after the relevant Acquisition or other  Investment).  “Consolidated Funded Debt” means, as of any date of determination, calculated for Borrower  and its Restricted Subsidiaries on a Consolidated basis, the sum of (without duplication) all Indebtedness  of a type described in clauses (a) through (h) inclusive (and, without duplication, all Guaranties of such  Indebtedness) of the definition of “Indebtedness” set forth in this Section 1.01.  Notwithstanding anything  to the contrary herein, Consolidated Funded Debt shall not include any Indebtedness (“Subject Debt”)  outstanding on any determination date which is to be refinanced pursuant to a refinancing permitted under  this Agreement with the proceeds (the “Refinancing Proceeds”) of previously incurred refinancing  Indebtedness that is included in Consolidated Funded Debt on such date; provided that a notice of  redemption of, or an offer to purchase, such Subject Debt has been given or made (and, in the case of an  offer to purchase, not withdrawn) on or prior to such date (any such Subject Debt, “Defeased Debt”) and  the applicable Refinancing Proceeds have been irrevocably deposited in a trust or escrow account  pursuant to the documentation relating to such redemption of, or offer to purchase the applicable Subject  





 






   -15-         Debt (and such Refinancing Proceeds shall not be included as Consolidated Net Cash for purposes of this  Agreement).  “Consolidated Interest Expense” means, as calculated for Borrower and its Restricted  Subsidiaries on a Consolidated basis for any period, the sum of (without duplication) (a) all interest  payable in Cash, premium payments, debt discount, fees, charges and related expenses in connection with  borrowed money (including all commissions, discounts, fees and other charges under Swap Contracts,  letters of credit and similar instruments and all capitalized interest) or in connection with the deferred  purchase price of assets during such period, in each case to the extent treated as interest expense in  accordance with GAAP, plus (b) the portion of rent expense with respect to such period under Capitalized  Leases that is treated as interest in accordance with GAAP that is payable in Cash, plus (c) the “deemed  interest expense” (i.e., the interest expense which would have been applicable if the respective obligations  were structured as on-balance sheet financing arrangements) with respect to all Synthetic Lease  Obligations to the extent the same does not arise from a financing arrangement constituting an operating  lease.    “Consolidated Interest Coverage Ratio” means, as determined as of the last day of any Test  Period, calculated for Borrower and its Restricted Subsidiaries on a Consolidated basis for the period  consisting of the Test Period ending on such date, the ratio of (a) Consolidated EBITDA for such period  to (b) Consolidated Interest Expense for such period, excluding premium payments, debt discount, fees,  charges and related expenses in connection with borrowed money (including all commissions, discounts,  fees and other charges under Swap Contracts, letters of credit and similar instruments and all capitalized  interest) or in connection with the deferred purchase price of  assets during such period and excluding  interest payable during or with respect to such period with respect to Defeased Debt.  “Consolidated Leverage Ratio” means, as determined as of the last day of any Test Period,  calculated for Borrower and its Restricted Subsidiaries on a Consolidated basis, the ratio of (a) (i)  Consolidated Funded Debt as of such date of determination less (ii) Consolidated Net Cash (not to exceed  a maximum amount of $75,000,000) as of such date of determination to (b) Consolidated EBITDA for the  period consisting of the Test Period ending on such date.  “Consolidated Net Cash” means, as determined as of the last day of any Test Period, calculated  for Borrower and its Restricted Subsidiaries on a Consolidated basis, all cash or Cash Equivalents of the  Loan Parties that is not Restricted and that is (a) deposited and held in a deposit account or credited to a  securities account as to which the jurisdiction of the applicable depository bank or securities intermediary,  as the case may be, for purposes of Articles 8 and 9 of the UCC is the United States of America, including  any State thereof or the District of Columbia, and (b) subject to a security interest perfected by control  pursuant to (and within the meaning of) (i) Sections 9314(a) and 9104(a) of the UCC, in the case of a  deposit account, or (ii) Sections 9314(a) and 8106(d) of the UCC, in the case of a securities account, in  favor of Administrative Agent.   “Consolidated Net Income” means, as calculated for Borrower and its Restricted Subsidiaries on  a Consolidated basis for any period, the sum of net income (or loss) for such period, but excluding (a) any  income (or loss) of any Person if such Person is not a Subsidiary, except that Borrower’s direct or indirect  equity in the net income of any such Person for such period will be included in such Consolidated Net  Income up to the aggregate amount of Cash actually distributed by such Person during such period to  Borrower or any Restricted Subsidiary as a Dividend, and (b) any impact on net income of (i) purchase  price adjustments, including the impact of adjustments for Deferred Purchase Price Obligations, (ii)  compensation expenses which are not a Cash item during such period arising from the issuance of Equity  Interests, options to purchase Equity Interests and any appreciation rights to officers, directors, employees  or consultants of Borrower or any of its Restricted Subsidiaries, (iii) purchase accounting adjustments for  





 






   -16-         such period and (iv) non-Cash tax charges.  Income (or loss) of any Person that is not a Subsidiary but is  otherwise consolidated with the Borrower and its Restricted Subsidiaries as required by GAAP will not be  included in the calculation of Consolidated Net Income except to the extent of the aggregate amount of  Cash actually distributed by such Person during such period to the Borrower or any Restricted Subsidiary  as a Dividend.   “Contractual Obligation” means, as to any Person, any document or other agreement or  undertaking to which such Person is a party or by which it or any of its property is bound.  “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.  “Controlled” has the meaning correlative thereto.  “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor  (including overnight) or an interest payment period having approximately the same length (disregarding  business day adjustment) as such Available Tenor.  “Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in,  and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in,  and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in,  and interpreted in accordance with, 12 C.F.R. § 382.2(b).  “Credit” means any Letter of Credit or Bank Undertaking.  “Credit Advance” means a Revolving Credit Lender’s funding of its participation in a Credit  Borrowing in accordance with its Revolving Credit Percentage Share.  “Credit Application” means an application and agreement (including any related reimbursement  agreement) for the issuance or amendment of a Letter of Credit or a Bank Undertaking in the form from  time to time in use by L/C Issuer.  “Credit Borrowing” means an extension of credit resulting from a drawing under any Letter of  Credit that has not been reimbursed on the date when made or refinanced as a Revolving Credit  Borrowing.  “Credit Expiration Date” means the day that is five Business Days prior to the Revolving Credit  Stated Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business  Day).  “Credit Extension” means a Borrowing or an L/C Credit Extension.  “Credit Fee” has the meaning given such term in Section 2.03(i).  “Credit Obligations” means, as determined at any time, the sum of (a) the aggregate amount  available to be drawn under all outstanding Credits and (b) the aggregate of all Unreimbursed Amounts,  including all Credit Borrowings.  For purposes of computing the amount available to be drawn under any  Credit, the amount of such Credit will be determined in accordance with Section 1.02(i).  “Credit Sublimit” means an amount equal to $40,000,000.  The Credit Sublimit is part of, and not  in addition to, the Aggregate Revolving Credit Commitments.  





 






   -17-         “Daily Simple SARON” means, for any day, SARON, with the conventions for this rate (which  may include a lookback) being established by Administrative Agent in accordance with the conventions  for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple  SARON” for syndicated business loans; provided that, if Administrative Agent decides that any such  convention is not administratively feasible for Administrative Agent, then Administrative Agent may  establish another convention in its reasonable discretion.  “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may  include a lookback) being established by Administrative Agent in accordance with the conventions for  this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple  SOFR” for syndicated business loans; provided that, if Administrative Agent decides that any such  convention is not administratively feasible for Administrative Agent, then Administrative Agent may  establish another convention in its reasonable discretion.  “Daily Simple SONIA” means, for any day, SONIA, with the conventions for this rate (which  will include a lookback) being established by Administrative Agent in accordance with the conventions  for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple  SONIA” for syndicated business loans; provided that, if Administrative Agent decides that any such  convention is not administratively feasible for Administrative Agent, then Administrative Agent may  establish another convention in its reasonable discretion.  “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 and affecting the rights of creditors generally.  “Debtor Relief Plan” means any plan of reorganization or plan of liquidation pursuant to any  Debtor Relief Laws.  “Default” means any event or condition that, with the giving of notice, the passage of time, or  both, would (unless cured or waived in accordance with this Agreement) constitute an Event of Default.  “Default Rate” means, as determined at any time, (a) when used with respect to Obligations other  than Credit Fees, a per annum interest rate equal to the sum of (i) the Base Rate plus (ii) the Applicable  Margin, if any, then applicable to Base Rate Loans plus (iii) 2.0% per annum; provided that, with respect  to a EurodollarEurocurrency Rate Loan, the Default Rate will be a per annum interest rate equal to the  sum of (A) the interest rate (including any Applicable Margin and any applicable Benchmark  Replacement Adjustment) otherwise then applicable to such EurodollarEurocurrency Rate Loan plus (B)  2.0% per annum; and (b) when used with respect to Credit Fees, a per annum interest rate equal to the  sum of (1) the Applicable Margin then applicable to EurodollarEurocurrency Rate Loans plus (2) 2.0%  per annum.  “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance  with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means, subject to Section 3.07(b), any Lender that (a) has failed to (i) fund  all or any portion of its funding obligations hereunder, including in respect of its Loans or participations  in respect of Credits, within two Business Days of the date any such funding obligation was required to be  funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such  failure is the result of such Lender’s determination that one or more conditions precedent to funding (each  of which conditions precedent, together with any applicable default, shall be specifically identified in  





 






   -18-         such writing) has not been satisfied, or (ii) pay to Administrative Agent or any Lending Party any other  amount required to be paid by it hereunder (including in respect of its participation in Credits) within two  Business Days of the date when due, (b) has notified Borrower, Administrative Agent or any Lending  Party 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 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 Administrative Agent or Borrower, to confirm in writing to  Administrative Agent and 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 Administrative Agent and Borrower), or (d) has, or has a direct or  indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law,   (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 or (iii) become the subject of a Bail-In Action; provided that a Lender will not be  deemed 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.  Any determination by Administrative Agent that a  Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above will be conclusive  and binding absent manifest error, and such Lender will be deemed to be a Defaulting Lender (subject to  Section 3.07(b)) upon delivery of written notice of such determination to Borrower and each Lending  Party from Administrative Agent.  “Deferred Purchase Price Obligations” means unsecured obligations of Borrower or any of its  Restricted Subsidiaries arising in connection with any Acquisition, including any Permitted Acquisition,  permitted pursuant to Section 7.02 or any Investment otherwise made pursuant to Section 7.02(p) or (q)  to the seller or other Person with respect to any Target and the payment of which is dependent on the  future earnings or performance of such Target or another Person and contained in the agreement relating  to such Acquisition or other Investment or in an employment agreement delivered in connection therewith  (but in any event excluding compensation for employment and indemnification obligations).  “Departing Lender” has the meaning given such term in Section 2.01(a)(ii).  “Disposition” means the sale, assignment, transfer, conveyance, license (other than on a non- exclusive basis), lease or other disposition (including any sale and leaseback transaction) of any property  by any Person, including any sale, assignment, transfer, conveyance or other disposal, with or without  recourse, of any notes or accounts receivable or any rights and claims associated therewith.  The term  “Dispose” has a meaning correlative thereto; provided that the issuance, sale, assignment, transfer or  other disposition by any Person of Equity Interests in itself (or rights with respect thereto) will not be  deemed a Disposition by such Person.  “Disqualified Equity Interest” means any Equity Interest of any Person that by its terms (or by  the terms of any security into which it is convertible or for which it is exchangeable at the option of the  holder thereof) or upon the happening of any event (a) matures or is mandatorily redeemable in Cash  pursuant to a sinking fund obligation or other similar obligation (other than as a result of a “change of  control” so long as all Obligations are required to be paid in full prior to any deposit or other payment in  





 






   -19-         respect of such sinking fund obligation or other similar obligation), (b) is redeemable in Cash at the  option of the holder thereof (excluding any redemption of fractional shares), or (c) requires or mandates  the purchase, redemption, retirement, defeasance or other similar payment (other than Dividends) for  Cash (other than as a result of a (i) “change of control” so long as all Obligations are required to be paid  in full prior to any payment in respect of such Equity Interest or (ii) fractional shares), in each case on or  prior to the last to occur of the Revolving Credit Maturity Date and the Incremental Term Loan Maturity  Date, as applicable.    “Disqualified Institution” means, on any date, (a) any Person designated by the Borrower as a  “Disqualified Institution” by written notice delivered to Administrative Agent on or prior to the Second  Restatement Effective Date and (b) any other Person that is a Competitor of the Borrower or any of its  Subsidiaries, which Person has been designated by the Borrower as a “Disqualified Institution” by written  notice to Administrative Agent and the Lenders (including by posting such notice to the Electronic  Platform designated by Administrative Agent for such purpose) not less than ten Business Days prior to  such date; provided that “Disqualified Institutions” shall exclude any Person that the Borrower has  designated as no longer being a “Disqualified Institution” by written notice delivered to Administrative  Agent from time to time.  “Disqualifying Event” has the meaning given such term in Section 3.03(c).  “Dividend” means, as to any Person, any dividend, distribution or return on equity capital  declared by such Person and paid or made to the stockholders, members or partners of such Person, in  their capacity as such, whether in Cash or other property (other than Equity Interests of such Person that  are not Disqualified Equity Interests).    “DQ List” has the meaning given such term in Section 10.06(g)(iv).  “Dollar” and “$” mean lawful money of the United States.  “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars,  such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent  amount thereof (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being  rounded upward) in Dollars as determined by Administrative Agent at such time on the basis of the Spot  Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such  Alternative Currency.  “Domestic Subsidiary” means a Subsidiary incorporated or organized under the laws of the  United States of America, any State thereof or the District of Columbia, provided that any Subsidiary of a  Foreign Subsidiary of the Borrower that would otherwise constitute a Domestic Subsidiary will not  constitute a Domestic Subsidiary for purposes of the Loan Documents.  “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.  





 






   -20-         “EEA Resolution Authority” means any public administrative authority or any Person entrusted  with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any EEA Financial Institution.  “Early Opt-in Election” means the occurrence of: ,  (a) in the case of Eurocurrency Rate Loans denominated in Dollars, the occurrence of:  (1) a notification by Administrative Agent to (or the request by Borrower to Administrative  Agent to notify) each of the other parties hereto that at least five (5) currently outstanding Dollar- denominated syndicated credit facilities at such time contain (as a result of amendment or as originally  executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a  benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly  available for review), and  (2) the joint election by Administrative Agent and Borrower to declare that an Early Opt-in  Election for Dollars has occurred and the provision, as applicable, by Administrative Agent of written  notice of such election to Borrower and the Lenders; and  (b) in the case of Loans denominated in any Agreed Currency (other than Dollars), the  occurrence of:  (1) a) (i) a determination notification by Administrative Agent or (ii) a notification by  Required Lendersto (or the request by Borrower to Administrative Agent (with a copy to the Borrower)  that Required Lenders have determined that Dollar-denominatedto notify) each of the other parties hereto  that syndicated credit facilities denominated in the applicable Agreed Currency being executed at such  time, or that include language similar to that contained in Section 3.03(b) are being executed or  amended,  (as applicable,) to incorporate or adopt a new benchmark interest rate to replace LIBOR,the  Relevant Rate; and  (b2) (i)  the joint election by Administrative Agent or (ii) the election by Required Lendersand  Borrower to declare that an Early Opt-in Election for such Agreed Currency has occurred and the  provision, as applicable, by Administrative Agent of written notice of such election to the Borrower and  the Lenders or by Required Lenders of written notice of such election to Administrative Agent.  “Electronic Platform” means an electronic system for the delivery of information (including  documents), such as DXSyndicateTM, SyndTrak Online TM, Intralinks on Demand WorkspacesTM or  DebtdomainTM that may or may not be provided or administered by Administrative Agent or an Affiliate  thereof.  “Electronic Record” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 15 U.S.C. 7006.  “Electronic Signature” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 15 U.S.C. 7006.  “Eligible Assignee” means any Person that meets the requirements to be an assignee under  Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section  10.06(b)(iii)); provided that no Disqualified Institution shall be an Eligible Assignee.  





 






   -21-         “Employee Benefit Plan” means any Pension Plan and any employee welfare benefit plan, as  defined in Section 3(1) of ERISA, that is maintained for the employees of any Person or any ERISA  Affiliate of such Person.  “Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil,  surface and subsurface strata, and natural resources such as wetland, flora and fauna.  “Environmental Claims” means any and all administrative, regulatory or judicial actions, suits,  demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation,  investigations (other than internal reports prepared by any Person in the ordinary course of business and  not in response to any third party action or request of any kind) or proceedings relating in any way to any  actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or  any approval given, under any such Environmental Law, including any and all claims by Governmental  Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages,  contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous  Materials or arising from alleged injury or threat of injury to public health or the Environment.  “Environmental Laws” means any and all federal, state, local, and foreign statutes, laws  (including common law), regulations, standards, ordinances, rules, judgments, interpretations, orders,  decrees, permits, agreements or governmental restrictions relating to pollution or the protection of the  Environment or human health (to the extent related to exposure to hazardous materials), including those  relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of  Release of Hazardous Materials, air emissions and discharges to waste or public systems.  “Environmental Liability” means any liability, contingent or otherwise (including any liability  for damages, costs of environmental remediation, fines, penalties or indemnities) whether based in  contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, directly  or indirectly relating to (a) any Environmental Law, (b) the generation, use, handling, transportation,  storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d)  Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other  consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the  foregoing.  “Environmental Permit” means any permit, certification, registration, approval, identification  number, license or other authorization required under any Environmental Law.  “Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other  ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase  or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in)  such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other  ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition  from such Person of such shares (or such other interests), and all of the other ownership or profit interests  in such Person (including partnership, member or trust interests therein), whether voting or nonvoting,  and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of  determination.  “ERISA” means the Employee Retirement Income Security Act of 1974.  “ERISA Affiliate” means any trade or business (whether or not incorporated) under common  control with any Loan Party or any Subsidiary thereof within the meaning of Section 414(b) or (c) of the  





 






   -22-         Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the  Code).  “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal  of any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a  plan year in which such Person was a “substantial employer” as defined in Section 4001(a)(2) of ERISA  or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a  complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or  notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate  a Pension Plan, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A  of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or  condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the  appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is  considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430,  431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability  under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of  ERISA, upon any Loan Party or any ERISA Affiliate; or (i) any Foreign Benefit Event.  “Erroneous Payment” has the meaning given such term in Section 9.14(a).  “Erroneous Payment Deficiency Assignment” has the meaning given such term in Section  9.14(d).  “Erroneous Payment Return Deficiency” has the meaning given such term in Section 9.14(d).  “Erroneous Payment Subrogation Rights” has the meaning given such term in Section  9.14(d).  “Payment Recipient” has the meaning given such term in Section 9.14(a).  “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.  “EURIBOR Interpolated Rate” means, at any time, with respect to any Eurocurrency Borrowing  denominated in Euros and for any Interest Period, the rate per annum (rounded to the same number of  decimal places as the EURIBOR Screen Rate) determined by Administrative Agent (which determination  shall be conclusive and binding absent manifest error) to be equal to the rate that results from  interpolating on a linear basis between (a) the EURIBOR Screen Rate for the longest period (for which  the EURIBOR Screen Rate is available for Euros) that is shorter than the Impacted EURIBOR Rate  Interest Period and (b) the EURIBOR Screen Rate for the shortest period (for which the EURIBOR  Screen Rate is available for Euros) that exceeds the Impacted EURIBOR Rate Interest Period, in each  case, at such time; provided that, if any EURIBOR Interpolated Rate shall be less than zero, such rate  shall be deemed to be zero for the purposes of this Agreement.  “EURIBOR Rate” means, with respect to any Eurocurrency Borrowing denominated in Euros  and for any Interest Period, the EURIBOR Screen Rate; provided that, if the EURIBOR Screen Rate shall  not be available at such time for such Interest Period (an “Impacted EURIBOR Rate Interest Period”)  with respect to Euros then the EURIBOR Rate shall be the EURIBOR Interpolated Rate.  “EURIBOR Screen Rate” means, for any day and time, with respect to any Eurocurrency  Borrowing denominated in Euros and for any Interest Period, the Euro Interbank Offered Rate  





 






   -23-         administered by the European Money Markets Institute (or any other person which takes over the  administration of that rate) for the relevant period displayed (before any correction, recalculation or  republication by the administrator) on page EURIBOR01 of the Reuters screen (or any replacement  Reuters page which displays that rate) or on the appropriate page of such other information service which  publishes that rate from time to time in place of Reuters as of 11:00 a.m. (Brussels time) two (2)  TARGET Days prior to the commencement of such Interest Period. If such page or service ceases to be  available, Administrative Agent may specify another page or service displaying the relevant rate after  consultation with Borrower. If the EURIBOR Screen Rate shall be less than zero, the EURIBOR Screen  Rate shall be deemed to be zero for purposes of this Agreement.  “Euro” and “€” mean the single currency of the Participating Member States.  “Eurocurrency Reserve Requirement” means the stated maximum rate (rounded upwards, as  necessary, to the nearest 1/100th of one percent (0.01%)), as in effect on any date of determination of all  reserve requirements (including any marginal, emergency, supplemental, special or other reserves)  applicable on such date to any member bank of the Federal Reserve System in respect of “Eurocurrency  liabilities” as defined in Regulation D (or any successor category of liabilities under Regulation D) of the  FRB as in effect on such day, whether or not applicable to any Lending Party.  “Eurocurrency Rate” means for any Interest Period with respect to a Credit Extension:   (a) denominated in a LIBOR Quoted Currency (other than SterlingEuros, Yen or  Canadian Dollars), the rate per annum (rounded upwards, as necessary, to the nearest 1/100th of one  percent (0.01%)) equal to the London Interbank Offered Rate (“LIBOR”), as administered by ICE  Benchmark Administration Limited, with respect to such LIBOR Quoted Currency or a comparable or  successor rate approved by Administrative Agent, as published on the applicable Reuters screen page (or  such other commercially available source providing such quotations as may be designated by  Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days  prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on  the first day of such Interest Period) with a term equivalent to such Interest Period;Adjusted LIBO Rate;  (b) denominated in Sterling, the rate per annum equal to LIBOR with respect to  Sterling or a comparable or successor rate approved by Administrative Agent, as published on the  applicable Reuters screen page (or such other commercially available source providing such quotations as  may be designated by Administrative Agent from time to time) at approximately 11:00 a.m., London  time, two Business Days prior to on the first day of such Interest Period (or such other day as is generally  treated as the rate fixing day by market practice in such London interbank market, as determined by the  Administrative Agent) (or if such day is not a Business Day, then on the immediately preceding Business  Day) with a term equivalent to such Interest Period;  (b) denominated in Euros, the rate per annum equal to the Adjusted EURIBOR;   (c) denominated in Yen, the rate per annum equal to the Adjusted TIBOR;   (cd) denominated in Canadian dollars, the rate per annum equal to the CDOR Rate; or  (de) denominated in any other Non-LIBOR Quoted Currency, the rate per annum as  designated with respect to such Alternative Currency at the time such Alternative Currency is approved  by Administrative Agent and the relevant Lenders pursuant to Section 1.02(l);  





 






   -24-         provided that, (i) to the extent a comparable or successor rate is approved by Administrative Agent in  connection with any rate set forth in this definition of “Eurocurrency Rate”, the approved rate shall be  applied in a manner consistent with market practice; provided further that, to the extent such market  practice is not administratively feasible for Administrative Agent, such approved rate shall be applied in a  manner as otherwise reasonably determined by Administrative Agent, and (ii) if the Eurocurrency Rate  shall be less than zero, such rate shall be deemed to be zerothe Floor for purposes of this Agreement.  In  the event the FRB imposes a Eurocurrency Reserve Requirement on member banks of the Federal  Reserve System, the Eurodollar Rate will be calculated as the rate determined in accordance with the  preceding sentence, divided by 1 minus the Eurocurrency Reserve Requirement then in effect.  Each  determination by Administrative Agent pursuant to this definition will be conclusive absent manifest  error.  “EurodollarEurocurrency Rate Loan” means a Loan that bears interest based upon the  applicable Eurocurrency Rate. Eurodollar Eurocurrency Rate Loans may be denominated in Dollars or in  an Alternative Currency. All Loans denominated in an Alternative Currency must be  EurodollarEurocurrency Rate Loans.  “Event of Default” has the meaning given such term in Section 8.01.  “Exchange Act” means the Securities Exchange Act of 1934.  “Excluded Subsidiary” has the meaning given such term in Section 6.11(a).  “Excluded Swap Obligation” means, with respect to any Guarantor, (a) any Swap Obligation if,  and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such  Guarantor of a security interest to secure, as applicable, such Swap Obligation (or any Guaranty thereof)  is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the U.S.  Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by  virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined  in the Commodity Exchange Act (determined after giving effect to any applicable keep well, support, or  other agreement for the benefit of such Guarantor and any and all Guaranties of such Guarantor’s Swap  Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such  Guarantor of a security interest, becomes effective with respect to such Swap Obligation or (b) any other  Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any  agreement between the relevant Loan Parties and counterparty applicable to such Swap 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 Guaranty  or security interest is or becomes excluded in accordance with the first sentence of this definition.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or  required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by  net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed  as a result of such Recipient being organized under the laws of, or having its principal office or, in the  case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any  political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S.  federal and California withholding Taxes imposed on amounts payable to or for the account of such  Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the  date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to  an assignment request by Borrower under Section 3.08) or (ii) such Lender changes its lending office,  except in each case to the extent that, pursuant to Section 3.01, amounts with respect to such Taxes were  payable either to such Lender’s assignor immediately before such Lender became a party hereto or to  





 






   -25-         such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s  failure to comply with Section 3.01(e) and (d) any Taxes imposed under FATCA.  “Exempt Subsidiary” means each direct or indirect non-wholly owned Domestic Subsidiary of  Borrower now existing or hereafter acquired or formed, and each successor thereto, in each case that is  not a Non-Exempt Subsidiary (including which has not been designated an Non-Exempt Subsidiary  pursuant to the definition thereof set forth in this Section 1.01).  “Existing Lenders” has the meaning given such term in Recital A to this Agreement.  “Existing Senior Credit Facilities” has the meaning given such term in Recital A to this  Agreement, and refers to the credit facilities identified on Schedule 1.01-A.  “Facility” means the Revolving Credit Facility or any Incremental Term Loan Facility, as the  context requires.  “FASB ASC” means the Accounting Standards Codification of the Financial Accounting  Standards Board.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or  any amended or successor version that is substantively comparable and not materially more onerous to  comply with), any current or future regulations or official interpretations thereof and any agreement  entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or  practices adopted pursuant to any intergovernmental agreement, treaty or convention among  Governmental Authorities and implementing such Sections of the Code.  “FCA” has the meaning given such term in Section 1.02(s).  “Federal Funds Rate” means, for any day, the rate per annum equal to the greater of (a) the  weighted average of the rates on overnight Federal funds transactions with members of the Federal  Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business  Day next succeeding such day and (b) the Floor; provided that (ai) if such day is not a Business Day, then  the Federal Funds Rate for such day will be such rate on such transactions on the next preceding Business  Day as so published on the next succeeding Business Day and (bii) if no such rate is so published on such  next succeeding Business Day, then the Federal Funds Rate for such day will be the average rate (rounded  upward, if necessary, to a whole multiple of one one-hundredth of one percent (0.01%)) charged to HSBC  on such day on such transactions as determined by Administrative Agent.  “Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank  of New York at http://www.newyorkfed.org, or any successor source.   “Fee Letter” means the letter agreement dated September 30, 2019, between Borrower and  HSBC, as Administrative Agent and as an Arranger, regarding certain fees to be paid by Borrower in  connection with the transactions contemplated by the Loan Documents.  “Financing Statements” means the Form UCC financing statements (or comparable documents  now or hereafter filed in accordance with the UCC or other comparable Law) separately naming each  Loan Party as debtor and Administrative Agent as secured party, authorized and delivered pursuant to the  Collateral Documents, including a description of the personal property Collateral granted by such Loan  Party to Administrative Agent, for the benefit of the Secured Parties, as security for the Obligations,  





 






   -26-         which Financing Statements will be caused to be filed with the UCC (or comparable) filing office of the  applicable Governmental Authorities.  “First Restated Credit Agreement” has the meaning given such term in the Recital A to this  Agreement means that Amended and Restated Credit Agreement.   “First Restated Loan Documents” has the meaning given the term “Loan Documents” in the  First Restated Credit Agreement.  “First Restated Obligations” has the meaning given the term “Obligations” in the First Restated  Credit Agreement.  “Fiscal Period” means, for any Fiscal Year, the fiscal quarters of Borrower ending on or about  the last Sunday in April, July and October of such Fiscal Year (it being understood that the first and  second fiscal months of each such fiscal quarter are 4 weeks long and that the third fiscal month of each  such fiscal quarter is 5 weeks long) and on the last Sunday in January of such Fiscal Year.  “Fiscal Year” means each fiscal year of Borrower ending on the last Sunday in January of each  calendar year.  “Floor” means an interest rate per annum equal to zero percent (0.0%).  “Foreign Benefit Event” means, with respect to any Foreign Pension Plan, (a) the existence of  unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the  amount that would be permitted absent a waiver from a Governmental Authority or other Person  authorized to grant a waiver, (b) the failure to make the required contributions or payments, under any  applicable law, on or before the due date for such contributions or payments, (c) the receipt of a notice by  a Governmental Authority relating to the intention to terminate any such Foreign Pension Plan or to  appoint a trustee or similar official to administer any such Foreign Pension Plan, or alleging the  insolvency of any such Foreign Pension Plan, (d) the incurrence of any liability in excess of the Threshold  Amount (or the Dollar Equivalent thereof in another currency applicable to an affected Foreign Pension  Plan) by Borrower or any of its Subsidiaries under applicable Law on account of the complete or partial  termination of such Foreign Pension Plan or the complete or partial withdrawal of any participating  employer therein, or (e) the occurrence of any transaction that is prohibited under any applicable law and  could reasonably be expected to result in the incurrence of any liability by Borrower or any of its  Subsidiaries, or the imposition on Borrower or any of its Subsidiaries of any fine, excise tax or penalty  resulting from any noncompliance with any applicable law, in each case in excess of the Threshold  Amount (or the Dollar Equivalent thereof in another currency).  “Foreign Lender” means a Lender that is not a U.S. Person.  “Foreign Pension Plan” means any defined benefit pension plan that is maintained or is  contributed to outside the jurisdiction of the United States by Borrower or any of its Subsidiaries and  which under applicable law is required to be funded through a trust or other funding vehicle other than a  trust or funding vehicle maintained exclusively by a Governmental Authority.  “Foreign Pledge Agreement” has the meaning given such term in Section 6.11(c).  “Foreign Subsidiary” means any Subsidiary of Borrower that is not a Domestic Subsidiary.  





 






   -27-         “Foreign Subsidiary Holdco” means any direct or indirect Domestic Subsidiary of Borrower that  does not engage in any material direct operations and substantially all of the assets of which (either  directly or indirectly) consists of (a) Equity Interests in one or more Foreign Subsidiaries or (b)  Indebtedness owed to by one or more Foreign Subsidiaries.  As of the Second Restatement Effective  Date, Borrower has no Foreign Subsidiary Holdcos.   “FRB” means the Board of Governors of the Federal Reserve System of the United States.  “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any L/C  Issuer, such Defaulting Lender’s Revolving Credit Percentage Share of the outstanding Credit Obligations  other than Credit 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, and (b) with  respect to Swing Line Lender, such Defaulting Lender’s Revolving Credit Percentage Share of Swing  Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation  has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.  “Fund” means any Person (other than a natural person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its activities.  “GAAP” means generally accepted accounting principles in the United States set forth in the  opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified  Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or  such other principles as may be approved by a significant segment of the accounting profession in the  United States, that are applicable to the circumstances as of the date of determination, consistently  applied.   “Governmental Authority” means the government of the United States or any other nation, or of  any political subdivision thereof, whether state, provincial, territorial 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).  “Grants of IP Security Interests” means, collectively, the separate (a) grants of security interest  (patents), (b) grants of security interest (trademarks), and (c) grants of security interest (copyrights), and  all supplements thereto and amendments and restatements thereof, from time to time separately executed  by the Loan Parties to the extent any such Loan Party has any interest in Collateral comprising such  registered intellectual property rights (or an application therefor) with the United States Patent and  Trademark Office or United States Copyright Office, as applicable, with respect to the Liens granted to  Administrative Agent, for the benefit of the Secured Parties, under the Collateral Documents.  “Guaranteed Obligations” has the meaning given such term in Section 10.15(a).  “Guarantor Applicable Insolvency Laws” has the meaning given such term in Section  10.15(c)(i)(A).  “Guarantor Specified Lien” has the meaning given such term in Section 10.15(c)(i)(B).  “Guarantor Subordinated Indebtedness” has the meaning given such term in Section 10.15(k).  





 






   -28-         “Guarantor Subordinated Indebtedness Payments” has the meaning given such term in Section  10.15(k).  “Guarantors” means, collectively, (a) for the purposes of Section 10.15 (i) each Person that is  party to this Agreement as of the Second Restatement Effective Date and is named in the signature pages  hereto as a Guarantor, (ii) Borrower (solely as to and for the Secured Cash Management Obligations and  the Secured Swap Obligations of any Subsidiary of the Borrower) and (iii) each Subsidiary of Borrower  that at a date subsequent to the Second Restatement Effective Date executes a Joinder Agreement,  including as required by Section 6.11, in order to become a Guarantor hereunder, and (b) each other  Person who, at a date subsequent to the Second Restatement Effective Date, becomes a guarantor of all or  any portion of the Obligations.  “Guaranty” means, as to any Person, any obligation, contingent or otherwise, of such Person  guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable  or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly,  and including any obligation of such Person, direct or indirect: (a) to purchase or pay (or advance or  supply funds for the purchase or payment of) such Indebtedness or other obligation; (b) to purchase or  lease property, securities or services for the purpose of assuring the obligee in respect of such  Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation;  (c) to maintain working capital, equity capital or any other financial statement condition or liquidity or  level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such  Indebtedness or other obligation; or (d) entered into for the purpose of assuring in any other manner the  obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to  protect such obligee against loss in respect thereof (in whole or in part), and will include the guaranty set  forth in Section 10.15.  The amount of any Guaranty will be deemed to be the amount recognized as a  guaranty and shown on the guaranteeing Person’s financial statements in accordance with GAAP  provided that if such financial statements of the guaranteeing Person are not reasonably available to  Administrative Agent at its reasonable request, the amount of such Guaranty will be deemed to be the  maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in  good faith.  The term “Guarantee” as a verb has a corresponding meaning.  “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, natural gas,  natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic  mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants  or compounds of any nature in any form regulated pursuant to any Environmental Law.  “Hedge Bank” has the meaning given such term in the definition of “Secured Swap Obligations”  set forth in this Section 1.01.  “Honor Date” means, with respect to any Letter of Credit, the date of any payment by the L/C  Issuer in respect of any draw thereunder.  “HSBC” has the meaning given such term in the Preamble to this Agreement.  “IBA” has the meaning given such term in Section 1.02(s).  “Impacted EURIBOR Rate Interest Period” has the meaning given to such term in the definition  of “EURIBOR Rate” set forth in this Section 1.01.  





 






   -29-         “Impacted LIBO Rate Interest Period” has the meaning given to such term in the definition of  “LIBO Rate” set forth in this Section 1.01.  “Impacted TIBOR Rate Interest Period” has the meaning given to such term in the definition of  “TIBOR Rate” set forth in this Section 1.01.  “Increasing Revolving Credit Lender” has the meaning given such term in Section 2.01(a)(iii).  “Incremental Cap” means, as of any date of determination, the sum of (a) (i) the sum of (1)  $300,000,000 (the “Fixed Cap”) and (2) the aggregate principal amount of all Incremental Term Loans  voluntarily prepaid pursuant to Section 2.05(c)(iii), minus (ii) the sum of (A) the aggregate amount of  Additional Revolving Credit Commitments at such time that were incurred in reliance on the preceding  subclause (1) and (B) the aggregate principal amount of Incremental Term Loans outstanding at such time  that were incurred in reliance on the preceding subclause (1) (the Fixed Cap, as adjusted from time to  time in according with this clause (a) and in effect on such date of determination, the “Adjusted Fixed  Cap”), plus (b) an unlimited amount, so long as the Consolidated Leverage Ratio, calculated on a pro  forma basis (as of the last day of the Test Period for which Borrower most recently has delivered to  Administrative Agent a completed and duly executed and Compliance Certificate pursuant to Section  6.01(d) and the accompanying financial statements of Borrower and its Subsidiaries as required by  Section 6.01(a), (b) and (c), as applicable, after giving effect to the Borrowing of the full amount of any  Additional Revolving Credit Commitment or Incremental Term Loan Commitment requested pursuant to  Section 2.14 and other customary and appropriate pro forma adjustment events, including any  Acquisitions or Dispositions after the end of the relevant Test Period but prior to or simultaneous with the  Borrowing of such Additional Revolving Credit Commitment or Incremental Term Loan Commitment, as  applicable, is less than 3.00:1.00 (the “Unlimited Incremental Basket”).   “Incremental Term Loan” has the meaning given such term in Section 2.01(c).  “Incremental Term Loan Borrowing” means a borrowing consisting of simultaneous  Incremental Term Loans of the same Type and, in the case of EurodollarEurocurrency Rate Loans, having  the same Interest Period made by each Incremental Term Loan Lender pursuant to Section 2.01(c).  “Incremental Term Loan Commitments” means the commitment of an Incremental Term Loan  Lender to make Incremental Term Loans pursuant to Section 2.14.  “Incremental Term Loan Facility” means, at any time, the aggregate principal amount of the  Incremental Term Loans of all Incremental Term Loan Lenders outstanding at such time.  “Incremental Term Loan Lender” means, at any time, a lender providing Incremental Term  Loans, other than any such Person that thereafter ceases to be a party hereto pursuant to an Assignment  and Assumption.  “Incremental Term Loan Maturity Date” means the earlier of (a) the Incremental Term Loan  Stated Maturity Date and (b) the acceleration of the Incremental Term Loans pursuant to Section 8.03.  “Incremental Term Loan Percentage Share” means as to any Incremental Term Loan Lender at  any time, the percentage (expressed as a decimal carried out to the ninth decimal place) of (a) on or prior  to the Additional Commitment Effective Date of any Incremental Term Loans, the Aggregate Incremental  Term Loan Commitments represented by such Incremental Term Loan Lender’s Incremental Term Loan  Commitment, subject to adjustment as provided in Section 3.07; (b) following the Additional  Commitment Effective Date of any Incremental Term Loans so long as any Incremental Term Loans are  





 






   -30-         outstanding, the Outstanding Amount of all Incremental Term Loans represented by the Outstanding  Amount of all Incremental Term Loans owing to such Incremental Term Loan Lender; and (c) following  the Additional Commitment Effective Date of any Incremental Term Loans if all Incremental Term Loans  have been repaid in full, the Outstanding Amount of all Incremental Term Loans represented by the  Outstanding Amount of all Incremental Term Loans owing to such Incremental Term Loan Lender  immediately prior to such repayment in full, giving effect to any subsequent assignments.  The  Incremental Term Loan Percentage Share of each Incremental Term Loan Lender will be set forth in the  Additional Commitment Documentation or the Assignment and Assumption pursuant to which such  Incremental Term Loan Lender became a party hereto, as applicable.  “Incremental Term Loan Stated Maturity Date” means the maturity date specified for  Incremental Term Loans pursuant to the applicable Incremental Term Documentation.  “Incremental Term Loans” means any loans made in respect of Incremental Term Loan  Commitments.  “Indebtedness” means, as to any Person as of any date of determination, without duplication, all  of the following, whether or not included or characterized as indebtedness or a liability in accordance  with GAAP: (a) all obligations of such Person for borrowed money; (b) all obligations of such Person  evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (c) all direct or  contingent obligations of such Person arising under letters of credit, bank undertakings, letters of guaranty  (including, for each of the foregoing, the stated or available amount that is undrawn or that has been  drawn but is unreimbursed); (d) all obligations, contingent or otherwise, of such Person in respect of  bankers’ acceptances; (e) all obligations of such Person to pay the deferred purchase price of property or  services (including Deferred Purchase Price Obligations) to the extent (1) such obligations are required to  be reflected on the balance sheet of Borrower and its Consolidated Subsidiaries in accordance with GAAP  (excluding in the notes thereof) and (2) such obligations are due more than twelve months from the initial  date of incurrence of the relevant obligation or are evidenced by a promissory note or similar instrument  reflecting a payment obligation (excluding any such obligations to the extent that Borrower has elected to  exclude such obligations (or a portion thereof) in a written notice delivered to Administrative Agent  certifying that Borrower or a Subsidiary of Borrower has designated and maintains in reserve certain  Unrestricted Cash or Cash Equivalents to pay such obligations as and when they become due and payable  (in which case such reserved Unrestricted Cash and Cash Equivalents will not be counted towards  determining the Minimum Liquidity Condition until such time that the Borrower delivers a written notice  to Administrative Agent certifying that such designated Unrestricted Cash or Cash Equivalents (or  specified portion thereof) no longer is being reserved for application to the payment of such outstanding  deferred purchase price obligations); (f) indebtedness (excluding prepaid interest thereon) secured by a  Lien on property owned or being purchased by such Person (including indebtedness arising under  conditional sales or other title retention agreements), whether or not such indebtedness will have been  assumed by such Person or is limited in recourse (provided that if such Person has not assumed or  become liable in respect of such indebtedness, such indebtedness will be deemed to be an amount equal to  the lesser of (i) the fair market value of the property to which such Lien relates and (ii) the indebtedness  secured by a Lien on such property); (g) all Attributable Debt in respect of all Capitalized Leases and  Synthetic Lease Obligations of such Person; (h) all obligations of such Person to purchase, redeem, retire,  defease or make other similar payments (other than dividends) in respect of Disqualified Equity Interests  in Cash valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary  liquidation preference plus accrued and unpaid dividends (provided that (i) an issuance of Disqualified  Equity Interests (without regard to the number of holders thereof) will not be considered Indebtedness for  purposes of this definition if the aggregate of the obligations in respect thereof (as determined pursuant to  this clause (h)) do not exceed $5,000,000 and (ii) obligations to make such payments in cash with respect  to fractional shares will not be deemed to be Indebtedness); (i) all Guarantees of such Person in respect of  





 






   -31-         Indebtedness referred to in any of the preceding clauses (a) through (h); and (j) the Swap Termination  Value under all Swap Contracts to which such Person is a party.  The Indebtedness of any Person will  include the Indebtedness of any other entity (including any partnership in which such Person is a general  partner) to the extent such Person is liable therefor as a result of such Person's ownership interest in or  other relationship with such entity, except to the extent the terms of such Indebtedness provide that such  Person is not liable therefor.  Notwithstanding the foregoing, none of the following will constitute  Indebtedness for purposes of this Agreement:  (i) trade or other accounts payable incurred in the ordinary  course of such Person's business, (ii) bonuses or other deferred compensation arrangements with respect  to officers, directors, employees or agents of such Person, (iii) customer accounts and deposits, accrued  employee compensation and other liabilities in the nature of employee compensation accrued, (iv)  rebates, credits for returned products, discounts, refunds, allowances for customers and credits against  receivables, in each case in this clause (iv) in the ordinary course of such Person's business, and (v) earn- outs and other deferred payment obligations incurred in connection with an Acquisition to the extent not  included in clause (e) above.  “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 the preceding clause (a), Other Taxes.  “Indemnitees” means, collectively, Administrative Agent (and any sub-agent thereof), each  Arranger, each Lending Party and each Related Party of any of the foregoing Persons.  “Information” has the meaning given such term in Section 10.07.  “Insolvency Proceeding” means (a) any case, action or proceeding before any court or other  Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership,  dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors,  composition, marshalling of assets for creditors or other, similar arrangement in respect of its creditors  generally or any substantial portion of its creditors, in the cases of each of the foregoing clauses (a) and  (b) undertaken under Federal, state or foreign Law, including the Bankruptcy Code.  “Interest Payment Date” means (a) with respect to (i) a EurodollarEurocurrency Rate Loan  (other than an RFR Daily Simple Rate Loan, the last day of each Interest Period applicable thereto and, in  the case of a EurodollarEurocurrency Rate Loan 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, (ii) a Base Rate Loan (other than a Swing Line Loan)  or an RFR Daily Simple Rate Loan, the last Business Day of each calendar month, and (iii) a Swing Line  Loan, the last Business Day of each calendar month; and (b) (i) in the case of Revolving Credit Loans and  Swing Line Loans, the Revolving Credit Maturity Date, and (ii) in the case of Incremental Term Loans,  the applicable Incremental Term Loan Maturity Date.  “Interest Period” means, as to each EurodollarEurocurrency Rate Loan, the period commencing  on the date such EurodollarEurocurrency Rate Loan is disbursed or converted to or continued as a  EurodollarEurocurrency Rate Loan and ending on the date one, two, three, or six, or if made available by  each of the Lenders making such Eurodollar Rate Loan, twelve  months thereafter, as selected by  Borrower in the related Loan Notice; provided that (a) Eurocurrency Rate Loans bearing interest at the  CDOR Rate, Interest Periods available for such Loans will be limited to periods of one-and three-months;  (b) any Interest Period that would otherwise end on a day that is not a Business Day will be extended to  the next succeeding Business Day unless such Business Day falls in another calendar month, in which  case such Interest Period will end on the next preceding Business Day; (bc) any Interest Period that  begins on the last Business Day of a calendar month (or on a day for which there is no numerically  





 






   -32-         corresponding day in the calendar month at the end of such Interest Period) will end on the last Business  Day of the calendar month at the end of such Interest Period; and (cd) no Interest Period for (i) any  Revolving Credit Loan will extend beyond the Revolving Credit Stated Maturity Date and (ii) any  Incremental Term Loan will extend beyond the applicable Incremental Term Loan Stated Maturity Date.  “Investment” means, as to any Person, any direct or indirect acquisition or investment by such  Person in another Person, whether by means of (a) the purchase or other acquisition of Equity Interests of  another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or  purchase or other acquisition of any other debt or equity participation or interest in, another Person,  including any partnership or limited liability company interest in such other Person and any arrangement  pursuant to which the investor Guarantees Indebtedness of such other Person or (c) the purchase or other  acquisition (in one transaction or a series of transactions) of assets of another Person that constitutes a  business unit, or all or a substantial part of the business of, such Person.  For purposes of calculating  compliance with Section 7.02, the amount of any Investment will be the original principal or capital  amount thereof without adjustment for subsequent increases or decreases in the value of such Investment,  but less all returns of principal or equity thereon and less all distributions, dividends or other payments  thereon or received in respect thereof (and with respect to Investments constituting Guarantees, less the  amount of all obligations so guaranteed that are permanently terminated or satisfied other than through  payment on such Guarantee), and will, if made by the transfer or exchange of Property other than Cash,  be deemed to have been made in an original principal or capital amount equal to the fair market value of  such Property.   “IRS” means the United States Internal Revenue Service.  “ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and  Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or  any successor definitional booklet for interest rate derivatives published from time to time by the  International Swaps and Derivatives Association, Inc. or such successor thereto.  “ISP” means, with respect to any Credit, the “International Standby Practices 1998” (exclusive of  Rule 3.14 thereof) published by the Institute of International Banking Law & Practice (or, if the L/C  Issuer agrees at the time of issuance, such later version thereof as may be in effect at the time of issuance  of such Credit).  “Issuer Documents” means, with respect to any Credit, the Credit Application relating thereto  and any other document entered into by the L/C Issuer and Borrower as account party or its permitted  designee or otherwise delivered by Borrower or its permitted designee to or for the benefit of the L/C  Issuer, in each case relating to such Credit.  “Joinder Agreement” means an agreement entered into by a Subsidiary of Borrower following  the date hereof pursuant to Section 6.11(a) to join in the Guaranty set forth in Section 10.15, in  substantially the form of Exhibit C or any other form approved by Administrative Agent.  “Joint Venture” means a joint venture, partnership, alliance, consortium or similar arrangement,  whether in corporate, partnership or other legal form; provided that, as to any such arrangement in  corporate form, such corporation will not, as to any Person of which such corporation is a subsidiary, be  considered to be a Joint Venture to which such Person is a party.  “Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties,  rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,  including the interpretation or administration thereof by any Governmental Authority charged with the  





 






   -33-         enforcement, interpretation or administration thereof, and all applicable administrative orders, directed  duties, concessions, grants, franchises, requests, licenses, authorizations and permits of, and agreements  with, any Governmental Authority, in each case whether or not having the force of law, and including all  Debtor Relief Laws.  “L/C Credit Extension” means, with respect to any Credit, the issuance thereof, the extension of  the expiry date thereof or the increase of the amount thereof.  “L/C Issuer” means HSBC in its capacity as the initial issuer of Credits hereunder, or any  successor or additional issuer of Credits hereunder, and includes any branch or Affiliate thereof.   “LCT Test Date”  has the meaning given such term in Section 1.02(p).  “Lender” means, collectively, (a) initially, each Person designated on Schedule 2.01 as a  “Lender” and (b) each Person that assumes a Revolving Credit Commitment, an Additional Revolving  Credit Commitment and/or an Incremental Term Loan Commitment pursuant to an Assignment and  Assumption or pursuant to the applicable Additional Commitment Documentation or which otherwise  holds a Revolving Credit Commitment, a Revolving Credit Loan, an Additional Revolving Credit  Commitment, an Additional Revolving Credit Loan, an Incremental Term Loan Commitment, an  Incremental Term Loan, a risk participation in a Swing Line Loan or a participation in a Credit or a Credit  Borrowing (in each case, for so long as such Person holds Commitments or Loans).  “Lending Office” means, as to any Lender, the office or offices of such Lender described as such  in such Lender’s Administrative Detail Form, or such other office or offices as a Lender may from time to  time notify Borrower, Administrative Agent and the Lending Parties.  “Lending Parties” means, collectively, Lenders, Swing Line Lender and the L/C Issuers.  “Letter of Credit” means any standby or commercial letter of credit issued hereunder.  “LIBO Interpolated Rate” means, at any time, with respect to any Eurocurrency Borrowing  denominated in Dollars, Sterling or Swiss Francs and for any Interest Period, the rate per annum (rounded  to the same number of decimal places as the LIBO Screen Rate) determined by Administrative Agent  (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that  results from interpolating on a linear basis between (a) the LIBO Screen Rate for the longest period (for  which the LIBO Screen Rate is available for the applicable Agreed Currency) that is shorter than the  Impacted LIBO Rate Interest Period and (b) the LIBO Screen Rate for the shortest period (for which the  LIBO Screen Rate is available for the applicable Agreed Currency) that exceeds the Impacted LIBO Rate  Interest Period, in each case, at such time; provided that if any LIBO Interpolated Rate shall be less than  zero, such rate shall be deemed to be zero for the purposes of this Agreement.  “LIBO Rate” means, with respect to any Eurocurrency Rate Loan denominated in Dollars,  Sterling or Swiss Francs and for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m.  (London time) two (2) Business Days prior to the commencement of such Interest Period; provided that if  the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted LIBO  Rate Interest Period”) with respect to such Agreed Currency then the LIBO Rate shall be the LIBO  Interpolated Rate.  “LIBO Screen Rate” means, for any day and time, with respect to any Eurocurrency Rate Loan  denominated in Dollars, Sterling or Swiss Francs and for any Interest Period, the London Interbank  Offered Rate (“LIBOR”) as administered by ICE Benchmark Administration (or any other Applicable  





 






   -34-         Administrator that takes over the administration of such rate) for such Agreed Currency for a period equal  in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of  the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or  screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate  page of such other information service that publishes such rate from time to time as selected by  Administrative Agent in its reasonable discretion); provided that if the LIBO Screen Rate shall be less  than zero, such rate shall be deemed to be the Floor for the purposes of this Agreement.  “LIBOR” has the meaning given such term in the definition of “EurocurrencyLIBOR Screen  Rate” set forth in this Section 1.01.  “LIBOR Quoted Currency” means Dollars, Sterling, Euros, Swiss Francs and Yen, in each case  as long as there is a published LIBOR rate with respect thereto.  “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,  encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or  preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including  any conditional sale or other title retention agreement) and any easement, right of way or other  encumbrance on title to real property.  “Limited Condition Transaction” means any Acquisition that Borrower or any one or more of its  Subsidiaries is contractually committed to consummate (it being understood that such commitment may  be subject to conditions precedent, which conditions precedent may be amended, satisfied or waived in  accordance with the terms of the applicable agreement) whose consummation is not conditioned upon the  availability of, or on obtaining, third-party financing.  “Limited Pledge Non-Control Investment” means an Investment by any Loan Party permitted by  Section 7.02 in the Equity Interests of any Person incorporated or formed under the laws of any  jurisdiction in the United States of America, including any State thereof or the District of Columbia, and  as a result of which, after giving pro forma effect to such Investment, (a) such Person shall not be a  Subsidiary and (b) Borrower does not, directly or indirectly, Control such Person; provided that the fair  market value of any such Investment in a Person, as determined by Borrower in good faith, at the time of  the consummation of such Investment does not exceed an amount equal to 2.5% of the lesser of (a) the  Consolidated gross revenues (after intercompany eliminations) of Borrower and its Subsidiaries and (b)  the Consolidated assets (after intercompany eliminations) of Borrower and its Subsidiaries, in each case  as of the last day of the most recently completed Test Period for which financial statements have been  delivered pursuant to Section 6.01(a) or (b), as applicable.    “Limited Pledge Subsidiary” means each Subsidiary of Borrower now existing or hereafter  acquired or formed, and each successor thereto, in each case which accounts for less than 2.5% of (a) the  Consolidated gross revenues (after intercompany eliminations) of Borrower and its Subsidiaries and (b)  the Consolidated assets (after intercompany eliminations) of Borrower and its Subsidiaries, in each case  as of the last day of the most recently completed Test Period for which financial statements have been  delivered pursuant to Section 6.01(a) or (b), as applicable.   “Linked Undertaking” means a Bank Undertaking with respect to which the L/C Issuer thereof is  the beneficiary of a related Letter of Credit issued by such L/C Issuer’s Affiliate supporting such Bank  Undertaking on terms substantially identical (other than the beneficiary) to those of such Bank  Undertaking.  





 






   -35-         “Loan” means any Revolving Credit Loan, Swing Line Loan, Additional Revolving Credit Loan  or Incremental Term Loan.  “Loan Document Obligations” means all advances to, and debts, liabilities, obligations,  covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to  any Loan or Credit, including any Erroneous Payment Subrogation Rights, in each case whether direct or  indirect (including those acquired by assumption), absolute or contingent, due or to become due, now  existing or hereafter arising and including interest and fees that accrue after the commencement by or  against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming  such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed  claims in such proceeding.  “Loan Documents” means this Agreement, the Notes, the Credits and related Issuer Documents,  any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15,  the Collateral Documents, the Fee Letter and any and all other agreements, documents and instruments  executed and/or delivered by or on behalf of or in support of any Loan Party to Administrative Agent or  any Lending Party or their respective authorized designee evidencing or otherwise relating to the Loans or  the Credit Borrowings made or the Credits issued hereunder.  “Loan Notice” means a notice, pursuant to Section 2.02(a), of (a) a borrowing of Loans, (b) a  conversion of Loans from one Type to the other or (c) a continuation of EurodollarEurocurrency Rate  Loans, which notice, if in writing, will be substantially in the form of Exhibit D.  “Loan Parties” means, collectively, Borrower and all Guarantors.  “London Banking Day” means any day on which dealings in Dollar deposits are conducted by  and between banks in the London interbank EurodollarEurocurrency market.   “Margin Stock” means “margin stock” as defined in Regulation U adopted by the FRB (12  C.F.R. Part 221).  “Material Acquisition” means each Acquisition (or series of related Acquisitions) for which the  Acquisition Consideration, including any Deferred Purchase Price Obligations, is equal to or greater than  $75,000,000.   “Material Adverse Effect” means any of the following: (a) a material adverse change in, or a  material adverse effect on, the business, assets, properties, liabilities, condition (financial or otherwise) or  results of operations of Borrower and its Subsidiaries taken as a whole; or (b) a material adverse effect on  the ability of Borrower and the Guarantors, taken as a whole, to perform their payment obligations under  any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or  enforceability against Borrower or any Guarantor of any Loan Documents to which it is a party.  “Material Contract” means any written contract, license or other written arrangement to which  any Loan Party is a party (other than the Loan Documents) for which breach, nonperformance,  cancellation or failure to renew could reasonably be expected to have or result in a Material Adverse  Effect.  “Material First-Tier Foreign Subsidiary” means each Foreign Subsidiary of Borrower the  Equity Interests of which are directly owned by Borrower or a Domestic Subsidiary of Borrower, whether  such Foreign Subsidiary is now existing or hereafter acquired or formed, and each successor thereto, in  each case which accounts for more than 2.5% of (a) the Consolidated gross revenues (after intercompany  





 






   -36-         eliminations) of Borrower and its Subsidiaries or (b) the Consolidated assets (after intercompany  eliminations) of Borrower and its Subsidiaries, in each case as of the last day of the most recently  completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or  (b), as applicable.  “Material Subsidiary” means each Subsidiary of Borrower now existing or hereafter acquired or  formed, and each successor thereto, in each case which accounts for more than 5% of (i) the Consolidated  gross revenues (after intercompany eliminations) of Borrower and its Subsidiaries or (ii) the Consolidated  assets (after intercompany eliminations) of Borrower and its Subsidiaries, in each case as of the last day  of the most recently completed Test Period for which financial statements have been delivered pursuant to  Section 6.01(a) or (b), as applicable.    “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting  of Cash, an amount equal to 103% of the Fronting Exposure of the applicable L/C Issuer(s) with respect  to Credits issued and outstanding at such time and (b) otherwise, an amount determined by  Administrative Agent and the applicable L/C Issuer(s) with respect to Credits issued and outstanding at  such time in their Reasonable Discretion.  “Minimum Liquidity Condition” means, as of any date of determination, that the sum of (a) the  Aggregate Revolving Credit Commitments minus the Total Revolving Credit Outstandings, and (b) the  sum of (i) 100% of the Unrestricted Cash and Cash Equivalents of Borrower and its Domestic  Subsidiaries on such date and (ii) 75% of the Unrestricted Cash and Cash Equivalents of Borrower’s  Foreign Subsidiaries on such date, equals or exceeds $100,000,000 (provided that to the extent any  Unrestricted Cash or Cash Equivalents have been designated by Borrower or its Subsidiaries as reserved  for the payment of outstanding deferred purchase price obligations as contemplated by clause (e) of the  definition of “Indebtedness” set forth in this Section 1.01 so that such obligations shall not constitute  Indebtedness, such designated Unrestricted Cash or Cash Equivalents shall automatically be excluded  from the determination of the Minimum Liquidity Condition unless and until Borrower delivers to  Administrative Agent a written notice certifying that such designated Unrestricted Cash or Cash  Equivalents (or specified portion thereof) no longer is being reserved by Borrower for application to the  payment of such outstanding deferred purchase price obligations).    “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  “Multiemployer Plan” means any employee benefit plan of the type described in Section  4001(a)(3) of ERISA to which any Loan Party or any ERISA Affiliate makes or is obligated to make  contributions, or during the preceding five plan years, has made or been obligated to make contributions.  “National Currency Unit” means a fraction or multiple of one Euro expressed in units of the  former national currency of a Participating Member State.  “Net Cash Proceeds” means, with respect to any incurrence or issuance of any Indebtedness, the  aggregate amount of Cash received from time to time (whether as initial consideration or through  payment or disposition of deferred consideration, as and when received in Cash) by or on behalf of such  Person in connection with such transaction after deducting therefrom only (without duplication) (a)  reasonable and customary brokerage commissions, legal fees, finders’ fees and other similar fees and  commissions, (b) the amount of taxes payable in connection with or as a result of such transaction, (c) the  amount of any Indebtedness secured by a Lien on such asset (other than the Obligations) that, by the  terms of such transaction, is required to be and is repaid upon such Disposition and the amount of any  other non-contingent liabilities directly associated with such asset (including indemnity obligations)  and (d) other transaction costs and expenses customary and reasonable for such transactions, in each case  





 






   -37-         to the extent, but only to the extent, that the amounts so deducted are properly attributable to such  Disposition or to the asset that is the subject thereof and are actually paid (or required to be paid) to a  Person that is not a Loan Party (it being understood that if such amounts are not so paid within sixty (60)  days of when so required to be paid, such amount shall not constitute a deduction from Net Cash Proceeds  of the applicable Disposition); provided, that in the case of taxes that are deductible under clause (b)  above and that at the time of receipt of such Cash, have not been actually paid or are not then payable,  such Person may deduct an amount (the “Reserved Tax Amount”) equal to a reasonable estimate for such  taxes; provided, that at the time such taxes are paid (and if further taxes in respect thereof are not due), an  amount equal to the amount, if any, by which the Reserved Tax Amount exceeds the amount actually so  paid, will constitute Net Cash Proceeds; provided, further, that at the time any tax indemnification in  respect of a Reserved Tax Amount is received by such Person, an amount equal to the amount, if any, by  which the tax indemnification amount received exceeds the amount actually paid in respect of the  underlying indemnified event, will constitute Net Cash Proceeds.  “Net Equity Proceeds” means, with respect to any issuance of any Equity Interest, including any  securities convertible into or exchangeable for Equity Interests or any warrants, rights, options or other  securities to acquire Equity Interests by an Person, the aggregate amount of Cash received from time to  time (whether as initial consideration or through payment or disposition of deferred consideration, as and  when received in Cash) by or on behalf of such Person in connection with such transaction after  deducting therefrom only (without duplication):  (a) reasonable and customary brokerage commissions,  underwriting fees and discounts, legal fees, finders’ fees and other similar fees and commissions and (b)  other transaction costs customary and reasonable for such transactions, in each case to the extent, but only  to the extent, that the amounts so deducted are properly attributable to such transaction and are, at the  time of receipt of such Cash, actually paid to a Person that is not a Loan Party.    “Net Equity Proceeds Amount” means, as of any time of determination, an amount equal to the  aggregate Net Equity Proceeds received by Borrower or any of its Subsidiaries after the Second  Restatement Effective Date which are used solely to fund all or a portion of the Acquisition Consideration  for Acquisitions permitted pursuant to Section 7.02, with the Net Equity Proceeds Amount to be  immediately reduced by the amount of the Acquisition Consideration for any such Permitted Acquisition  made with such Net Equity Proceeds.   “New Lender” has the meaning given such term in Section 4.01(g).  “New Lender Agreement” has the meaning given such term in Section 4.01(g).  “Non-Consenting Lender” means any Lender that does not (as determined by Administrative  Agent in its Reasonable Discretion) approve any consent, waiver or amendment that (a) requires the  approval of all affected Lenders in accordance with the terms of Section 10.01 and (b) has been approved  by Required Lenders (to the extent such consent, waiver or amendment requires the approval of all  Lenders) or Required Revolving Credit Lenders or Required Incremental Term Loan Lenders (to the  extent such consent, waiver or amendment requires the consent of all Revolving Credit Lenders or  Incremental Term Loan Lenders, as applicable).  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at  such time.  “Non-Exempt Subsidiary” means each direct or indirect non-wholly owned Domestic Subsidiary  of Borrower now existing or hereafter acquired or formed, and each successor thereto, in each case which  accounts for (a) more than 10% of the Consolidated gross revenues (after intercompany eliminations) of  Borrower and its Consolidated Subsidiaries or (b) more than 10% of the Consolidated assets (after  





 






   -38-         intercompany eliminations) of Borrower and its Consolidated Subsidiaries, in each case, as of the last day  of the most recently completed Test Period for which financial statements have been delivered pursuant to  Section 6.01(a) or (b), as applicable; provided that if the Exempt Subsidiaries of Borrower at any time  account for, in the aggregate, (i) more than 20% of the Consolidated gross revenues (after intercompany  eliminations) of Borrower and its Consolidated Subsidiaries or (ii) more than 20% of the Consolidated  assets (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries, in each case, as of  the last day of the most recently completed Test Period for which financial statements have been  delivered pursuant to Section 6.01(a) or (b), as applicable, Borrower shall designate one or more of such  Exempt Subsidiaries to be Non-Exempt Subsidiaries such that, after giving effect to such designations,  the Exempt Subsidiaries of Borrower shall account for, in the aggregate, (A) not more than 20% of the  Consolidated gross revenues (after intercompany eliminations) of Borrower and its Consolidated  Subsidiaries and (B) not more than 20% of the Consolidated assets (after intercompany eliminations) of  Borrower and its Consolidated Subsidiaries, in each case, as of the last day of the most recently  completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or  (b), as applicable.   “Non-LIBOR Quoted Currency” means any currency other than a LIBOR Quoted Currency.  “Note” means any promissory note executed by Borrower in favor of a Lender pursuant to  Section 2.11 in substantially the form of Exhibit E.  “Obligations” means, collectively, (a) the Loan Document Obligations, (b) the Secured Cash  Management Obligations and (c) the Secured Swap Obligations (excluding with respect to any Guarantor  that is a Subsidiary of Borrower, Excluded Swap Obligations of such Guarantor).  “Organizational Documents” means (a) with respect to any corporation, the certificate or articles  of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any  non-United States jurisdiction) of such Person; (b) with respect to any limited liability company, the  certificate or articles of formation or organization and operating agreement of such Person; and (c) with  respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint  venture or other applicable agreement of formation or organization of such Person and any agreement,  instrument, filing or notice with respect thereto filed in connection with such Person’s formation or  organization with the applicable Governmental Authority in the jurisdiction of its formation or  organization and, if applicable, any certificate or articles of formation or organization of such Person.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in  any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any  Loan or Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible, recording,  filing or similar Taxes that arise from any payment made under, from the execution, delivery,  performance, enforcement or registration of, from the receipt or perfection of a security interest under, or  otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes  imposed with respect to an assignment (other than an assignment made pursuant to Section 3.08).  “Outstanding Amount” means, as determined as of any date, (a) with respect to any Loans, the  aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or  repayments of such Loans, as the case may be, occurring on such date; and (b) with respect to any Credit  





 






   -39-         Obligations on any date, the amount of such Credit Obligations after giving effect to any L/C Credit  Extension occurring on such date and any other changes in the aggregate amount of the Credit  Obligations as of such date, including as a result of any reimbursements by Borrower of Unreimbursed  Amounts.  “Participant” has the meaning given to such term in Section 10.06(d).  “Participating Member State” means any member state of the European Union that has the Euro  as its lawful currency in accordance with legislation of the European Union relating to Economic and  Monetary Union.  “PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law  October 26, 2001)).  “PBGC” means the Pension Benefit Guaranty Corporation.  “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required  contributions (including any installment payment thereof) to Pension Plans and set forth in, as applicable,   Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.  “Pension Plan” means any employee pension benefit plan, other than a Multiemployer Plan, that  is maintained or is contributed to by any Loan Party and any ERISA Affiliate and is either covered by  Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.  “Percentage Share” means, as to any Lender, its Revolving Credit Percentage Share or  Incremental Term Loan Percentage Share, as applicable.  “Permitted Acquisition” means any Acquisition that meets the following conditions (in each case  subject to Section 1.02(p)):   (a) the proposed Acquisition will be undertaken and consummated in accordance and  in compliance in all material respects with all applicable Laws;  (b) such proposed Acquisition does not involve any material assets or businesses of  the type prohibited pursuant to Section 7.11;  (c) such proposed Acquisition is or will be approved by (i) to the extent required by  Applicable Law, the Target’s Board of Directors and (ii) to the extent required by applicable Law, the  holders of the Equity Interests in the Target;  (d) no Default or Event of Default will have occurred and be continuing at the time  of execution of a binding purchase agreement with respect to the proposed Acquisition or immediately  after giving effect thereto;  (e) Borrower will be in compliance with the financial covenants set forth in Section  7.15, for the most recent Test Period ending prior to the closing date of the proposed Acquisition for  which financial statements have been provided, on a pro forma basis as if such proposed Acquisition (as  well as all other Permitted Acquisitions closed subsequent to such Test Period end) occurred on the first  day of the Test Period ended on such date (but assuming, for purposes of determining pro forma  compliance with Section 7.15(a) for such Test Period, that the maximum Consolidated Leverage Ratio  permitted pursuant to Section 7.15(a) for such Test Period was 0.25 less than the maximum Consolidated  





 






   -40-         Leverage Ratio set forth in Section 7.15(a) corresponding to such Test Period (after giving effect to any  permitted increase to such maximum Consolidated Leverage Ratio corresponding to such Test Period  assuming the consummation of such Permitted Acquisition); provided, at Borrower's option, compliance  with such covenants may be tested at the time a binding agreement with respect to the proposed  Acquisition is entered into (and not at the time of consummation of such Acquisition), in which case the  permitted increase to the Consolidated Leverage Ratio shall be based on the pro forma calculation of the  Consolidated Leverage Ratio (giving effect to the Permitted Acquisition and the Indebtedness related  thereto that is reasonably anticipated to be incurred or assumed);  (f) after giving effect to the proposed Acquisition and the payment of all amounts  (including fees and expenses) owing in connection therewith, the Minimum Liquidity Condition is  satisfied;  (g) the business and assets of the Target will be free and clear of Liens upon the  consummation of the Acquisition, except Permitted Liens;  (h) with respect to any Acquisition by Borrower or any Domestic Subsidiary of any  Target that, upon the consummation of such Acquisition, would become a direct or indirect Foreign  Subsidiary of the Borrower, the Acquisition Consideration payable for the proposed Acquisition  (excluding any Acquisition Consideration payable in Equity Interests of the Borrower that are not  Disqualified Equity Interests) will not exceed $10,000,000;  (i) if the Acquisition Consideration payable for the proposed Acquisition equals or  exceeds $25,000,000, Borrower will have delivered to Administrative Agent the historical audited  financial statements of Target for the three immediately preceding fiscal years of Target (or, if less, the  number of years available, if any) and unaudited financial statements thereof for the most recent interim  period (if any) that is available;   (j) Borrower will have delivered to Administrative Agent a certificate executed by a  Responsible Officer of Borrower certifying, to the best of such Responsible Officer’s knowledge, the  compliance with each of the conditions set forth in the preceding clauses (a) through (i), inclusive, and  containing the calculations (in reasonable detail) required by the preceding clauses (e) and (f); and  (k) Borrower will cause each Subsidiary which is formed to effect, or is acquired  pursuant to, an Acquisition to comply with, and to execute and deliver all of the documentation as and to  the extent required by the Loan Documents and within the time period prescribed therein (including  Section 6.11).  “Permitted Encumbrances” means any Cash Collateral or other credit support provided to any  L/C Issuer in respect of a Defaulting Lender pursuant to clause (E) of Section 2.03(a)(iv).  “Permitted Liens” has the meaning given such term in Section 7.01.  “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” within the meaning of Section 3(3) of ERISA  (including a Pension Plan), maintained for employees of any Loan Party or any ERISA Affiliate or any  such Plan to which any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its  employees.  





 






   -41-         “Preferred Equity” means, as applied to the Equity Interests of any Person, Equity Interests of  such Person (other than common Equity Interests of such Person) of any class or classes (however  designed) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any  voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Equity  Interests of any other class of such Person.  “Prime Rate” means the per annum rate of interest in effect for such day as publicly announced  from time to time by HSBC as its “Prime Rate,” such rate being the rate of interest most recently  announced within HSBC at its principal office in New York, New York as its “Prime Rate,” with the  understanding that HSBC’s “Prime Rate” is one of HSBC’s base rates and serves as the basis upon which  effective rates of interest are calculated for those loans making reference thereto, and is evidenced by the  recording thereof after its announcement in such internal publication or publications as HSBC may  designate.  HSBC’s “Prime Rate” is not intended to be the lowest rate of interest charged by HSBC in  connection with extensions of credit to borrowers.  Any change in HSBC’s “Prime Rate” as announced by  HSBC will take effect at the opening of business on the day specified in the public announcement of such  change.  “Proceeding” has the meaning given such term in Section 6.03(b).  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor,  as any such exemption may be amended from time to time.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  “QFC Credit Support” has the meaning specified in Section 10.22.  “Qualified ECP Guarantor” means, in respect of any Secured Swap Obligations, each Guarantor  that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant  security interest becomes effective with respect to such Secured Swap Obligation or such other Person as  constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations  promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at  such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  “Qualified Preferred Stock” means any Preferred Equity of Borrower (a) that does not constitute  Disqualified Equity Interests and (b) does not require the Cash payment of dividends or distributions that  would otherwise be prohibited by the terms of this Agreement.  “Reasonable Discretion” means, as to any Person, a determination or judgment made by such  Person in the exercise of such Person’s reasonable (from the perspective of a secured commercial lender)  business judgment.  “Recipient” means (a) Administrative Agent and (b) any Lending Party, as applicable.  “Record” means information that is inscribed on a tangible medium or which is stored on an  electronic or other medium and is retrievable in perceived form.  “Reference Time” with respect to any setting of the then-current Benchmark means (a) if such  Benchmark is the LIBO Rate, 11:00 a.m. (London time) on the day that is two (2) London Banking Days  preceding the date of such setting, (b) if such Benchmark is EURIBOR Rate, 11:00 a.m. (Brussels time)  





 






   -42-         two (2) TARGET Days preceding the date of such setting, and (d) if such Benchmark is neither the LIBO  Rate nor the EURIBOR Rate, the time determined by Administrative Agent in its reasonable discretion.  “Register” means a register for the recordation of the names and addresses of Lenders and, as  applicable, the Commitments of, and Outstanding Amounts of the Loans and Credit Obligations owing to,  each Lender pursuant to the terms hereof from time to time.  “Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time to time  and all official rulings and interpretations thereunder or thereof.  “Related Business” means any business that is the same, similar or otherwise reasonably related,  ancillary or complementary to the businesses of the Loan Parties on the Second Restatement Effective  Date.  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  members, directors, officers, employees, trustees, administrators, managers, advisors and agents and  representatives of such Person and of such Person’s Affiliates, and specifically includes, in the case of  HSBC, HSBC in its separate capacities as Administrative Agent, as Swing Line Lender, as L/C Issuer and  as an Arranger.  “Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping,  pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any  building, structure or facility.  “Relevant Governmental Body” means (a) with respect to a Benchmark Replacement in respect  of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to,  Dollars, the FRB and/or the Federal Reserve Bank of New York, or a committee officially endorsed or  convened by the FRB and/or the Federal Reserve Bank of New York, or any successor thereto.  and (b)  with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other  amounts denominated in, or calculated with respect to, any Alternative Currency, (i) the central bank for  the Agreed Currency in which such Obligations, interest, fees, commissions or other amounts are  denominated, or calculated with respect to, or any central bank or other supervisor which is responsible  for supervising either (A) such Benchmark Replacement or (B) the Applicable Administrator of such  Benchmark Replacement or (ii) any working group or committee officially endorsed or convened by (x)  the central bank for the Currency in which such Obligations, interest, fees, commissions or other amounts  are denominated, or calculated with respect to, (y) any central bank or other supervisor that is responsible  for supervising either (i) such Benchmark Replacement or (ii) the administrator of such Benchmark  Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board  or any part thereof.  “Relevant Rate” means (a) with respect to any Eurocurrency Rate Loan denominated in Dollars,  Sterling or Swiss Francs, the corresponding LIBO Rate, (b) with respect to any Eurocurrency Borrowing  denominated in Euros, the EURIBOR Rate, (c) with respect to any Eurocurrency Borrowing denominated  in Yen, the TIBOR Rate, or (d) with respect to any Eurocurrency Borrowing denominated in Canadian  Dollars, the CDOR Rate, as applicable.  “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty-day notice period has been waived.  





 






   -43-         “Request for Credit Extension” means (a) with respect to a Borrowing of Revolving Credit  Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Credit Application, and (c) with  respect to a Swing Line Loan, a Swing Line Loan Notice.  “Required Incremental Term Loan Lenders” means, as determined at any time, Incremental  Term Loan Lenders holding in excess of 50.0% of the Outstanding Amount of all Incremental Term  Loans and Incremental Term Loan Commitments; provided that each determination of Required  Incremental Term Loan Lenders will disregard the Outstanding Amount of all Incremental Term Loans  and Incremental Term Loan Commitments held by any then Defaulting Lender.  “Required Lenders” means, as determined at any time, Lenders holding in excess of 50.0% of the  sum of (a) (i) the Revolving Credit Commitments then in effect or (ii) if the Aggregate Revolving Credit  Commitments have been terminated in full, the Total Revolving Credit Outstandings at such time, plus  (b) the Outstanding Amount of all Incremental Term Loans and Incremental Term Loan Commitments at  such time; provided that each determination of Required Lenders will disregard the Revolving Credit  Commitment of, the portion of the Total Revolving Credit Outstandings and the Outstanding Amount of  all Incremental Term Loans and Incremental Term Loan Commitments, as the case may be, of any then  Defaulting Lender.  “Required Revolving Credit Lenders” means, as determined at any time, (a) Revolving Credit  Lenders holding in excess of 50.0% of the Revolving Credit Commitments then in effect or (b) if the  Aggregate Revolving Commitments have been terminated following the occurrence of an Event of  Default, Revolving Credit Lenders holding in excess of 50.0% of the Total Revolving Credit  Outstandings at such time; provided that each determination of Required Revolving Credit Lenders will  disregard the Revolving Credit Commitment of, and the portion of the Total Revolving Credit  Outstandings held or deemed held, by any then Defaulting Lender.  “Resolution Authority” means an EEA Resolution Authority or with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” means (a) with respect to Borrower in connection with any Request for  Credit Extension to be delivered by Borrower hereunder, the chief executive officer, president, chief  financial officer, treasurer or controller of Borrower; (b) with respect to Borrower in connection with any  Compliance Certificate or any other certificate or notice pertaining to any financial information required  to be delivery by Borrower hereunder or under any other Loan Document, the chief financial officer,  treasurer, controller or other officer having primary responsibility for the financial affairs of such Person;  and (c) otherwise, with respect to Borrower or any other Loan Party, the chief executive officer, president,  chief operating officer, chief financial officer, treasurer, controller, secretary or general counsel of such  Person or such other authorized person duly appointed by such Loan Party (or, if applicable, the chief  executive officer, president, chief operating officer, chief financial officer, treasurer, controller, secretary  or general counsel of such Loan Party’s managing entity or such other authorized person duly appointed  by such managing entity).  “Restricted” means, when referring to Cash or Cash Equivalents of Borrower and its Subsidiaries,  that such Cash or Cash Equivalents (a) are indicated as “restricted” (or such similar language) on a  Consolidated balance sheet of Borrower (unless such indication is related to the Loan Documents or the  Liens created thereunder), (b) are subject to any Liens in favor of any Person other than Administrative  Agent to secure the Obligations or (c) are not otherwise generally available for use by Borrower or such  Subsidiary (unless such restriction is related to the Loan Documents or the Liens created thereunder).  





 






   -44-         “Restricted Payment” means, as to any Person, (a) any Dividend by such Person (whether in  Cash, securities or other property) with respect to any Equity Interest of such Person, (b) 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 such Equity Interest or  on account of any return of capital to any holder of any such Person’s Equity Interests and (c) the  acquisition for value by such Person of any Equity Interests issued by such Person or any other Person  that Controls such Person.  “Restricted Subsidiary” means, as determined at any time, each direct or indirect Subsidiary of  Borrower that (a) is not a Unrestricted Subsidiary (including, in each case, that has not been designated an  Unrestricted Subsidiary pursuant to Section 2.16) and (b) is not a Subsidiary of an Unrestricted  Subsidiary.  “Revaluation Date” means with respect to any Loan, each of the following: (a) each date of the  funding of a EurodollarEurocurrency Rate Loan hereunder denominated in an Alternative Currency, (b)  each date of an amendment or modification of any such Loan having the effect of increasing the amount  thereof (solely with respect to the increased amount), (c) each date of any prepayment or repayment of  any Loan denominated in an Alternative Currency and (d) such additional dates as Administrative Agent  or any Lending Party will reasonably determine in accordance with the provisions of this Agreement.  “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit  Loans of the same Type and, in the case of EurodollarEurocurrency Rate Loans, having the same Interest  Period made by each Revolving Credit Lender pursuant to Section 2.01(b).  “Revolving Credit Commitment” means, as to each Revolving Credit Lender at any time, its  obligation to do the following pursuant to the terms hereof: (a) make Revolving Credit Loans to  Borrower; (b) purchase participations in Credit Obligations; and (c) purchase participations in Swing Line  Loans; all in an aggregate principal amount at any one time outstanding not to exceed the amount set forth  opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which  such Lender became a party hereto or pursuant to the applicable Additional Commitment Documentation,  as such amount may be adjusted from time to time in accordance with this Agreement.  “Revolving Credit Commitment Fee” has the meaning given such term in Section 2.09(a).  “Revolving Credit Exposure” means, as to any Revolving Credit Lender at any time, the  aggregate principal amount at such time of its outstanding Revolving Credit Loans and such Revolving  Credit Lender’s participation in Credit Obligations and Swing Line Loans at such time.  “Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit  Lenders’ Revolving Credit Commitments at such time.  “Revolving Credit Lender” means, collectively, (a) initially, each Lender designated on Schedule  2.01 as a Lender having a Revolving Credit Commitment as of the Second Restatement Effective Date  and (b) each Lender that assumes a Revolving Credit Commitment pursuant to an Assignment and  Assumption or pursuant to the applicable Additional Commitment Documentation or which otherwise  holds a Revolving Credit Commitment, a Revolving Credit Loan, a risk participation in a Swing Line  Loan or a participation in a Credit or a L/C Borrowing, other than any such Person that ceases to be a  party hereto or ceases to hold any Revolving Credit Commitments or Revolving Credit Loans nor any  such risk participations pursuant to an Assignment and Assumption.  “Revolving Credit Loan” has the meaning given such term in Section 2.01(b).  





 






   -45-         “Revolving Credit Maturity Date” means the earliest of (a) the Revolving Credit Stated Maturity  Date, (b) the date of the termination of the Aggregate Revolving Credit Commitments pursuant to Section  2.06 and (c) the date of the termination of the Aggregate Revolving Credit Commitments and of the  obligation of any L/C Issuer to make L/C Credit Extensions and the acceleration of the Revolving Credit  Loans pursuant to Section 8.03.  “Revolving Credit Percentage Share” means as to any Revolving Credit Lender at any time, the  percentage (expressed as a decimal carried out to the ninth decimal place) of the Aggregate Revolving  Credit Commitments represented by such Lender’s Revolving Credit Commitment at such time, subject  to adjustment as provided in Section 3.07; provided that, if the commitment of each Revolving Credit  Lender to make Revolving Credit Loans and the obligation of any L/C Issuer to issue L/C Credit  Extensions have been terminated pursuant to Section 8.03 or if the Aggregate Revolving Credit  Commitments have expired, then the Revolving Credit Percentage Share of each Revolving Credit Lender  will be determined based upon such Lender’s Revolving Credit Percentage Share most recently in effect,  giving effect to any subsequent assignments.  The initial Revolving Credit Percentage Share of each  Revolving Credit Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the  Assignment and Assumption or pursuant to the applicable Additional Commitment Documentation  pursuant to which such Lender became a party hereto, as applicable.  “Revolving Credit Stated Maturity Date” means November 7, 2024.  “RFR Daily Rate Loan” means, a Loan bearing interest based on the Daily Simple SOFR, the  Daily Simple SONIA or the Daily Simple SARON, as the context may require.   “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,  Inc., and any successor thereto.  “Same Day Funds” means (a) with respect to disbursements and payments in Dollars,  immediately available funds, and (b) with respect to disbursements and payments in an Alternative  Currency, same day or other funds as may be determined by Administrative Agent to be customary in the  place of disbursement or payment for the settlement of international banking transactions in the relevant  Alternative Currency.  “Sanctions” has the meaning given such term in Section 5.17(a).  “SARON” means, with respect to any Business Day, a rate per annum equal to the Swiss Average  Rate Overnight for such Business Day published by the SARON Administrator on the SARON  Administrator’s Website.  “SARON Administrator” means the SIX Swiss Exchange AG (or any successor administrator of  the Swiss Average Rate Overnight).  “SARON Administrator’s Website” means SIX Swiss Exchange AG’s website, currently at  https://www.six-group.com, or any successor source for the Swiss Average Rate Overnight identified as  such by the SARON Administrator from time to time.  “SEC” means the Securities Exchange Commission and any successor thereto.  “Second Restatement Effective Date” means the first date on which all of the conditions  precedent to the initial Credit Extension set forth in Section 4.01 and Section 4.02 are satisfied (or  waived in accordance with Section 10.01), which date is November 7, 2019.  





 






   -46-         “Secured Cash Management Obligations” means Cash Management Obligations that are (a)  owed to Administrative Agent or any of its Affiliates, (b) owed on the Second Restatement Effective Date  to a Person that is a Lender or an Affiliate of a Lender as of the Second Restatement Effective Date or (c)  owed to a Person that is a Lender or an Affiliate of a Lender at the time such obligations are incurred  (each such Person to whom any such liabilities or other obligations are owed is referred to herein as a  “Cash Management Bank” for such purpose).   “Secured Parties” means (a) each Lending Party, (b) Administrative Agent, (c) each Cash  Management Bank to whom any Secured Cash Management Obligations are owed, (d) each Hedge Bank  that is a counterparty to any Swap Contract the obligations under which constitute Secured Swap  Obligations, (e) the beneficiaries of each indemnification obligation undertaken by any Loan Party under  any Loan Document and (f) the permitted successors and assigns of each of the foregoing.  “Secured Swap Obligations” means all liabilities and other obligations of Borrower or any of its  Subsidiaries under any Swap Contract permitted under Section 7.03(e); provided that such Swap Contract  (a) is with a counterparty that is Administrative Agent or any of its Affiliates, (b) is in effect on the  Second Restatement Effective Date with a counterparty that is a Lender or an Affiliate of a Lender as of  the Second Restatement Effective Date or (c) is entered into after the Second Restatement Effective Date  with any counterparty that is a Lender or an Affiliate of a Lender at the time such Swap Contract is  entered into (each such counterparty being referred to herein as a “Hedge Bank” for such purpose), and in  the case of each of the preceding clauses (a), (b) and (c), such counterparty has not delivered to  Administrative Agent a written notice that the liabilities and other obligations of Borrower or any of its  Subsidiaries under such Swap Contract are not to be treated as Secured Swap Obligations for purposes of  this Agreement and the other Loan Documents.  “Security Agreement” means the Second Amended and Restated Security Agreement dated as of  the date of this Agreement by Borrower, each other Loan Party that is a party to this Agreement as of the  Second Restatement Effective Date and, upon their joinder thereto pursuant to Section 6.11(a), each other  Person as will hereafter become a Loan Party, in favor of Administrative Agent, for the benefit of the  Secured Parties.  “Semtech (International)” means Semtech (International) AG, a corporation organized under the  laws of Switzerland.    “Significant Acquisition” means each Acquisition (or series of related Acquisitions) for which  the Acquisition Consideration, including any Deferred Purchase Price Obligations, is equal to or greater  than $3,000,000.   “Significant Disposition” means each Disposition (or series of related Dispositions) for which the  all-in consideration paid or payable in Cash or other property, including any deferred consideration  included or characterized as indebtedness or a liability in accordance with GAAP, is equal to or greater  than $3,000,000.   “Significant Investment” means each Investment (or series of related Investments) permitted  pursuant to Section 7.02(p) or Section 7.02(q) for which the all-in consideration paid or payable in Cash  or other property, including any deferred consideration included or characterized as indebtedness or a  liability in accordance with GAAP, is equal to or greater than $3,000,000.   “SOFR” means, with respect to any day meansBusiness Day, a rate per annum equal to the  secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the  administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New  





 






   -47-         York’sfor such Business Day published by the SOFR Administrator on the SOFR Administrator’s  Website.  “SOFR Administrator” means the Federal Reserve Bank of  New York (or a successor  administrator of the secured overnight financing rate).  “SOFR Administrator’s Website” means the Federal Reserve Bank of  New York’s Website,  currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate  identified as such by the SOFR Administrator from time to time.  “Solvent” means, as to any Person at any time, that (a) the fair value of the property of such  Person on a going concern basis is greater than the amount of such Person’s liabilities (including  contingent liabilities), as such value is established and such liabilities are evaluated for purposes of  Section 101(32) of the Bankruptcy Code and, in the alternative, for purposes of the Uniform Fraudulent  Transfer Act or any similar state statute applicable to Borrower or any Subsidiary thereof; (b) the present  fair salable value of the property of such Person is not less than the amount that will be required to pay  the probable liability of such Person on its debts as they become absolute and matured; (c) such Person is  able to realize upon its property and pay its debts and other liabilities (including contingent liabilities) as  they mature in the normal course of business; (d) such Person does not intend to, and does not believe that  it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature;  and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a  transaction, for which such Person’s property would constitute unreasonably small capital.  For the  purposes of the foregoing, the amount of contingent liabilities at any time will be computed as the amount  that, in light of all facts and circumstances existing at such time, represents the amount that can  reasonably be expected to become an actual or matured liability.  “SONIA” means, with respect to any Business Day, a rate per annum equal to the Overnight  Index Average for such Business Day published by the SONIA Administrator on the SONIA  Administrator’s Website.  “SONIA Administrator” means the Bank of England (or any successor administrator of the  Sterling Overnight Index Average).  “SONIA Administrator’s Website” means the Bank of England’s website, currently at  http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average  identified as such by the SONIA Administrator from time to time.  “Special Notice Currency” means at any time an Alternative Currency, other than the currency of  a country that is a member of the Organization for Economic Cooperation and Development at such time  located in North America or Europe.  “Specified Event of Default” means any Event of Default occurring under Sections 8.01(a) or, in  the case of the Borrower only, Section (f) or (g).  “Specified Lender” means, at any time, any Lender that (a) has (i) requested compensation under  Section 3.04 and has not rescinded such request within five Business Days of the making thereof or (ii) to  whom Borrower must pay an additional amount (or on whose behalf Borrower must pay an additional  amount to a Governmental Authority) pursuant to Section 3.01, and in the case of either of clauses (i) or  (ii), such Lender has declined or is unable to designate a different Lending Office in accordance with  Section 3.06; (b) gives a notice pursuant to Section 3.02; (c) is a Defaulting Lender; or (d) is a Non- Consenting Lender.  





 






   -48-         “Specified Materials” means, collectively, all notices, demands, communications, documents and  other materials or information provided by or on behalf of Borrower or any other Loan Party or any of  their respective Subsidiaries or Affiliates, as well as documents and other written materials relating to  Borrower or any other Loan Party or any of their respective Subsidiaries or Affiliates or any other  materials or matters relating to this Agreement or any of the other Loan Documents (including any  amendments or waivers of the terms thereof or supplements thereto) or the transactions contemplated  herein or therein.  “Specified Permitted Debt Documents” means, on and after the execution and delivery thereof,  each note, indenture, purchase agreement, loan agreement, guaranty and other material agreement relating  to the incurrence or issuance of Specified Permitted Indebtedness, as the same may be amended, modified  or supplemented from time to time in accordance with the terms hereof and thereof.  “Specified Permitted Indebtedness” means any unsecured Indebtedness of Borrower, which may  be guaranteed on an unsecured basis by any Subsidiary Guarantor, all of the terms of which satisfy the  requirements of Section 7.03(b).  “Specified Representations” means the representations and warranties of Borrower and, to the  extent applicable, the other Loan Parties set forth in Section 5.01, Section 5.02(a) (with respect to  entering into and performance of the Loan Documents), Section 5.04, Section 5.11 (only with respect to  the second sentence thereof), Section 5.14, Section 5.16, Section 5.17 and Section 5.18.  “Specified Transaction” means, with respect to any period, any Investment, Disposition of assets,  incurrence or repayment of Indebtedness, Restricted Payment, subsidiary designation or other event that  by the terms of this Agreement requires “pro forma” compliance with a test or covenant hereunder or  requires such test or covenant to be calculated on a “pro forma” or after giving “pro forma” effect thereto.  “Spot Rate” for a currency means the rate determined by Administrative Agent or L/C Issuer, as  applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by  such Person of such currency with another currency through its principal foreign exchange trading office  at approximately 11:00 a.m., London time, on the date two Business Days prior to the date as of which  the foreign exchange computation is made; provided that Administrative Agent or L/C Issuer may obtain  such spot rate from another financial institution designated by Administrative Agent or L/C Issuer if the  Person acting in such capacity does not have as of the date of determination a spot buying rate for any  such currency; and provided, further, that L/C Issuer may use such spot rate quoted on the date as of  which the foreign exchange computation is made in the case of any Credit denominated in an Alternative  Currency.  “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is  the number one and the denominator of which is the number one minus the aggregate of the maximum  reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or  supplemental reserves or other requirements) established by any central bank, monetary authority, the  FRB, the FCA, the Prudential Regulation Authority, the European Central Bank or other Governmental  Authority for any category of deposits or liabilities customarily used to fund loans in the applicable  currency, expressed in the case of each such requirement as a decimal. Such reserve, liquid asset, fees or  similar requirements shall include those imposed pursuant to Regulation D.  Eurocurrency Rate Loans  shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without benefit of  or credit for proration, exemptions or offsets that may be available from time to time to any Lender under  any applicable Law, including Regulation D.  The Statutory Reserve Rate shall be adjusted automatically  on and as of the effective date of any change in any reserve, liquid asset or similar requirement.  





 






   -49-         “Sterling” and “£” mean the lawful currency of the United Kingdom.  “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability  company or other business entity of which a majority of the shares of Equity Interests having ordinary  voting power for the election of directors or other governing body (other than Equity Interests having  such power only by reason of the happening of a contingency) are at the time beneficially owned, or the  management of which is otherwise Controlled, directly, or indirectly through one or more intermediaries,  or both, by such Person.  Unless otherwise specified, all references herein to a “Subsidiary” or to  “Subsidiaries” will refer to a Subsidiary or Subsidiaries of Borrower.  “Subsidiary Guarantor” means, collectively, each Domestic Subsidiary of Borrower that  executes this Agreement as a Guarantor as of the Second Restatement Effective Date and each other  Domestic Subsidiary that becomes a Guarantor hereunder pursuant to Section 6.11(a) (in each case unless  and until such Person is released as a Guarantor hereunder pursuant to Section 10.01 or Section 9.01(a),  as applicable).  “Supported QFC” has the meaning specified in Section 10.22.  “Swap” means any agreement, contract, or transaction that constitutes a “swap” within the  meaning of section 1a(47) of the Commodity Exchange Act.  “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative  transactions, forward rate transactions, commodity swaps, commodity options, forward commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward bond or forward bond price or forward bond index transactions, interest rate options, forward  foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  foregoing), whether or not any such transaction is governed by or subject to any master agreement; and  (b) any and all transactions of any kind, and the related confirmations, that are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement including any such obligations or liabilities under any such master agreement (in each case,  together with any related schedules).  “Swap Obligation” means, with respect to any Person, any obligation to pay or perform under  any Swap.  “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking  into account the effect of any legally enforceable netting agreement relating to such Swap Contracts,  (a)  for any date on or after the date such Swap Contracts have been closed out and termination value(s)  determined in accordance therewith, such termination value(s) and (b) for any date prior to the date  referenced in clause (a) of this definition, the amount(s) determined as the mark-to-market value(s) for  such Swap Contracts, as determined based upon one or more mid-market or other readily available  quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or  any Affiliate of a Lender).  “Swing Line” means the revolving credit facility made available by Swing Line Lender pursuant  to Section 2.04.  “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.  





 






   -50-         “Swing Line Lender” means, at any time, the provider of the Swing Line hereunder (which,  initially, will be HSBC).  “Swing Line Loan” has the meaning given such term in Section 2.04(a).  “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section  2.04(b), which, if in writing, will be substantially in the form of Exhibit F.  “Swing Line Sublimit” means, as determined as of any date, an amount equal to the lesser of (a)  $25,000,000 and (b) the Aggregate Revolving Credit Commitments.  The Swing Line Sublimit is a part  of, but is not in addition to, the Aggregate Revolving Credit Commitments.  “Swiss Francs” means the lawful currency of Switzerland.  “Swiss Pledge Agreement” means that Share Pledge Agreement dated May 2, 2013, between  Borrower and Administrative Agent, as amended and confirmed by that Security Confirmation and  Amendment Agreement dated as of November 11, 2016, and as further confirmed and amended by that   Security Confirmation and Amendment Agreement dated as of the date hereof, between Borrower and  Administrative Agent, on behalf of itself and the Secured Parties, pursuant to which Borrower pledges  and grants a security interest to Administrative Agent, on behalf and for the benefit of the Secured Parties,  in 65% of the issued and outstanding Equity Interests in Semtech (International), which pledge agreement  is governed by the laws of Switzerland.   “Synthetic Lease Obligation” means the principal balance outstanding under any lease, funding  agreement or other arrangement with respect to any real or personal property pursuant to which the lessor  is treated as the owner of such property for accounting purposes and the lessee is treated as the owner of  such property for federal income tax purposes, or any tax retention operating lease, off-balance sheet loan  or similar off-balance sheet financing product to which such Person is a party, where such transaction is  considered borrowed money indebtedness for tax purposes but is classified as an operating lease in  accordance with GAAP.  “Target” means the Person, business unit or division that is the subject of an Acquisition.  “TARGET Day” means any day on which the Trans-European Automated Real-time Gross  Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be  operative, such other payment system (if any) determined by Administrative Agent to be a suitable  replacement) is open for the settlement of payments in Euro.  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholdings), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.  “Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference  Time, the forward-looking term rate based on SOFR that has been selected or recommended by the  Relevant Governmental Body.  “Test Period” means each period of four consecutive Fiscal Periods then last ended, in each case  taken as one accounting period.   “TIBOR Interpolated Rate” means, at any time, with respect to any Eurocurrency Rate Loan  Borrowing denominated in Yen and for any Interest Period, the rate per annum (rounded to the same  





 






   -51-         number of decimal places as the TIBOR Screen Rate) determined by Administrative Agent (which  determination shall be conclusive and binding absent manifest error) to be equal to the rate that results  from interpolating on a linear basis between (a) the TIBOR Screen Rate for the longest period (for which  the TIBOR Screen Rate is available for Yen) that is shorter than the Impacted TIBOR Rate Interest Period  and (b) the TIBOR Screen Rate for the shortest period (for which the TIBOR Screen Rate is available for  Yen) that exceeds the Impacted TIBOR Rate Interest Period, in each case, at such time; provided that, if  any TIBOR Interpolated Rate shall be less than zero, such rate shall be deemed to be the Floor for the  purposes of this Agreement.  “TIBOR Rate” means, with respect to any Eurocurrency Borrowing denominated in Yen and for  any Interest Period, the TIBOR Screen Rate; provided that, if the TIBOR Screen Rate shall not be  available at such time for such Interest Period (an “Impacted TIBOR Rate Interest Period”) with respect  to Yen then the TIBOR Rate shall be the TIBOR Interpolated Rate.  “TIBOR Screen Rate” means, for any day and time, with respect to any Eurocurrency Rate Loan  denominated in Yen and for any Interest Period, the Tokyo Interbank Offered Rate (“TIBOR”)  administered by the Ippan Shadan Hojin JBA TIBOR Administration (or any other person which takes  over the administration of that rate) for the relevant period displayed (before any correction, recalculation  or republication by the Applicable Administrator) on the applicable Reuters screen (or any replacement  Reuters page which displays that rate) or on the appropriate page of such other information service which  publishes that rate as determined by Administrative Agent from time to time in place of Reuters as of  11:00 a.m. (Tokyo time) two (2) Business Days prior to the commencement of such Interest Period. If  such page or service ceases to be available, Administrative Agent may specify another page or service  displaying the relevant rate after consultation with Borrower.  If the TIBOR Screen Rate shall be less than  zero the TIBOR Screen Rate shall be deemed to be the Floor for purposes of this Agreement.  “Trade Date” has the meaning given such term in Section 10.06(g)(i).  “Threshold Amount” means $20,000,000.  “Total Revolving Credit Outstandings” means, as determined as at any time, the sum of (a) the  aggregate Outstanding Amount of all Revolving Credit Loans, plus (b) the Outstanding Amount of all  Credit Obligations and plus (c) the Outstanding Amount of all Swing Line Loans.  “Transactions” means, collectively, the (a) entry by the parties hereto into this Agreement and  the other Loan Documents for the purpose of the Lending Parties making available to Borrower the  Facility on the terms and subject to the conditions hereof and thereof, (b) refinancing, including through  cashless settlements as applicable, of the Existing Senior Credit Facilities under the First Restated Credit  Agreement and the other First Restated Loan Documents and (c) payment of all related Transaction Costs.   “Transaction Costs” means the fees, costs and expenses paid or payable by the Loan Parties in  connection with the consummation of the transactions contemplated by the Loan Documents, including  the initial funding of the Credit Extensions under this Agreement on the Second Restatement Effective  Date.  “Type” means, with respect to any Loan, its character as a Base Rate Loan or a  EurodollarEurocurrency Rate Loan.  “UCP” means, with respect to any commercial Credit, the Uniform Customs and Practice for  Documentary Credits 2007 Revision, UCP 600, published by the International Chamber of Commerce  (or, if L/C Issuer will agree at the time of issuance, such later version thereof as may be in effect  





 






   -52-         immediately prior to the issuance of such Credits, the extension of the expiry date thereof or any increase  of the amount thereof).  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person subject to 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.  “U.K.UK Regulatory Cost” means an addition to the interest rate on a EurodollarEurocurrency  Rate Loan denominated in an Alternative Currency to compensate a Lender for the cost imputed to such  Lender in respect of any such EurodollarEurocurrency Rate Loan denominated in an Alternative Currency  made by such Lender hereunder resulting from the imposition from time to time under or pursuant to the  Bank of England Act 1998 or by the Bank of England or the Financial Services Authority (including any  successor thereto, the “FSA”) (or other United Kingdom governmental authorities or agencies) of a  requirement to place non-interest-bearing deposits or special deposits (whether interest-bearing or not)  with the Bank of England to meet cash ratio requirements and/or pay fees to the FSA calculated by  reference to liabilities used to fund such EurodollarEurocurrency Rate Loan.  “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 Benchmark Replacement Adjustment.  “Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect in the  State of New York; provided that, to the extent perfection or the effect of perfection or non-perfection or  the priority of any security interest in any collateral is governed by the Uniform Commercial Code as in  effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as  in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such  perfection, effect of perfection or non-perfection or priority.  “Unreimbursed Amount” means, with respect to any Credit, any amount (in Dollars, or if the  applicable Credit is denominated in an Alternative Currency, the Dollar Equivalent thereof) drawn  thereunder that Borrower has failed to reimburse to the L/C Issuer thereof by the time specified in Section  2.03(c)(i).  “Unrestricted” means, when referring to Cash or Cash Equivalents of Borrower or any of its  Subsidiaries, that such Cash or Cash Equivalents are not Restricted.  “Unrestricted Subsidiary” means, as determined at any time, each direct or indirect Subsidiary of  Borrower that (a) has been designated by Borrower as an Unrestricted Subsidiary on Schedule 1.01-B as  of the Second Restatement Effective Date or pursuant to Section 2.16 subsequent to the Second  Restatement Effective Date (and, in each case, has not been re-designated a Restricted Subsidiary  pursuant to Section 2.16) or (b) is a Subsidiary of an Unrestricted Subsidiary.  “U.S. Person” means any Person that is a “United States Person” as defined in Section  7701(a)(30) of the Code.  “U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 3.01(f).  





 






   -53-         “USD LIBOR” means, for any day and time, with respect to any Eurocurrency Rate Loan  denominated in Dollars, LIBOR as determined for such Agreed Currency for any applicable Interest  Period.  “Withholding Agent” means any Loan Party and 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” and “¥” mean the lawful currency of Japan.  Section 1.02 Certain Rules of Construction.  (a) General Rules.  (i) Unless the context otherwise clearly requires, the meaning of a defined  term is applicable equally to the singular and plural forms thereof.  (ii) The words “hereof,” “herein,” “hereunder” and similar words refer to  this Agreement as a whole and not to any particular provision of this Agreement.  (iii) The word “documents” includes instruments, documents, agreements,  certificates, indentures, notices and other writings, however evidenced.  (iv) The words “include” and “including” are not limiting and the word “or”  is not exclusive.  (v) In the computation of periods of time from a specified date to a later  specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to  but excluding” and the word “through” means “to and including.”  (vi) Unless the context otherwise clearly requires, the words “property,”  “properties,” “asset” and “assets” refer to both personal property (whether tangible or intangible,  including Cash, securities, accounts and contract rights) and real property.  (vii) Whenever a representation or warranty is made to any Person’s  knowledge or awareness or with a similar qualification, knowledge or awareness means the actual  knowledge of the Responsible Officers, after such investigation into the applicable matter as is customary  for the Responsible Officers in the ordinary course of their conduct of the applicable Person’s business.  (viii) Whenever this Agreement refers to any “wholly owned” Subsidiary of  any Person, such reference will be deemed to include (A) any Foreign Subsidiary of such Person in which  





 






   -54-         a nominal amount of Equity Interests are held by residents of the jurisdiction in which such Subsidiary is  organized in order to comply with requirements of local Law and (B) any Subsidiary of such Person with  directors’ qualifying shares.  (ix) Any reference to a Person will be construed to include such Person’s  successors and assigns.  (x) Unless the context otherwise requires, terms that are used but not defined  herein but are defined in Article 8 or Article 9 of the UCC will have the meaning so given to them in  Article 8 or Article 9 of the UCC.  (xi) Unless the context otherwise clearly requires, (A) Article, Section,  subsection, clause, Schedule and Exhibit references are to this Agreement; (B) references to documents  (including this Agreement) will be deemed to include all subsequent amendments, renewals, extensions,  replacements, restatements and other modifications thereto, but only to the extent such amendments,  renewals, extensions, replacements, restatements and other modifications are not prohibited by the terms  of any Loan Document; and (C) references to any statute or regulation are to be construed as including all  statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting the  statute or regulation.  (b) Time References.  Unless the context requires otherwise, all references herein to  times of day will be references to New York time (daylight or standard, as applicable).  (c) Captions.  The captions and headings of this Agreement are for convenience of  reference only and will not affect the interpretation of this Agreement.  (d) Cumulative Nature of Certain Provisions.  This Agreement and the other Loan  Documents may use several different limitations, tests or measurements to regulate the same or similar  matters.  All such limitations, tests and measurements are cumulative and will be performed in  accordance with their respective terms.  (e) No Construction Against Any Party.  This Agreement and the other Loan  Documents are the result of negotiations among, and have been reviewed by counsel to, the Loan Parties,  Administrative Agent and the Lending Parties and are the products of all parties.  Accordingly, they will  not be construed against Administrative Agent or any Lending Party merely because of the involvement  of any or all of the preceding Persons in their preparation.  (f) Paid in Full.  Any reference in this Agreement or in any other Loan Document to  (i) the satisfaction or repayment in full of, payment in full of, the Obligations (or the Guaranteed  Obligations), the Obligations (or the Guaranteed Obligations) being paid in full or language of similar  import and/or (ii) the termination or expiration of the Credits or language of similar import means, in each  case,  the repayment in full in Cash (or, in the case of (A) Credits, (B) Secured Swap Obligations or (C)  Secured Cash Management Obligations, the cash collateralization, support by a standby letter of credit or  other backstopping in an amount, by an institution and  pursuant to arrangements in accordance with the  terms thereof or otherwise, in each case, reasonably satisfactory to the applicable L/C Issuer, Hedge Bank  or Cash Management Bank) of all Obligations other than unasserted contingent indemnification and  expense reimbursement obligations and other than any Secured Swap Obligations or Secured Cash  Management Obligations that, at such time, are allowed by the applicable Hedge Bank or Cash  Management Bank to remain outstanding and not be repaid or cash collateralized.  





 






   -55-         (g) GAAP.  Unless the context otherwise clearly requires, all accounting terms not  expressly defined herein will be construed, and all financial computations required under this Agreement  will be made, in accordance with GAAP; provided that the definition of Capitalized Leases shall be  construed as set forth therein.  If at any time any change in GAAP or any changes in accounting principles  or practices from those used in the preparation of the financial statements are hereafter occasioned by the  promulgation of rules, regulations, pronouncements and opinions by or required by the Financial  Accounting Standards Board or the American Institute of Certified Public Accountants (or any successor  thereto or agencies with similar functions) or other regulatory body with jurisdiction over GAAP or any  financial reporting by Borrower, that results in a material change in the method of accounting in the  financial statements required to be furnished to Administrative Agent hereunder or in the calculation of  financial covenants, standards or terms contained in this Agreement, and either Borrower or Required  Lenders will so request, Administrative Agent, the Lending Parties and Borrower will negotiate in good  faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in  GAAP (subject to the approval of Required Lenders); provided that, until so amended:  (i) such ratio or  requirement will continue to be computed in accordance with GAAP prior to such change therein; and (ii)  Borrower will provide to Administrative Agent and the Lending Parties financial statements and other  documents required under this Agreement or as reasonably requested hereunder setting forth a  reconciliation between calculations of such ratio or requirement made before and after giving effect to  such change in GAAP.   (h) Rounding.  Any financial ratios required to be maintained by the Loan Parties or  any of them pursuant to the Loan Documents will be calculated by dividing the appropriate component by  the other component, carrying the result to one place more than the number of places by which such ratio  is expressed herein and rounding the result up or down to the nearest number using the common – or  symmetric arithmetic – method of rounding (in other words, rounding-up if there is no nearest number).  (i) Computations of Certain Financial Covenants.    (i) For purposes of computing the Consolidated Leverage Ratio or the  Consolidated Interest Coverage Ratio as of any date (excluding, however, any calculation for purposes of  determining the Applicable Margin), all components of such ratios will include or exclude, as the case  may be, for the Test Period ending on such date all financial results (without duplication of amounts)  attributable to any business or assets that are the subject of any Significant Acquisition, Significant  Investment or Significant Disposition by Borrower or any Subsidiary thereof effected during such period,  as reviewed and confirmed by Administrative Agent in its Reasonable Discretion on a pro forma basis for  such period (including pro forma adjustments (A) determined on a basis consistent with Article 11 of  Regulation S-X promulgated under the Securities Act and (B) in the case of any Significant Acquisition  or Significant Investment, that are appropriate, in the reasonable determination of a Responsible Officer  as set forth in reasonable detail in an officer’s certificate delivered to Administrative Agent, to reflect the  cost savings, other operating improvements and synergies that are factually supportable and identifiable  and projected in good faith to be realized as a result of such Significant Acquisition or Significant  Investment (including the termination or discontinuance of activities constituting such business), net of  actual benefits realized during such period from such actions to the extent already included in  Consolidated EBITDA for such period, provided that (I) such cost savings, operating improvements and  synergies are reasonably anticipated to result from such actions, (II) such actions have been taken, or have  been committed to be taken and the benefits resulting therefrom are reasonably anticipated by Borrower  to be realized within twelve months) as if such Significant Acquisition, Significant Investment or  Significant Disposition had occurred (and any Indebtedness incurred or repaid in connection therewith  had been incurred and repaid and any such cost savings and other operating improvements and synergies  had been realized, as the case may be) at the beginning of such Test Period on the first day of such  measurement period.  





 






   -56-         (ii) For the purposes of computing the Consolidated Leverage Ratio and the  Consolidated Interest Coverage Ratio as of any date, to the extent that any Joint Venture is included in  Borrower's Consolidated financial statements, such calculations will disregard the ratable portion of such  Joint Venture attributable to the ownership of any Joint Venture by any Person who is not a Loan Party or  a Subsidiary of a Loan Party.  Notwithstanding the foregoing, for purposes of determining compliance  with any covenant (including the computation of any financial covenant) contained herein, Indebtedness  of Borrower and its Subsidiaries will be deemed to be carried at 100% of the outstanding principal  amount thereof, and the effects of FASB ASC 825-10-25 (relating to “fair value” accounting for financial  assets and financial liabilities) for purposes of the calculation of, and compliance with, financial  covenants will be disregarded.  (j) Calculations with Respect to Credits.  Unless otherwise specified herein, the  amount of a Credit at any time will be deemed to be the stated amount of such Credit in effect at such  time; provided that, with respect to any Credit that, by its terms or the terms of any Issuer Document  related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of  such Credit will be deemed to be the maximum stated amount of such Credit after giving effect to all such  increases, whether or not such maximum stated amount is in effect at such time.  (k) Documents Executed by Responsible Officers.  Any document delivered  hereunder that is signed by a Responsible Officer of a Loan Party will be conclusively presumed to have  been authorized by all necessary corporate or other organizational action on the part of such Loan Party  and such Responsible Officer will be conclusively presumed to have acted on behalf of such Loan Party.  (l) Additional Alternative Currencies.  Borrower may from time to time request  that Loans be made and Credits be issued in a currency other than those specifically listed in the  definition of “Alternative Currency”; provided that such requested currency is a lawful currency (other  than Dollars) that is readily available and freely transferable and convertible into Dollars.  Each such  request will be subject to the prior approval of all Revolving Credit Lenders and, for any Credit requested  to be denominated in an Alternative Currency, the applicable L/C Issuer.  Any such request will be made  to Administrative Agent not later than 12:00 noon, ten Business Days prior to the desired date for making  the requested Loan or desired issuance date of the requested Credit, as applicable.  Administrative Agent  will notify Borrower, not later than 9:00 a.m., five Business Days after receipt of such request whether the  Revolving Credit Lenders have consented, in their sole discretion, to the making of the requested Loan or  the issuance of the requested Credit, as applicable, in such requested currency.  Any failure by  Administrative Agent to respond to such request within the time period specified in the preceding  sentence will be deemed to be a refusal by the Revolving Credit Lenders to permit such Loan to be made  or such Credit to be issued in such requested currency.  If the Revolving Credit Lenders consent to the  making of such Loan or the issuance of such Credit, as applicable, in such requested currency (an  “Additional Alternative Currency”), such Additional Alternative Currency will thereupon be deemed for  all purposes to be an Alternative Currency hereunder for purposes of such Loan or Credit.  (m) Exchange Rates.  Administrative Agent will determine the Spot Rates as of each  Revaluation Date to be used for calculating the Dollar Equivalent of (i) Loans and other Obligations and  (ii) issued and undrawn Credits, in each case outstanding hereunder denominated in Alternative  Currencies.  Such Spot Rates will become effective as of such Revaluation Date and will be the Spot  Rates employed in converting any amounts between the applicable currencies until the next Revaluation  Date to occur.  Except for purposes of the audited and unaudited financial statements to be prepared and  delivered by Borrower pursuant to Section 6.01(a), (b) and (c) or the calculation of financial covenants  hereunder, including pursuant to Section 7.15 or except as otherwise provided herein, the applicable  amount of any currency for purposes of the Loan Documents will be such Dollar Equivalent as so  determined by Administrative Agent.  





 






   -57-         (n) Redenomination of Certain Foreign Currencies; New Currency.  (i) Each obligation of Borrower to make a payment denominated in the  National Currency Unit of any member state of the European Union that adopts the Euro as its lawful  currency after the date hereof will be redenominated into Euro at the time of such adoption.  If, in relation  to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in  respect of that currency will be inconsistent with any convention or practice in the London interbank  market for the basis of accrual of interest in respect of the Euro, such expressed basis will be replaced by  such convention or practice with effect from the date on which such member state adopts the Euro as its  lawful currency; provided that if any Loan denominated in the currency of such member state is  outstanding immediately prior to such date, such replacement will take effect, with respect to such Loan,  at the end of the then current Interest Period.  (ii) If, after the making of any Loan or the issuance of any Credit, as  applicable, in any Alternative Currency, currency control or exchange regulations are imposed in the  country which issues such Alternative Currency with the result that different types of such Alternative  Currency (the “New Currency”) are introduced and the type of currency in which the Loan was made or  the Credit was issued (the “Original Currency”) no longer exists or Borrower is not able to make  payment to Administrative Agent for the account of the Lending Parties or Administrative Agent in such  Original Currency, then all payments to be made by Borrower hereunder in such currency will be made to  Administrative Agent in such amount and such type of the New Currency as will be equivalent to the  amount of such payment otherwise due hereunder in the Original Currency, it being the intention of the  parties hereto that Borrower takes all risks of the imposition of any such currency control or exchange  regulations.  In addition, notwithstanding the foregoing provisions of this Section 1.02(n), if, after the  making of any Loan or the issuance of any Credit, as applicable, in any Alternative Currency, Borrower is  not able to make payment to Administrative Agent for the account of the Revolving Credit Lenders or  Administrative Agent in the type of currency in which such Loan was made or such Credit was issued  because of the imposition of any such currency control or exchange regulation, then such Loan will  instead be repaid or such Credit will be reimbursed, as applicable, when due in Dollars in a principal  amount equal to the Dollar Equivalent (as of the date of repayment) of such Loan or Credit  reimbursement amount.  (iii) If, after the making of any EurodollarEurocurrency Rate Loan  denominated in Euros with respect to the business operations of Borrower in any member state of the  European Union, that member state ceases to use the Euro as its lawful currency, then Borrower and  Administrative Agent will negotiate in good faith to determine whether such EurodollarEurocurrency  Rate Loan shall be redenominated into the National Currency Unit of such state and, if so, the terms on  which such redenomination will be made.  (o) Currency of Account.  Dollars are the currency of account and payment for each  and every sum at any time due from Borrower hereunder in each case except as expressly provided in this  Agreement; provided that, subject to Section 1.02(n):  (i) each repayment of a Loan or a part thereof, and each reimbursement of a  draw on a Credit, as applicable, will be made in the currency in which such Loan or Credit is  denominated at the time of that repayment or reimbursement;  (ii) each payment of interest will be made in the currency in which such  principal or other sum in respect of which such interest is payable, is denominated;  (iii) each payment of fees will be in Dollars;  





 






   -58-         (iv) each payment in respect of costs, expenses and indemnities will be made  in the currency in which the same were incurred or the Dollar Equivalent thereof; and  (v) any amount expressed to be payable in a currency other than Dollars will  be paid in that other currency.  No payment to Administrative Agent or any Lending Party (whether under any judgment or court  order or otherwise) will discharge the obligation or liability in respect of which it was made unless and  until Administrative Agent or such Lending Party will have received payment in full in the currency in  which such obligation or liability was incurred, and to the extent that the amount of any such payment  will, on actual conversion into such currency, fall short of such obligation or liability actual or contingent  expressed in that currency, Borrower agrees to indemnify and hold harmless Administrative Agent or  such Lending Party, as applicable, with respect to the amount of the shortfall, with such indemnity  surviving the termination of this Agreement and any legal proceeding, judgment or court order pursuant  to which the original payment was made which resulted in the shortfall.  (p)   (p) Limited Condition Transactions.  Notwithstanding  anything in this Agreement to the contrary, when calculating any applicable ratio (including compliance  with the financial covenants set forth in Section 7.15), the Minimum Liquidity Condition, the amount or  availability of the Incremental Cap, or determining other compliance with this Agreement (including the  absence or existence of a Default or Event of Default), in each case, in connection with a Specified  Transaction undertaken in connection with the consummation of a Limited Condition Transaction, the  date of determination of such ratio, the amount or availability of the Incremental Cap, or other applicable  covenant shall be deemed to be the date the definitive agreement for such Limited Condition Transaction  is entered into (the “LCT Test Date”) based on the Test Period ending as of the last date for which  financial statements were most recently furnished prior to such date pursuant to Section 6.01(a) or (b), as  applicable, and if, after such ratios and other provisions are measured on a pro forma basis after giving  effect to such Limited Condition Transaction and the other Specified Transactions to be entered into in  connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they  occurred at the beginning of the applicable Test Period ending prior to the LCT Test Date, Borrower  could have taken such action on the relevant LCT Test Date in compliance with such ratios and  provisions, such provisions shall be deemed to have been complied with.  Such ratios and other  provisions shall not be tested at the time of consummation of such Limited Condition Transaction or  related Specified Transactions and, in connection with any subsequent calculation of any ratio or other  provision with respect to any other Specified Transaction on or following the relevant LCT Test Date and  prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date  that the definitive agreement for such Limited Condition Transaction is terminated or expires without  consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a  pro forma basis assuming such Limited Condition Transaction and other transactions in connection  therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been  consummated.    (q) Rates. Administrative Agent does not warrant, nor accept responsibility, nor  shall Administrative Agent have any liability with respect to the administration, submission or any other  matter related to the rates in the definition of “Eurodollar Rate” or with respect to any rate that is an  alternative or replacement for or successor to any of such rates (including any Benchmark Replacement or  Benchmark Replacement Adjustment) or the effect of any of the foregoing, or of any Benchmark  Replacement Conforming Changes.  (q) [Reserved].  





 






   -59-         (r)   (r) Limited Liability Company Divisions or Series.  Any  reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale,  disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability  company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a  division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation,  assignment, sale or transfer, or similar term, as applicable, to, of or with a separate Person.   Notwithstanding anything to the contrary in this Agreement, (i) any division of a limited liability  company shall constitute a separate Person hereunder, and each resulting division of any limited liability  company that, prior to such division, is a Subsidiary, a Guarantor, a Loan Party, a Joint Venture or any  other like term shall remain a Subsidiary, a Guarantor, a Loan Party, a Joint Venture, or other like term,  respectively, after giving effect to such division, to the extent required under this Agreement, and any  resulting divisions of such Persons shall remain subject to the same restrictions and corresponding  exceptions applicable to the pre-division predecessor of such divisions, (ii) in no event shall the Borrower  be permitted to effectuate a division and (iii) if any Subsidiary shall consummate a division permitted  under this Agreement in accordance with the foregoing, such Subsidiary shall be required to immediately  (effective simultaneously with the effectiveness of such division) comply with the requirements set forth  in Section 6.11 to the extent applicable.  (s) Interest Rates; LIBOR Notification.  The interest rate on a Loan denominated  in Dollars or an Alternative Currency may be derived from an interest rate benchmark that is, or may in  the future become, the subject of regulatory reform.  Regulators have signaled the need to use alternative  benchmark reference rates for some of these interest rate benchmarks and, as a result, such interest rate  benchmarks may cease to comply with applicable laws and regulations, may be permanently  discontinued, and/or the basis on which they are calculated may change. The interest rate on certain Loans  is determined by reference to the LIBO Rate, which is derived from the London Interbank Offered Rate   (“LIBOR”, as further defined in the definition of “LIBO Screen Rate” set forth in Section 1.01).  LIBOR  is intended to represent the rate at which contributing banks may obtain short-term borrowings from each  other in the London interbank market.    On March 5, 2021, the ICE Benchmark Administration (the "IBA"), the administrator of LIBOR, and the  Financial Conduct Authority (the "FCA"), the regulatory supervisor of the IBA, announced in public  statements (the "Announcements") that the final publication or representativeness date for LIBOR for: (i)  Sterling, Swiss Francs, Euros and Yen will be December 31, 2021, (ii) Dollars for 1-week and 2-month  tenor settings will be December 31, 2021 and (iii) Dollars for overnight, one-month, three-month, six- month and twelve-month tenor settings will be June 30, 2023.  No successor administrator for the IBA  was identified in such Announcements.  As a result, commencing immediately after such dates, LIBOR  for such currencies and tenors may no longer be available or may no longer be deemed a representative  reference rate upon which to determine the interest rate on applicable Loans.  The parties hereto agree  and acknowledge that the Announcements resulted in the occurrence of a Benchmark Transition Event  with respect to LIBOR for the each of the aforementioned currencies.  There is no assurance that the  dates set forth in the Announcements will not change or that IBA or the FCA will not take further action  that could impact the availability, composition or characteristics of any LIBOR.  Public and private sector  industry initiatives have been and continue, as of the date hereof, to be underway to implement new or  alternative reference rates to be used in place of the LIBOR.  In the event that LIBOR or any other then- current Benchmark is no longer available or in certain other circumstances set forth in Section 3.03(b),  such Section 3.03(b) provides a mechanism for determining an alternative rate of interest.   Administrative Agent will notify Borrower, pursuant to Section 3.03(b), of any change to the reference  rate upon which the interest rate on Loans is based.  However, Administrative Agent does not warrant or  accept any responsibility for, and shall not have any liability with respect to, (A) the continuation of,  administration of, submission of, calculation of or any other matter related to LIBOR, the rates in the  definition of “Eurocurrency Rate” or any Benchmark, any component definition thereof or rates  





 






   -60-         referenced in the definition thereof or with respect to any alternative, successor or replacement rate  thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the  composition or characteristics of any such alternative, successor or replacement rate (including any  Benchmark Replacement), as it may or may not be adjusted pursuant to Section 3.03(b), will be similar  to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, such  Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (B) the effect,  implementation or composition of any Benchmark Replacement Conforming Changes.  Administrative  Agent may select information sources or services in its reasonable discretion to ascertain any Benchmark,  any component definition thereof or rates referenced in the definition thereof, in each case pursuant to the  terms of this Agreement.  Administrative Agent does not warrant, nor accept responsibility, nor shall  Administrative Agent have any liability with respect to the administration, submission or any other  matter related to the rates in the definition of “Eurocurrency Rate” (including any Daily Simple RFR  Rate) or with respect to any rate that is an alternative or replacement for or successor to any of such rates  (including any Benchmark Replacement or Benchmark Replacement Adjustment) or the effect of any of  the foregoing, or of any Benchmark Replacement Conforming Changes.  ARTICLE II  Credit Extensions  Section 2.01 Transitional Matters; Revolving Credit Loans; Incremental Term Loans.  (a) Certain Transitional Matters.  (i) Borrower hereby certifies that (A) Schedule 1.01-A accurately and  completely sets forth the Outstanding Amount of all Revolving Credit Loans and the Outstanding  Amount of all Term Loans (as such terms are defined in the First Restated Credit Agreement) owed to  each Existing Lender under the Existing Senior Credit Facilities immediately prior to the Second  Restatement Effective Date and the giving effect to the repayments, re-allocations and settlements  contemplated by this Section 2.01(a)), (B) there are no Swing Line Loans (as such term is defined in the  First Restated Credit Agreement) outstanding as of the Second Restatement Effective Date and (C) there  are no Credits nor any Unreimbursed Amounts (as such terms are defined in the First Restated Credit  Agreement) outstanding as of the Second Restatement Effective Date.  (ii) The Existing Lenders listed on the signature pages to this Agreement,  which amends and restates the First Restated Credit Agreement, shall, together with each New Lender  delivering a New Lender Agreement to Administrative Agent pursuant Section 4.01(h), be Lenders for all  purposes hereunder and under the other Loan Documents as of the Second Restatement Effective Date,  and shall have the respective Revolving Credit Commitments and Revolving Credit Percentage Shares as  set forth in Schedule 2.01.  Any Existing Lender party to the First Restated Credit Agreement not listed  on the signature pages to this Agreement (each a “Departing Lender”) shall cease to be a Lender on the  Second Restatement Effective Date upon payment in full of all Obligations due to it under (and as such  term is defined in) the First Restated Credit Agreement.  Notwithstanding anything to the contrary  contained in the First Restated Credit Agreement, in order to effect the restructuring of the Existing  Senior Credit Facilities as contemplated by this Agreement, all accrued and unpaid interest, and all  accrued and incurred and unpaid fees, expenses, charges and other disbursements payable to the Existing  Lenders in respect of the Existing Senior Credit Facilities outstanding under the First Restated Credit  Agreement will be due and payable in full (without duplication) on the Second Restatement Effective  Date.    (iii) Each Departing Lender and each other Existing Lender having  Revolving Credit Loans (as such term is defined in the First Restated Credit Agreement) outstanding on  





 






   -61-         the Second Restatement Effective Date and whose Revolving Credit Percentage Share in respect of such  Revolving Credit Loans has been decreased on the Second Restatement Effective Date shall be deemed to  have assigned on the Second Restatement Effective Date, without recourse, ratably to each Revolving  Credit Lender increasing its Revolving Credit Commitment hereunder (each an “Increasing Revolving  Credit Lender”), to each New Lender having a Revolving Credit Commitment such portion of such  outstanding Revolving Credit Loans (as defined in the First Restated Credit Agreement) as shall be  necessary to result in each Lender having the Loans and Commitments set forth in Schedule 2.01.  In  connection therewith, it is agreed that upon the effectiveness of this Agreement $97,000,000.00 of  Revolving Credit Loans under the First Restated Credit Agreement shall be Revolving Credit Loans  hereunder on the Second Restatement Effective Date, and such Revolving Credit Loans shall be treated as  funded under a cashless settlement mechanism in accordance with Section 10.20.  Each Departing Lender  and each other Existing Lender having Term Loans (as such term is defined in the First Restated Credit  Agreement) outstanding on the Second Restatement Effective Date shall be deemed to have assigned on  the Second Restatement Effective Date, without recourse, ratably to each Increasing Revolving Credit  Lender and to each New Lender having a Revolving Credit Commitment such ratable portion of such  outstanding Term Loans as shall be necessary to effectuate such adjustment (and all such Term Loans  shall be deemed to be Revolving Credit Loans hereunder, funded under a cashless settlement mechanism  in accordance with Section 10.20).  (iv) Each Increasing Revolving Credit Lender and each New Lender on the  Second Restatement Effective Date shall (A) be deemed to have assumed such ratable portion of such  Revolving Credit Loans and such outstanding Term Loans, as applicable, and (B) fund (which funding  may be by cashless settlements in accordance with Section 10.20) on the Second Restatement Effective  Date such assumed amounts to Administrative Agent for the account of each such assigning Lender in  accordance with the provisions hereof in the amount notified to such Increasing Revolving Credit Lender  or such New Lender, as the case may be, by Administrative Agent.  (b) Revolving Credit Loans.  Upon the terms, subject to the conditions and in  reliance upon the representations and warranties of Borrower and each other Loan Party set forth in this  Agreement and in the other Loan Documents, each Revolving Credit Lender having a Revolving Credit  Commitment severally (but not jointly) agrees to make loans (each such loan, a “Revolving Credit Loan”)  of immediately available funds to Borrower, on a revolving basis from time to time on any Business Day  during the Availability Period, in an aggregate principal amount outstanding not to exceed at any time  such Revolving Credit Lender’s Revolving Credit Commitment as then in effect, provided that, and  notwithstanding the foregoing, after giving effect to any Revolving Credit Borrowing, (i) the Total  Revolving Credit Outstandings will not exceed the Aggregate Revolving Credit Commitments less, if  applicable, the Alternative Currency Reserve, and (ii) the sum of (A) the aggregate Outstanding Amount  of the Revolving Credit Loans of any Revolving Credit Lender plus (B) such Lender’s Revolving Credit  Percentage Share multiplied by the Outstanding Amount of all Credit Obligations plus (C) such Lender’s  Revolving Credit Percentage Share multiplied by the Outstanding Amount of all Swing Line Loans, plus  (D) such Lender’s Revolving Credit Percentage Share multiplied by the Alternative Currency Reserve  will not exceed such Lender’s Revolving Credit Commitment, and so long as the requirements of clauses  (i) and (ii) of this Section 2.01(b) are not satisfied, the Revolving Credit Lenders will not be obligated to  fund any Revolving Credit Loans; provided, further, that such portion of the Revolving Credit Loans  made on the Second Restatement Effective Date as may be determined by the Administrative Agent may  be funded pursuant to cashless settlement; and provided, further, that at any time any Revolving Credit  Loans are outstanding and denominated in Alternative Currencies, Administrative Agent will establish a  reserve in an amount equal to 5% multiplied by the amount of Total Revolving Credit Outstandings at  such time which are denominated in Alternative Currencies (such amount, the “Alternative Currency  Reserve”).  Each Revolving Credit Loan will be denominated in Dollars or in an Alternative Currency as  permitted by this Agreement and no Revolving Credit Lender will be obligated to make any Revolving  





 






   -62-         Credit Loan if the requested Revolving Credit Loan is to be denominated in a currency other than Dollars  or an Alternative Currency as permitted under this Agreement.  Within the limits of each Revolving  Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof,  Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this  Section 2.01.  Revolving Credit Loans may be requested and made as Base Rate Loans or  EurodollarEurocurrency Rate Loans, as further provided herein.  All Revolving Credit Loans to be  denominated in an Alternative Currency will be EurodollarEurocurrency Rate Loans.  (c) Incremental Term Loans.  Upon the terms, subject to the conditions and in  reliance upon the representations and warranties of Borrower and each other Loan Party set forth in this  Agreement and in the other Loan Documents, each Incremental Term Loan Lender severally (but not  jointly) agrees to make a loan in immediately available funds to Borrower (each such loan, an  “Incremental Term Loan”) on the date specified in the Additional Commitment Documentation in the  principal amount of such Lender’s Incremental Term Loan Commitment.  Immediately upon the making  of an Incremental Term Loan by any Lender having an Incremental Term Loan Commitment, such  Lender’s Incremental Term Loan Commitment will be permanently reduced to zero.  Each Incremental  Term Loan will be denominated in Dollars or in an Alternative Currency as permitted by this Agreement  and no Incremental Term Loan Lender will be obligated to make any Incremental Term Loan if the  requested Incremental Term Loan is to be denominated in a currency other than Dollars or an Alternative  Currency as permitted under this Agreement.  Incremental Term Loans may be Base Rate Loans or  EurodollarEurocurrency Rate Loans, as further provided herein.  All Incremental Term Loans to be  denominated in an Alternative Currency will be EurodollarEurocurrency Rate Loans.  Amounts borrowed  as Incremental Term Loans that are repaid or prepaid by Borrower may not be reborrowed.  (d) Loans Generally.  Each Loan will be made as part of a Borrowing consisting of  Loans made by the Lenders ratably in accordance with their applicable Revolving Credit Commitments or  Incremental Term Loan Commitments, as applicable; provided, however, that the failure of any Lender to  make any Loan will not in itself relieve any other Lender of its obligation to lend hereunder (it being  understood, however, that no Lender will be responsible for the failure of any other Lender to make any  Loan required to be made by such other Lender).  Section 2.02 Procedures for Borrowing.  (a) Notices of Borrowing, Conversion and Continuation.  Each Borrowing (other  than a Swing Line Borrowing), each conversion of Loans from one Type to the other and each  continuation of EurodollarEurocurrency Rate Loans will be made upon Borrower’s irrevocable notice to  Administrative Agent, which may, subject to the provisions of Section 10.02, be given by approved  electronic communication; provided that any such notice may be conditioned on the occurrence of another  transaction, in which case Borrower may, subject to Section 3.05, revoke or extend such notice by  notifying Administrative Agent on or prior to the date set forth in such notice.  Unless otherwise agreed  by Administrative Agent in its discretion, each such notice must be received by Administrative Agent not  later than 12:00 noon (i) three Business Days prior to the requested date of any Borrowing (other than a  Swing Line Borrowing) of, conversion to or continuation of EurodollarEurocurrency Rate Loans or of  any conversion of EurodollarEurocurrency Rate Loans to Base Rate Loans; provided that if Borrower  requests such Borrowing in an Alternative Currency, such notice must be received by Administrative  Agent not later than 12:00 noon five Business Days (or six Business Days in the case of Special Notice  Currency) prior to the requested date of the applicable Borrowing, and (ii) one Business Day prior to the  requested date of any Borrowing (other than a Swing Line Borrowing) of Base Rate Loans; provided,  however, that if Borrower wishes to request EurodollarEurocurrency Rate Loans having an Interest Period  other than one, two, three or six months in duration as provided in the definition of “Interest Period,” the  applicable notice must be received by Administrative Agent not later than 12:00 noon (1) four Business  





 






   -63-         Days prior to the requested date of such Borrowing, conversion or continuation of  EurodollarEurocurrency Rate Loans denominated in Dollars, or (2) six Business Days (or seven Business  Days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion  or continuation of EurodollarEurocurrency Rate Loans denominated in Alternative Currencies,  whereupon Administrative Agent will give prompt notice to the Lenders of such request and determine  whether the requested Interest Period is acceptable to all of them.  With respect to a request for  EurodollarEurocurrency Rate Loans having an Interest Period other than one, two, three or six months in  duration, not later than 12:00 noon, (A) three Business Days before the requested date of such Borrowing,  conversion or continuation of EurodollarEurocurrency Rate Loans denominated in Dollars, or (B) five  Business Days (or six Business Days in the case of a Special Notice Currency) prior to the requested date  of such Borrowing, conversion or continuation of EurodollarEurocurrency Rate Loans denominated in  Alternative Currencies, Administrative Agent shall notify Borrower whether or not the requested Interest  Period has been consented to by all the Lenders.  Notwithstanding anything to the contrary contained  herein, but subject to the provisions of Section 10.02, any electronic communication by Borrower  pursuant to this Section 2.02(a) may be given by an individual who has been authorized in writing to do  so by an appropriate Responsible Officer of Borrower.  Each such electronic communication must be  confirmed promptly by delivery to Administrative Agent of a written Loan Notice, appropriately  completed and signed by an appropriate Responsible Officer of Borrower.  Further, and notwithstanding  anything to the contrary set forth in this Agreement, including this Section 2.02(a), the Lenders will have  no obligation to make, convert or continue make any EurodollarEurocurrency Rate Loan denominated in  an Alternative Currency to the extent the principal amount of such requested EurodollarEurocurrency  Rate Loan exceeds the Alternative Currency Available Credit as of the date of the requested Borrowing,  conversion or continuation.  (b) Amount of Borrowing, Conversion or Continuation.  (i) Each Borrowing  (other than a Swing Line Borrowing) of, conversion to or continuation of EurodollarEurocurrency Rate  Loans will be in a principal amount of $5,000,000 or a whole multiple of $100,000 in excess thereof, or,  in the case of a Borrowing denominated in an Alternative Currency, in a principal amount of a Dollar  Equivalent of $5,000,000 or a whole multiple of a Dollar Equivalent of $100,000 in excess thereof; and  (ii) except as provided in Sections 2.03(c) and Section 2.04(c), each Borrowing of or conversion to Base  Rate Loans will be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  (c) Loan Notices Generally.  Each Loan Notice (including by electronic  communication to the extent permitted by this Agreement) will specify (i) that Borrower is requesting, as  applicable:  (A) a Revolving Credit Borrowing, (B) a conversion of outstanding Loans from one Type to  the other or (C) a continuation of EurodollarEurocurrency Rate Loans; (ii) the requested date (which will  be a Business Day) of such Borrowing, conversion or continuation, as the case may be; (iii) the principal  amount of the Loans to be borrowed, converted or continued; (iv) the Type of Loans to be borrowed or to  which existing Loans are to be converted; (v) whether such Borrowing is to be denominated in Dollars or  in an Alternative Currency, and if the latter, which Alternative Currency; and (vi) if applicable, the  duration of the Interest Period with respect thereto.  If Borrower fails to specify a Type of Loan in a Loan  Notice or if Borrower fails to give a timely notice requesting a conversion or continuation, then the  applicable Loans will be made as, or converted to, Base Rate Loans; provided, however, that  notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing,  Borrower will be deemed to have elected to continue any Loan constituting a EurodollarEurocurrency  Rate Loan into a new EurodollarEurocurrency Rate Loan having an Interest Period of one month.  Any  such automatic conversion to a Base Rate Loan (or continuation of a EurodollarEurocurrency Rate Loan  into a new EurodollarEurocurrency Rate Loan having an Interest Period of one month) will be effective as  of the last day of the Interest Period then in effect with respect to the applicable EurodollarEurocurrency  Rate Loans; provided, further, that if Borrower requests a Borrowing in an Alternative Currency but  Borrower fails to specify a Type of Loan in such Loan Notice or if Borrower fails to give a timely notice  





 






   -64-         requesting a conversion or continuation of a Loan in an Alternative Currency, then the applicable Loans  will be deemed to have specified an Interest Period of one month.  If Borrower requests a Borrowing of,  conversion to, or continuation of EurodollarEurocurrency Rate Loans in any such Loan Notice, but fails  to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.  (d) Procedures Concerning the Making of Loans.  Following receipt of a Loan  Notice, Administrative Agent will promptly notify each applicable Lender of the amount of its applicable  Percentage Share of the requested Borrowing.  If Borrower does not timely provide notice of a conversion  or continuation, then Administrative Agent will notify each applicable Lender of the details of any  automatic conversion to Base Rate Loans to the extent described in the preceding subsection.  Each  Lender will make the amount of its applicable Loan available to Administrative Agent in immediately  available funds at Administrative Agent’s Office (or, at the request of Administrative Agent, in the case  of a EurodollarEurocurrency Rate denominated in an Alternative Currency, at such bank as  Administrative Agent may designate to the Revolving Credit Lenders or the Incremental Term Loan  Lenders, as applicable) not later than 1:00 p.m. on the Business Day specified in the applicable Loan  Notice.  Subject to the prior satisfaction as of the Second Restatement Effective Date of the conditions  precedent set forth in Section 4.01, upon the satisfaction of the applicable conditions precedent set forth  in Section 4.02, Administrative Agent will make all funds so received available to Borrower in like funds  as received by Administrative Agent either by:  (i) crediting the account of Borrower on the books of  HSBC with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with  instructions provided to (and reasonably acceptable to) Administrative Agent by Borrower; provided that,  if, on the date the Loan Notice with respect to such Borrowing is given by Borrower, there are Credit  Borrowings outstanding, then the proceeds of such Borrowing will be applied, first, to the payment in full  of any such Credit Borrowings and, second, to Borrower as provided in this Section 2.02(d).  (e) Special Provisions Applicable to Continuation or Conversions of  EurodollarEurocurrency Rate Loans.  Subject to Section 3.05, a EurodollarEurocurrency Rate Loan  may be continued or converted only on the last day of an Interest Period for such EurodollarEurocurrency  Rate Loan.  During the existence of an Event of Default:  (i) no Loans may be requested as, converted to  or continued as EurodollarEurocurrency Rate Loans without the consent of Administrative Agent or  Required Lenders; and (ii) Required Revolving Credit Lenders or Required Incremental Term Loan  Lenders may demand that any or all of the then outstanding Revolving Credit Loans or Incremental Term  Loans, respectively, that are EurodollarEurocurrency Rate Loans be converted immediately to Base Rate  Loans, whereupon Borrower will pay any amounts due under Section 3.05 in accordance with the terms  thereof due to any such conversion.  (f) Notification of Interest Rate.  Administrative Agent will promptly notify  Borrower and the applicable Lenders of the interest rate (including the Applicable Margin, if any)  applicable to any Interest Period for EurodollarEurocurrency Rate Loans upon determination of such  interest rate.  (g) Limitation on Interest Periods.  After giving effect to all Borrowings, all  conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there  will not be more than: (i) seven Interest Periods in effect with respect to Revolving Credit Loans.  (h) Discretion of Lenders as to Manner of Funding.  Subject only to Section 3.06  and otherwise notwithstanding any provision of this Agreement to the contrary, each Lender will be  entitled to fund and maintain its funding of all or any part of such Lender’s interest in Loans made  hereunder in any manner such Lender deems to be appropriate (including funding such Loans through a  foreign branch or Affiliate of such Lender, so long as such funding does not adversely affect the  Borrowers).  





 






   -65-         Section 2.03 Letters of Credit.  (a) Letter of Credit Subfacility.  Subject to the terms and conditions set forth  herein:  (i) Upon the terms, subject to the conditions and in reliance upon the  representations and warranties of Borrower and each of the other Loan Parties set forth in this Agreement  and in the other Loan Documents and upon the agreements of the Revolving Credit Lenders set forth in  this Section 2.03, each L/C Issuer agrees (A) from time to time on any Business Day, during the period  from the Second Restatement Effective Date until the Credit Expiration Date, to issue Credits, in the form  of standby or commercial Letters of Credit or Bank Undertakings denominated in Dollars or in an  Alternative Currency in accordance with this Agreement for the account of Borrower on behalf of  Borrower (or other Loan Parties and/or such Subsidiaries as Borrower designates) and amend or extend  Credits previously issued by it, in accordance with subsection (b) of this Section 2.03; and (B) to honor  drawings under the Credits.    (ii) Each Revolving Credit Lender severally agrees to participate in each  Credit issued by any L/C Issuer and each drawing thereunder; provided that, after giving effect to any L/C  Credit Extension with respect to any Credit, (A) the Total Revolving Credit Outstandings will not exceed  the Aggregate Revolving Credit Commitments; (B) the aggregate Outstanding Amount of the Revolving  Credit Loans of any Revolving Credit Lender, plus an amount equal to such Lender’s Revolving Credit  Percentage Share multiplied by the Outstanding Amount of all Credit Obligations, plus an amount equal  to such Lender’s Revolving Credit Percentage Share multiplied by the Outstanding Amount of all Swing  Line Loans will not exceed such Lender’s Revolving Credit Commitment; and (C) the Outstanding  Amount of the Credit Obligations will not exceed the Credit Sublimit.  Each request by Borrower for the  issuance or amendment of a Credit will be deemed to be a representation by Borrower that each such  issuance or amendment complies with the applicable conditions set forth in the proviso to the preceding  sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s ability  to obtain Credits will be fully revolving, and, accordingly, Borrower may, during the period described in  Section 2.03(a)(i), obtain Credits to replace Credits that have expired or that have been drawn upon and  reimbursed.  (iii) Subject to Section 2.03(b)(v), no L/C Issuer will issue or extend any  Credit if (A) the expiry date of such requested Credit would occur more than twelve months after the date  of issuance or last extension, unless the L/C Issuer thereof will have approved such expiry date, (B) the  expiry date of such requested Credit, including as extended pursuant to the preceding subclause (A),   would occur after the Credit Expiration Date, unless (1) all Revolving Credit Lenders will have approved  such expiry date or (2) Borrower has agreed, pursuant to arrangements satisfactory to the L/C Issuer, to  Cash Collateralize such Credit by a date that is not later than the Credit Expiration Date in at least the  Minimum Collateral Amount, or (C) with respect to any Credit denominated in an Alternative Currency,  to the extent that the face amount of such requested Credit exceeds the Alternative Currency Available  Credit as of the requested issuance date.  (iv) No L/C Issuer will have any obligation to issue a Credit if:  (A) any order, judgment or decree of any Governmental Authority or  arbitrator will by its terms purport to enjoin or restrain the L/C Issuer from issuing such Credit, or any  Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from  any Governmental Authority with jurisdiction over the L/C Issuer will prohibit, or request that the L/C  Issuer refrain from, the issuance of letters of credit generally or such Credit in particular or will impose  upon the L/C Issuer with respect to such Credit any restriction, reserve or capital requirement (for which  





 






   -66-         the L/C Issuer is not otherwise compensated hereunder) not in effect on the Second Restatement Effective  Date, or will impose upon the L/C Issuer any unreimbursed loss, cost or expense that was not applicable  on the Second Restatement Effective Date and which the L/C Issuer in good faith deems material to it;  (B) the issuance of such Credit would violate one or more policies of  the L/C Issuer;  (C) such Credit is to be denominated in a currency other than Dollars  or an Alternative Currency;    (D) in the case of any Credit to be denominated in an Alternative  Currency, the L/C Issuer does not, as of the issuance date of such requested Credit, issue Credits in the  requested currency; or   (E) any Lender is at that time a Defaulting Lender, unless the L/C  Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C  Issuer (in its sole discretion) with Borrower or such Lender to eliminate the L/C Issuer’s actual or  potential Fronting Exposure (after giving effect to Section 3.07(a)(iv)) with respect to the Defaulting  Lender arising from either the Credit then proposed to be issued or that Credit and all other Credit  Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole  discretion.  (v) The L/C Issuer will have no obligation to amend any Credit if the L/C  Issuer would not be obligated to issue such Credit in its amended form under the terms hereof or if the  beneficiary of such Credit does not accept the proposed amendment to such Credit.  (vi) The L/C Issuer will act on behalf of all Revolving Credit Lenders with  respect to any Credits issued by it and the documents associated therewith, and L/C Issuer will have all of  the benefits and immunities (A) provided to Administrative Agent in Article IX with respect to any acts  taken or omissions suffered by the L/C Issuer in connection with Credits issued by it or proposed to be  issued by it and Issuer Documents pertaining to such Credits as fully as if the term “Administrative  Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as  additionally provided herein with respect to the L/C Issuer.  (b) Procedures for Issuance and Amendment of Credits; Automatic Extensions  of Credits.  (i) Each Credit will be issued or amended, as the case may be, upon the  request of Borrower delivered to the L/C Issuer thereof (with a copy to Administrative Agent) in the form  of an Credit Application, appropriately completed and signed by a Responsible Officer of Borrower.   Such Credit Application must be received by the L/C Issuer and Administrative Agent (A) in the case of  any Credits to be denominated in an Alternative Currency or any Bank Undertakings, not later than 12:00  noon at least ten Business Days prior to the proposed issuance date or date of amendment (or such shorter  period as may be agreed to by the applicable L/C Issuer, in its discretion), as the case may be, and (B) in  the case of any other Credits, not later than 12:00 noon at least two Business Days prior to the proposed  issuance date or date of amendment, as the case may be, or in each case such other date or time as the L/C  Issuer and Administrative Agent may agree.  In the case of a request for an initial issuance of a Credit,  such Credit Application will specify in form and detail satisfactory to the L/C Issuer (A) the proposed  issuance date of the requested Credit (which will be a Business Day), (B) the stated amount and currency  thereof, (C) the expiry date thereof, (D) the name and address of the beneficiary thereof, (E) the  documents to be presented by such beneficiary in case of any drawing thereunder, (F) the full text of any  





 






   -67-         certificate to be presented by such beneficiary in case of any drawing thereunder, (G) whether the Credit  is a Bank Undertaking or a Letter of Credit, and if any Linked Undertaking will exist in respect of the  issuance of any Credit, (H) if the Credit is a Letter of Credit, whether it is a standby or commercial Letter  of Credit, and (I) such other matters as the L/C Issuer may require.  In the case of a request for an  amendment of any outstanding Credit, such Credit Application will specify in form and detail satisfactory  to the L/C Issuer (1) the Credit to be amended, (2) the proposed date of the amendment thereof (which  will be a Business Day), (3) the nature of the proposed amendment and (4) such other matters as the L/C  Issuer may require.  Additionally, Borrower will furnish to the L/C Issuer and Administrative Agent such  other documents and information pertaining to such requested Credit issuance or amendment, including  any Issuer Documents, as the L/C Issuer or Administrative Agent may require.  (ii) Promptly after receipt of any Credit Application at the address provided  pursuant to Section 10.02 for receiving Credit Applications and related correspondence, the L/C Issuer  will confirm with Administrative Agent in writing (which, subject to the provisions of Section 10.02,  may be by approved electronic communication) that Administrative Agent has received a copy of such  Credit Application from Borrower and, if not, the L/C Issuer will provide Administrative Agent with a  copy thereof (provided that such confirmation will not be required if the L/C Issuer and Administrative  Agent are the same Person).  Unless the L/C Issuer has received written notice from any Revolving Credit  Lender, Administrative Agent or any Loan Party at least one Business Day prior to the requested date of  issuance or amendment of the applicable Credit that one or more applicable conditions in Article IV will  not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer will, on the requested  date, issue the Credit requested by Borrower or enter into the applicable amendment, as the case may be,  in each case in accordance with the L/C Issuer’s usual and customary business practices.  (iii) The L/C Issuer will promptly notify Administrative Agent in writing, and  Administrative Agent will in turn notify each Lender in writing, of each such issuance of a Credit  (including the amount, the expiry date and the beneficiary thereof).  Immediately upon the issuance of  each Credit, each Revolving Credit Lender will be deemed to, and hereby irrevocably and unconditionally  agrees to, purchase from the L/C Issuer a risk participation in such Credit equal to such Lender’s  Revolving Credit Percentage Share multiplied by the face amount of such Credit.  (iv) Promptly after its delivery of any Credit or any amendment to a Credit to  an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to  Borrower and Administrative Agent a true and complete copy of such Credit or amendment.  (v) If Borrower specifically requests in any applicable Credit Application,  the L/C Issuer may issue an Automatic Extension Letter of Credit.  Unless otherwise directed by the L/C  Issuer, Borrower will not be required to make a specific request to the L/C Issuer for any such extension.   Once an Automatic Extension Letter of Credit has been issued, Revolving Credit Lenders will be deemed  to have authorized (but may not require) the L/C Issuer to permit the extension of such Automatic  Extension Letter of Credit at any time to an expiry date not later than the earlier to occur of (A) twelve  months after the date of the last extension and (B) the Credit Expiration Date unless Borrower has agreed,  pursuant to arrangements satisfactory to the L/C Issuer, to Cash Collateralize such Automatic Extension  Letter of Credit by a date that is not later than the Credit Expiration Date in at least the Minimum  Collateral Amount; provided that the L/C Issuer will not permit any such extension if (1) the L/C Issuer  has determined that it would not be permitted, or would have no obligation, at such time to issue such  Automatic Extension Letter of Credit in its revised form (as extended) under the terms hereof (by reason  of the provisions of Section 2.03(a) or otherwise), or (2) the L/C Issuer has received notice in writing  (which, subject to the provisions of Section 10.02, may be by approved electronic communication) on or  before the day that is thirty days before any date provided for in such Automatic Extension Letter of  Credit as the last day by which notice of the non-extension thereof must be given (x) from Administrative  





 






   -68-         Agent that Required Revolving Credit Lenders have elected not to permit such extension, or (y) from  Administrative Agent, any Revolving Credit Lender or Borrower that one or more of the applicable  conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer  not to permit such extension.  (c) Drawings and Reimbursements; Funding of Participations.  (i) Upon receipt from the beneficiary of any Credit of any drawing under  such Credit (or any notice thereof), the L/C Issuer thereof will notify Borrower and Administrative Agent  thereof.  If the L/C Issuer will make any payment in respect of a Credit, Borrower will reimburse the L/C  Issuer the amount of such payment not later than 1:00 p.m. on the related Honor Date if Borrower will  have received notice of such payment prior to 11:00 a.m. on the Honor Date, or, if such notice has not  been received by Borrower prior to 11:00 a.m. on such Honor Date, then not later than 12:00 noon on the  Business Day immediately following the day that Borrower receives such notice.  If Borrower fails to so  reimburse the L/C Issuer, then Administrative Agent will promptly notify each Revolving Credit Lender  of the related Honor Date, the Unreimbursed Amount and the amount of such Lender’s Revolving Credit  Percentage Share of such Unreimbursed Amount.  In such event, Borrower will be deemed to have  requested a Revolving Credit Borrowing consisting of Base Rate Loans to be disbursed on such Honor  Date in an amount equal to such Unreimbursed Amount, without regard to the minimum and multiples  specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the  unutilized portion of the Aggregate Revolving Credit Commitments and the conditions set forth in  Section 4.02 (other than the delivery of a Loan Notice).    (ii) Each Revolving Credit Lender will, upon receipt of any notice pursuant  to Section 2.03(c)(i), make funds available (and Administrative Agent may apply Cash Collateral  provided for this purpose) for the account of the L/C Issuer at Administrative Agent’s Office in an  amount equal to such Lender’s Revolving Credit Percentage Share multiplied by the Unreimbursed  Amount not later than 1:00 p.m. on the Business Day specified in such notice by Administrative Agent,  whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender that so makes  funds available will be deemed to have made a Revolving Credit Loan that is a Base Rate Loan to  Borrower in such amount on the Honor Date.  Administrative Agent will remit the funds so received to  the L/C Issuer.  (iii) With respect to any Unreimbursed Amount that is not fully refinanced by  a Revolving Credit Borrowing pursuant to Section 2.03(c)(ii), whether because each of the conditions  (other than the delivery of a Loan Notice) set forth in Section 4.02 cannot be satisfied or otherwise,  Borrower will be deemed to have incurred from the L/C Issuer a Credit Borrowing on the Honor Date in  the amount of the Unreimbursed Amount that is not so refinanced, which Credit Borrowing will be due  and payable on demand (together with interest) and will bear interest at the Default Rate.  In such event,  each Revolving Credit Lender’s payment to Administrative Agent for the account of the L/C Issuer  pursuant to Section 2.03(c)(ii) will be deemed payment in respect of its participation in such Credit  Borrowing and will constitute a Credit Advance from such Revolving Credit Lender in satisfaction of its  participation obligation under this Section 2.03.  (iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or  Credit Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under  any Credit, interest in respect of the amount of such Lender’s Revolving Credit Percentage Share of such  amount will be solely for the account of the L/C Issuer.  (v) Each Revolving Credit Lender’s obligation to make Revolving Credit  Loans or Credit Advances to reimburse any L/C Issuer for amounts drawn under Credits issued by it, as  





 






   -69-         contemplated by this Section 2.03(c), will be absolute and unconditional and will not be affected by any  circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender  may have against the L/C Issuer, Borrower or any other Person for any reason whatsoever, (B) the  occurrence or continuance of a Default or Event of Default or (C) any other occurrence, event or  condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender’s  obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set  forth in Section 4.02 (other than delivery by Borrower of a Loan Notice).  No such making of a Credit  Advance will relieve or otherwise impair the obligation of Borrower to reimburse any L/C Issuer for the  amount of any payment made by the L/C Issuer under any Credit, together with interest as provided  herein.  (vi) If any Revolving Credit Lender fails to make available to Administrative  Agent for the account of any L/C Issuer any amount required to be paid by such Lender pursuant to the  foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), then, without  limiting the other provisions of this Agreement, the L/C Issuer will be entitled to recover from such  Revolving Credit Lender (acting through Administrative Agent), on demand, such amount with interest  thereon for the period from the date such payment is required to the date on which such payment is  immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate  and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank  compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer  in connection with the foregoing.  A certificate of the L/C Issuer submitted to any Revolving Credit  Lender (through Administrative Agent) with respect to any amounts owing under this clause (vi) will be  conclusive absent manifest error.  (d) Repayment of Participations.  (i) If, at any time after any L/C Issuer has made a payment under any Credit  issued by it and has received from any Revolving Credit Lender such Lender’s Credit Advance in respect  of such payment in accordance with Section 2.03(c), Administrative Agent receives for the account of the  L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether  directly from Borrower or otherwise, including proceeds of Cash Collateral applied thereto by  Administrative Agent), Administrative Agent will distribute to such Lender an amount that equals its  Revolving Credit Percentage Share thereof (appropriately adjusted, in the case of interest payments, to  reflect the period of time during which such Lender’s Credit Advance was outstanding) in the same funds  as those received by Administrative Agent.  (ii) If any payment received by Administrative Agent for the account of any  L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances  described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its  discretion), each Revolving Credit Lender will pay to Administrative Agent for the account of the L/C  Issuer an amount equal to its Revolving Credit Percentage Share thereof on the demand of Administrative  Agent, plus interest thereon from the date of such demand to the date such amount is returned by such  Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations  of Revolving Credit Lenders under this clause (ii) will survive the payment in full of the Obligations and  the termination of this Agreement.  (e) Obligations Absolute.  The obligation of Borrower to reimburse each L/C Issuer  for each drawing under each Credit issued by it and to repay each Credit Borrowing is absolute,  unconditional and irrevocable and will be paid strictly in accordance with the terms of this Agreement  under all circumstances, including the following:  





 






   -70-         (i) any lack of validity or enforceability of such Credit, this Agreement or  any other Loan Document;  (ii) the existence of any claim, counterclaim, setoff, defense or other right  that Borrower or any other Loan Party may have at any time against any beneficiary or any transferee of  such Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C  Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated  hereby or by such Credit or any agreement or instrument relating thereto, or any unrelated transaction  (including any underlying transaction between any Loan Party or any of their respective Subsidiaries and  the beneficiary for which any Credit was procured);  (iii) any draft, demand, certificate or other document presented under such  Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein  being untrue or inaccurate in any respect;  (iv) any loss or delay in the transmission or otherwise of any document  required in order to make a drawing under such Credit;  (v) any payment by the L/C Issuer under such Credit against presentation of  a draft or certificate that does not strictly comply with the terms of such Credit;  (vi) any adverse change in the business, operations, properties, assets,  condition (financial or otherwise) or prospects of Borrower or of any other Loan Party or of any of their  respective Subsidiaries;  (vii) the fact that a Default or Event of Default will have occurred and be  continuing;  (viii) any payment made by the L/C Issuer under such Credit to any Person  purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,  liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such  Credit, including any arising in connection with any proceeding under any Debtor Relief Law;  (ix) any adverse change in the relevant exchange rates or in the availability of  the relevant Alternative Currency to Borrower or in the relevant currency markets generally; or  (x) any other circumstance or happening whatsoever, whether or not similar  to any of the foregoing, including any other circumstance that might otherwise constitute a defense  available to, or a discharge of, Borrower or any other Loan Party or any of their respective Subsidiaries.  Borrower will promptly examine a copy of each Credit and each amendment thereto that is delivered to it  and will notify the L/C Issuer thereof in writing of any claim of noncompliance with Borrower’s  instructions or other irregularity.  Borrower will be conclusively deemed to have waived any such claim  against the L/C Issuer and its correspondents unless Borrower will have given written notice thereof to the  L/C Issuer within three Business Days of the L/C Issuer’s delivery to Borrower of a copy of the such  Credit or amendment thereto, as applicable.  (f) Role of the L/C Issuer.  Each Revolving Credit Lender and Borrower agree that,  in paying any drawing under a Credit, the L/C Issuer thereof will not have any responsibility to obtain any  document (other than any sight draft, certificates and documents expressly required by the Credit issued,  or requested to be issued, by it) or to ascertain or inquire as to the validity or accuracy of any such  





 






   -71-         document or the authority of the Person executing or delivering any such document.  None of the L/C  Issuer, Administrative Agent, any of their respective Related Parties and any correspondent, participant or  assignee of the L/C Issuer will be liable to any Lender for:  (i) any action taken or not taken, at the request  or with the approval of Lenders or Required Revolving Credit Lenders, as applicable, in connection with  a Credit or any Issuer Document; (ii) in the absence of gross negligence or willful misconduct of the L/C  Issuer under the circumstances in question, as determined in a final, nonappealable judgment by a court of  competent jurisdiction, any action taken or not taken in connection with a Credit or any Issuer Document;  or (iii) the due execution, effectiveness, validity or enforceability of any document related to any Credit or  Issuer Document.  As between Borrower and any L/C Issuer, Borrower hereby assumes all risks of the  acts or omissions of any beneficiary or transferee with respect to its use of any Credit issued by such L/C  Issuer; provided that this assumption is not intended to, and will not, preclude Borrower from pursuing  such rights and remedies as it may have against the beneficiary or transferee at law or under any other  agreement.  None of the L/C Issuer, Administrative Agent or any of their respective Related Parties or  any correspondent, participant or assignee of the L/C Issuer will be liable or responsible for any of the  matters described in clauses (i) through (x) of Section 2.03(e); provided that, notwithstanding anything to  the contrary contained in such clauses, Borrower may have a claim against the L/C Issuer, and the L/C  Issuer may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to  consequential or exemplary, damages suffered by Borrower that were caused by the L/C Issuer’s willful  misconduct or gross negligence or the L/C Issuer’s willful or grossly negligent failure to pay under any  Credit issued by it after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly  complying with the terms and conditions of a Credit, as determined by a court of competent jurisdiction  by final and nonappealable judgment.  In furtherance and not in limitation of the foregoing, the L/C Issuer  may accept documents that appear on their face to be in order, without responsibility for further  investigation, regardless of any notice or information to the contrary, and the L/C Issuer will not be  responsible for the validity or sufficiency of any document transferring or assigning or purporting to  transfer or assign a Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that  may prove to be invalid or ineffective for any reason.  (g) Applicability of ISP and UCP.  Unless otherwise expressly agreed by L/C  Issuer and Borrower, when a Credit is issued, (i) the rules of the ISP and Article 5 of the UCC will apply  to each standby Credit, provided that in the event of a conflict between applicable provisions of the ISP  and Article 5 of the UCC, the ISP will govern and (ii) the rules of the UCP and Article 5 of the UCC will  apply to each commercial Credit, provided that in the event of a conflict between applicable provisions of  the UCP and Article 5 of the UCC, the UCP will govern.  (h) Credit Issued for the Benefit of the Issuers Thereof. The parties hereto  recognize that some or all of the Credit from time to time issued under this Agreement will be issued by  L/C Issuer for the benefit of itself or its Affiliate in connection with the simultaneous issuance of a Linked  Undertaking.  Notwithstanding anything to the contrary in the ISP or the UCP (to the extent applicable to  a Credit) or under applicable Laws, it is the express intention of the parties that (i) each such Credit shall  constitute, and be governed by the rules generally applicable to, a Credit hereunder and a “credit” under  the ISP, the UCP and other applicable Laws as if the L/C Issuer of and beneficiary under such Credit were  different Persons, (ii) Borrower’s reimbursement obligation hereunder shall exist, without duplication,  with respect to any such Credit issued by or outstanding from L/C Issuer as well as any Linked  Undertaking, and (iii) the L/C Issuer of a Credit and a Linked Undertaking will be entitled to funding of  participations by the Lenders with respect to either the Credit or the Linked Undertaking, but not with  respect to both.  (i) Credit Fees.  Borrower will pay to Administrative Agent for the account of each  Revolving Credit Lender in accordance with its Revolving Credit Percentage Share a fee (the “Credit  Fee”) equal to (i) for each standby Letter of Credit or Bank Undertaking, the Applicable Margin then  





 






   -72-         applicable to the EurodollarEurocurrency Rate Loans multiplied by the actual daily amount available to  be drawn under such Credit and (ii) for each commercial Letter of Credit, a rate per annum to be  determined by L/C Issuer and Administrative Agent consistent with then prevailing market terms for  issuances of commercial letters of credit; provided, however, any Credit Fees otherwise payable for the  account of a Defaulting Lender with respect to any Credit as to which such Defaulting Lender has not  provided Cash Collateral satisfactory to L/C Issuer pursuant to this Section 2.03 will be payable, to the  maximum extent permitted by applicable Law, to the other Revolving Credit Lenders in accordance with  the upward adjustments in their respective Revolving Credit Percentage Share allocable to such Credit  pursuant to Section 3.07(a)(iv), with the balance of such fee, if any, payable to L/C Issuer for its own  account.  For purposes of computing the actual daily amount available to be drawn under all Credits, the  amount of each Credit will be determined in accordance with Section 1.02(j).  Credit Fees will be (i)  computed on a quarterly basis in arrears and (ii) due and payable on the last Business Day of each March,  June, September and December (in each case for the calendar quarter then ending), commencing with the  first such date to occur after the issuance of such Credit, on the Credit Expiration Date and thereafter on  demand.  If there is any change in the Applicable Margin during any quarter, then the actual daily amount  available to be drawn under all Credits will be computed and multiplied by the Applicable Margin  separately for each period during such quarter that such Applicable Margin was in effect.   Notwithstanding anything to the contrary contained herein, while any Event of Default exists, upon  written notice to Borrower from Required Revolving Credit Lenders, all Credit Fees will accrue at the  Default Rate.  (j) Fronting Fee and Documentary and Processing Charges Payable to L/C  Issuers.  Borrower will pay directly to each L/C Issuer for its own account in respect of any Credits  issued by or outstanding from such L/C Issuer, a fronting fee in Dollars with respect to each such Credit  equal to 0.125% per annum, computed quarterly in arrears on the Dollar Equivalent of the daily  maximum amount available to be drawn thereunder, due and payable quarterly in arrears on the last  Business Day of each March, June, September and December (in each case for the calendar quarter then  ending), commencing with the first such date to occur after the issuance of such Credit, on the Credit  Expiration Date and thereafter on demand.  In addition, Borrower will pay directly to L/C Issuer for its  own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and  other standard costs and charges of the L/C Issuer relating to letters of credit and bank undertakings as  from time to time in effect. Such customary fees and standard costs and charges are due and payable on  demand of the L/C Issuer and are nonrefundable.  (k) Additional L/C Issuers.  Borrower may from time to time, upon not less than  ten Business Days’ notice to Administrative Agent (or such shorter period as may be agreed by  Administrative Agent in its sole discretion), designate a Lender hereunder as an additional L/C Issuer  (upon obtaining such Lender’s prior consent thereto).  Any such designation or increase in the number of  L/C Issuers will be subject to the approval of Administrative Agent (such approval not to be unreasonably  withheld).  Administrative Agent will promptly notify Borrower and the Lenders of any designation and  approval of an additional L/C Issuer.  Upon any such approval of an additional L/C Issuer by  Administrative Agent, such Lender will be an L/C Issuer for all purposes of this Agreement, and  references to the L/C Issuers will mean and include such Lender in its capacity as an L/C Issuer.  Any  such additional L/C Issuer will be entitled to specify from time to time any Dollar limit on the stated  amount of Credits permitted to be outstanding from such L/C at any time (an “Issuer Sublimit”).  In the  absence of any notice from an additional L/C Issuer to Administrative Agent specifying its Issuer  Sublimit from time to time in effect, such additional L/C Issuer’s Issuer Sublimit shall be deemed to equal  the Credit Sublimit.  (l) Conflict with Issuer Documents.  If a conflict exists between the terms hereof  and the terms of any Issuer Document, the terms hereof will control.  





 






   -73-         Section 2.04 Swing Line Loans.  (a) The Swing Line.  Upon the terms, subject to the conditions and in reliance upon  the representations and warranties of Borrower and each of the other Loan Parties set forth in this  Agreement and in the other Loan Documents and upon the agreements of the Revolving Credit Lenders  set forth in this Section 2.04, Swing Line Lender may in its sole and absolute discretion make loans (each  such loan, a “Swing Line Loan”) in immediately available funds denominated in Dollars to Borrower on  a revolving basis from time to time on any Business Day from the Second Restatement Effective Date  through the tenth Business Day immediately preceding the last day of the Availability Period in an  aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit,  notwithstanding the fact that such Swing Line Loans, when aggregated with the Revolving Credit  Percentage Share of the Outstanding Amount of Revolving Credit Loans and Credit Obligations of the  Revolving Credit Lender acting as Swing Line Lender, may exceed the amount of such Lender’s  Revolving Credit Commitment; provided that, after giving effect to any Swing Line Loan, (i) the Total  Revolving Credit Outstandings will not exceed the Aggregate Revolving Credit Commitments; and (ii)  the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender (other  than Swing Line Lender in such capacity), plus such Lender’s Revolving Credit Percentage Share of the  Outstanding Amount of all Credit Obligations, plus such Lender’s Revolving Credit Percentage Share of  the Outstanding Amount of all Swing Line Loans will not exceed such Lender’s Revolving Credit  Commitment.  Each Swing Line Loan will be a Base Rate Loan.  Immediately upon the making of a  Swing Line Loan, each Revolving Credit Lender will be deemed to, and hereby irrevocably and  unconditionally agrees to, purchase from Swing Line Lender a risk participation in such Swing Line Loan  in an amount equal to such Lender’s Revolving Credit Percentage Share multiplied by the amount of such  Swing Line Loan.  (b) Swing Line Borrowing Procedures.  Each Swing Line Borrowing will be made  upon Borrower’s irrevocable notice (a “Swing Line Loan Notice”) to Swing Line Lender and  Administrative Agent, which, subject to the provisions of Section 10.02, may be given by approved  electronic communication.  Each such notice must be received by Swing Line Lender and Administrative  Agent not later than 12:00 noon on the requested borrowing date, and must specify (i) the amount to be  borrowed, which will be a minimum of $100,000, and (ii) the requested borrowing date, which must be a  Business Day.  Each such notice by electronic communication must be confirmed promptly by delivery to  Swing Line Lender and Administrative Agent of a separate written Swing Line Loan Notice,  appropriately completed and signed by a Responsible Officer of Borrower.  Promptly after receipt by  Swing Line Lender of any electronic communication Swing Line Loan Notice, Swing Line Lender will  confirm with Administrative Agent (in writing, including by electronic communication) that  Administrative Agent has also received such Swing Line Loan Notice and, if not, Swing Line Lender will  notify Administrative Agent (in writing, including by electronic communication) of the contents thereof.   Unless (A) the Swing Line has been terminated or suspended by Swing Line Lender as provided in this  Agreement, including Section 2.04(a), (B) Swing Line Lender has received notice (in writing, including  by electronic communication) from Administrative Agent (including at the request of any Revolving  Credit Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (1) directing Swing  Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the  first sentence of Section 2.04(a), or (2) that at least one of the applicable conditions specified in Article  IV is not then satisfied, or (C) Swing Line Lender has otherwise determined, in its sole and absolute  discretion, not to fund the Swing Line Borrowing requested by Borrower in such Swing Line Loan  Notice, then, subject to the terms and conditions hereof, Swing Line Lender will, not later than 3:00 p.m.  on the borrowing date specified in the related Swing Line Loan Notice, make the amount of its Swing  Line Loan available to Borrower at its office by crediting the account of Borrower on the books of Swing  Line Lender in immediately available funds.  Revolving Credit Lenders agree that Swing Line Lender and  Borrower may agree to modify the borrowing procedures used in connection with the Swing Line in its  





 






   -74-         discretion and without affecting any of the obligations of Revolving Credit Lenders hereunder other than  notifying Administrative Agent of a Swing Line Loan Notice.  (c) Refinancing of Swing Line Loans.  (i) Swing Line Lender at any time in its sole and absolute discretion may  request, on behalf of Borrower (which hereby irrevocably authorizes Swing Line Lender to so request on  its behalf), that each Revolving Credit Lender make a Revolving Credit Loan that is a Base Rate Loan in  an amount equal to such Lender’s Revolving Credit Percentage Share of the then aggregate Outstanding  Amount of Swing Line Loans.  Such request will be made in writing (which written request will be  deemed to be a Swing Line Loan Notice for purposes hereof) and in accordance with the requirements of  Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of  Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Credit Commitments  and the conditions set forth in Section 4.02.  Swing Line Lender will furnish Borrower with a copy of the  applicable Swing Line Loan Notice promptly after delivering such notice to Administrative Agent.  Each  Revolving Credit Lender will make an amount equal to its Revolving Credit Percentage Share multiplied  by the aggregate amount of the requested Revolving Credit Loans specified in such Swing Line Loan  Notice available to Administrative Agent in immediately available funds (and Administrative Agent may  apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of Swing  Line Lender at Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Swing  Line Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes  funds available will be deemed to have made a Revolving Credit Loan that is a Base Rate Loan to  Borrower in such amount.  Administrative Agent will promptly remit the funds so received to Swing Line  Lender.  (ii) If for any reason the outstanding amount of all Swing Line Loans cannot  be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i), then the  request for Revolving Credit Loans that are Base Rate Loans submitted by Swing Line Lender as set forth  herein will be deemed to be a request by Swing Line Lender that each Revolving Credit Lender fund its  risk participation in the relevant Swing Line Loan and each Revolving Credit Lender’s payment to  Administrative Agent for the account of Swing Line Lender pursuant to Section 2.04(c)(i) will be deemed  payment in respect of such participation.  (iii) If any Revolving Credit Lender fails to make available to Administrative  Agent for the account of Swing Line Lender any amount required to be paid by such Lender pursuant to  the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), Swing Line  Lender will be entitled to recover from such Lender (acting through Administrative Agent), on demand,  such amount with interest thereon for the period from the date such payment is required to the date on  which such payment is immediately available to Swing Line Lender at a rate per annum equal to the  greater of the Federal Funds Rate and a rate determined by Swing Line Lender in accordance with  banking industry rules on interbank compensation, plus any administrative, processing or similar fees  customarily charged by Swing Line Lender in connection with the foregoing.  A certificate of Swing Line  Lender submitted to any Revolving Credit Lender (through Administrative Agent) with respect to any  amounts owing under this clause (iii) will be conclusive absent manifest error.  (iv) Each Revolving Credit Lender’s obligation to make Revolving Credit  Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c)  will be absolute and unconditional and will not be affected by any circumstance, including (A) any setoff,  counterclaim, recoupment, defense or other right that such Lender may have against Swing Line Lender,  Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default  or Event of Default or (C) any other occurrence, event or condition, whether or not similar to any of the  





 






   -75-         foregoing; provided that each Revolving Credit Lender’s obligation to make Revolving Credit Loans  pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02.  No such funding of  risk participations will relieve or otherwise impair the obligation of Borrower to repay Swing Line Loans  together with interest as provided herein.  (v) Borrower may not use the proceeds of a Swing Line Loan borrowed  pursuant to this Section 2.04 to refinance an outstanding Swing Line Loan.  (d) Repayment of Participations.  (i) If, at any time after any Revolving Credit Lender has purchased and  funded a risk participation in a Swing Line Loan, Swing Line Lender receives any payment on account of  such Swing Line Loan, then Swing Line Lender will distribute to such Lender an amount equal to its  Revolving Credit Percentage Share multiplied by such payment (appropriately adjusted, in the case of  interest payments, to reflect the period of time during which such Lender’s risk participation was funded)  in the same funds as those received by Swing Line Lender.  (ii) If any payment received by Swing Line Lender in respect of principal or  interest on any Swing Line Loan is required to be returned by Swing Line Lender under any of the  circumstances described in Section 10.05 (including pursuant to any settlement entered into by Swing  Line Lender in its discretion), each Revolving Credit Lender will pay to Swing Line Lender an amount  equal to its Revolving Credit Percentage Share multiplied by the amount to be returned on demand of  Administrative Agent, plus interest thereon from the date of such demand to the date such amount is  returned, at a rate per annum equal to the Federal Funds Rate.  Administrative Agent will make such  demand upon the request of Swing Line Lender.  The obligations of Revolving Credit Lenders under this  clause will survive the payment in full of the Obligations and the termination of this Agreement.  (e) Interest for Account of Swing Line Lender.  Swing Line Lender will be  responsible for invoicing Borrower for interest on Swing Line Loans.  Until each Revolving Credit  Lender funds its Revolving Credit Loan that is a Base Rate Loan or risk participation pursuant to this  Section 2.04 to refinance such Lender’s Revolving Credit Percentage Share of any Swing Line Loan,  interest in respect of such proportionate share will be solely for the account of Swing Line Lender.  (f) Payments Directly to Swing Line Lender.  Borrower will make all payments of  principal and interest in respect of Swing Line Loans directly to Swing Line Lender.  Section 2.05 Payments and Prepayments.  (a) Payments of the Swing Line Loans.  Subject to the other terms and provisions  of this Agreement, including the acceleration of the Obligations outstanding hereunder and under the  other Loan Documents pursuant to Section 8.03 following the occurrence of an Event of Default,  Borrower will repay each Swing Line Loan (A) on the tenth Business Day following the Borrowing  thereof, and (B) to the extent outstanding on the Revolving Credit Maturity Date, on the Revolving Credit  Maturity Date.  (b) Payments of the Incremental Term Loans.  Subject to the other terms and  provisions of this Agreement, including the acceleration of the Obligations outstanding hereunder and  under the other Loan Documents pursuant to Section 8.03 following the occurrence of an Event of  Default, the Incremental Term Loans will be payable on such dates and in such amounts as set forth in the  applicable Incremental Term Documentation.  





 






   -76-         (c) Voluntary Prepayments.  (i) Borrower may, upon notice to Administrative Agent, at any time or from  time to time voluntarily prepay Revolving Credit Loans in whole or in part without premium or penalty;  provided that (A) such notice must be received by Administrative Agent not later than 12:00 noon (1)  three Business Days prior to any date of prepayment of Revolving Credit Loans that are  EurodollarEurocurrency Rate Loans and (2) four Business Days (or five Business Days, in the case of the  prepayment of Loans determined in Special Notice Currencies) prior to any date of prepayment of  Revolving Credit Loans that are EurodollarEurocurrency Rate Loans denominated in any Alternative  Currency permitted hereunder and (3) on the date of prepayment of Revolving Credit Loans that are Base  Rate Loans; and (B) any prepayment of Revolving Credit Loans that are EurodollarEurocurrency Rate  Loans will be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof, or  that are Base Rate Loans will be in a principal amount of $500,000 or a whole multiple of $100,000 in  excess thereof, or, if less, the entire principal amount thereof then outstanding.  Each such notice will  specify the date and amount of such prepayment and the Type(s) of Revolving Credit Loans to be prepaid.   Administrative Agent will promptly notify each Revolving Credit Lender of its receipt of each such  notice and of the amount of such Lender’s Revolving Credit Percentage Share thereof.  If Borrower gives  such notice, then Borrower’s prepayment obligation will be irrevocable, and Borrower will make such  prepayment and the payment amount specified in such notice will be due and payable on the date  specified therein.  Notwithstanding the foregoing, any such notice of prepayment delivered in connection  with any refinancing of all of the Obligations hereunder with the proceeds of such refinancing or of any  incurrence of Indebtedness, may be, if expressly so stated to be, contingent upon the consummation of  such refinancing or incurrence and may be revoked by Borrower in the event such refinancing is not  consummated.  Any prepayment of a Revolving Credit Loan that is a EurodollarEurocurrency Rate Loan  will be accompanied by any additional amounts required pursuant to Section 3.05 (including amounts  required pursuant to Section 3.05(c) and any foreign exchange losses).  Subject to Section 3.07, each  such prepayment will be applied to the Revolving Credit Loans of the Revolving Credit Lenders in  accordance with their respective Revolving Credit Percentage Shares.  (ii) Borrower may, upon notice to Swing Line Lender (with a copy to  Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole  or in part without premium or penalty; provided that:  (A) such notice must be received by Swing Line  Lender and Administrative Agent not later than 1:00 p.m. on the date of the prepayment; and (B) any such  prepayment will be in a minimum principal amount of $100,000 or, if the aggregate Outstanding Amount  of Swing Line Loans is less, the entire Outstanding Amount thereof.  Each such notice will specify the  date and amount of such prepayment.  If Borrower gives such a notice, then Borrower’s prepayment  obligation will be irrevocable, and Borrower will make such prepayment and the payment amount  specified in such notice will be due and payable on the date specified therein.  (d) Mandatory Prepayments.  (i) If, on any date, and for any reason, including following any reduction of  the Aggregate Revolving Credit Commitments pursuant to Section 2.06, the Outstanding Amount of  Credit Obligations exceeds the Credit Sublimit, Borrower will promptly (and in any event within three  Business Days thereof) Cash Collateralize the Outstanding Amount of such Credit Obligations in an  amount equal to such excess.  Any Cash Collateral required to be provided pursuant to this Section 2.05  will be subject to release in accordance with Section 2.15(d).  (ii) If, on any date the Total Revolving Credit Outstandings, less the amount  of Credit Obligations Cash Collateralized, exceeds the Aggregate Revolving Credit Commitments then in  effect, including after giving effect to any reduction of the Aggregate Revolving Credit Commitments  





 






   -77-         pursuant to Section 2.06, Borrower will immediately, and without notice or demand, prepay the  outstanding principal amount of the Revolving Credit Loans, Swing Line Loans and Credit Borrowings  by an amount equal to the applicable excess.  Any such prepayment will be applied, first, to any Credit  Borrowings, second, to prepay any outstanding Swing Line Loans and third, to prepay any outstanding  Revolving Credit Loans.  (iii) If, on any Revaluation Date, the Dollar Equivalent of the Total  Revolving Credit Outstandings in Alternative Currencies exceeds the lesser of (A) 105% times the  Alternative Currency Available Credit then in effect and (B) the Aggregate Revolving Credit  Commitments then in effect, including after giving effect to any reduction of the Aggregate Revolving  Credit Commitments pursuant to Section 2.06, Borrower will immediately, and without notice or  demand, (x) prepay the Dollar Equivalent of the outstanding principal amount of the Revolving Credit  Loans in Alternative Currencies and Credit Borrowings in Alternative Currencies by an amount equal to  the applicable excess or (y) Cash Collateralize the Dollar Equivalent of the Outstanding Amount of such  Credit Obligations in Alternative Currencies in an amount equal to the applicable excess.  Any Cash  Collateral required to be provided pursuant to this Section 2.05 will be subject to release in accordance  with Section 2.15(d).  (iv) If, following any reduction of the Aggregate Revolving Credit  Commitments pursuant to Section 2.06, the aggregate Outstanding Amount of Swing Line Loans would  exceed the Swing Line Sublimit (including as reduced by such reduction), Borrower will prepay on the  reduction date the Outstanding Amount of Swing Line Loans by an amount equal to the amount by which  such Outstanding Amount exceeds the Swing Line Sublimit.  (e) Application of Certain Payments.  Subject to the other provisions of this  Agreement applicable to the prepayment of Loans, any prepayment of Loans will be applied first to Base  Rate Loans to the full extent thereof before application to EurodollarEurocurrency Rate Loans, in each  case in a manner which minimizes the amount of any payments required to be made by Borrower  pursuant to Section 3.05.  Section 2.06 Termination or Reduction of Aggregate Revolving Credit Commitments.  Borrower may, upon notice to Administrative Agent, terminate the Aggregate Revolving Credit  Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments;  provided that (a) any such notice will be irrevocable and received by Administrative Agent not later than  12:00 noon one Business Day prior to the requested effective date of such termination or reduction; (b)  any such partial reduction will be in an aggregate amount of $5,000,000 or any whole multiple of  $1,000,000 in excess thereof; (c) Borrower will not terminate or reduce the Aggregate Revolving Credit  Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total  Revolving Credit Outstandings would exceed the Aggregate Revolving Credit Commitments; and (d) if,  after giving effect to any reduction of the Aggregate Revolving Credit Commitments, the Credit Sublimit  or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Credit Commitments, such  sublimit(s) will be automatically reduced by the amount of such excess.  Administrative Agent will  promptly notify the Lenders of any such notice of termination or reduction of the Aggregate  Commitments.  Any reduction of the Aggregate Revolving Credit Commitments will be applied to the  commitment of each Revolving Credit Lender according to its Revolving Credit Percentage Share thereof.   All Revolving Credit Commitment Fees accrued until the effective date of any termination of the  Aggregate Revolving Credit Commitments will be paid on the effective date of such termination.  Section 2.07 Final Repayment of Revolving Credit Loans, Swing Loans and Incremental  Term Loans.  





 






   -78-         (a) Payments Due on Revolving Credit Maturity Date.  On the Revolving Credit  Maturity Date, Borrower will repay (i) to the Revolving Credit Lenders in full the aggregate Outstanding  Amount of all Revolving Credit Loans and (ii) to Swing Line Lender in full the aggregate Outstanding  Amount of all Swing Line Loans, and in each case all accrued and unpaid interest thereon.  (b) Payments Due on Incremental Term Loan Maturity Date.  For each  Incremental Term Loan, on the Incremental Term Loan Maturity Date applicable to such Incremental  Term Loan, Borrower will repay to the Incremental Term Loan Lenders in full the aggregate Outstanding  Amount of such Incremental Term Loan and all accrued and unpaid interest thereon.  Section 2.08 Interest; Applicable Margins.  (a) Interest Generally.  At the option of the Borrower, Loans (other than Swing  Line Loans) will be EurodollarEurocurrency Rate Loans or Base Rate Loans. Subject to the provisions of  Section 2.08(b), (i) each EurodollarEurocurrency Rate Loan will bear interest on the outstanding  principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar  Rateapplicable Eurocurrency Rate (corresponding to the applicable Agreed Currency in which such  Eurocurrency Rate Loan is denominated) for such Interest Period plus the Applicable Margin then in  effect corresponding to EurodollarEurocurrency Rate Loans and (ii) each Base Rate Loan (including each  Swing Line Loan) will bear interest on the outstanding principal amount thereof from the applicable  borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin then in effect  corresponding to Base Rate Loans. To the extent that any calculation of interest or any fee required to be  paid under this Agreement shall be based on (or result in) a calculation that is less than zero, such  calculation shall be deemed zero for purposes of this Agreement.  (b) Default Rate.  (i) If (A) an Event of Default occurs under Section 8.01(a)(i) as a result of  Borrower’s failure to timely make any principal payment on the Obligations when due and payable under  this Agreement or any of the other Loan Documents, whether at stated maturity, by acceleration or  otherwise, or (B) an Event of Default occurs under Section 8.01(f) or Section 8.01(g), or (C) an Event of  Default occurs under Section 8.01(l) as the result of the occurrence of a Change of Control, then in any  such event, any outstanding Obligations under this Agreement and the other Loan Documents (except for  undrawn Credits) will thereafter, from the date such Event of Default occurred and continuing until the  related Event of Default has been cured or waived in accordance with Section 10.01, without any required  notice from Lenders or Administrative Agent, bear interest at a fluctuating rate per annum at all times  equal to the Default Rate, to the fullest extent permitted by applicable Laws.  (ii) If an Event of Default occurs under Section 8.01(a)(ii) as a result of  Borrower’s failure to timely make any payment (other than a principal payment subject to Section  8.01(a)(i)) on the Obligations when due and payable under this Agreement or any of the other Loan  Documents, whether at stated maturity, by acceleration or otherwise, then, without limitation of and in  addition to clause (i) of this Section 2.08(b), upon written notice to Borrower from Required Lenders (or  from Administrative Agent at the direction of Required Lenders), any outstanding Obligations under this  Agreement and the other Loan Documents (except for undrawn Credits) will, effective as of the date of  delivery of such written notice to Borrower and continuing until the related Event of Default has been  cured or waived in accordance with Section 10.1 of this Agreement,  bear interest at a fluctuating rate per  annum at all times equal to the Default Rate, to the fullest extent permitted by applicable Laws.  (iii) Accrued and unpaid interest on past due amounts (including interest on  past due interest) will be due and payable upon demand.  





 






   -79-         (c) Payment Dates; Accrual of Interest.  Interest on each Loan will be due and  payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be  specified herein.  Interest hereunder (including interest at the Default Rate, to the extent applicable in  accordance with Section 2.08(b)) will be due and payable in accordance with the terms hereof both  before and after judgment, and both before and after the commencement of any proceeding under any  Debtor Relief Law.  (d) Increases and Decreases of Applicable Margins.  Any increase or decrease in  any Applicable Margin resulting from a change in the Consolidated Leverage Ratio will become effective  as of the date that is the earlier of (i) the last date by which Borrower is otherwise required to deliver a  Compliance Certificate in accordance with Section 6.01(d) for given period (each such date, a  “calculation date”) and (ii) the date that is two Business Days after the date on which Borrower actually  delivers a Compliance Certificate in accordance with Section 6.01(d) for a given period; provided that the  Applicable Margins in effect from the Second Restatement Effective Date to the date that is two Business  Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with  respect to the first Test Period ending after the Second Restatement Effective Date will be set at levels  corresponding to Tier I as indicated on the grid set forth in the definition of “Applicable Margin”;  provided, further, that, if any Compliance Certificate required to be delivered in accordance with Section  6.01(d) is not delivered to Administrative Agent on or before the related calculation date, then the levels  corresponding to Tier V as indicated on the grid set forth in the definition of “Applicable Margin” will  apply, effective on the related calculation date until two Business Days after such Compliance Certificate  is actually received by Administrative Agent.  Notwithstanding the foregoing, if, as a result of any restatement of or other adjustment to the  financial statements of Borrower or for any other reason, Borrower or Administrative Agent (which may  be at the direction of Required Lenders) determine that (A) the Consolidated Leverage Ratio as calculated  by Borrower as of any applicable date was inaccurate and (B) a proper calculation of the Consolidated  Leverage Ratio would have resulted in higher pricing for such period, Borrower will immediately and  retroactively be obligated to pay to Administrative Agent for the account of the applicable Lenders or the  applicable L/C Issuer(s), as the case may be, promptly on demand by Administrative Agent accompanied  by calculations supporting Administrative Agent’s determination (or, after the occurrence of an actual or  deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code,  automatically and without further action by Administrative Agent, any Lender or L/C Issuer), an amount  equal to the excess of the amount of interest and fees that should have been paid for such period over the  amount of interest and fees actually paid for such period.    (e) Interest Act (Canada). For the purposes of the Interest Act (Canada), (i)  whenever a rate of interest or fee rate hereunder is calculated on the basis of a year (the “deemed year”)  that contains fewer days than the actual number of days in the calendar year of calculation, such rate of  interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the  actual number of days in the calendar year of calculation and dividing it by the number of days in the  deemed year, (ii) the principle of deemed reinvestment of interest shall not apply to any interest  calculation hereunder and (iii) the rates of interest stipulated herein are intended to be nominal rates and  not effective rates or yields.  Section 2.09 Fees.  In addition to certain fees described in Sections 2.03(i) and (j):  (a) Revolving Credit Facility Commitment Fee.  Subject to Section 3.07(a)(iii),  Borrower will pay to Administrative Agent for the account of each Revolving Credit Lender (other than a  





 






   -80-         Defaulting Lender) in accordance with its Revolving Credit Percentage Share, a commitment fee (the  “Revolving Credit Commitment Fee”) equal to the Applicable Margin then in effect corresponding to the  Revolving Credit Commitment Fees multiplied by the actual daily amount by which the Aggregate  Revolving Credit Commitments exceed the sum of the Total Revolving Credit Outstandings less the  Outstanding Amount of Swing Line Loans as of and for such date of determination, subject to adjustment  as provided in Section 3.07; provided that the Applicable Margin in effect from the Second Restatement  Effective Date to the date that is two Business Days following receipt by Administrative Agent of a  timely delivered Compliance Certificate with respect to the first Test Period ending after the Second  Restatement Effective Date will be set at levels corresponding to Tier I as indicated on the grid set forth  in the definition of “Applicable Margin”; provided, further, that, if any Compliance Certificate required to  be delivered in accordance with Section 6.01(d) is not delivered to Administrative Agent on or before the  related calculation date, then the levels corresponding to Tier V as indicated on the grid set forth in the  definition of “Applicable Margin” will apply, effective on the related calculation date until two Business  Days after such Compliance Certificate is actually received by Administrative Agent.  The Revolving  Credit Commitment Fee will accrue at all times during the Availability Period, including at any time  during which one or more of the conditions in Article IV is not met, and will be due and payable  quarterly in arrears on the last Business Day of each March, June, September and December, commencing  with the first such date to occur after the Second Restatement Effective Date, and on the Revolving Credit  Maturity Date.  The Revolving Credit Commitment Fee will be calculated quarterly in arrears, and if there  is any change in the Aggregate Revolving Credit Commitments or in the Applicable Margin during any  quarter, the actual daily amount will be computed and multiplied by such Aggregate Revolving Credit  Commitments or such Applicable Margin separately for each period during such quarter that such  Aggregate Revolving Credit Commitments or such Applicable Margin was in effect.  (b) Administrative Agent’s Fees.  Borrower will pay to Administrative Agent for  Administrative Agent’s own account such fees as are specified as owing to such Person in the Fee Letter.  Section 2.10 Computations of Interest and Fees.  All computations of interest for Base Rate Loans based on the Prime Rate will be made on the  basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of  interest and fees hereunder will be made on the basis of a year of 360 days and actual days elapsed (which  results in more interest being paid than if computed on the basis of a year of 365 or 366 days, as  applicable), or, in the case of interest in respect of Loans denominated in Alternative Currencies as to  which market practice differs from the foregoing, in accordance with such market practice.  Interest will  accrue on each Loan for the day on which the Loan is made, and will not accrue on a Loan, or any portion  thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the  same day on which it is made will, subject to Section 2.12(a), bear interest for one day.  Each  determination by Administrative Agent of an interest rate or fee hereunder will be conclusive and binding  for all purposes, absent manifest error.  Without limitation of the foregoing, in computing the interest on  any EurodollarEurocurrency Rate Loan denominated in an Alternative Currency, such Loan will have  added to it the U.K.UK Regulatory Cost, if any, associated with such Loan.  Section 2.11 Evidence of Indebtedness.  (a) Evidence of Payments.  The Credit Extensions made by each Lender will be  evidenced by one or more accounts or records maintained by such Lender and by Administrative Agent in  the ordinary course of business, including the Register as described in Section 10.06(c).  The accounts or  records maintained by Administrative Agent will be conclusive absent manifest error of the amount of the  Credit Extensions made by Lenders to Borrower and the interest and payments thereon.  Any failure to so  record or any error in doing so will not, however, limit or otherwise affect the obligation of Borrower  





 






   -81-         hereunder to pay any amount owing with respect to the Obligations. Upon the request of any Lender or  the Swing Line Lender made through Administrative Agent, Borrower will execute and deliver to such  Lending Party (through Administrative Agent) a Note, which Note will be, for Revolving Credit Loans, a  “Revolving Credit Note” substantially in the form attached as Exhibit E-1, for Incremental Term Loans,  an “Incremental Term Loan Note” substantially in the form attached as Exhibit E-2, and for Swing Line  Loans, a “Swing Line Note” substantially in the form attached as Exhibit E-3, each of which will  evidence such Lending Parties’ Loans in addition to such accounts or records.  Each Lending Party may  attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its  Loans and payments with respect thereto.    (b) Evidence of Certain Participations.  In addition to the accounts and records  referred to in Section 2.11(a), each Lender and Administrative Agent will maintain in accordance with its  usual practice accounts or records evidencing the purchases and sales by such Lender of participations in  Credits and Swing Line Loans.  If any conflict exists between the accounts and records maintained by  Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts  and records of Administrative Agent will control in the absence of manifest error.  Section 2.12 Payments Generally; Right of Administrative Agent to Make Deductions  Automatically.  (a) Payments Generally.  (i) All payments to be made by Borrower will be made without condition or  deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided  herein, all payments by Borrower hereunder will be made to Administrative Agent, for the account of the  respective Lender to which such payment is owed, at Administrative Agent’s Office in Same Day Funds  not later than (i) 12:00 noon on the date specified herein or (ii) after the Applicable Time specified by  Administrative Agent in the case of payments in an Alternative Currency. If, for any reason, Borrower is  prohibited by any requirement of applicable Law from making any required payment hereunder in an  Alternative Currency, Borrower will make such payment in Dollars in the Dollar Equivalent of the  Alternative Currency payment amount.  Administrative Agent will promptly distribute to each Lender its  Percentage Share (or other applicable share as provided herein) of such payment in like funds as received  by wire transfer to such Lending Party’s Lending Office.  All payments received by Administrative Agent  after 12:00 noon will be deemed received on the next succeeding Business Day and any applicable  interest or fee will continue to accrue; provided, however, that at the request of Administrative Agent,  payments of interest on EurodollarEurocurrency Rate Loans denominated in an Alternative Currency will  be made in the applicable Alternative Currency in immediately available funds to such account at such  bank as Administrative Agent may designate to Borrower, no later than 12:00 noon (local time in the  place where such bank is located) on the due date.  If any payment to be made by Borrower will come due  on a day other than a Business Day, payment will be made on the next following Business Day, and such  extension of time will be reflected in computing interest or fees, as the case may be.  (ii) Borrower hereby authorizes Administrative Agent (A) to deduct  automatically all principal, interest or fees when due hereunder or under any Note from any account of  Borrower maintained with Administrative Agent and (B) if and to the extent any payment of principal,  interest or fees under this Agreement or any Note is not made when due to deduct any such amount from  any or all of the accounts of Borrower maintained at Administrative Agent.  Administrative Agent agrees  to provide written notice to Borrower of any automatic deduction made pursuant to this Section  2.12(a)(ii) showing in reasonable detail the amounts of such deduction.  Each Lender agrees to reimburse  Borrower based on its applicable Percentage Share for any amounts deducted from such accounts in  excess of amount due hereunder and under any other Loan Documents.  





 






   -82-         (b) Fundings by the Lenders, Payments by Borrower and Presumptions by  Administrative Agent.  (i) Unless Administrative Agent will have received notice from a Lender  (A) in the case of Base Rate Loans (including Swing Line Loans), two hours prior to the proposed time of  such Borrowing, and (B) otherwise prior to the proposed date of any Borrowing that such Lender will not  make available to Administrative Agent such Lender’s share of such Borrowing, Administrative Agent  may assume that such Lender has made such share available on such date in accordance with Section 2.02  and may, in reliance upon such assumption, make available to Borrower a corresponding amount.  In such  event, if a Lender has not in fact made its share of the applicable Borrowing available to Administrative  Agent, then the applicable Lender, on the one hand, and Borrower, on the other hand, each severally  agrees to pay to Administrative Agent forthwith on demand such corresponding amount in immediately  available funds with interest thereon, for each day from the date such amount is made available to  Borrower to the date of payment to Administrative Agent, at (1) in the case of a payment to be made by  such Lender, the greater of the Federal Funds Rate and a rate determined by Administrative Agent in  accordance with banking industry rules on interbank compensation, plus any administrative, processing or  similar fees customarily charged by Administrative Agent in connection with the foregoing; and (2) in the  case of a payment to be made by Borrower, the interest rate applicable to Revolving Credit Loans that are  Base Rate Loans.  If Borrower and such Lender will pay such interest to Administrative Agent for the  same or an overlapping period, Administrative Agent will promptly remit to Borrower the amount of such  interest paid by Borrower for such period.  If such Lender pays its share of the applicable Borrowing to  Administrative Agent, then the amount so paid will constitute such Lender’s Loan included in such  Borrowing.  Any payment by Borrower will be without prejudice to any claim Borrower may have  against a Lender that will have failed to make such payment to Administrative Agent.  (ii) Unless Administrative Agent will have received notice from Borrower  prior to the date on which any payment is due hereunder to Administrative Agent for the account of the  Lenders or any L/C Issuer that Borrower will not make such payment, Administrative Agent may assume  that Borrower has made such payment on such date in accordance herewith and may, in reliance upon  such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due.  In such  event, if Borrower has not in fact made such payment, then the Lenders and the L/C Issuer, as the case  may be, each severally agrees to repay to Administrative Agent forthwith on demand the amount so  distributed to such Lenders or the L/C Issuer, as the case may be, in immediately available funds with  interest thereon, for each day from the date such amount is distributed to it to the date of payment to  Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative  Agent in accordance with banking industry rules on interbank compensation.  A notice of Administrative  Agent to any Lender or Borrower with respect to any amount owing under this Section 2.12(b) will be  conclusive, absent manifest error.  (c) Failure to Satisfy Conditions Precedent.  Subject to Section 2.03 and Section  2.04, if any Lender makes available to Administrative Agent funds for any Loan to be made by such  Lender as provided in the foregoing provisions of this Article II and such funds are not made available to  Borrower by Administrative Agent because the conditions to the applicable Credit Extension set forth in  Article IV are not satisfied or waived in accordance with the terms hereof, Administrative Agent will  promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.  (d) Obligations of the Lenders are Several and not Joint.  The obligations of the  Lenders hereunder to make Loans, to fund participations in Credits and Swing Line Loans and to make  payments under Section 10.04(c) are several and not joint.  The failure of any Lender to make any Loan,  to fund any such participation or to make any payment under Section 10.04(c) on any date required  hereunder will not relieve any other Lender of its corresponding obligation to do so on such date, and no  





 






   -83-         Lender will be responsible for the failure of any other Lender to so make its Loan, purchase its  participation or to make its payment under Section 2.12(b)(ii), Section 10.04(c) or Section 10.05.  (e) Funding Sources.  Nothing herein will be deemed to obligate any Lender to  obtain the funds for any Loan in any particular place or manner or to constitute a representation by any  Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.   Without limitation of the preceding sentence, neither Administrative Agent nor any Lender will be  required actually to acquire eurodollarEurocurrency deposits to fund or otherwise match fund any  Obligation as to which interest accrues at the EurodollarEurocurrency Rate.  The provisions of this  Section 2.12(e) will apply as if each Lender had match funded any Obligation as to which interest is  accruing at the EurodollarEurocurrency Rate by acquiring eurodollarEurocurrency deposits for each  Interest Period in the amount of the EurodollarEurocurrency Rate Loans.  Section 2.13 Sharing of Payments.  If any Lender will, by exercising any right of setoff or counterclaim or otherwise, obtain payment  in respect of any principal of or interest on any of the Loans made by it, or the participations in Credit  Obligations or in Swing Line Loans held by it, resulting in such Lender receiving payment of a proportion  of the aggregate amount of such Loans or participations and accrued interest thereon greater than its  Percentage Share (or other applicable share as provided herein) thereof as provided herein, then the  Lender receiving such greater proportion will: (a) notify Administrative Agent of such fact; and (b)  purchase (for Cash at face value) participations in the Loans and subparticipations in Credit Obligations  and Swing Line Loans of the other Lenders, or make such other adjustments as will be equitable, so that  the benefit of all such payments will be shared by Lenders ratably in accordance with the aggregate  amount of principal of and accrued interest on their respective Loans and other amounts owing them;  provided that:  (i) if any such participations or subparticipations are purchased and all or any portion of  the payment giving rise thereto is recovered, such participations or subparticipations will be rescinded and  the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this  Section 2.13 will not be construed to apply to (A) any payment made by or on behalf of 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, (B) the application of Cash Collateral provided for in  Section 2.15 or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a  participation in any of its Loans or subparticipations in Credit Obligations or Swing Line Loans to any  assignee or participant, other than an assignment to any Loan Party or any Affiliate thereof (as to which  the provisions of this Section 2.13 will apply).  Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under  applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may  exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as  fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.  Section 2.14 Increase in Aggregate Commitments.  (a) Increase in Aggregate Commitments Generally.  Subject to the further  conditions set forth in Section 2.14(c), upon notice to Administrative Agent, at any time after the Second  Restatement Effective Date but not less than thirty days prior to the Revolving Credit Maturity Date,  Borrower may request one or more Incremental Term Loan Commitments or one or more Additional  Revolving Credit Commitments; provided that (i) after giving effect to any such addition, the aggregate  amount of Additional Revolving Credit Commitments and Incremental Term Loan Commitments that  have been added pursuant to this Section 2.14 will not exceed the Incremental Cap (provided that any  new Incremental Term Loan Commitment or Additional Revolving Credit Commitment, if it is incurred  





 






   -84-         and becomes effective as of a date when the Unlimited Incremental Basket (as defined in clause (b) of the  definition of “Incremental Cap” set forth in Section 1.01, with the Consolidated Leverage Ratio being  calculated for such purpose without giving effect to any substantially concurrent incurrence of any new  Incremental Term Loan Commitment or Additional Revolving Credit Commitment under and in reliance  on the Adjusted Fixed Cap (as defined in clause (a) of the definition of “Incremental Cap”)) is in effect  shall be deemed incurred under and reliance on the Unlimited Incremental Basket rather than the  Adjusted Fixed Cap; (ii) any such addition will be in an aggregate amount of $10,000,000 or any whole  multiple of $1,000,000 in excess thereof (provided that such amount may be less than $10,000,000 if such  amount represents all remaining availability under the then-existing Incremental Cap; (iii) no Lender will  be required to participate in the Additional Revolving Credit Commitments or Incremental Term Loan  Commitments; and (iv) the terms and conditions of any Incremental Term Loans (including as to the  interest rate, fees, premium, required prepayments and participation in prepayments, amortization  schedule and final maturity thereof or applicable thereto) shall be agreed to between the Borrower and the  Lenders or additional lenders providing such Incremental Term Loans; provided that no Incremental  Term Loan will have (A) scheduled principal payments or repayments during any calendar year prior to  the Revolving Credit Stated Maturity Date totaling in the aggregate for such year (including the year in  which the Revolving Credit Stated Maturity Date occurs) in excess of 10% of the initial Incremental Term  Loan Commitment for such Incremental Term Loan or (B) an Incremental Term Loan Stated Maturity  Date that is earlier than the Revolving Credit Stated Maturity Date; and provided further that to the extent  any such Incremental Term Loans are subject to additional or more restrictive covenants or other  provisions, then either (1) such covenants and provisions are applicable solely after the latest maturity  date for any Facility then outstanding or (2) such covenants and provisions are added for the benefit of  any Facility then outstanding.  The Additional Revolving Credit Loans and Incremental Term Loans will  (x) rank equal in right of payment with the Revolving Credit Loans, (y) be secured only by the Collateral  securing the Loan Document Obligations (or assets that will become Collateral in connection with such  transaction) and be secured on a pari passu basis with the Loan Document Obligations and (a) only be  guaranteed by the Loan Parties (or Persons that will become Loan Parties in connection with such  transaction).   (b) Certain Provisions Regarding Increase of Aggregate Commitments.  If any  Additional Revolving Credit Commitments or Incremental Term Loan Commitments are added in  accordance with this Section 2.14, Administrative Agent and Borrower will determine the effective date  (the “Additional Commitments Effective Date”) of such addition and the amount of, and the Persons who  will provide, such Additional Revolving Credit Commitments or Incremental Term Loan Commitments,  as applicable.  Administrative Agent will promptly notify Borrower and Lending Parties of the final  amount of such addition and the Additional Commitments Effective Date, as well as in the case of each  notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s  Revolving Credit Loans, in each case subject to the assignments contemplated by this Section 2.14.    (c) Conditions Precedent to the Effectiveness of each Increase of Aggregate  Commitments.  The effectiveness of any requested Additional Revolving Credit Commitments or  Incremental Term Loan Commitments as of the applicable designated Additional Commitments Effective  Date will, in each case, be subject to the satisfaction of each of the following conditions precedent: (i) the  representations and warranties contained in Article V (excluding those contained in Section 5.05 and  Section 5.10(b)) and the other Loan Documents (including all documents required pursuant to Section  2.14(d)) will be true and correct in all material respects (except that such materiality qualifier will not be  applicable to any portion of any representation or warranty that is already qualified or modified by  materiality in the text thereof) on and as of the Additional Commitments Effective Date, except to the  extent that such representations and warranties specifically refer to an earlier date, in which case they will  have been true and correct in all material respects (except that such materiality qualifier will not be  applicable to any portion of any representation or warranty that is already qualified or modified by  





 






   -85-         materiality in the text thereof) as of such earlier date, and except that, for purposes of this Section 2.14(c),  the representations and warranties contained in Section 5.10(a) will be deemed to refer to the financial  statements most recently furnished pursuant to Section 6.01 (provided, however, that if and to the extent  such requested Additional Revolving Credit Commitments or Incremental Term Loan Commitments have  been requested for the purpose of funding, in whole or in part, the Acquisition Consideration of a Limited  Condition Transaction (including any portion which repays Indebtedness of the Target, including any  Subsidiary or other Affiliate thereof being acquired in such Limited Condition Transaction) and/or fees  and expenses incurred by Borrower or its Subsidiaries in connection therewith, the representations and  warranties required to be true and correct as set forth in this clause (i) shall be limited to the Specified  Representations); (ii) no Default or Event of Default will exist immediately before or immediately after  giving effect to such addition (provided, however, that if and to the extent such requested Additional  Revolving Credit Commitments or Incremental Term Loan Commitments have been requested, in whole  or in part, for the purpose of funding, in whole or in part, the Acquisition Consideration of a Limited  Condition Transaction (including any portion which repays, redeems or otherwise discharges any  Indebtedness of the Target, including any Subsidiary or other Affiliate thereof being acquired in such  Limited Condition Transaction) and/or fees and expenses incurred by Borrower or its Subsidiaries in  connection therewith, the condition precedent of this clause (ii) will be limited solely to Specified Events  of Default); (iii) as of the date of the making of any Additional Revolving Credit Loan or Incremental  Term Loan (based on the financial statements most recently furnished pursuant to Section 6.01),  Borrower will be in compliance with the financial covenants set forth in Section 7.15 after giving pro  forma effect to the funding in full of the requested Additional Revolving Credit Loans or Incremental  Term Loans, as applicable, and other outstanding and appropriate pro forma adjustments events  consistent with Section 1.02(i)(i), including and Acquisitions or Dispositions consummated after the  beginning of the relevant Test Period but prior to or simultaneous with the Borrowing of such Additional  Revolving Credit Loan or Incremental Term Loan, as the case may be (provided, however, that if and to  the extent such requested Additional Revolving Credit Commitments or Incremental Term Loan  Commitments have been requested, in whole or part, for the purpose of funding, in whole or in part, the  Acquisition Consideration of a Limited Condition Transaction (including any portion which repays,  redeems or otherwise discharges any Indebtedness of the Target or any of its Subsidiaries or other  Affiliates being acquired as part of such Limited Condition Transaction) and/or fees and expenses  incurred by Borrower or its Subsidiaries in connection therewith, the condition precedent of this clause  (iii) requiring that Borrower be in compliance with the financial covenants set forth in Section 7.15 after  giving pro forma effect to the making of such Additional Revolving Credit Loans or Incremental Term  Loans as of the date of making such Loans will instead be tested as of the LCT Test Date for such  Limited Condition Transaction); (iv) Borrower, Administrative Agent and Lending Parties (including any  new Lending Parties being added in connection with such addition) will have entered into all documents  required pursuant to Section 2.14(d), and Borrower will have complied with all of the conditions  precedent to the effectiveness of such addition as provided in such documents (including any requirement  to pay fees and expenses to any or all of Administrative Agent, the Arrangers and the Lending Parties,  including any new Lending Parties); (v) all fees and expenses owing in respect of such increase to the  Administrative Agent and the Lenders (other than any Defaulting Lender) that have been invoiced at least  three Business Days prior to the applicable Additional Commitments Effective Date shall have been paid  (or shall be paid substantially concurrently therewith); and (vi) Borrower will have delivered to  Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a  Responsible Officer of Borrower, certifying as to the truth, accuracy and correctness of the matters set  forth in the immediately preceding clauses (i), (ii) and (iii).  On each Additional Commitments Effective  Date, each applicable Lender, Eligible Assignee or other Person who is providing an Additional  Revolving Credit Commitment or an Incremental Term Loan Commitment:  (I) in the case of any  Additional Revolving Credit Commitment, will become a “Revolving Credit Lender” for all purposes of  this Agreement and the other Loan Documents; and (II) in the case of any Incremental Term Loan  Commitment, will make an Incremental Term Loan to Borrower in a principal amount equal to such  





 






   -86-         Incremental Term Loan Commitment.  Any Additional Revolving Credit Loan will be a “Revolving  Credit Loan” for all purposes of this Agreement and the other Loan Documents.  In furtherance of the  foregoing, on any Additional Commitments Effective Date on which Additional Revolving Credit  Commitments are made, subject to the satisfaction of the other terms and conditions contained in this  Section 2.14, (x) each of the existing Revolving Credit Lenders will assign to each Person providing an  Additional Revolving Credit Commitment, and each such Person will purchase from each of the existing  Revolving Credit Lenders, in an amount equal to the Outstanding Amount thereof (together with accrued  but unpaid interest thereon), such interests in the Revolving Credit Loans outstanding on such date as will  be necessary in order that, after giving effect to all such assignments and purchases, such Revolving  Credit Loans will be held by existing Revolving Credit Lenders and the Person making the Additional  Revolving Credit Commitments ratably in accordance with their Revolving Credit Percentage Shares after  giving effect to the addition of such Additional Revolving Credit Commitments to the existing Revolving  Credit Commitments; and (y) each Person making an Additional Revolving Credit Commitment will be  deemed for all purposes to have made a Revolving Credit Commitment and each Additional Revolving  Credit Loan will be deemed, for all purposes, a Revolving Credit Loan.  (d) Terms and Documentation.  The terms of and documentation entered into in  respect of any Additional Revolving Credit Commitments or any Incremental Term Loan Commitments  provided in each case pursuant to this Section 2.14 (collectively, the “Additional Commitment  Documentation”) will be consistent with the existing Revolving Credit Commitments, other than as  contemplated by clause (iv) of Section 2.14(a).  Any Additional Revolving Credit Commitments or  Incremental Term Loans, as applicable, made or provided pursuant to this Section 2.14 will be evidenced  by one or more entries in the Register maintained by Administrative Agent in accordance with the  provisions set forth in Section 10.06(c).    Section 2.15 Cash Collateral.  (a) Certain Credit Support Events.   (i) Upon the request of Administrative Agent or any L/C Issuer, if, as of the  Credit Expiration Date, any Credit Obligation for any reason remains outstanding, or, in the case of any  Bank Undertakings, such Bank Undertakings have not been surrendered, Borrower will promptly (but in  any event within five Business Days of receiving such request) Cash Collateralize the Outstanding  Amount of all Credit Obligations.  (ii) At any time that there exists a Defaulting Lender, within one Business  Day following the written request of Administrative Agent or any L/C Issuer (with a copy to  Administrative Agent) Borrower will Cash Collateralize the L/C Issuer’s Fronting Exposure with respect  to such Defaulting Lender (determined after giving effect to Section 3.07(a)(iv) and any Cash Collateral  provided by such Defaulting Lender) in an amount not less than 100% of such Fronting Exposure.  (b) Grant of Security Interest.  All Cash Collateral (other than credit support not  constituting funds subject to deposit) will be maintained in blocked, non-interest bearing deposit accounts  at HSBC located in the United States of America.  Borrower, and to the extent provided by any  Defaulting Lender, such Defaulting Lender hereby grants to (and subjects to the control of)  Administrative Agent, for the benefit of the L/C Issuers, and agrees to maintain, a first priority security  interest in all such Cash Collateral as security for the Defaulting Lender’s obligation to fund  participations in respect of Credit Obligations, to be applied pursuant to Section 2.15(c).  If at any time  Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other  than Administrative Agent and the L/C Issuers as herein provided other than the security interests created  by the Collateral Documents in favor of Administrative Agent, for the benefit of the Secured Parties, to  





 






   -87-         secure the Obligations, or that the total amount of such Cash Collateral is less than the Minimum  Collateral Amount, Borrower will, promptly upon demand by Administrative Agent, pay or provide to  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.  (c) Application.  Notwithstanding anything to the contrary contained in this  Agreement, Cash Collateral provided under any of this Section 2.15 or Section 3.07 in respect of Credits  will be held and applied to the satisfaction of the applicable Defaulting Lender’s obligations to fund  participations in respect of Credit Obligations (including, as to Cash Collateral provided by a Defaulting  Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was  so provided, prior to any other application of such property as may be provided for herein.  (d) Release.  Cash Collateral (or the appropriate excess portion thereof in the case of  clause (ii) below) provided to reduce any L/C Issuer’s Fronting Exposure will no longer be required to be  held as Cash Collateral pursuant to this Section 2.15 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 Administrative Agent and the L/C Issuer that there exists excess Cash Collateral;  provided, however, (A) that Cash Collateral furnished by or on behalf of a Loan Party will not be released  during the continuance of a Default or Event of Default (and following application as provided in this  Section 2.15 may be otherwise applied in accordance with Section 8.05); (B) the Person providing Cash  Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral will not  be released but instead held to support future anticipated Fronting Exposure or other obligations; and (C)  to the extent Cash Collateral was provided by Borrower, such Cash Collateral will remain subject to the  security interest created by the Collateral Documents in favor of Administrative Agent, for the benefit of  the Secured Parties, to secure the Obligations.  Section 2.16 Designation of Restricted and Unrestricted Subsidiaries.  Borrower may, at any time from and after the Second Restatement Effective Date, designate any  Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted  Subsidiary; provided that (a) immediately before and after such designation, no Default or Event of  Default shall have occurred and be continuing, (b) immediately after giving effect to such designation,  Borrower shall be in compliance with the financial covenants set forth in Section 7.15 on a pro forma  basis, (c) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it was previously  designated as an Unrestricted Subsidiary and (c) if a Restricted Subsidiary is being designated as an  Unrestricted Subsidiary hereunder, such Restricted Subsidiary, together with all other Unrestricted  Subsidiaries as of such date of designation, shall not at any time account for, in the aggregate, (i) more  than 1.0% percent of the Consolidated gross revenues (after intercompany eliminations) of Borrower and  its Consolidated Subsidiaries (calculated inclusive of all Unrestricted Subsidiaries) or (ii) more than 1.0 %  of the Consolidated assets (after intercompany eliminations) of Borrower and its Consolidated  Subsidiaries (calculated inclusive of all Unrestricted Subsidiaries), in each case, as of the last day of the  most recently completed Test Period for which financial statements have been delivered pursuant to  Section 6.01(a) or (b), as applicable; and provided, further, that if all Unrestricted Subsidiaries at any  time account for, in the aggregate, (A) more than 1.0% of the Consolidated gross revenues (after  intercompany eliminations) of Borrower and its Consolidated Subsidiaries or (B) more than 1.0% of the  Consolidated assets (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries, in  each case, as of the last day of the most recently completed Test Period for which financial statements  have been delivered have been delivered pursuant to Section 6.01(a) or (b), as applicable, but calculated,  in connection with any Investment proposed to be consummated by any Unrestricted Subsidiary, on a pro  forma basis as if such  Investment occurred on the first day of such most recently completed Test Period,  Borrower shall designate one or more of such Unrestricted Subsidiaries to be Restricted Subsidiaries such  





 






   -88-         that, after giving effect to such designations, the Unrestricted Subsidiaries shall account for, in the  aggregate, (1) not more than 1.0% of the Consolidated gross revenues (after intercompany eliminations)  of Borrower and its Consolidated Subsidiaries and (2) not more than 1.0% of the Consolidated assets  (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries, in each case, as of the  last day of the most recently completed Test Period for which financial statements have been delivered  pursuant to Section 6.01(a) or (b), but calculated on a pro forma basis to be inclusive of any Investments  consummated by such Unrestricted Subsidiaries since the last day of such most recently completed Test  Period.  The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Second  Restatement Effective Date shall constitute an Investment by Borrower or the applicable Restricted  Subsidiary therein at the date of designation in an amount equal to the fair market value of Borrower’s or  the applicable Restricted Subsidiary’s investment therein. Neither Borrower nor any Restricted Subsidiary  shall at any time be directly or indirectly liable for any Indebtedness that provides the holder thereof may  (with the passage of time or notice or both) declare a default thereon or cause the payment thereof to be  accelerated upon the occurrence of a default with respect to any Indebtedness, Lien or other obligation of  an Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted  Subsidiary). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute  (A) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary  existing at such time and (b) a return on any Investment by  Borrower or the applicable Restricted  Subsidiary in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair  market value at the date of such designation of Borrower’s or such Restricted Subsidiary’s Investment in  such Subsidiary.  Section 2.17 Security for the Obligations.  Except as otherwise specifically provided in any Loan Document, all Obligations will be secured  pursuant to the terms of the Collateral Documents.    ARTICLE III  Taxes, Yield Protection and Illegality  Section 3.01 Taxes.  (a) Payments Free of Taxes.  Any and all payments by or on account of any  obligation of any Loan Party under any Loan Document will be made without deduction or withholding  for any Taxes, except as required by applicable 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 such payment by a Withholding Agent, then the applicable Withholding Agent will be entitled  to make such deduction or withholding and will 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 applicable Loan Party will be increased as necessary so that after such  deduction or withholding has been made (including such deductions and withholdings applicable to  additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the  sum it would have received had no such deduction or withholding been made.  (b) Payment of Other Taxes by the Loan Parties.  The Loan Parties will timely  pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of  Administrative Agent, timely reimburse it for the payment of, any Other Taxes.  (c) Indemnification.    





 






   -89-         (i) Indemnification by Each Loan Party.  The Loan Parties will jointly  and severally indemnify each Recipient, within ten days after written demand therefor, for the full amount  of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts  payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted  from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto,  whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority.  A certificate setting forth in reasonable detail as to the amount or amounts of  such payment or liability delivered to Borrower by a Lending Party (with a copy to Administrative  Agent), or by Administrative Agent on its own behalf or on behalf of a Lending Party, will be conclusive  absent manifest error.  (ii) Indemnification by the Lending Parties.  Each Lending Party will  severally indemnify Administrative Agent, within ten days after written demand therefor, for (i) any  Indemnified Taxes attributable to such Lending Party (but only to the extent that any Loan Party has not  already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation  of the Loan Parties to do so), (ii) any Taxes attributable to such Lending Party’s failure to comply with  the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (iii) any  Excluded Taxes attributable to such Lending Party, in each case, that are payable or paid by  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 setting forth in reasonable detail as to the amount  or amounts of such payment or liability delivered to any Lending Party by Administrative Agent shall be  conclusive absent manifest error.  Each Lending Party hereby authorizes Administrative Agent to set off  and apply any and all amounts at any time owing to such Lending Party under any Loan Document or  otherwise payable by Administrative Agent to the Lending Party from any other source against any  amount due to Administrative Agent under this Section 3.01(c)(ii).  (d) Evidence of Payments.  If requested by Administrative Agent, in its Reasonable  Discretion, as soon as practicable after any payment of Taxes by any Loan Party to a Governmental  Authority as provided in this Section 3.01, such Loan Party will deliver to Administrative Agent the  original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment  or other evidence satisfactory to Administrative Agent, in its Reasonable Discretion, a copy of any return  reporting such payment or other evidence of such payment satisfactory to Administrative Agent, in its  Reasonable Discretion.  (e) Status of Lenders.  (i) Any Lending Party that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Document will deliver to Borrower and  Administrative Agent, at the time or times reasonably requested by Borrower or Administrative Agent,  such properly completed and executed documentation reasonably requested by Borrower or  Administrative Agent as will permit such payments to be made without withholding or at a reduced rate  of withholding.  In addition, any Lending Party, if reasonably requested by Borrower or Administrative  Agent, will deliver such other documentation prescribed by applicable Law or reasonably requested by  Borrower or Administrative Agent as will enable Borrower or Administrative Agent to determine whether  or not such Lending Party is subject to backup withholding or information reporting requirements.   Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and  submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (B)  and (D)) will not be required if in the Lending Party’s reasonable judgment such completion, execution or  submission would subject such Lending Party to any material unreimbursed cost or expense or would  





 






   -90-         materially prejudice the legal or commercial position of such Lending Party.  For purposes of this Section  3.01(e), Administrative Agent will be treated as a Lending Party.  (ii) Without limiting the generality of the foregoing,  (A) any Lending Party that is a U.S. Person will deliver to Borrower  and Administrative Agent on or prior to the date on which such Lending Party becomes a Lending Party  under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or   Administrative Agent), executed originals of IRS Form W-9 certifying that such Lending Party is exempt  from U.S. federal backup withholding tax;  (B) any Foreign Lender will, to the extent it is legally entitled to do  so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the  recipient) on or prior to the date on which such Foreign Lender becomes a Lending Party under this  Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative  Agent), whichever of the following is applicable:  (1) (1) in the case of a Foreign Lender claiming the  benefits of an income tax treaty to which the United States is a party (x) with respect to payments of  interest under any Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E (as  applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the  “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan  Document, IRS Form W-8BEN or W-8BEN-E (as applicable) establishing an exemption from, or  reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of  such tax treaty;  (2) (2) executed originals of IRS Form W-8ECI;  (3) (3) in the case of a Foreign Lender claiming the  benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate  substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the  meaning of Section 881(c)(3)(A) of the Code, a “ten percent shareholder” of Borrower within the  meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section  881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form  W-8BEN or W-8BEN-E (as applicable); or  (4) (4) 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 or W-8BEN-E (as applicable), a U.S. Tax Compliance Certificate substantially in the  form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each  beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more  direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such  Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4  on behalf of each such direct and indirect partner;  (C) any Foreign Lender will, to the extent it is legally entitled to do  so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the  recipient) on or prior to the date on which such Foreign Lender becomes a Lending Party under this  Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative  Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming  exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such  





 






   -91-         supplementary documentation as may be prescribed by applicable law to permit Borrower or  Administrative Agent to determine the withholding or deduction required to be made;   (D) if a payment made to a Lending Party under any Loan Document  would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to  comply with the applicable reporting requirements of FATCA (including those contained in Section  1471(b) or 1472(b) of the Code, as applicable), such Lending Party will deliver to Borrower and  Administrative Agent at the time or times prescribed by law and at such time or times reasonably  requested by  Borrower or Administrative Agent such documentation prescribed by applicable Law  (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation  reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and  Administrative Agent to comply with their obligations under FATCA and to determine that such Lending  Party has complied with such Lending Party’s obligations under FATCA or to determine the amount to  deduct and withhold from such payment (and solely for purposes of this clause (D), “FATCA” shall  include any amendments made to FATCA after the date of this Agreement); and  (E) for purposes of determining withholding Taxes imposed under  FATCA, from and after the Second Restatement Effective Date, Borrower and Administrative Agent shall  treat (and the Lenders hereby authorize Administrative Agent to treat) this Agreement as not qualifying as  a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).  Each Lending Party agrees that if any form or certification it previously delivered expires or  becomes obsolete or inaccurate in any respect, it will update such form or certification or promptly notify  Borrower and Administrative Agent in writing of its legal inability to do so.  (f) Treatment of Certain Refunds.  If any party 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  pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section  3.01), it will pay to the indemnifying party an amount equal to such refund (but only to the extent of  indemnity payments made under this Section 3.01 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).  Such  indemnifying party, upon the request of such indemnified party, will repay to such indemnified party the  amount paid over pursuant to this Section 3.01(f) (plus any penalties, interest or other charges imposed  by the relevant Governmental Authority) in the event that such indemnified party is required to repay  such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this Section  3.01(f), in no event will the indemnified party be required to pay any amount to an indemnifying party  pursuant to this Section 3.01(f) 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 Tax subject to  indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and  the indemnification payments or additional amounts with respect to such Tax had never been paid.  This  Section 3.01(f) will not be construed to require any indemnified party to make available its Tax returns  (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any  other Person.  (g) Original Issue Discount.  Administrative Agent shall cooperate with Borrower  and will provide information and assistance reasonably requested by Borrower to determine (i) the “issue  price” of the Loans (within the meaning of Sections 1273 and 1274 of the Code) for U.S. federal income  and other applicable Tax purposes, and (ii) any other information necessary or helpful for Borrower to  comply with its Tax reporting and filing obligations.  





 






   -92-         (h) Survival.  Each party’s obligation under this Section will survive the resignation  or replacement of the Administrative Agent or any assignment of rights by, or replacement of, a Lender,  the termination of the commitments and the repayment, satisfaction or discharge of all obligations under  any Loan Document.  Section 3.02 Illegality.  If any Lender determines that any Change in Law has made it unlawful, or that any Governmental  Authority has asserted after the Second Restatement Effective Date that it is unlawful, for any Lender or  its applicable Lending Office to make, maintain or fund EurodollarEurocurrency Rate Loans (whether  denominated in Dollars or an Alternative Currency), or to determine or charge interest rates based upon  the EurodollarEurocurrency Rate, or any Governmental Authority has after the Second Restatement  Effective Date imposed material restrictions on the authority of such Lender to purchase or sell, or to take  deposits of, Dollars or any Alternative Currency in the applicable interbank market, then, on written  notice thereof by such Lender to Borrower through Administrative Agent, (a) any obligation of such  Lender to make or continue EurodollarEurocurrency Rate Loans in the affected currency or currencies, or,  in the case of EurodollarEurocurrency Rate Loans  denominated in Dollars, to convert Revolving Credit  Loans that are Base Rate Loans to EurodollarEurocurrency Rate Loans will be suspended, and (b) if such  notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on  which is determined by reference to the EurodollarEurocurrency Rate component of the Base Rate, the  interest rate on which Base Rate Loans of such Lender will, if necessary to avoid such illegality, be  determined by Administrative Agent without reference to the EurodollarEurocurrency Rate component of  the Base Rate, in each case until such Lender notifies Administrative Agent and Borrower that the  circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, (i)  Borrower will, upon written demand from such Lender (with a copy to Administrative Agent), prepay or,  if applicable, convert all EurodollarEurocurrency Rate Loans of such Lender to Base Rate Loans (the  interest rate on which Base Rate Loans of such Lender will, if necessary to avoid such illegality, be  determined by Administrative Agent without reference to the EurodollarEurocurrency Rate component of  the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue  to maintain such EurodollarEurocurrency Rate Loans to such day, or immediately, if such Lender may not  lawfully continue to maintain such EurodollarEurocurrency Rate Loans as indicated by a written notice  from such Lender to Administrative Agent and Borrower, and (ii) if such notice asserts the illegality of  such Lender determining or charging interest rates based upon the EurodollarEurocurrency Rate,  Administrative Agent will during the period of such suspension compute the Base Rate applicable to such  Lender without reference to the EurodollarEurocurrency Rate component thereof until Administrative  Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or  charge interest rates based upon the EurodollarEurocurrency Rate.  Upon any such prepayment or  conversion, Borrower will also pay accrued interest on the amount so prepaid or converted and all  amounts due under Section 3.05 in accordance with the terms thereof due to such prepayment or  conversion.  A Lender seeking payment of any amount under this Section 3.02 will use commercially  reasonable efforts to deliver to Borrower a certificate setting forth in reasonable detail any amount or  amounts that such Lender is entitled to receive pursuant to this Section 3.02, which certificate will be  conclusive absent manifest error; provided that the failure to deliver a certificate hereunder will not  relieve Borrower from any liability that it may have under this Section 3.02.  Section 3.03 Inability to DetermineAlternate Rates of Interest.  (a) (a) Inability to Determine Rates. If in connection with any request for a  EurodollarEurocurrency Rate Loan or a conversion to or continuation thereof, (i) Administrative Agent  determines that (A) deposits (whether in Dollars or an Alternative Currency) are not being offered to  banks in the applicable offshore interbank market for such currency for the applicable amount and Interest  





 






   -93-         Period of such EurodollarEurocurrency Rate Loan, or (B) (1) adequate and reasonable means do not exist  for determining the EurodollarEurocurrency Rate for any requested Interest Period with respect to a  proposed EurodollarEurocurrency Rate Loan (whether denominated in Dollars or an Alternative  Currency) or in connection with an existing or proposed Base Rate Loan and (2) the circumstances  described in Section 3.03(b)(i)  do not apply, or (ii) Required Lenders determine that for any reason the  EurodollarEurocurrency Rate for any requested Interest Period with respect to a proposed  EurodollarEurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of  funding such EurodollarEurocurrency Rate Loan, Administrative Agent will promptly so notify Borrower  and each Lender.  Thereafter, (1) the obligation of the Lenders to make or maintain  EurodollarEurocurrency Rate Loans in the affected currency or currencies shall be suspended, (to the  extent of the affected EurodollarEurocurrency Rate Loans or Interest Periods), and (2) in the event of a  determination described in the preceding sentence with respect to the EurodollarEurocurrency Rate  component of the Base Rate, the utilization of the EurodollarEurocurrency Rate component in  determining the Base Rate shall be suspended, in each case until Administrative Agent (or, in the case of  a determination by Required Lenders described in clause (ii) of this Section 3.03(a), until Administrative  Agent upon instruction of Required Lenders given at such time as the relevant circumstances ceases to be  applicable, as determined by Required Lenders in good faith) revokes such notice.  Upon receipt of such  notice, Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of  EurodollarEurocurrency Rate Loans in the affected currency or currencies or, failing that, will be deemed  to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified  therein; provided that, in the case of a pending request for a Loan denominated in an Alternate Currency,  Borrower, Administrative Agent and Required Lenders may alternatively establish a mutually acceptable  alternative rate.  (b) (b) Effect of Benchmark Transition EventReplacement Setting.  (i) Benchmark Replacement.  (A) Notwithstanding anything to the contrary herein or in any other  Loan Document, if a Benchmark Transition Event or any Early Opt-In Election, as applicable, and its  related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting  of the Adjusted LIBO Rate for Dollars, then (x) if a Benchmark Replacement is determined in accordance  with clause (1)(a) or clause (2) of the definition of “Benchmark Replacement” (as set forth in Section  1.01) for such Benchmark Replacement Date, such Benchmark Replacement will replace the then-current  Benchmark with respect to Obligations, interest, fees, commissions or other amounts denominated in, or  calculated with respect to, Dollars for all purposes hereunder and under any Loan Document in respect of  such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action  or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark  Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement”  for such Benchmark Replacement Date, 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. 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 Required Lenders.  (B) Notwithstanding anything to the contrary herein or in any other  Loan Document, if a Benchmark Transition Event or any Early Opt-In Election, as applicable, and its  related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting  of the Adjusted LIBO Rate for Sterling or Swiss Francs, as the case may be, then (x) if a Benchmark  Replacement is determined in accordance with clause (1)(b) or (c), as applicable, of the definition of  





 






   -94-         “Benchmark Replacement” (as set forth in Section 1.01) for such Benchmark Replacement Date, such  Benchmark Replacement will replace the then-current Benchmark with respect to Obligations, interest,  fees, commissions or other amounts denominated in, or calculated with respect to, Sterling or Swiss  Francs, as applicable, for all purposes hereunder and under any Loan Document in respect of such  Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or  consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark  Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement”  for such Benchmark Replacement Date, 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. 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 Required Lenders.  (C)  (i) Benchmark Replacement.  NotwithstandingSubject to Sections 3.03(b)(i)(A) and (B) but  otherwise notwithstanding anything to the contrary herein or in any other Loan Document, upon the  occurrence ofif a Benchmark Transition Event or anany Early Opt-inOpt-In Election, as applicable,  Administrative Agent and Borrower may amend this Agreement to replace LIBOR with aand its related  Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will  become effective at Date have occurred prior to the Reference Time in respect of any setting of the  Relevant Rate (other than the Adjusted LIBO Rate for Dollars, Sterling or Swiss Francs), then the  Benchmark Replacement shall be determined in accordance with clause (3) of the definition of  “Benchmark Replacement” for such Benchmark Replacement Date and 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. on the fifth (5th) Business Day after Administrative Agent has  posted such proposed amendment to all Lenders and Borrower so long asthe 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 amendmentBenchmark  Replacement from Lenders comprising Required Revolving Credit Lenders and, if applicable, Required  Incremental Term Loan Lenders. Any such amendment with respect to an Early Opt-in Election will  become effective on the date that Lenders comprising Required Revolving Credit Lenders and, if  applicable, Required Incremental Term Loan Lenders have delivered to the Administrative Agent written  notice that such Required Revolving Credit Lenders and, if applicable, Required Incremental Term Loan  Lenders accept such amendment. No replacement of LIBOR with a Benchmark Replacement pursuant to  this Section 3.03(b) will occur prior to the applicable Benchmark Transition Start Date.Lenders.  (ii)  (ii) Benchmark Replacement Conforming Changes.  In  connection with the implementation of a Benchmark Replacement, 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; provided that, in each case,  Administrative Agent shall provide Borrower with prior written notice of any such Benchmark  Replacement Conforming Changes.  (iii)  (iii) Notices; Standards for Decisions and Determinations.   Administrative Agent will promptly notify Borrower and the Lenders of (A) any occurrence of a  Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark  Replacement Date and Benchmark Transition Start Date, (B) the implementation of any Benchmark  





 






   -95-         Replacement, and (CB) the effectiveness of any Benchmark Replacement Conforming Changes and (D)  the commencement or conclusion of any Benchmark Unavailability Period.  Administrative Agent will  promptly notify Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to  Section 3.03(b)(iv).  Any determination, decision or election that may be made by Administrative Agent  or the, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.03(b), 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 heretoto this Agreement or any other Loan Document, except, in  each case, as expressly required pursuant to this Section 3.03(b).  (iv) Unavailability of Tenor of Benchmark.  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), (A) if any then-current Benchmark is a term rate  (including any Adjusted LIBO Rate, Adjusted EURIBOR Rate, Adjusted TIBOR Rate, CDOR Rate or  Term SOFR) and either (I) 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 Administrative Agent in its  reasonable discretion or (II) 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 Administrative Agent may modify the definition of “Interest  Period” set forth in Section 1.01 (or any similar or analogous definition) for any Benchmark settings at or  after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was  removed pursuant to clause (A) above either (I) is subsequently displayed on a screen or information  service for a Benchmark (including a Benchmark Replacement) or (II) 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 Administrative Agent may modify the definition of “Interest Period” (or any similar  or analogous definition) for all Benchmark settings at or after such time to reinstate such previously  removed tenor.  (v)  (iv) Benchmark Unavailability Period.  Upon Borrower’s  receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given  Benchmark, Borrower may revoke any pending request for a Borrowing of Eurodollar Rate Loans or  aborrowing of, conversion to or continuation of EurodollarEurocurrency Rate Loans to be made,  converted or continued during any Benchmark Unavailability Period denominated in the applicable  Agreed Currency and, failing that, (A)(I) in the case of any request for any affected Eurocurrency Rate  Loans denominated in Dollars, Borrower will be deemed to have converted any such request into a  request for a Borrowingborrowing of or conversion to Base Rate Loans.  in the amount specified therein  and (II) in the case of any request for any Eurocurrency Rate Loan denominated in an Alternative  Currency, then such request shall be ineffective, and (B)(I) any outstanding affected Eurocurrency Rate  Loans denominated in Dollars, at the Borrower’s election, shall either (1) be deemed to have been  converted into Base Rate Loans immediately or at the end of the applicable Interest Period or (2) be  prepaid in full at the end of the applicable Interest Period, and (II) any outstanding affected Eurocurrency  Rate Loans denominated in an Alternative Currency, at the Borrower’s election, shall either (1) be  converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of  such Alternative Currency) immediately or, in the case of Eurocurrency Rate Loans based on a term rate,  at the end of the applicable Interest Period or (2) be prepaid in full immediately or, in the case of  Eurocurrency Rate Loans based on a term rate, at the end of the applicable Interest Period; provided that  if no election is made by Borrower by the date that is three (3) Business Days after receipt by Borrower of  such notice, Borrower shall be deemed to have elected clause Error! Reference source not found. of each  of the foregoing clauses (I) and (II) above.  Upon any such prepayment or conversion, Borrower shall  also pay accrued interest on the amount so prepaid or converted, together with any additional amounts  





 






   -96-         required pursuant to Section 3.05.  During a Benchmark Unavailability Period with respect to any  Benchmark or at any time that a tenor for any then-current Benchmark is not an Available Tenor, the  component of Base Rate based upon the then-current Benchmark that is the subject of such Benchmark  Unavailability Period or such tenor for such Benchmark, as applicable, will not be used in any  determination of Base Rate.  (c) Alternative Currencies.  If, after the designation by the Lenders of any currency  as an Alternative Currency, any change in currency controls or exchange regulations or any change in  national or international financial, political or economic conditions are imposed in the country in which  such currency is issued, and such change results in, in the reasonable opinion of Administrative Agent  (including based on notices received from one or more Lenders), that (i) such currency no longer being  readily available, freely transferable and convertible into Dollars, (ii) a Dollar Equivalent no longer being  readily calculable with respect to such currency, (iii) such currency being impracticable for the Lenders to  loan or (iv) such currency no longer being a currency in which Lenders comprising Required Lenders are  willing to make Credit Extensions (each of clauses (i), (ii), (iii) and (iv), a “Disqualifying Event”), then  Administrative Agent shall promptly notify the Lenders and Borrower in writing, and such currency shall  no longer be an Alternative Currency until such time as the Disqualifying Event(s) no longer exist.   Within five (5) Business Days after receipt of such a written notice from Administrative Agent, Borrower  shall repay all Loans denominated in such currency to which the Disqualifying Event(s) apply or convert  such Loans into the Dollar Equivalent in Dollars, bearing interest at the Base Rate, subject to the other  terms contained herein.  Section 3.04 Increased Costs.  (a) Increased Costs Generally.  If any Change in Law will:  (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 or participated in by, any Lending Party (except any reserve requirement  reflected in the Eurodollarapplicable Eurocurrency Rate);  (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes  and (B) Excluded 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 L/C Issuer or the London interbank offered  market any other condition, cost or expense (other than Taxes) affecting this Agreement or  EurodollarEurocurrency Rate Loans made by such Lender or any Credit or participation therein;  and the result of any of the foregoing will be to increase the cost to such Lender of making,  converting to, continuing or maintaining any Loan the interest on which is determined by reference to the  EurodollarEurocurrency Rate (or of maintaining its obligation to make any such Loan), or to increase the  cost to such Lender or L/C Issuer of participating in, issuing or maintaining any Credit (or of maintaining  its obligation to participate in or to issue any Credit), or to reduce the amount of any sum received or  receivable by such Lending Party hereunder (whether of principal, interest or any other amount), then,  upon request of such applicable Lending Party, Borrower will pay to such Lending Party such additional  amount or amounts as will compensate such Lending Party for such additional costs incurred or reduction  suffered.  (b) Capital Requirements.  If any Lending Party determines that any Change in  Law affecting such Lending Party or the Lending Office of such Lending Party or such Lending Party’s  





 






   -97-         holding company, if any, regarding capital or liquidity requirements has or would have the effect of  reducing the rate of return on such Lending Party’s capital or on the capital of such Lending Party’s  holding company, if any, as a consequence of this Agreement, the Commitments of any such Lender or  the Loans made by, or participations in Credits held by, any such Lender, or the Credits issued by any  such L/C Issuer, to a level below that which such Lending Party or such Lending Party’s holding  company could have achieved but for such Change in Law (taking into consideration such Lending  Party’s policies and the policies of such Lending Party’s holding company with respect to capital  adequacy), then from time to time Borrower will pay to such Lending Party such additional amount or  amounts as will compensate such Lending Party or such Lending Party’s holding company for any such  reduction suffered.    (c) Certificates for Reimbursement.  A certificate of a Lending Party setting forth  the amount or amounts necessary to compensate such Lending Party or its holding company, as the case  may be, as specified in Sections 3.04(a) and 3.04(b), and delivered to Borrower will be conclusive absent  manifest error. Borrower will pay such Lending Party the amount shown as due on any such certificate  within ten days after receipt thereof.  (d) Delay in Requests.  Failure or delay on the part of any Lender or L/C Issuer to  demand compensation pursuant to the foregoing provisions of this Section 3.04 will not constitute a  waiver of such Lender’s or L/C Issuer’s right to demand such compensation; provided that Borrower will  not be required to compensate a Lender or L/C Issuer pursuant to the foregoing provisions of this Section  3.04 for any increased costs incurred or reductions suffered more than 180 days prior to the date that such  Lender or L/C Issuer, as the case may be, notifies Borrower of the Change in Law giving rise to such  increased costs or reductions and of such Lender’s or L/C Issuer’s intention to claim compensation  therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive,  then the 180 day period referred to in this subsection (d) will be extended to include the period of  retroactive effect thereof).  Section 3.05 Compensation for Losses.  Upon written demand of any Lender (with a copy to Administrative Agent) from time to time,  Borrower will promptly compensate such Lender for and hold such Lender harmless from any loss, cost  or expense incurred by it as a result of (a) any continuation, conversion, payment or prepayment of any  Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan  (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise), (b) any failure by  Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue  or convert any Loan other than to continue a Loan as, or to convert a Loan to, a Base Rate Loan on the  date or in the amount notified by Borrower or (c) any assignment of a EurodollarEurocurrency Rate Loan  other than on the last day of the Interest Period applicable thereto as a result of a request by Borrower,  including  pursuant to Section 3.08, in the case of each of the foregoing clauses (a) through (c) for the  loss, cost and expense attributable to such event in an amount computed as follows: the excess, if any, of  (i) the amount of interest that would have accrued on the principal amount of such Loan had such event  not occurred, at the interest rate that would have been applicable to such Loan, for the period from the  date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to  borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over  (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate  with the Lender (or an affiliate of the Lender) would bid were it to bid, at the commencement of the  interest period, for U.S. Dollar deposits of a comparable amount and period from other banks in the  London interbank eurodollarEurocurrency market.  For purposes of calculating amounts payable to any  Lender under this Section 3.05, such Lender will be deemed to have funded each EurodollarEurocurrency  Rate Loan denominated in an Alternative Currency made by it at the EurodollarEurocurrency Rate for  





 






   -98-         such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency  for a comparable amount and for a comparable period, whether or not such EurodollarEurocurrency Rate  Loan was in fact so funded.  A Lender seeking payment of any amount under this Section 3.05 will use  commercially reasonable efforts to deliver to Borrower a certificate setting forth in reasonable detail the  amount or amounts necessary to compensate such Lender as specified in this Sections 3.05, as well as the  basis for determining such amount or amounts, which certificate will be conclusive absent manifest error;  provided that the failure to deliver a certificate hereunder will not relieve Borrower from any liability that  it may have under this Section 3.05.  Borrower will pay such Lender the amount shown as due on any  such certificate on demand within ten days after receipt of such certificate.  Section 3.06 Mitigation Obligations.  Notwithstanding anything to the contrary contained in Section 10.01, if any Lending Party  requests compensation under Section 3.04, or Borrower is required to pay additional amounts to any  Lending Party or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or  if any Lending Party gives a notice pursuant to Section 3.02, then such Lending Party, at the request of  Borrower, will 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 reasonable judgment of such Lending Party, such designation or assignment:  (i) would  eliminate or reduce amounts payable pursuant to Section 3.01 or Section 3.04, as the case may be, in the  future, or eliminate the need for the notice pursuant to Section 3.02, as applicable; and (ii) in each case,  would not subject such Lending Party to any unreimbursed cost or expense and would not otherwise be  disadvantageous to such Lending Party as reasonably determined by such Lending Party.  Borrower  hereby agrees to pay all reasonable costs and expenses incurred by any Lending Party in connection with  any such designation or assignment.  Section 3.07 Defaulting Lenders.  (a) Defaulting Lender Adjustments.  Notwithstanding anything to the contrary  contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that  Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:  (i) Waivers and Amendments.  That Defaulting Lender’s right to approve  or disapprove any amendment, waiver or consent with respect to this Agreement will be restricted as set  forth in Section 10.01.  (ii) Reallocation of Payments.  Any payment of principal, interest, fees or  other amounts received by Administrative Agent for the account of that Defaulting Lender (whether  voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts  made available to Administrative Agent by that Defaulting Lender pursuant to Section 10.08), will be  applied at such time or times as may be determined by Administrative Agent as follows: first, to the  payment of any amounts owing by that Defaulting Lender to Administrative Agent hereunder; second, to  the payment on a pro rata basis of any amounts owing by that Defaulting Lender to L/C Issuer or Swing  Line Lender hereunder; third, to Cash Collateralize each L/C Issuer’s Fronting Exposure with respect to  that Defaulting Lender in accordance with Section 2.15; fourth, as Borrower may request (so long as no  Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender  has failed to fund its portion thereof as required by this Agreement, as determined by Administrative  Agent; fifth, if so determined by Administrative Agent and Borrower, to be held in a non-interest bearing  deposit account and released pro rata in order to (1) satisfy that Defaulting Lender’s potential future  funding obligations with respect to Loans under this Agreement and (2) Cash Collateralize each L/C  Issuer’s future Fronting Exposure with respect to that Defaulting Lender with respect to future Credits  





 






   -99-         issued under this Agreement in accordance with Section 2.15; sixth, to the payment of any amounts  owing to the Lenders, the L/C Issuers or Swing Line Lender as a result of any judgment of a court of  competent jurisdiction obtained by any Lender, any L/C Issuer or Swing Line Lender against that  Defaulting Lender as a result of that 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  Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against  that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this  Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent  jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or L/C  Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (2)  such Loans were made or the related Credits were issued at a time when the conditions set forth in  Section 4.02 were satisfied or waived, such payment will be applied solely to pay the Loans of, and L/C  Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the  payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender until such time as all Loans  and funded and unfunded participations in Credit Obligations and Swing Line Loans are held by the  Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect  to Section 3.07(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 3.07(a)(ii) will be deemed paid to and redirected by that Defaulting Lender, and  each Lender irrevocably consents hereto.  (iii) Certain Fees.  (A) No Defaulting Lender will be entitled to receive any Revolving  Credit Commitment Fee pursuant to Section 2.09(a) for any period during which that Lender is a  Defaulting Lender (and Borrower will not be required to pay any such fee that otherwise would have been  required to have been paid to that Defaulting Lender).  (B) A Defaulting Lender will be entitled to receive Credit Fees for  any period during which that Lender is a Defaulting Lender only to the extent allocable to its Revolving  Credit Percentage Share of the stated amount of Credits for which it has provided Cash Collateral  pursuant to Section 2.15.  (C) With respect to any Revolving Credit Commitment Fee or Credit  Fee not required to be paid to any Defaulting Lender pursuant to the preceding clauses (A) or (B),  Borrower will (1) 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 Credit Obligations or  Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to Section  3.07(a)(iv), (2) pay to the L/C Issuer and the Swing Line Lender, as applicable, the amount of any such  fee otherwise payable to such Defaulting Lender to the extent allocable to the L/C Issuer’s or Swing Line  Lender’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining  amount of any such fee.  (iv) Reallocation of Participations to Reduce Fronting Exposure.  All or  any part of that Defaulting Lender’s participation in Credit Obligations and Swing Line Loans will be  reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Credit  Percentages Shares (calculated without regard to that Defaulting Lender’s Revolving Credit  Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit  Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving  Commitment.  No reallocation hereunder will 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,  





 






   -100-         including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased  exposure following such reallocation.  (v) Cash Collateral, Repayment of Swing Line Loans.  If the reallocation  described in Section 3.07(a)(iv) cannot or can only partially be effected, Borrower will, without prejudice  to any right or remedy available to it hereunder or under applicable Law, first, prepay all Swing Line  Loans then outstanding in an amount equal to the Swing Line Lenders’ Fronting Exposure and second,  Cash Collateralize each L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in  Section 2.15.  (b) Defaulting Lender Cure.  If Borrower, Administrative Agent, the L/C Issuers  and Swing Line Lender agree in writing in their sole discretion that a Defaulting Lender should no longer  be deemed to be a Defaulting Lender, 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 Revolving Credit Loans of the other Lenders or take such other  actions as Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and  funded and unfunded participations in Credits and Swing Line Loans to be held on a pro rata basis by the  Lenders in accordance with their Revolving Credit Percentage Share (without giving effect to Section  3.07(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments  will be made retroactively with respect to fees accrued or payments made by or on behalf of 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) New Swing Line Loans/Credits.  So long as any Lender is a Defaulting Lender,  (i) the Swing Line Lender will not be required to fund any Swing Line Loans unless it is satisfied that it  will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) the L/C Issuers will  not be required to issue, extend, renew or increase any Credit unless it is satisfied that it will have no  Fronting Exposure after giving effect thereto.  Section 3.08 Replacement of Lenders.  (a) Notwithstanding anything to the contrary contained in Section 10.01, Borrower  may, with respect to any Specified Lender, at its sole expense and effort and upon written notice to such  Lender and Administrative Agent, require such Specified Lender to assign and delegate, without recourse  (in accordance with and subject to the restrictions contained in, and consents required by, Section  10.06(b)), all of its interests, rights (except to the extent provided in Section 3.07(b)) and obligations  under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such  obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:  (i) Borrower will have paid to Administrative Agent the assignment fee (if  any) specified in Section 10.06(b);  (ii) such Specified Lender will have received payment of an amount equal to  the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other Obligations  payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05)  from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower  (in the case of all other amounts);  





 






   -101-         (iii) in the case of any such assignment resulting from a claim for  compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such  assignment will result in a reduction in such compensation or payments thereafter;  (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, the applicable assignee will have consented to the applicable amendment, waiver or  consent;  provided; however, that a Lender will 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 Borrower  to require such assignment and delegation cease to apply.  Each Lender hereby grants to Administrative Agent a power of attorney (which power of  attorney, being coupled with an interest, is irrevocable) to execute and deliver, on behalf of such Lender,  as assignor, any Assignment and Assumption necessary to effectuate any assignment of such Lender’s  interests hereunder in circumstances contemplated by this Section 3.08(a).  (b) Certain Rights as a Lender.  Upon the prepayment of all amounts owing to any  Specified Lender and the termination of such Lender’s Commitments pursuant to this Section 3.08, such  Specified Lender will no longer constitute a “Lender” for purposes hereof; provided that such Specified  Lender will continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 10.04 with respect to  facts and circumstances occurring prior to the date on which all amounts owing to such Specified Lender  were prepaid in full and the Commitments of such Specified Lender were terminated pursuant to this  Section 3.08.  (c) Evidence of Replacement.  Promptly following the replacement of any  Specified Lender in accordance with this Section 3.08, Administrative Agent will distribute an amended  Schedule 2.01, which will be deemed incorporated into this Agreement, to reflect changes in the  identities of Lenders and adjustments of their respective Commitments or Percentage Shares, as  applicable, resulting from any such removal or replacement.  Section 3.09 Survival.  All obligations of the Loan Parties under this Article III will survive termination of the  Aggregate Commitments and repayment of all other Obligations.  ARTICLE IV  Conditions Precedent  Section 4.01 Conditions to the Effectiveness of this Agreement.  The effectiveness of this Agreement and the agreement of the Lending Parties to provide the  Credit Extensions described herein (including the initial Credit Extensions hereunder) is subject to the  satisfaction of the conditions precedent set forth in this Section 4.01.  (a) Receipt of Certain Documents.  Administrative Agent will have received the  following, each of which will be, unless otherwise specified herein or otherwise required by  Administrative Agent, originals (or facsimiles or other electronic image scan versions thereof (e.g.,  “PDF”), each, to the extent to be executed by a Loan Party, duly executed by a Responsible Officer of  





 






   -102-         such Loan Party, each dated the Second Restatement Effective Date (or, in the case of certificates of  governmental officials, a recent date before the Second Restatement Effective Date):  (i) This Agreement.  this Agreement, executed by Borrower and each other  Loan Party, each Lending Party and Administrative Agent, together with all completed Schedules to this  Agreement;  (ii) Notes.  if requested by any Lender at least two Business Days in advance  of the Second Restatement Effective Date, separate Notes executed by Borrower in favor of each such  requesting Lending Party evidencing, as applicable, the Revolving Credit Loans or Swing Line Loans to  be made by such Lending Party hereunder;  (iii) Secretary’s Certificates.  certificates, executed by the secretary or  assistant secretary (or other Responsible Officer) of each Loan Party on behalf of such Loan Party,  certifying, among other things, (A) that attached to such certificate are true, correct and complete copies  of (1) the Organizational Documents of such Loan Party then in full force and effect, (2) the resolutions  then in full force and effect adopted by the Board of Directors of such Loan Party authorizing and  ratifying the execution, delivery and performance by such Loan Party of the Loan Documents to which it  is a party, and (3) a certificate of good standing or status from the secretary of state of the state under  whose laws such Loan Party was formed or incorporated, as applicable, (B) the name(s) of the  Responsible Officers of such Loan Party authorized to execute Loan Documents on behalf of such Loan  Party, together with a incumbency samples of the true signatures of such Responsible Officers, and (C)  that Administrative Agent and the Lending Parties may conclusively rely on such certificate;  (iv) Bring-Down Certificate.  a certificate executed by a Responsible  Officer of Borrower, certifying that the conditions specified in clauses (a), (b) and (c) of Section 4.02 to  the Credit Extensions requested by Borrower to be advanced on the Second Restatement Effective Date  have been satisfied;  (v) Opinions of the Loan Parties’ Counsel.  such favorable opinion of  Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Loan Parties, reasonably acceptable to  Administrative Agent and its counsel, addressed to Administrative Agent and each Lending Party as of  the Second Restatement Effective Date, as to such matters as are reasonably required by Administrative  Agent or any Lending Party with respect to the Loan Parties and the Loan Documents;   (vi) Collateral Documents.  the following Collateral Documents:  (A) Security Agreement.  (i) the Security Agreement, executed by  each Loan Party in favor of Administrative Agent, for the benefit of the Secured Parties, together with all  completed schedules thereto and (ii) the original stock certificates (or equivalent certificates) evidencing  all of the outstanding issued and outstanding Equity Interests in each of Borrower’s direct and indirect  Subsidiaries that are required to be delivered pursuant to the Security Agreement as of the Second  Restatement Effective Date, with accompanying undated stock powers (or equivalent assignments)  executed in blank (collectively, the “Second Restatement Effective Date Domestic Equity Interest  Collateral”) (for purposes of satisfying the condition precedent of this clause (vi)(A), Administrative  Agent confirms that, as of the Second Restatement Effective Date, it continues to maintain possession of  the Second Restatement Effective Date Domestic Equity Interest Collateral as previously delivered to  Administrative Agent pursuant to the First Restated Credit Agreement);  (B) Financing Statements.  Financing Statements naming each  Loan Party as debtor and Administrative Agent as secured party and describing the collateral as “all assets  





 






   -103-         now owned or existing or hereafter acquired or arising” or words of similar effect, to be filed by the  Administrative Agent, on or after the Second Restatement Effective Date, with such governmental UCC  filing offices as Administrative Agent will reasonably require, which Financing Statements will be in  addition to the Financing Statements (as defined in the First Restated Credit Agreement) previously filed  with governmental UCC filing offices pursuant to the First Restated Credit Agreement; and  (C) Foreign Collateral Documents.  (1) the Security Confirmation  dated as of the date hereof, confirming the Swiss Pledge Agreement, executed by Borrower, together with  original stock certificate(s) evidencing 65% of the outstanding shares of issued and outstanding voting  Equity Interests in Semtech (International), with accompanying assignments in blank (the “Second  Restatement Effective Date Swiss Equity Interest Collateral”), and (2) a copy of the register of  shareholders and beneficial owners in Semtech (International) certified by a Responsible Officer of  Semtech (International) to be accurate and complete as of the date of this Agreement (for purposes of  satisfying the condition precedent of this clause (vi)(C), Administrative Agent confirms that, as of the  Second Restatement Effective Date, it continues to maintain possession of the Second Restatement  Effective Date Swiss Equity Interest Collateral as previously delivered to Administrative Agent pursuant  to the First Restated Credit Agreement);  (b) Insurance.  Administrative Agent will have received documentation reasonably  satisfactory to it demonstrating that all insurance required to be maintained pursuant to Section 6.06 has  been obtained and is in effect, including the certificates and lender loss payable endorsement naming  Administrative Agent, for the benefit of the Secured Parties, as lender loss payee in respect of each policy  of property insurance of the Loan Parties, and Administrative Agent, on behalf and for the benefit of itself  and the Lending Parties, as additional insureds in respect of each policy of liability insurance of the Loan  Parties.  (c) No Litigation.  No Proceeding instituted by any Person (including any  Governmental Authority) will be pending in any court or before any arbitrator or mediator or before any  Governmental Authority, or will have been threatened in writing by any Person (including any  Governmental Authority) to be instituted, (i) with respect to this Agreement or any of the related Loan  Documents, or (ii) which could, if adversely determined, reasonably be expected to have or result in a  Material Adverse Effect.  (d) [Reserved].   (e) Financial Projections.  Administrative Agent will have received projected  financial statements (including Consolidated balance sheets, income statements and statements of cash  flows) of Borrower and its Consolidated Subsidiaries through the fifth Fiscal Year following the Second  Restatement Effective Date (which for the first Fiscal Year will be shown on a quarterly basis) prepared  on a pro forma basis after giving effect to the Transactions, in form and substance and at levels  satisfactory to the Arrangers.  (f) Know Your Customer.  Administrative Agent will have received all  documentation and other information requested by any Lender from the Loan Parties under applicable  “know your customer” and other Sanctions, anti-money laundering and anti-corruption Laws, including  the PATRIOT Act, with results satisfactory to each Lender.  (g) Beneficial Ownership Certification. To the extent Borrower qualifies as a  “legal entity customer” under the Beneficial Ownership Regulation, at least three Business Days prior to  the Second Restatement Effective Date, if any Lender has so requested in a written notice delivered to  





 






   -104-         Borrower at least ten Business Days prior to the Second Restatement Effective Date, such Lender shall  have received a Beneficial Ownership Certification in relation to Borrower.   (h) New Lender Agreements.  Administrative Agent will have received from any  new Lender acceding to this Agreement, and not previously party to the First Restated Credit Agreement  (each a “New Lender”) an accession agreement (a “New Lender Agreement”), executed by such New  Lender and accepted by Administrative Agent.  (i) Payment of Unpaid Fees, Expenses, Charges and Disbursements Related to  the First Restated Credit Agreement.  Borrower will have paid or will concurrently pay, using proceeds  of the initial Credit Extensions under this Agreement, all accrued and unpaid interest, and all accrued and  incurred and unpaid fees, costs and expenses payable to the Existing Lenders outstanding as of the  Second Restatement Effective Date under the First Restated Credit Agreement.  (j) Payment of Fees, Expenses, Charges and Disbursements Related to the  Transactions.  Borrower will have paid or will concurrently pay, using proceeds of the initial Credit  Extensions under this Agreement, all (i) fees required to be paid to Administrative Agent, the Arrangers  and any Lending Party on or before the Second Restatement Effective Date and (ii) reasonable and  documented out-of-pocket fees, expenses, charges and disbursements of HSBC as an Arranger and as  Administrative Agent (limited, in the case of legal fees and expenses, to the reasonable fees, expenses,  charges and other disbursements of Sheppard Mullin Richter & Hampton, LLP, as primary counsel to  HSBC in its capacities as an Arranger and Administrative Agent, plus, if retained by HSBC as an  Arranger and as Administrative Agent, one firm of local counsel in each relevant material jurisdiction,  which shall include Switzerland and such other relevant jurisdictions as are determined by HSBC in good  faith to be material, and which may include a single special counsel acting in multiple jurisdictions), in  each case invoiced at least two Business days prior to the Second Restatement Effective Date and  incurred in connection with the Facilities and the preparation, negotiation and enforcement of the Loan  Documents and any collateral arrangements in connection therewith, plus such additional amounts of such  fees, charges and disbursements as will constitute its reasonable estimate of such fees, charges and  disbursements incurred or to be incurred by HSBC through the closing proceedings (provided that such  estimate will not thereafter preclude a final settling of accounts between Borrower and Administrative  Agent).   Notwithstanding anything to the contrary contained herein, this Agreement will not become  effective or be binding on any party hereto unless all of the conditions precedent to the effectiveness of  this Agreement as specified in this Section 4.01 are satisfied (or are otherwise waived in writing in  accordance with this Agreement) at or before 2:00 p.m. on December 26, 2019.  Administrative Agent  will promptly notify each Borrower and each Lending Party of the occurrence of the Second Restatement  Effective Date, and such notice will be conclusive and binding on all parties hereto.  For purposes of  determining compliance with the conditions specified in this Section 4.01 (but without limiting the  generality of the provisions of Section 9.04), (a) each Lending Party that has signed this Agreement will  be deemed to have consented to, approved or accepted or become satisfied with, each document or other  matter required hereunder to be consented to or approved by or to be acceptable or satisfactory to a  Lending Party unless Administrative Agent will have received written notice from such Lending Party  prior to the proposed Second Restatement Effective Date specifying its objection thereto, and (b) the  making or issuance of a Credit Extension hereunder by a Lending Party on the Second Restatement  Effective Date being conclusively deemed to be its satisfaction or waiver of the conditions precedent set  forth in this Section 4.01 and in Section 4.02 with respect to such Credit Extension.  Section 4.02 Conditions to All Credit Extensions.  





 






   -105-         The obligation of each Lending Party to make any Credit Extension hereunder (including its  initial Credit Extensions on the Second Restatement Effective Date) or to honor any Request for Credit  Extension is further subject to the satisfaction, as determined by Administrative Agent, of each of the  separate and additional conditions precedent set forth in this Section 4.02.  (a) Truth and Correctness of Representations and Warranties.  The  representations and warranties of Borrower and each other Loan Party contained in this Agreement  (including Article V) or in any other Loan Document (or, in respect of the initial Credit Extensions to be  made as of the Second Restatement Effective Date only, in the Collateral Information Certificate) will be  true and correct in all material respects (except that such materiality qualifier will not be applicable to any  portion of any representation and warranty that is already qualified or modified by materiality in the text  thereof) on and as of the date of such Credit Extension (excluding, with respect to requested Credit  Extensions other than the initial Credit Extensions made on the Second Restatement Effective Date, the  representations and warranties contained in Section 5.05 and Section 5.10(b)), except to the extent that  any such representation or warranty specifically refers to an earlier date, in which case such  representation or warranty will be true and correct in all material respects (except that such materiality  qualifier will not be applicable to any portion of any representation and warranty that is already qualified  or modified by materiality in the text thereof) as of such earlier date, and except that for purposes of this  Section 4.02, the representations and warranties contained in Section 5.10(a) will be deemed to refer to  the most recent statements furnished pursuant to Section 6.01 (provided, however, that in the case of any  Borrowing of any Additional Revolving Credit Loan or any Incremental Term Loan for the express  purpose of funding, in whole or in part, the Acquisition Consideration of a Limited Condition Transaction  (including any portion which repays Indebtedness of the Target, including any Subsidiary or other  Affiliate thereof being acquired in such Limited Condition Transaction), the representations and  warranties required to be true and correct as set forth in this clause (a) shall be limited to the Specified  Representations).  (b) No Default or Event of Default.  No Default or Event of Default will then exist,  or will result from such proposed Credit Extension or from the application of the proceeds thereof or from  the honoring of any Request for Credit Extension (provided, however, that in the case of any Borrowing  of any Additional Revolving Credit Loan or any Incremental Term Loan for the express purpose of  funding, in whole or in part, the Acquisition Consideration of a Limited Condition Transaction (including  any portion which repays Indebtedness of the Target, including any Subsidiary or other Affiliate thereof  being acquired in such Limited Condition Transaction), no Specified Event of Default shall have occurred  and be continuing).   (c) No Material Adverse Effect.  No Material Adverse Effect will have occurred  since January 27, 2019.  (d) Requests for Credit Extensions.  Administrative Agent and, if applicable, the  Swing Line Lender or L/C Issuer will have received the applicable Request for Credit Extension.  (e) Alternative Currencies.  In the case of a Credit Extension to be denominated in  an Alternative Currency, there will not have occurred any change in national or international financial,  political or economic conditions or currency exchange rates or exchange controls which in the reasonable  opinion of Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an  Alternative Currency) or the L/C Issuer (in the case of any Credit to be denominated in an Alternative  Currency) would make it impracticable for such Credit Extension to be denominated in the relevant  Alternative Currency.  





 






   -106-         ARTICLE V  Representations and Warranties  To induce Administrative Agent and each Lending Party to enter into this Agreement and the  Lending Parties to make or issue the Credit Extensions hereunder, each Loan Party hereby represents and  warrants to Administrative Agent and each Lending Party as set forth in this Article V.   Section 5.01 Corporate Existence and Power.  Each Loan Party and each of its Restricted Subsidiaries (a) is a corporation, partnership or limited  liability company or other entity duly incorporated or organized, validly existing and, to the extent such  concept is applicable in the relevant jurisdiction, in good standing under the laws of the jurisdiction of its  incorporation, organization or formation (subject to such changes after the date hereof as are permitted  under the Loan Documents); (b) has the legal power and authority (i) to own its assets and carry on its  business substantially as conducted by it on the Second Restatement Effective Date or as otherwise not  prohibited to be conducted by it under this Agreement, and (ii) to execute, deliver, and perform its  obligations under each of the Loan Documents to which it is a party; and (c) to the extent such concept is  applicable in the relevant jurisdiction, is duly qualified as a foreign corporation, partnership or limited  liability company, as applicable, and is licensed and in good standing under the laws of each jurisdiction  where its ownership, leasing or operation of property or the conduct of its business requires such  qualification or license, except, in the case of the preceding clauses (a) (but only as to any Restricted  Subsidiary that is not a Loan Party), (b) and (c), to the extent that the failure to do so could not reasonably  be expected to have or result in a Material Adverse Effect.    Section 5.02 Corporate Authorization; No Contravention.  The execution and delivery by each Loan Party, and the performance by each Loan Party of its  obligations under each Loan Document to which such Person is party, have been duly authorized by all  necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any  of such Person’s Organizational Documents, (b) conflict with or result in any breach or contravention of,  or the creation of any Lien under, any order, injunction, writ or decree of any Governmental Authority or  any arbitral award to which such Person or its property is subject; or (c) violate any Law applicable to any  Loan Party or any of its Subsidiaries or any of their respective properties, except with respect to clauses  (b) and (c), to the  extent such conflict, breach, violation or contravention or creation of Lien could not  reasonably be  expected to have or result in a Material Adverse Effect.  Section 5.03 Governmental Authorization; Compliance with Laws.  (a) Governmental Authorizations.  As of the Second Restatement Effective Date,  no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any  Governmental Authority or any other Person is necessary or required in connection with (i) the execution,  delivery or performance by any Loan Party, in each case to which it is a party, or any of its Subsidiaries  of this Agreement or any other Loan Document, (ii) the grant by any Loan Party of the Liens granted by it  pursuant to the Collateral Documents, or (iii) the validity or perfection of the Liens created under the  Collateral Documents (including the first priority nature thereof, subject only to Permitted Liens), except  (A) as have been obtained or made as of the Second Restatement Effective Date and are in full force and  effect, (B) for the authorizations, approvals, actions, notices and filings necessary for the perfection of  Liens created pursuant to the Collateral Documents or the exercise of remedies pursuant thereto and (C)  for any subsequent filings and recordings in the United States Patent and Trademark Office or United  States Copyright Office with respect to registrations of, or applications for intellectual property.    





 






   -107-         (b) Compliance with Laws.  Each Loan Party and each of its Subsidiaries is in  compliance in all material respects with the requirements of all Laws applicable to such Person or any of  its properties and with all orders, writs, injunctions and decrees applicable to it or to its properties, except  in such instances in which (i) such requirement of Law or order, writ, injunction or decree is being  contested in good faith by appropriate proceedings diligently conducted or (ii) the failure to comply  therewith, either individually or in the aggregate, could not reasonably be expected to have or result in a  Material Adverse Effect.  Each Loan Party and each of its Subsidiaries has all governmental licenses,  authorizations, consents and approvals required or otherwise necessary to own its assets and carry on its  business substantially as currently conducted by it and such business as contemplated to be conducted by  it upon and following the consummation of the transactions contemplated by the Loan Documents, except  to the extent the failure to have such licenses, authorizations, consents and approvals could not reasonably  be expected to have or result in a Material Adverse Effect.  Section 5.04 Binding Effect.  This Agreement has been, and each other Loan Document (when delivered hereunder) will have  been, duly executed and delivered by each Loan Party that is party thereto.  This Agreement and each  other Loan Document to which any Loan Party is a party constitute the legal, valid and binding  obligations of such Loan Party, enforceable against such Loan Party in accordance with its respective  terms, except as enforcement thereof may be limited by Debtor Relief Laws or other applicable Laws  affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of  whether enforcement is sought in law or equity).  Section 5.05 Litigation.  Except as specifically disclosed on Schedule 5.05, as of the Second Restatement Effective Date  (a) there are no Proceedings pending or, to each Loan Party’s knowledge, threatened in writing against  any Loan Party or any of its respective Subsidiaries, or against any of such Persons’ properties, at law or  in equity, before any court, arbitrator, mediator or other Governmental Authority, and (b) to each Loan  Party’s knowledge, there is no investigation by any Governmental Authority of any Loan Party’s or any  such Subsidiary’s affairs or properties, except (in the cases of the preceding clauses (a) and (b)) for such  Proceedings and investigations as could not reasonably be expected to have or result in a Material  Adverse Effect.  Section 5.06 ERISA Compliance.  (a) Except as could not reasonably be expected to have or result in a Material  Adverse Effect, each Plan is in compliance in all material respects with the applicable provisions of  ERISA, the Code and other Federal, foreign or, to the extent not pre-empted by ERISA, state Laws.   Except as could not reasonably be expected to have or result in a Material Adverse Effect, each Pension  Plan that is intended to be a qualified plan under Section 401(a) of the Code is so qualified or is entitled to  rely upon an opinion or notification letter issued to the sponsor of an IRS-approved master or prototype  plan or volume submitter plan document or an application for such a letter is currently being processed by  the IRS.  Except as could not reasonably be expected to have or result in a Material Adverse Effect, each  trust related to any such Plan is exempt from Federal income tax under Section 501(a) of the Code.  To  the knowledge of each Loan Party, nothing has occurred that would prevent or cause the loss of such tax- qualified status.  (b) There are no pending or, to the knowledge of each Loan Party, threatened claims,  actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could  reasonably be expected to have a Material Adverse Effect.  There has been no prohibited transaction or  





 






   -108-         violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could  reasonably be expected to have or result in a Material Adverse Effect.  (c) Except as could not reasonably be expected to have or result in a Material  Adverse Effect, (i) no ERISA Event has occurred, and no Loan Party is aware of any fact, event or  circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to  any Pension Plan; (ii) each Loan Party and each ERISA Affiliate has met all applicable requirements  under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding  standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent  valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section  430(d)(2) of the Code) is 60% or higher and no Loan Party knows of any facts or circumstances that  could reasonably be expected to cause the funding target attainment percentage for any such plan to drop  below 60% as of the most recent valuation date; (iv) neither any Loan Party nor any ERISA Affiliate has  engaged in a transaction that could reasonably be expected to be subject to Section 4069 or Section  4212(c) of ERISA; and (v) no Pension Plan has been terminated by the plan administrator thereof or by  the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause  the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.  (d) As of the Second Restatement Effective Date, neither any Loan Party nor any  ERISA Affiliate maintains or contributes to, or has any liability under, any active or terminated Pension  Plan other than those listed on Schedule 5.06.  (e) Each Foreign Pension Plan is in compliance in all material respects with all  requirements of Law applicable thereto and the respective requirements of the governing documents for  such plan except to the extent such non-compliance could not reasonably be expected to result in a  Material Adverse Effect.  With respect to each Foreign Pension Plan, none of Borrower, its Subsidiaries  or any of their respective directors, officers, employees or agents has engaged in a transaction which  would subject Borrower or any of its Subsidiaries, directly or indirectly, to a tax or civil penalty which  could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.   With respect to each Foreign Pension Plan, reserves have been established in the financial statements  furnished to Administrative Agent and the Lenders in respect of any unfunded liabilities in accordance  with applicable Law or, where required, in accordance with ordinary accounting practices, if any, in the  jurisdiction in which such Foreign Pension Plan is maintained, in each case except to the extent the failure  to establish any such reserves could not reasonably be expected to have or result in a Material Adverse  Effect.  The aggregate unfunded liabilities with respect to such Foreign Pension Plans could not  reasonably be expected to result in a Material Adverse Effect.  There are no actions, suits or claims (other  than routine claims for benefits) pending or threatened against Borrower or any of its Subsidiaries with  respect to any Foreign Pension Plan which could reasonably be expected, individually or in the aggregate,  to result in a Material Adverse Effect.  Section 5.07 Use of Proceeds.  Borrower will use the proceeds of the Loans and other Credit Extensions made available  hereunder solely for the purposes set forth in and as permitted by Section 7.10.  Section 5.08 Title to Properties.  Each Loan Party has good record and marketable title in fee simple to, or valid leasehold interests  in, or valid rights to use (including easements) all real property necessary to the ordinary conduct of their  respective businesses, except for Permitted Liens and for defects in title that do not interfere in any  material respect with the Loan Parties’ ability, taken as a whole, to conduct business.  As of the Second  





 






   -109-         Restatement Effective Date, no property owned by any Loan Party or any of its respective Restricted  Subsidiaries is subject to any Liens, other than Permitted Liens.  Section 5.09 Taxes.  All Federal and other state, local and foreign tax returns, reports and statements required to be  filed by any Loan Party or any of its Subsidiaries have been filed with the appropriate Governmental  Authorities and all Taxes shown thereon to be due and payable by such Person have been paid prior to the  date on which any fine, penalty, interest or late charge may be added thereto for nonpayment thereof, or  any such fine, penalty, interest, late charge or loss has been paid, except (a) that are being contested in  good faith by appropriate proceedings for which adequate reserves in conformity with GAAP have been  set aside on the books of the relevant Loan Party or (b) to the extent such failure could not reasonably be  expected to, individually or in the aggregate, result in a Material Adverse Effect.  Section 5.10 Financial Condition; No Material Adverse Effect; No Event of Default.  (a) All balance sheets, and all statements of income, of shareholders’ equity, and of  changes in cash flow furnished to Administrative Agent and the Lenders by or on behalf of Borrower for  the purposes of or in connection with this Agreement or any of the other Loan Documents have been  prepared in accordance with GAAP consistently applied (from period to period except as and to the extent  disclosed in the financial statements or otherwise required by GAAP; provided, that any such disclosed  changes will continue to be in accordance with GAAP) throughout the periods involved and such data,  together with all other financial data (excluding projected financial information, pro forma financial  information, estimated financial information, other projected or estimated information and other forward- looking statements and information of a general economic or industry specific nature) will present fairly  in all material respects the financial condition of the entities involved as of the dates thereof and the result  of their operations for the periods covered thereby (except that interim financial statements will be subject  to audit and customary year-end adjustments and may not have footnotes).  All financial projections and  forecasts which have been furnished to Administrative Agent and the Lenders for purposes of or in  connection with this Agreement were prepared in good faith on the basis of assumptions which were, in  the opinion of the management of Borrower, reasonable at the time made; and at the time of delivery, the  management of Borrower believed, in good faith, that the assumptions used in preparation of the financial  projections and forecasts remain reasonable (it being understood that such financial projections and  forecasts are as to future events and are not to be viewed as facts, are subject to significant uncertainties  and contingencies, many of which are beyond the control of Borrower and its Subsidiaries, and are not  guarantees of financial performance, that actual results may differ significantly from such  financial  projections and forecasts and such differences may be material, and no assurances can be given that  such financial projections and forecasts will be realized).  (b) Since January 27, 2019, there has been no event or circumstance, either  individually or in the aggregate, that has had or could reasonably be expected to have or result in a  Material Adverse Effect.  (c) No Event of Default has occurred and is continuing or would result from the  consummation of the transactions contemplated by this Agreement or any other Loan Document.  Other  than this Agreement and the other Loan Documents, no default exists under any Material Contract or  other document to which any Loan Party or any of their Subsidiaries is a party or otherwise subject to that  has had or could reasonably be expected to have or result in a Material Adverse Effect.  Section 5.11 Margin Regulations.  





 






   -110-         No Loan Party nor any of its Subsidiaries is engaged or will engage, principally or as one of its  important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the  purpose of purchasing or carrying Margin Stock (it being understood that Loan Parties may purchase  common stock of Borrower from time to time).  No part of the proceeds of the Loans will be used,  directly or indirectly, to purchase or carry any Margin Stock, or to refinance any Indebtedness originally  incurred for such purpose, or for any other purpose, in each case, in a manner that entails a violation  (including on the part of any Lender) of the provisions of Regulations U or X adopted by the FRB.  Section 5.12 Intellectual Property.  Except as specifically disclosed on Schedule 5.12, each Loan Party and each of its Restricted  Subsidiaries owns or is licensed or otherwise has the right to use all of the patents, copyrights,  trademarks, service marks, trade names, domain names, mask works, trade secrets, proprietary  information, proprietary formulas, rights in computer programs and databases and other intellectual  property rights that are reasonably necessary for the operation of its respective businesses (including the  business of Borrower and its Restricted Subsidiaries) as currently conducted by it, except to the extent  that failure to hold such ownership, license or other right could not, individually or in the aggregate,  reasonably be expected to have or result in a Material Adverse Effect.  No Loan Party has any knowledge  that the use of such intellectual property by such Loan Party or any of its Restricted Subsidiaries in, and  the operation of, its business as currently conducted infringes any valid and enforceable intellectual  property rights of any other Person, except to the extent any such infringement could not, individually or  in the aggregate, reasonably be expected to have or result in a Material Adverse Effect.   Section 5.13 Capitalization and Subsidiaries.  As of the Second Restatement Effective Date, Borrower has no Subsidiaries other than those  specifically disclosed in Part (a) of Schedule 5.13.  Set forth on Part (a) of Schedule 5.13 is a complete  and accurate list of all Loan Parties as of the Second Restatement Effective Date, showing as of the  Second Restatement Effective Date (as to each Loan Party) the jurisdiction of its incorporation and the  address of its principal place of business.  The copy of each Organizational Document of each Loan Party  provided pursuant to Section 4.01(a)(iii) is a true and correct copy of such document, and is valid and in  full force and effect, in each case, as of the Second Restatement Effective Date.  Aside from its  Subsidiaries disclosed in Part (a) of Schedule 5.13, as of the Second Restatement Effective Date no Loan  Party owns, of record or beneficially, any Equity Interests in any other Person other than those  specifically disclosed in Part (b) of Schedule 5.13.  All of the outstanding Equity Interests owned by any  Loan Party in each of its direct Restricted Subsidiaries has been validly issued, is fully paid and non- assessable (if applicable), and is owned by such Loan Party of record and beneficially free and clear of all  Liens, except those created under the Collateral Documents and Permitted Liens.    Section 5.14 Liens on Collateral.  The provisions of the Collateral Documents and the other Loan Documents create legal and valid  security interests in and Liens on the Collateral in favor of Administrative Agent, for the benefit of the  Secured Parties, and such Liens constitute valid and, in the case of the personal property Collateral, upon  the taking of actions, notices and filings set forth in the Security Agreement, perfected and continuing  Liens on the Collateral (except to the extent otherwise provided or permitted by the Security Agreement  or, with respect to perfection, otherwise not required to be perfected under this Agreement or the  Collateral Documents) securing, in the case of Borrower, the Obligations, and in the case of the  Guarantors (on a joint and several basis), the Guaranteed Obligations, enforceable against the applicable  Loan Party and all third parties, and having priority over all other Liens in and on the Collateral except (a)  Permitted Liens, to the extent any such Permitted Liens would have priority over the Liens in favor of  





 






   -111-         Administrative Agent pursuant to applicable Law or are otherwise expressly permitted by any Loan  Document to have priority over the Liens of Administrative Agent, and (b) Liens perfected only by  possession (including possession of any certificate of title) to the extent Administrative Agent has not  obtained or does not maintain possession of such Collateral.  Section 5.15 Environmental Matters.  Except as specifically disclosed on Schedule 5.15, no Loan Party nor any of its Subsidiaries (a)   has failed to comply with any applicable Environmental Law or to obtain, maintain or comply with any  Environmental Permit required under any applicable Environmental Law, (b) has become subject to any  Environmental Liability, (c) has received written notice of any Environmental Claim or (d) knows of any  basis for any Environmental Liability, in each case in a manner that could reasonably be expected to have  a Material Adverse Effect.  Section 5.16 Solvency.  Borrower and its Subsidiaries, taken as a whole on a Consolidated basis, are, Solvent, including  upon the consummation of the transactions contemplated by this Agreement to be consummated on the  Second Restatement Effective Date.  Section 5.17 Sanctions and Anti—CorruptionAnti-Corruption Laws.  (a) Sanctions.  None of Borrower, any of its Subsidiaries, or to the knowledge of  Borrower, any director, officer, employee, or agent of Borrower or any of its Subsidiaries is a Person that  is, or is owned or Controlled by, Persons that are, (i) the target of any sanctions administered or enforced  by the United States Department of the Treasury’s Office of Foreign Assets Control, the United States  Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury  or the Hong Kong Monetary Authority (collectively, "Sanctions"), or (ii) located, organized or resident in  a country or territory that is the target of Sanctions, including as of the Second Restatement Effective  Date, the Crimea region, Cuba, Iran, North Korea and Syria other than to the extent that such  representation/warranty would result in a violation of Council Regulation (EC) No 2271/96, as amended  (or any implementing law or regulation in any member state of the European Union or the United  Kingdom).  (b) Anti-Corruption Laws.  None of Borrower, any of its Subsidiaries nor to the  knowledge of Borrower, any director, officer, agent, employee, Affiliate or other person acting on behalf  of Borrower or any of its Subsidiaries is aware of or has taken any action, directly or indirectly, that  would result in a material violation by such persons of any applicable anti-bribery Law or other anti- corruption Law, including the United Kingdom Bribery Act 2010 (the "UK Bribery Act") and the United  States Foreign Corrupt Practices Act of 1977 (the "FCPA").  Furthermore, Borrower and its Subsidiaries  and, to the knowledge of Borrower, Borrower’s Affiliates have conducted their businesses in material  compliance with the UK Bribery Act, the FCPA and similar applicable Laws, and have instituted and  maintain policies and procedures designed to ensure, and which are reasonably expected to continue to  ensure, continued compliance therewith.    Section 5.18 Investment Company Status.  None of the Loan Parties is required to register as an “investment company” under the Investment  Company Act of 1940, as amended from time to time.  Section 5.19 Insurance.  





 






   -112-         The assets, properties and businesses of each Loan Party and each of its Restricted Subsidiaries  are insured with financially sound and reputable insurance companies that are not Affiliates of any Loan  Party (in each case, determined at the time such insurance is obtained, renewed or reissued), in such  amounts, with such deductibles and covering such risks as are customarily carried by companies engaged  in similar businesses and owning similar properties in similar locations and as required to be maintained  pursuant to Section 6.06.  Section 5.20 Full Disclosure.  The Loan Parties have disclosed or made available, including pursuant to public filings with the  SEC, to Administrative Agent and the Lending Parties all matters known to them, that, individually or in  the aggregate, could reasonably be expected to result in a Material Adverse Effect.  No financial  statement, material report, material certificate or other material information (excluding projected financial  information, pro forma financial information, estimated financial information, other projected or  estimated information and other forward-looking statements and information of a general economic or  industry specific nature) furnished (in writing) by or on behalf of any Loan Party or any Subsidiary  thereof to Administrative Agent or any Lending Party in connection with the transactions contemplated  hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by  other information so furnished), taken together as a whole, contains any untrue statement of a material  fact or omits to state any material fact necessary to make the statements therein, in the light of the  circumstances under which they were made, not materially misleading; provided that, with respect to  projected financial information, pro forma financial information, estimated financial information, other  projected or estimated information and other forward-looking statements, such information was prepared  in good faith based upon assumptions believed to be reasonable at the time (it being understood that such  financial projections and forecasts are as to future events and are not to be viewed as facts, are subject  to significant uncertainties and contingencies, many of which are beyond the control of any Loan Party,  and are not guarantees of financial performance, that actual results may differ significantly from such   financial projections and forecasts and such differences may be material, and no assurances can be  given that such financial projections and forecasts will be realized).   Section 5.21 Covered Entities.  No Loan Party is a Covered Entity.   Section 5.22 Beneficial Ownership Certification.  As of the Second Restatement Effective Date, the information included in the Beneficial  Ownership Certification, if applicable, is true and correct in all respects.   ARTICLE VI  Affirmative Covenants  Until the Commitments shall have expired or been terminated, the principal of and interest on  each Loan and all fees, expenses and other amounts (other than under Secured Swap Obligations, Secured  Cash Management Obligations and contingent amounts not yet due) under any Loan Document have been  paid in full in cash and all Credits have expired or been terminated and the Unreimbursed Amount of all  Credit Borrowings shall have been reimbursed (unless the outstanding amount of the Obligations in  respect of any Credits related thereto has been cash collateralized or a backstop letter of credit reasonably  satisfactory to the applicable L/C Issuer is in place), each Loan Party hereto covenants and agrees with the  Lenders that it will, and will cause each of its Restricted Subsidiaries to, perform each of the covenants  set forth in this Article VI.  





 






   -113-         Section 6.01 Financial Statements.  Deliver to Administrative Agent (and Administrative Agent will promptly make such information  available to the Lending Parties in accordance with its customary practice):   (a) Annual Financial Statements.  No later than ninety days after the end of each  Fiscal Year, a Consolidated balance sheet as at the end of such year and related Consolidated statements  of income, shareholders’ equity and cash flows of Borrower and its Consolidated Subsidiaries prepared  for such Fiscal Year, setting forth, in comparative form against the figures for the previous Fiscal Year,  all in reasonable detail and accompanied by (i) a report thereon of Deloitte Touche LLP, any other "big  four" firm of independent public accountants or any other independent public accountants of recognized  national standing selected by Borrower (or any other independent accounting firm not of recognized  national standing that is acceptable to Administrative Agent), which report will not be qualified as to  scope or contain any “going concern” qualification, other than a qualification related to any upcoming   maturity of the Obligations hereunder or potential non-compliance with any financial covenant, and will  state that such financial statements present fairly in all material respects the financial position of  Borrower and its Subsidiaries on a Consolidated basis as at the dates indicated and the results of its  operations and changes in its financial position for the periods indicated in conformity with GAAP  applied on a basis consistent with prior years (except as otherwise required by GAAP or stated therein)  and that the examination by such accountants in connection with such Consolidated financial statements  has been made in accordance with generally accepted auditing standards, and (ii) management’s  discussion and analysis of the important operational and financial developments during such Fiscal Year;  (b) Fiscal Period Financial Statements.  No later than forty-five days after the end  of each of the first three Fiscal Periods during each Fiscal Year, a Consolidated balance sheet as at the end  of such period and the related Consolidated statements of income and cash flows of Borrower and its  Consolidated Subsidiaries prepared for such Fiscal Period and (for such financial statements prepared for  the first three Fiscal Periods of any Fiscal Year) for such Fiscal Year to date, setting forth in each case in  comparative form the figures for the corresponding period(s) of the previous Fiscal Year end and the then  current Fiscal Year, all in reasonable detail and certified by a Responsible Officer of Borrower having  responsibility for financial matters that they (i) present fairly in all material respects the financial  condition of Borrower and its Consolidated Subsidiaries as at the dates indicated and the results of its  operations and changes in their cash flow for the periods indicated and (ii) have been prepared in  accordance with GAAP, subject to the absence of footnotes and changes resulting from audit and  customary year-end adjustments.  With each such quarterly financial reports, Borrower will also deliver  management’s discussion and analysis of the important operational and financial developments during  such Fiscal Period and a general comparison of such financial reports against the budget delivered  pursuant to Section 6.01(e);  (c) Consolidating Financial Statements Reflecting Adjustments for Unrestricted  Subsidiaries.  Concurrently with the delivery of any financial statements pursuant to Section 6.1(a) or  (b), if there are any Unrestricted Subsidiaries at the time, the related consolidating financial statements  reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such  Consolidated financial statements;  (d) Compliance Certificate.  Together with the financial statements delivered  pursuant to Section 6.01(a), (b) and (c), as applicable, a Compliance Certificate dated as of the last day of  such reporting period, in each case certified by a Responsible Officer of Borrower having responsibility  for financial matters, with appropriate insertions (which delivery may, unless Administrative Agent, or a  Lender requests executed originals, be by electronic communication, including facsimile or electronic  mail, and will be deemed to be an original authentic counterpart thereof for all purposes);  





 






   -114-         (e) Budget.  No later than forty-five Business Days after approval thereof by  Borrower’s Board of Directors (and in any event no later than the date of delivery of the annual financial  statements for the current Fiscal Year pursuant to Section 6.01(a), as determined by the last paragraph of  this Section 6.01), an annual operating budget of Borrower and its Consolidated Subsidiaries for the  forthcoming Fiscal Year in the form presented to, and approved by, Borrower’s Board of Directors;  provided that in the event any budget is materially revised in any Fiscal Year and is subsequently  approved by Borrower’s Board of Directors, such revised budget will be delivered to Administrative  Agent promptly and in any event no later than twenty Business Days after approval thereof by Borrower’s  Board of Directors (or such longer period as may be agreed by Administrative Agent in its sole  discretion); and provided further that each such budget shall be prepared in good faith on the basis of  assumptions which are, in the opinion of the management of Borrower, reasonable at the time made; and   (f) Other Reports.  Promptly upon any request by Administrative Agent or any  Lending Party, a copy of any detailed audit reports, management letters or recommendations submitted to  the Board of Directors (or the audit committee of the Board of Directors) of Borrower by independent  accountants in connection with the accounts or books of Borrower or any Restricted Subsidiary thereof, or  any audit of any of them.  Documents required to be delivered pursuant to this Section 6.01 may be delivered electronically  and if so delivered, will be deemed to have been delivered on the date (i) on which Borrower posts such  documents, or provides a link thereto on Borrower’s website on the Internet at the website address listed  on Schedule 10.02 (as updated from time to time); (ii) on which such documents are posted on  Borrower’s behalf on an Internet or intranet website, if any, to which each Lending Party and  Administrative Agent have access (whether a commercial, third-party website or whether sponsored by  Administrative Agent); or (iii) on which such documents are filed for public availability on the SEC’s  Electronic Data Gathering and Retrieval System (or any successor thereto), including on any Form 10-K,  Form 10-Q or Form 8-K filing; provided that (A) Borrower will notify Administrative Agent of the  posting of such documents.  Administrative Agent will have no obligation to request the delivery of or to  maintain paper copies of the documents referred to above and (B) upon Administrative Agent’s written  request to Borrower, Borrower will deliver paper copies of such documents (as may be specified by  Administrative Agent or any Lending Party after using reasonable efforts to obtain such documents by  electronic means as contemplated by the preceding clauses (i) through (iii) of this paragraph) to  Administrative Agent until such time as a written request to cease delivering such paper copies is given  by Administrative Agent or such Lending Party.  Notwithstanding anything to the contrary in this Section  6.01 or any other Loan Document, none of Borrower or any of its Subsidiaries shall be required to  disclose any document, information or other matter (a) that constitutes non-financial trade secrets, (b) in  respect of which disclosure to Administrative Agent or any Lending Party (or any of their respective  representatives) is prohibited by any Applicable Law or any binding contractual agreement as to  confidentiality with a third party or (c) is subject to attorney-client privilege or constitutes attorney work  product.  Section 6.02 Other Information.  Deliver to Administrative Agent (which will promptly make such information available to the  Lending Parties in accordance with its customary practice):  (a) Equity Interest Reports and Public Filings.  Promptly after the same are filed  or delivered, copies of each annual report, proxy or financial statement or other material report or  communication sent to the holders of Equity Interests of Borrower (including any Qualified Preferred  Stock) in their capacity as shareholders, and copies of all annual, regular, periodic and special reports and  registration statements that Borrower or any of its Restricted Subsidiaries may file or be required to file  





 






   -115-         with the SEC under Section 13 or Section 15(d) of the Exchange Act, and, in each case, not otherwise  required to be delivered to Administrative Agent pursuant hereto;  (b) Materials from Governmental Authorities.  Promptly, and in any event within  five Business Days after receipt thereof by any Loan Party or any Restricted Subsidiary thereof, copies of  each material notice or other material non-routine correspondence received from any Governmental  Authority (including the SEC or comparable agency in any applicable non-U.S. jurisdiction) concerning  any investigation or possible investigation or other inquiry by such agency regarding any material  financial or other material operational results of Borrower and Restricted Subsidiaries, together or  individually;  (c) “Know Your Customer”.  Promptly upon the request thereof, such other  information and documentation required by bank regulatory authorities under applicable Beneficial  Ownership Regulations and “know your customer”, anti-corruption and anti-money laundering Laws  (including the PATRIOT Act), as from time to time reasonably requested by Administrative Agent or any  Lending Party;   (d) Accounting Policies and Financial Reporting Practices. Promptly upon the  occurrence thereof, notice of any material change in Borrower’s or any of its Consolidated Restricted  Subsidiaries’ accounting policies or financial reporting practices, except changes required by GAAP;  (e)  Security Agreement Schedules.  Together with the delivery of the Compliance  Certificate dated as of the last day of the second and fourth Fiscal Periods of each Fiscal Year pursuant to  Section 6.01(d), provide Administrative Agent with supplements to the schedules to the Security  Agreement to the extent necessary to update or correct such schedules so that such schedules are accurate  in all material respects; provided that, with respect to Schedule V of the Security Agreement, Borrower  may provide a new version of such schedule rather than a supplement; and   (f) Additional Information.  Promptly, such additional information regarding the  business, financial or corporate affairs of any Loan Party or any Subsidiary thereof or compliance with  the terms of the Loan Documents, as Administrative Agent or any Lending Party may from time to time  reasonably request.  Documents required to be delivered pursuant to Section 6.02(a), (b), (d) or (f) may be delivered  electronically and if so delivered, will be deemed to have been delivered on the date (i) on which  Borrower posts such documents, or provides a link thereto on Borrower’s website on the Internet at the  website address listed on Schedule 10.02 (as updated from time to time); (ii) on which such documents  are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lending Party  and Administrative Agent have access (whether a commercial, third-party website or whether sponsored  by Administrative Agent); or (iii) on which such documents are filed for public availability on the SEC’s  Electronic Data Gathering and Retrieval System (or any successor thereto), including on any Form 10-K,  Form 10-Q or Form 8-K filing; provided that (A) Borrower will notify Administrative Agent of the  posting of such documents.  Administrative Agent will have no obligation to request the delivery of or to  maintain paper copies of the documents referred to above and (B) upon Administrative Agent’s written   request to Borrower, Borrower will deliver paper copies of such documents (as may be specified by  Administrative Agent or any Lending Party after using reasonable efforts to obtain such documents by  electronic means as contemplated by the preceding clauses (i) through (iii) of this paragraph) to  Administrative Agent until such time as a written request to cease delivering such paper copies is given  by Administrative Agent or such Lending Party.  Notwithstanding anything to the contrary in this Section  6.02 or any other Loan Document, none of Borrower or any of its Subsidiaries shall be required to  disclose any document, information or other matter (a) that constitutes non-financial trade secrets, (b) in  





 






   -116-         respect of which disclosure to Administrative Agent or any Lending Party (or any of their respective  representatives) is prohibited by any Applicable Law or any binding contractual agreement as to  confidentiality with a third party or (c) is subject to attorney-client privilege or constitutes attorney work  product.  Section 6.03 Notices.  Promptly, and in no event more than five Business Days after any Responsible Officer or any  other senior executive officer of any Loan Party becomes aware thereof, notify Administrative Agent  (which will promptly make such information available to the Lending Parties in accordance with its  customary practice) of:  (a) Defaults and Events of Default.  The occurrence of any Default or Event of  Default;  (b) Litigation.  The (i) institution of any investigation (including in respect of any  noncompliance with any applicable Environmental Law or Environmental Permit), litigation, alternative  dispute proceeding (including any Insolvency Proceeding) or other similar suit or proceeding (a  “Proceeding”) by any Person, including any Governmental Authority, (A) which could reasonably be  expected to result, after giving effect to any applicable insurance, in the payment by any Loan Party of  more than the Threshold Amount, (B) with respect to which there is a reasonable likelihood of a finding  adverse to a Loan Party, which adverse finding, if made, could reasonably be expected to have or result in  a Material Adverse Effect, or (C) which seeks in any manner to invalidate any Loan Document or any  provision thereof or to otherwise enjoin the performance of any Loan Document or any provision thereof,  and (ii) of any material development in any Proceeding described in the foregoing subclause (i);  (c) ERISA Events.  The occurrence of any ERISA Event that, alone or together with  any other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse  Effect;  (d) Change of Control.  The occurrence of a Change of Control; and  (e) Material Adverse Effect.  Any other event or occurrence (including any event  or occurrence with respect to the Collateral) in addition to those listed in clauses (a) through (d) above  which has resulted or could reasonably be expected to result in a Material Adverse Effect.  Each notice pursuant to this Section 6.03 will be accompanied by a statement of a Responsible  Officer of Borrower setting forth details of the occurrence referred to therein and, to the extent applicable,  stating what action, if any, Borrower (or the other applicable Person) has taken or proposes to take with  respect thereto.   Section 6.04 Preservation of Existence and Entitlements.  (a) Preserve, renew and maintain in full force and effect its respective legal existence  and good standing under the Laws of the jurisdiction of its incorporation or formation, as applicable,  except (i) in a transaction permitted by Section 7.04 or (ii) with respect to non-Loan Parties, except to the  extent such failure to preserve, renew and maintain its legal existence and good standing could not  reasonably be expected to have or result in a Material Adverse Effect;  (b) Take all reasonable action to maintain all rights, privileges, permits, licenses and  franchises necessary or desirable in the normal conduct of its respective businesses, except to the extent  





 






   -117-         that the failure to do so could not reasonably be expected to have or result in a Material Adverse Effect;  and  (c) Preserve or renew their respective registrations for copyrights, patents,  trademarks, service marks, mask works, and domain names, the non-preservation or non-renewal of  which could reasonably be expected to have or result in a Material Adverse Effect.  Section 6.05 Maintenance of Properties.  Maintain, preserve and protect (or replace in the ordinary course of business) all of their  respective material tangible properties and equipment necessary to the operation of its respective  businesses in good working order and condition, ordinary wear and tear excepted and subject to the  occurrence of casualty or force majeure events, and make all necessary repairs thereto and renewals and  replacements thereof, in each case except where the failure to do so could not, individually or in the  aggregate, reasonably be expected to have or result in a Material Adverse Effect.  Section 6.06 Maintenance of Insurance.  (a) Property and Liability Insurance.  Maintain or cause to be maintained, with  financially sound and reputable insurance companies or other insurers (determined at the time such  insurance is obtained, renewed or reissued), such insurance with respect to liabilities, losses or damage in  respect of the assets, properties and businesses of the Loan Parties and their Subsidiaries as may  customarily be carried or maintained under similar circumstances by companies of similar size engaged in  similar businesses and owning similar properties, in each case in such amounts with such deductibles,  covering such risks and otherwise on such terms and conditions as will be customary for companies  similarly situated in the industry, subject to commercially reasonable and prudent adjustments made by  Borrower and its Subsidiaries (determined at the time such insurance is obtained, renewed or reissued).   Each such policy of general liability insurance or property insurance covering the Collateral will (i) name  Administrative Agent, for the benefit of the Secured Parties, as an additional insured in respect of public  liability policies of the Loan Parties and (ii) in the case of each property or casualty insurance policy of  the Loan Parties, contain a lender loss payable clause or endorsement, as the case may be, satisfactory to  Administrative Agent in its Reasonable Discretion, that names Administrative Agent, for the benefit of  the Secured Parties, as the loss lender payee thereunder.  Borrower will use commercially reasonable  efforts to obtain endorsements to its general liability and property insurance covering the Collateral that  provide for at least thirty days (or ten days in the case of nonpayment of premiums) prior written notice to  Administrative Agent of any cancellation of such policy.  The provisions of this Section 6.06 will be  deemed supplemental to, but not duplicative of, the provisions of any Collateral Document that requires  the maintenance of insurance.  (b) Flood Insurance.  If at any time any real property that is subject to a deed of  trust or mortgage securing the Obligations hereunder is located in an area identified as a special flood  hazard area by the Federal Emergency Management Agent or any successor thereto, Borrower will, and  will cause each of its Subsidiaries, as applicable, to, at all times keep and maintain flood insurance in an  amount reasonably satisfactory to Administrative Agent but in no event less than the amount sufficient to  comply with the rules and regulations promulgated under the National Flood Insurance Act of 1968 and  the Flood Disaster Protection Act of 1973 (and any other applicable similar Law).   Section 6.07 Compliance with Laws.  Comply in all material respects with the requirements of all applicable Laws and all orders, writs,  injunctions and decrees applicable to them or to their respective assets, properties or businesses, and will  





 






   -118-         use and operate all of its facilities and properties in compliance with all applicable Laws and keep all  permits, approvals, certificates and other authorizations of Governmental Authorities as is required by  applicable Law in effect and remain in compliance therewith, except, in each case, where the failure to  comply therewith could not reasonably be expected to have or result in a Material Adverse Effect.  Section 6.08 Books and Records.  Maintain proper books of record and account, in which full, true and correct (in all material  respects) entries in conformity with GAAP consistently applied (except as otherwise required by GAAP  or as otherwise disclosed in financial statements delivered pursuant to Section 6.01(a) or (b)) are made of  all material financial transactions and matters involving its respective properties and businesses.  Section 6.09 Inspection Rights.  Permit representatives and independent contractors of Administrative Agent to visit and inspect  any of their respective properties, to examine their corporate, financial and operating records, and make  copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with  their respective directors (solely in their capacity as such) (limited, in the case of directors, to the directors  of Restricted Subsidiaries of Borrower), officers, managers and independent public accountants (in which  case, so long as no Event of Default has occurred and is continuing at the time of such inspection,  representatives of Borrower shall be afforded a reasonable opportunity to attend such inspection and any  related discussions), at such reasonable times during normal business hours and as often as may be  reasonably desired, upon reasonable advance notice to Borrower, and, if an Event of Default has occurred  and is continuing at the time of such inspection, Borrower agrees to bear the reasonable and documented  out-of-pocket costs and expenses of such visits; provided that, unless an Event of Default has occurred  and is continuing, only one such visit and related inspection may occur during any Fiscal Year.   Notwithstanding anything to the contrary in this Section 6.09 or any other Loan Document, neither  Borrower nor any of its Subsidiaries shall be required to disclose, permit the inspection, examination or  making of copies or taking of extracts of, or discussion of, any document, information or other matter (a)  that constitutes non-financial trade secrets, (b) in respect of which disclosure to Administrative Agent or  any Lending Party (or any of their respective representatives) is prohibited by any Applicable Law or any  binding contractual agreement as to confidentiality with a third party or (c) that is subject to attorney- client privilege or constitutes attorney work product.  Section 6.10 Compliance with Environmental Laws.  (a) Compliance with Environmental Laws.  Comply with all applicable  Environmental Laws, and obtain and comply with and maintain all Environmental Permits required by  applicable Environmental Laws, except, in each case, to the extent the failure to do so could not  reasonably be expected to have a Material Adverse Effect.  (b) Environmental Investigations.  Conduct and complete all investigations,  studies, sampling and testing, and all remedial, removal and other actions required under Environmental  Laws and promptly comply with all lawful orders and directives of all Governmental Authorities  regarding Environmental Laws, except to the extent the failure to do so could not reasonably be expected  to have a Material Adverse Effect.  Section 6.11 Covenant to Guarantee Obligations and Give Security.  (a) New or Acquired Subsidiaries.  Upon (i) the formation, incorporation or  acquisition by any Loan Party of any new direct or indirect Subsidiary, other than any such Subsidiary  





 






   -119-         that constitutes (A) a Foreign Subsidiary, (B) a Domestic Subsidiary that is either a Foreign Subsidiary  Holdco or an Exempt Subsidiary or (C) a Subsidiary that otherwise is prohibited by applicable Law  existing as of the date such Subsidiary was formed or acquired by Borrower from providing the Guaranty  of the Obligations contemplated by Section 10.15 or would require the express consent, approval, license  or authorization of a Governmental Authority (including any such regulatory authority) having  jurisdiction thereover unless such express consent, approval, license or authorization has been obtained  (any Subsidiary described in any of the preceding subclauses (A) through (C), inclusive, an “Excluded  Subsidiary”), or (ii) the re-designation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant  to Section 2.16, Borrower will (subject to the proviso at the end of this Section 6.11(a)), in each case at  Borrower’s expense:  (i) within twenty Business Days after such formation, incorporation,  acquisition or designation (or such longer period as may be agreed by Administrative Agent in its sole  discretion), cause such Subsidiary to duly execute and deliver to Administrative Agent a Joinder  Agreement in the form attached to this Agreement as Exhibit C pursuant to which such Person is joined  to this Agreement and becomes a Guarantor hereunder for all purposes of this Agreement, including  Section 10.15, and the other Loan Documents, guaranteeing the other Loan Parties’ Obligations under the  Loan Documents;  (ii) subject to clauses (iii) and (iv) below of this Section 6.11(a), within  twenty Business Days after such formation, incorporation, acquisition or designation (or such longer  period as may be agreed by Administrative Agent in its sole discretion), cause such Subsidiary (and cause  each direct parent of such Subsidiary, if it has not already done so) to duly execute and deliver to  Administrative Agent such Loan Documents, or joinders, supplements or addenda thereto, as applicable,  including a joinder to the Security Agreement (substantially in the form attached as Annex A thereto), as  may be deemed necessary or advisable by Administrative Agent, in its Reasonable Discretion, which  Loan Documents, including any joinders, supplements or addenda thereto, will be in form and substance  satisfactory to Administrative Agent, in its Reasonable Discretion;  (iii) within sixty days after such formation, incorporation, acquisition or  designation (or such longer period as may be agreed by Administrative Agent in its sole discretion), cause  such Subsidiary (and cause each direct parent of such Subsidiary, if it has not already done so) to take  whatever action (including providing information needed in connection with the filing of Financing  Statements, the delivery of original possessory collateral and the giving of notices) as is required under  the Collateral Documents to vest in Administrative Agent valid Liens on and perfected (to the extent  required to be perfected under the Collateral Documents) security interests in the properties purported to  be subject to the Collateral Documents delivered pursuant to this Section 6.11, in each case enforceable  against all third parties in accordance with their terms, subject only to Permitted Liens; and  (iv) in the case of  any formation, incorporation, acquisition or designation, if  requested by Administrative Agent, in its Reasonable Discretion, within sixty days after such formation  or acquisition (or such longer period as may be agreed by Administrative Agent in its sole discretion),  deliver to Administrative Agent a favorable opinion, addressed to Administrative Agent and the Lending  Parties, of counsel for the Loan Parties as to the matters contained in clauses (i), (ii) and (iii) above, and  as to such other matters as Administrative Agent may reasonably request,  provided that, notwithstanding the foregoing or anything to the contrary in any Loan Document,  and subject to Section 6.11(b), (A) such Person will not be required to execute and deliver a Joinder  Agreement to Administrative Agent and thereby become a Guarantor hereunder or to execute and deliver  or otherwise provide the Collateral Documents and other documents contemplated of a new Guarantor  under this Section 6.11(a) if such Person is an Excluded Subsidiary; (B) only 65% of the total combined  





 






   -120-         power of all classes of Equity Interests entitled to vote (within the meaning of Treasury Regulations  section 1.956-2(c)(2)) of (1) any first tier Foreign Subsidiary that is a corporation (or treated as such for  U.S. federal tax purposes) or (2) any Foreign Subsidiary Holdco, will be required to be pledged to secure  the Obligations of Borrower (or the Guaranteed Obligations of any Guarantor) (although 100% of the  non-voting Equity Interests of each first tier Foreign Subsidiary or Foreign Subsidiary Holdco described  in the preceding subclauses (1) or (2) will be required to be pledged); (C) the Collateral shall not include  any Excluded Collateral (as described and defined in the Security Agreement); (D) no control agreements  will be required to perfect Administrative Agent’s security interest in any deposit accounts or security  accounts (except as requested by Borrower for the purpose of establishing a security interest perfected by  control in Consolidated Net Cash in favor of Administrative Agent); (E) no Grant of IP Security Interest  or similar document will be required to be recorded with the United States Patent & Trademark Office  (other than those recorded prior to the Second Restatement Effective Date pursuant to the First Restated  Credit Agreement) other than as is necessary or advisable (as determined by Administrative Agent in its  Reasonable Discretion) to perfect Administrative Agent’s security interest in any U.S. copyrights  registered after the Second Restatement Effective Date; (F) no Pledged Interest Addendum (as such term  is defined in the Security Agreement) will be required to be delivered with respect to Pledged Interests (as  such term is defined in the Security Agreement) in any Pledged  Company (as such term is defined in the  Security Agreement) formed, incorporated or acquired after the Second Restatement Date that is a  Limited Pledge Subsidiary or a Limited Pledge Non-Control Investment, nor will any original certificates  evidencing such Pledged Interests be required to be delivered as possessory collateral (provided that the  Loan Parties shall also be prohibited by the Security Agreement from delivering such original certificates  evidencing such Pledged Interests to any other secured creditor for the purpose of serving as possessory  collateral).   (b) Foreign Pledge Agreements.  Within sixty days (or such longer period as may  be agreed by Administrative Agent in its sole discretion), after any request by Administrative Agent, with  respect to any Equity Interests in one or more Material First-Tier Foreign Subsidiaries that have been  pledged pursuant to the Collateral Documents, if Administrative Agent in its Reasonable Discretion  determines (based on advice of local counsel and to the extent legally permitted by the relevant applicable  foreign law) that it would be in the interests of the Secured Parties that the respective Loan Party or Loan  Parties which own such Equity Interests authorize, execute and deliver one or more additional pledge  agreements governed by the laws of the jurisdiction or jurisdictions in which any such Material First-Tier  Foreign Subsidiary is organized, then the respective Loan Party or Loan Parties will, subject to local Law  limitations, (i) so authorize, execute and deliver one or more such additional pledge agreements (each, a  “Foreign Pledge Agreement”), and (ii) take such reasonable actions as may be necessary or desirable  under local law (as advised by local counsel) to create, maintain, effect, perfect, preserve, maintain and  protect the security interests granted (or purported to be granted) by each such Foreign Pledge Agreement  (including the delivery of a favorable opinion, addressed to Administrative Agent and the other Secured  Parties, of counsel for the Loan Parties as to such Foreign Pledge Agreement(s)).  Each Foreign Pledge  Agreement will (A) be prepared by local counsel satisfactory to the Administrative Agent in its  Reasonable Discretion and (B) be in form and substance satisfactory to the Administrative Agent in its  Reasonable Discretion, it being understood and agreed, however, in the case of any Foreign Pledge  Agreement entered into by Borrower or any other Loan Party, the respective Loan Party will not be  required to pledge more than 65% of the total combined voting power of all classes of Equity Interests  entitled to vote of any such Material First-Tier Foreign Subsidiary that is a corporation (or treated as such  for U.S. federal tax purposes) in support of its obligations (x) as Borrower under this Agreement (in the  case of the Borrower) or (y) under its Guaranty in respect of the Guaranteed Obligations (in the case of  the other Loan Parties) (although 100% of the non-voting Equity Interests, if any, of any such Material  First-Tier Foreign Subsidiary will be required to be pledged in support of such obligations).  In  determining whether to require one or more Foreign Pledge Agreements as permitted above,  Administrative Agent will, in its Reasonable Discretion, consider the costs of the actions required in  





 






   -121-         connection with the execution and delivery of the respective Foreign Pledge Agreements as against the  relative value of the security interests and additional protection provided thereby.  Section 6.12 Payment of Taxes.  Pay and discharge as the same will become due and payable, all tax liabilities, assessments and  governmental charges or levies upon it or its properties or assets the failure of which to pay could  reasonably be expected to have or result in a Material Adverse Effect, unless the same are being contested  in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with  GAAP are being maintained by such Person.   Section 6.13 Environmental Matters.  (a) Comply with all applicable Environmental Laws, and obtain and comply with  and maintain all Environmental Permits required by applicable Environmental Laws, except, in each case,  to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.  (b) Conduct and complete all investigations, studies, sampling and testing, and all  remedial, removal and other actions required under applicable Environmental Laws and Environmental  Permits, and promptly comply with all lawful orders and directives of all Governmental Authorities  regarding Environmental Laws, except to the extent the failure to do so could not reasonably be expected  to have a Material Adverse Effect.  Section 6.14 Post-Closing Matters.  Execute and deliver the documents and complete the tasks expressed on Schedule 6.14 in each  instance within the time limits specified on such Schedule.  Section 6.15 Further Assurances.  In addition to the obligations and documents which this Agreement expressly requires that any  Loan Party or any Restricted Subsidiary thereof execute, acknowledge, deliver and perform, each Loan  Party will execute and acknowledge (or cause to be executed and acknowledged) and deliver to  Administrative Agent all documents, and take all actions, that may be reasonably requested by  Administrative Agent from time to time hereunder to confirm the rights created or now or hereafter  intended to be created under the Loan Documents, to protect and further the validity, extent, priority and  enforceability of the Liens created under the Collateral Documents, to subject to the Liens created under  the Collateral Documents any property or assets intended by the terms of any Loan Document to be  covered by the Collateral Documents, or otherwise to carry out the purposes of the Loan Documents and  the transactions contemplated hereunder and thereunder.  ARTICLE VII  Negative Covenants  Until the Commitments shall have expired or been terminated, the principal of and interest on  each Loan and all fees, expenses and other amounts (other than under Secured Swap Obligations, Secured  Cash Management Obligations and contingent amounts not yet due) under any Loan Document have been  paid in full in cash and all Credits have expired or been terminated and the Unreimbursed Amount of all  Credit Borrowings shall have been reimbursed (unless the outstanding amount of the Obligations in  respect of any Credits related thereto has been cash collateralized or a backstop letter of credit reasonably  





 






   -122-         satisfactory to the applicable L/C Issuer is in place), each Loan Party hereto covenants and agrees with the  Lenders that it will not, and will not permit any of its Restricted Subsidiaries, directly or indirectly, to:  Section 7.01 Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues,  whether now owned or hereafter acquired, other than any of the following (collectively, “Permitted  Liens”):  (a) Liens created under any Collateral Document securing the Obligations for the  benefit of the Secured Parties;  (b) (i) Liens granted in the ordinary course of business on the unearned portion of  insurance premiums securing the financing of insurance premiums to the extent the financing is permitted  under Section 7.03 and (ii) deposits in the ordinary course of business securing liability for  reimbursement obligations of insurance carriers providing insurance to Borrower or any of its  Subsidiaries;  (c) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals,  extensions or replacements thereof; provided that the outstanding or committed principal amount secured  or benefited thereby is not increased (except by the amount of any accrued and unpaid interest and  premium thereon and underwriting discounts, defeasance costs, fees, commissions and expenses related  thereto and any unutilized commitments thereunder);  (d) Liens for tax liabilities, fees, assessments and other governmental charges or  levies not yet delinquent or remaining payable without penalty or to the extent that non-payment thereof  is permitted by Section 6.12; provided that no notice of lien has been filed or recorded under the Code  asserting delinquent Taxes owing of $1,000,000 or more, which notice has not been expunged from the  applicable public record (or otherwise terminated or released) within five Business Days after the earlier  of (i) the date on which a Responsible Officer of any Loan Party becomes aware of such filing or  recordation of the notice of lien or (ii) the date on which notice thereof is given to a Loan Party by  Administrative Agent or any Lending Party;  (e) Landlord’s, grower’s, supplier’s, producer’s, carrier’s, warehouseman’s,  mechanic’s, materialman’s, repairman’s or other like Liens (whether arising by operation of law, contract  or otherwise) arising in the ordinary course of business and which in the aggregate at any one time do not  materially detract from the value of the Collateral, taken as a whole, or materially impair the use thereof  in the operation of the business of the Loan Parties as a whole (or that are being contested in good faith  and by appropriate proceedings timely instituted and diligently conducted, if adequate reserves with  respect thereto, if any, in accordance with GAAP are set aside on the financial statements of the  applicable Person);  (f) pledges or deposits in the ordinary course of business in connection with  workers’ compensation, unemployment insurance and other social security legislation, other than any  Lien imposed by ERISA;  (g) deposits to secure the performance of bids, trade contracts or leases (other than  Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation),  performance bonds and other obligations of a like nature, in each case incurred in the ordinary course of  business;  





 






   -123-         (h) zoning, building and other land use restrictions, easements, rights-of-way,  covenants, restrictions and other similar encumbrances incurred in the ordinary course of business which  do not in any case materially detract from the value of the real property subject thereto or materially  interfere with the ordinary conduct of the business of Borrower and its Restricted Subsidiaries;  (i) Liens securing Indebtedness permitted under Section 7.03(g) (and extension,  renewal and replacement Liens upon the same property); provided that (i) such Liens do not at any time  encumber any property other than the property financed by such Indebtedness, improvements thereto and  proceeds thereof, (ii) the principal amount of Indebtedness secured thereby does not exceed the cost of  acquiring, constructing and/or improving such property (including interest during construction) and (iii)  such security interests and the Indebtedness secured thereby are incurred and attach prior to or within one  hundred-eighty days after such acquisition or the completion of such construction or improvement;  (j) rights of a licensor or sublicensor under any license agreement (or other license  or grant of rights to use) for the use of intellectual property or other intangible assets as to which any  Loan Party or any of its Restricted Subsidiaries is the licensee or sublicensee, as applicable;  (k) rights of a licensee or sublicensee under any license agreement (or other license  or grant of rights to use) for the use of intellectual property or other intangible assets of (or licensed to)  any Loan Party or any of its Restricted Subsidiaries as to which such Loan Party or other Restricted  Subsidiary is the licensor or sublicensor, as applicable;  (l) leases or subleases granted to others in the ordinary course of business;  (m) interests or title of a lessor or sublessor under an operating lease;  (n) Liens securing a judgment for the payment of money not constituting an Event of  Default under Section 8.01(h) or securing an appeal or other surety bond related to any such judgment;  (o) Liens arising by virtue of any contractual, statutory or common law provision  relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit or security accounts  or other funds or financial assets maintained with a creditor depository institution or securities  intermediary; provided that such deposit account is not a dedicated cash collateral account in favor of  such depository institution and the primary purpose of which is not to provide collateral security (other  than for customary account commissions, fees and reimbursable expenses relating solely to such deposit  account, and for returned items);  (p) Liens existing on any property or assets of a Person prior to the Acquisition  thereof by any Loan Party or any Restricted Subsidiary thereof or existing on any property or asset of any  Person that thereafter becomes a Restricted Subsidiary of Borrower after the Second Restatement  Effective Date (and extension, renewal and replacement Liens upon the same property); provided that (i)  such Lien is not created in contemplation of or in connection with such acquisition or such Person  becoming a Restricted Subsidiary of Borrower; (ii) such Lien does not extend or attach (including by  being in the nature of a floating Lien) to any other property of any Loan Party or any of its Restricted  Subsidiaries following such Acquisition other than, if required by terms of the instrument originally  creating such Lien, other property which is an improvement to or is acquired for specific use in  connection with such acquired property; and (iii) such Lien will secure only those obligations which it  secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary of  Borrower, and extensions, refinancings, renewals and replacements thereof, provided that (A) the  outstanding principal amount secured or benefited thereby is not increased (except by the amount of any  accrued and unpaid interest and premium thereon and underwriting discounts, defeasance costs, fees,  





 






   -124-         commissions and expenses related thereto and any unutilized commitments thereunder) and (B) if such  Lien secures Indebtedness, the Indebtedness secured or benefited thereby (including any such extension,  renewal or replacement) is permitted by Sections 7.03(f) or (g);  (q) Liens securing Indebtedness permitted under Section 7.03(e) (provided that the  counterparty to any such permitted Swap Contract is a Hedge Bank);  (r) Liens arising out of conditional sale, title retention, consignment or similar  arrangements for sale of goods entered into by any Loan Party or any Restricted Subsidiary thereof in the  ordinary course of business to the extent such Liens do not attach to any assets other than the goods  subject to such arrangements and the proceeds thereof;  (s) Liens deemed to exist in connection with repurchase agreements permitted under  the definition of “Cash Equivalents” set forth in Section 1.01;  (t) real estate security deposits with respect to leaseholds in the ordinary course of  business;  (u) interests of any collection agency in accounts receivable assigned to it by the  Borrower or any Restricted Subsidiary in the ordinary course of business for the purpose of facilitating  the collection of such accounts receivable;  (v) Liens in favor of customs and revenues authorities arising as a matter of law  which secure payment of customs duties in connection with the importation of goods;  (w) reservations by vendors of security interests in the ordinary course of business  pursuant to Section 2-401(1) of the Uniform Commercial Code as in effect in the applicable jurisdiction;  (x) Permitted Encumbrances;   (y) Liens on earnest money deposits made in connection with any agreement in  respect of an anticipated Permitted Acquisition;   (z) Liens not otherwise permitted under this Section 7.01, provided that the  obligations secured by such other Liens will not exceed $25,000,000 in the aggregate at any time  outstanding; and  (aa) to the extent constituting Liens on the assets of Borrower or any of its Restricted  Subsidiaries, Liens incurred in connection with Defeased Debt, which Liens attach only to the  Refinancing Proceeds deposited in a trust or escrow account in connection with such Defeased Debt.  Section 7.02 Investments.  Except as may be permitted by Section 7.04, make any Acquisition, or make, purchase or acquire  any Investment, except for:  (a) Investments in Cash and Cash Equivalents;  (b) Investments to the extent constituting Permitted Acquisitions;  (c) Guaranties constituting Indebtedness to the extent permitted by Section 7.03;  





 






   -125-         (d) (i) Investments in any Loan Party by Borrower or any of its Subsidiaries, (ii)  Investments by Borrower or any other Loan Party in any Foreign Subsidiary or any Foreign Subsidiary  Holdco (including, (A) making capital contributions to Foreign Subsidiaries or Foreign Subsidiary  Holdcos, and capitalizing or forgiving any Indebtedness owed to them by a Foreign Subsidiary or a  Foreign Subsidiary Holdco and permitted by Section 7.03(i), (B) all Guarantees by Loan Parties of the  obligations of Foreign Subsidiaries permitted by Section 7.03(d) and (C) all Dispositions by Loan Parties  to Foreign Subsidiaries and Foreign Subsidiary Holdcos (net of the fair value of all Cash or non-Cash  consideration received by the Loan Parties from Foreign Subsidiaries and Foreign Subsidiary Holdcos in  respect of such Dispositions), (iii) Investments by any Loan Party in any Domestic Subsidiary that is not a  Loan Party, (iv) Investments by Domestic Subsidiary that is not a Loan Party or a Foreign Subsidiary  Holdco in any other Domestic Subsidiary that is not a Loan Party or a Foreign Subsidiary Holdco, and (v)  Investments by any Foreign Subsidiary or Foreign Subsidiary Holdco in any other Foreign Subsidiary or  Foreign Subsidiary Holdco; provided that (x) as calculated without duplication, the amount of all  outstanding Investments made since the Second Restatement Effective Date pursuant to the preceding  clause (ii) will not exceed, in the aggregate, $50,000,000 (the amount of such outstanding Investments to  be determined without regard to any write-downs or write-offs thereof (provided that the outstanding  amount of all such Investments shall be reduced by (aa) Cash payments of principal, interest and other  obligations or amounts (other than indemnification payments and reimbursements for disbursements)  thereon in the case of loans or advances, (bb) sale proceeds with respect thereto in the case of  Dispositions of Investments, (cc) cash equity returns, Dividends and other comparable payments in the  case of equity investments and (dd) cancellation or termination of obligations under the applicable  Guaranty in the case of Investments in the form of Guaranties), (y) no Investment may be made pursuant  to the preceding clauses (ii) and (iii) above at any time that a Default or an Event of Default has occurred  and its continuing and (z) Investments made pursuant to the preceding clauses (iii) and (iv) shall also be  subject to Section 2.16 and the proviso of the definition of “Non-Exempt Subsidiary” in Section 1.01, in  each case as applicable;   (e) [Reserved];  (f) Investments in the form of loans and advances to employees of Borrower and its  Restricted Subsidiaries (including the acquisition and holding of obligations of such employees in  connection with such employees’ acquisition of shares of the common Equity Interests of Borrower (so  long as no Cash is actually advanced by Borrower or any of its Restricted Subsidiaries in connection with  the acquisition of such obligations)); provided that with respect to any loans or advances for moving,  relocation and travel expenses and other similar expenditures, all such loans or advances will not exceed  an aggregate principal amount of $2,000,000 at any time outstanding (determined without regard to any  write-downs or write-offs of such loans and advances);  (g) Swap Contracts to the extent permitted by Section 7.03(e);  (h) Investments existing on the Second Restatement Effective Date and set forth on  Schedule 7.02 and any modification, replacement, renewal or extension thereof to the extent not  involving an additional Investment;  (i) Investments arising from transactions by Borrower or any of its Restricted  Subsidiaries with customers or suppliers in the ordinary course of business, including Investments  (including debt obligations) received in connection with the bankruptcy or reorganization of customers  and suppliers and in settlement of delinquent obligations of, and other disputes with, customers or  suppliers arising in the ordinary course of business;  (j) Investments constituting Capital Expenditures;  





 






   -126-         (k) Investments constituting extensions of trade credit (including in the form of  accounts receivable) in the ordinary course of business;  (l) Investments constituting prepaid expenses, negotiable instruments held for  collection and lease, utility and workers’ compensation, performance and other similar deposits provided  to third parties, in each case, in the ordinary course of business;   (m) promissory notes and other non-Cash consideration received in connection with  Dispositions permitted by this Agreement;   (n)  Investments contemplated by Sections 7.04(a), 7.04(d) and 7.04(e);   (o) Investments in Foreign Subsidiaries by Borrower or any other Loan Party made  solely with (i) the Net Cash Proceeds received by Borrower from the incurrence of Specified Permitted  Indebtedness, (ii) the proceeds of any Loans made hereunder (including Incremental Term Loans and  Additional Revolving Credit Loans) or (iii) Net Equity Proceeds utilizing the Net Equity Proceeds  Amount as in effect immediately prior to the respective Investment, provided that, in each case, (A) no  Default or Event of Default has occurred and is continuing or would result from the making of such  Investment and (B) the proceeds of such Investment are immediately used by the respective  wholly-owned Foreign Subsidiary to consummate a Permitted Acquisition;   (p) In addition to Investments permitted by Sections 7.02(a) through 7.02(o), so long  as no Default or Event of Default has occurred and is continuing or would result from the making of such  Investment, Borrower and its Restricted Subsidiaries may make additional Investments in any Person in  an aggregate amount for all such Investments made pursuant to this Section 7.02(p) (determined without  regard to any write-downs or write-offs thereof), net of Cash payments of principal, interest or other  obligations in the case of loans or advances, sale proceeds in the case of Dispositions of Investments, cash  equity returns or amounts received in respect of cash equity (whether as a Dividend, redemption or sale)  in the case of equity investments and cancellation or termination of obligations under guarantees in the  case of Indebtedness in the form of guarantees, not to exceed $75,000,000;   (q) In addition to Investments permitted by Sections 7.02 (a) through 7.02(p),  Borrower and its Restricted Subsidiaries may make additional Investments in any Person); provided that  (i) no Default or Event of Default has occurred and is continuing at the time of the making of such  Investment or would result therefrom, (ii) after giving effect to the making of such Investment, the  Minimum Liquidity Condition is satisfied, and (iii) Borrower will be in compliance with the financial  covenants set forth in Section 7.15, for the Test Period ended as of the last day of the Test Period  immediately preceding the making of such Investment for which financial statements have been delivered  in accordance with Section 6.01, on a pro forma basis after giving effect to the making of such  Investment (but assuming, for purposes of determining pro forma compliance with Section 7.15(a) for  such Test Period, that the maximum Consolidated Leverage Ratio permitted  pursuant to Section 7.15(a)  for such Test Period was 0.25 less than the maximum Consolidated Leverage Ratio set forth in Section  7.15(a) corresponding to such Test Period (without giving effect to any permitted increase to such  maximum Consolidated Leverage Ratio corresponding to such Test Period as the result of the prior  consummation of a Permitted Acquisition); and  (r) Investments of any Person existing at the time such Person becomes a Restricted  Subsidiary of Borrower or consolidates or merges with Borrower or any of its Restricted Subsidiaries  (including in connection with a Permitted Acquisition) and any modification, replacement, renewal or  extension thereof to the extent not involving an additional Investment so long as such Investments were  





 






   -127-         not made in contemplation of such Person becoming a Restricted Subsidiary of Borrower of such  consolidation or merger.  Section 7.03 Indebtedness.  Create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectly liable  with respect to, any Indebtedness, except:  (a) Indebtedness under this Agreement and the other Loan Documents;  (b) unsecured Indebtedness incurred by Borrower, which may be guaranteed on an  unsecured basis by the Guarantors so long as (i) no Default or Event of Default has occurred and is  continuing or would result from the incurrence of such Indebtedness, (ii) Borrower will be in compliance  with the financial covenants set forth in Section 7.15, for the Test Period ended as of the last day of the  Test Period immediately preceding the incurrence of such Indebtedness for which financial statements  have been delivered in accordance with Section 6.01, on a pro forma basis after giving effect to the  incurrence of such Indebtedness (but assuming, for purposes of determining pro forma compliance with  Section 7.15(a) for such Test Period, that the maximum Consolidated Leverage Ratio permitted pursuant  to Section 7.15(a) for such Test Period was 0.25 less than the maximum Consolidated Leverage Ratio set  forth in Section 7.15(a) corresponding to such Test Period (after giving effect to any permitted increase to  such maximum Consolidated Leverage Ratio corresponding to such Test Period), and (iii) such  Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment  or mandatory prepayment, sinking fund or similar payment (other than, in each case, customary offers to  repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have  a final maturity date, in either case prior to the date occurring ninety-one days following the latest stated  maturity date under any Facility hereunder then in effect, (iv) the applicable agreement governing such  Indebtedness (including any related Guaranties and any other related Specified Permitted Debt  Document) will not include any financial performance “maintenance” covenants (whether stated as a  covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross- defaults (but may include cross-defaults at final stated maturity and cross-acceleration), (v) the terms of  such Indebtedness (including all covenants, defaults, guaranties, and remedies, but excluding as to interest  rate, call protection and redemption premium), taken as a whole, are no more restrictive or onerous in any  material respect than the terms applicable to Borrower and its Restricted Subsidiaries under this  Agreement and the other Loan Documents, and (vi) at least five Business Days (or such shorter period as  the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, Borrower  has delivered to Administrative Agent a certificate from a Responsible Officer of the Borrower certifying  as to compliance with the requirements of preceding clauses (i) through (v) (including a reasonably  detailed description of the material terms and conditions of such Indebtedness or the then most current  drafts of the documentation relating thereto, certifying that Borrower has determined in good faith that  such terms and conditions satisfy the requirements of the preceding clause (v)) and containing the  calculations (in reasonable detail) required by the preceding clause (ii);   (c) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any  refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is  not increased at the time of such refinancing, refunding, renewal or extension (except by the amount of  any accrued and unpaid interest and premium thereon and underwriting discounts, defeasance costs, fees,  commissions and expenses related thereto and any unutilized commitments thereunder);  (d) Guarantees incurred by (i) any Loan Party in support of the obligations of any  other Loan Party, (ii) any Foreign Subsidiary in support of the obligations of any Loan Party, (iii) subject  to the limitations set forth in Section 7.02(d), any Loan Party in support of the obligations of any Foreign  





 






   -128-         Subsidiary, (iv) subject to the limitations set forth in Section 7.02(d), any Loan Party in support of the  obligations of any Restricted Subsidiary that is not a Loan Party or any Unrestricted Subsidiary, and (v)  any Foreign Subsidiary in support of the obligations of any other Foreign Subsidiary;  (e) Indebtedness in the form of any Swap Contracts entered into in the ordinary  course of business and providing protection to Borrower and its Restricted Subsidiaries against  fluctuations in interest rates or foreign exchange or other currency values in connection with Borrower’s  or any of its Restricted Subsidiaries’ operations, in either case so long as the entering into of such Swap  Contracts are bona fide hedging activities and are not for speculative purposes;  (f) existing Indebtedness of any Person that becomes a Restricted Subsidiary of  Borrower after the Second Restatement Effective Date in connection with a Permitted Acquisition or  other Acquisition permitted by Section 7.02 or a merger of consolidation in accordance with Section 7.04  (and any extensions, renewals, refinancing and replacements thereof); provided that (i) such Indebtedness  is not created in contemplation of or in connection with such Acquisition, merger or consolidation or such  Person becoming a Restricted Subsidiary, as the case may be, and (ii) the aggregate principal amount of  all such Indebtedness permitted by this Section 7.03(f), including any extensions, renewals, refinancings  and replacements thereof, will not exceed $75,000,000 outstanding at any time;  (g) Indebtedness (including Capitalized Leases, Synthetic Lease Obligations,  mortgage financings, construction-in-process financings secured by real estate and purchase money  obligations) incurred to finance the acquisition, construction or improvement of goods or other fixed or  capital assets (whether initially incurred by Borrower or any of its Restricted Subsidiaries or assumed by  Borrower or any of its Restricted Subsidiaries in connection with an acquisition of such goods or other  fixed or capital assets);  provided that if all or any portion of such Indebtedness is secured, the Liens  securing such Indebtedness will be subject the limitations set forth in clauses (i), (ii) and (iii) of Section  7.01(i); and provided, further, that the aggregate principal amount of all such Indebtedness permitted by  this Section 7.03(g), including any extensions, renewals and replacements thereof, will not exceed  $35,000,000 outstanding at any time;  (h) Indebtedness constituting endorsements for collection or deposit in the ordinary  course of business;  (i) Indebtedness constituting Investments permitted under Section 7.02(d), Section  7.02(o), Section 7.02(p) and Section 7.02(q) to the extent constituting intercompany loans among Loan  Parties and/or any of their Restricted Subsidiaries, provided that (i) such Indebtedness is unsecured, (ii)  such Indebtedness to the extent held by a Loan Party is evidenced by one or more promissory notes  which, together with allonges, will be endorsed in favor of Administrative Agent or in blank and  delivered to Administrative Agent, and (iii) to the extent the obligor thereof is a Loan Party, such  Indebtedness will be subject to a subordination agreement in form and substance satisfactory to  Administrative Agent in its Reasonable Discretion;   (j) Indebtedness arising from any judgment, order, decree or award not constituting  an Event of Default under Section 8.01(h), and Indebtedness with respect to performance bonds, surety  bonds, appeal bonds, bid bonds, customs bonds or other obligations of like nature required in the ordinary  course of business;   (k) Deferred Purchase Price Obligations incurred in connection with Permitted  Acquisitions or other Acquisitions permitted by Section 7.02;   





 






   -129-         (l) Indebtedness which may be deemed to exist in connection with agreements  providing for indemnification, purchase price adjustments and similar obligations or from guaranties or  letters of credit, surety bonds, performance bonds or similar obligations securing the performance of  Borrower or any other Restricted Subsidiary in connection with Permitted Acquisitions or Dispositions;   (m) Indebtedness arising from the honoring by a bank or other financial institution of  a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, so  long as such Indebtedness is extinguished within four Business Days of its incurrence;  (n) customary obligations to banks in respect of netting services, overdraft  protections and similar arrangements, in each case in connection with maintaining deposit accounts in the  ordinary course of business;  (o) Indebtedness owed to any Person providing property, casualty, liability, or other  insurance to Borrower or any of its Restricted Subsidiaries, so long as the amount of such Indebtedness is  not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of such  insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding only  for a period not exceeding twelve months;   (p) Indebtedness not otherwise permitted under this Section 7.03, provided that such  additional Indebtedness is (i) unsecured (provided, however, that any such Indebtedness incurred by a  Foreign Subsidiary of Borrower may be secured so long as the Lien is permitted at such time pursuant to  Section 7.01(z)) and (ii) taken together with all other Indebtedness permitted under this Section 7.03(p),  does not exceed, in the aggregate principal amount outstanding at any time, $25,000,000; and  (q) Defeased Debt.  Section 7.04 Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one  transaction or in a series of transactions) all or substantially all of its assets (in each case whether now  owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default has  occurred and is continuing or would result therefrom:  (a) any Restricted Subsidiary may merge or consolidate with (i) Borrower (provided  that Borrower is the continuing or surviving Person) or (ii) any one or more other Subsidiaries (provided  that when (A) any Loan Party is merging or consolidating with a Subsidiary that is not a Loan Party, such  Loan Party will be the continuing or surviving Loan Party, (B) any wholly owned Subsidiary that is not a  Loan Party is merging or consolidating with a Subsidiary that also is not a Loan Party, such wholly  owned Subsidiary is the continuing or surviving Person, and (C) any such merger or consolidation  involving a Subsidiary that is not wholly owned immediately prior to such merger or consolidation is  otherwise an Investment permitted under Section 7.02);  (b) any Loan Party (other than Borrower) may Dispose of all or substantially all of  its assets (upon voluntary liquidation or otherwise) to Borrower or to another Loan Party;  (c) any Restricted Subsidiary may Dispose of all or substantially all its assets in a  transaction permitted under Section 7.02, and Borrower or any of its Restricted Subsidiaries may Dispose  of all or a Controlling interest in the Equity Interests of any of such Person’s Subsidiaries that is not a  Loan Party, in each case for not less than fair market value as determined in good faith by the Board of  Directors of Borrower;  





 






   -130-         (d) (i) Borrower may merge into or consolidate with any other Person or permit any  other Person to merge into or consolidate with it, provided that Borrower will be the surviving Person of  such merger or consolidation; and (ii) any Restricted Subsidiary may merge into or consolidate with any  other Person or permit any other Person to merge into or consolidate with it, provided that, subject to the  preceding clause (i), in the case of any such merger or consolidation to which any Loan Party (other than  Borrower) is a party, the surviving Person will be a Loan Party; and  (e) the liquidation or dissolution of any Restricted Subsidiary if (i) the Board of  Directors (or a Responsible Officer in lieu of the Board of Directors) of Borrower determines in good  faith that such liquidation or dissolution is in the best interest of Borrower and is not materially  disadvantageous to the Lending Parties, (ii) in the case of a liquidation or dissolution of a Loan Party  Borrower provides written notice to Administrative Agent of such liquidation or dissolution promptly  upon, and in any event not later than thirty days following, the effective date thereof (or such longer  period as may be agreed by Administrative Agent in its sole discretion), and (iii) all assets and property of  such Subsidiary (after payment or other provision for the satisfaction of the creditors thereof) are  transferred to another Loan Party (provided, however, that if such liquidation or dissolution is of a non- wholly owned Subsidiary, such assets and property may be transferred to the equity holders of such  Restricted Subsidiary ratably in accordance with their respective Equity Interests therein).   Section 7.05 [Reserved].  Section 7.06 Restricted Payments.  Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation  (contingent or otherwise) to do so, except that:  (a) each Subsidiary of Borrower may make Restricted Payments to Borrower and to  wholly-owned Subsidiaries of Borrower (and, in the case of a Restricted Payment by a non-wholly owned  Subsidiary, to Borrower and any Subsidiary of Borrower and to each other owner of Equity Interests of  such Subsidiary on a pro rata basis based on their relative ownership interests);  (b) Borrower may redeem, repurchase or otherwise acquire for value outstanding  shares of Borrower’s common stock (or options, warrants or other rights to acquire such common stock)  following the death, disability, retirement or termination of employment of officers, directors or  employees of Borrower or any of its Subsidiaries; provided that (i) the aggregate amount of all such  redemptions and repurchases pursuant to this Section 7.06(b) will not exceed $2,500,000 in any Fiscal  Year of Borrower and (ii) at the time of any such redemption or repurchase, no Default or Event of  Default has occurred and is continuing or will result from result such redemption or repurchase;  (c) Borrower may pay regularly scheduled dividends on its outstanding Qualified  Preferred Stock pursuant to the terms thereof solely through the issuance of additional shares of such  Qualified Preferred Stock (other than in Cash); provided that in lieu of issuing additional shares of such  Qualified Preferred Stock as dividends, Borrower may increase the liquidation preference of the shares of  Qualified Preferred Stock in respect of which such dividends have accrued;  (d) Borrower may pay Dividends on its outstanding Equity Interests in Cash in lieu  of issuing fractional shares of Equity Interests of Borrower or as payments to dissenting stockholders  pursuant to applicable Law in connection with a transaction permitted by this Agreement;  





 






   -131-         (e) Borrower may declare and pay Dividends on its outstanding Equity Interests  consisting solely of Equity Interests of Borrower otherwise permitted to be issued under this Agreement,  whether in connection with a stock split of common Equity Interests issued by Borrower or otherwise;  (f) Borrower may redeem, retire, purchase or otherwise acquire for value  outstanding Equity Interests of Borrower (i) in exchange for other Equity Interests of Borrower permitted  to be issued under this Agreement, (ii) upon the conversion of Qualified Preferred Stock or the exercise,  exchange or conversion of stock options, warrants or other rights to acquire Equity Interests of Borrower  and (iii) tendered to Borrower by a holder of Equity Interests of Borrower in settlement of  indemnification or similar claims by Borrower against such holder, in each case so long as no Cash or  other consideration is paid in connection with any such redemption, retirement, purchase or other  acquisition for value (unless otherwise independently permitted under another clause of this Section  7.06);  (g) Borrower may redeem, retire, purchase or otherwise acquire for value  outstanding Equity Interests of Borrower tendered by the holder thereof in payment of withholding or  other taxes relating to the vesting, delivery, exercise, exchange or conversion of stock options, restricted  stock, restricted stock units, warrants or other Equity Interests of  Borrower;  (h) Borrower may purchase, redeem or otherwise acquire for Cash any outstanding  Equity Interests of Borrower so long as (i) no Default or Event of Default has occurred and is continuing  at the time of such purchase, redemption or acquisition or would result therefrom and (ii) the  consideration therefor consists solely of proceeds received by Borrower from a substantially concurrent  issuance or sale of its common Equity Interests (including an issuance or sale of shares of its common  Equity Interests in connection with the exercise of options or warrants); and  (i) (i) Borrower may declare and pay or make additional Dividends in Cash  (including to repurchase or redeem for Cash any outstanding Equity Interests of Borrower); provided that  (i) no Default or Event of Default has occurred and is continuing at the time of the payment of such  Dividend or would result therefrom and (ii) Borrower will be in compliance with the financial covenants  set forth in Section 7.15, for the Test Period ended as of the last day of the Test Period immediately  preceding the payment or making of such Dividend for which financial statements have been delivered in  accordance with Section 6.01, on a pro forma basis after giving effect to the making of such Dividend  (but assuming, for purposes of determining pro forma compliance with Section 7.15(a) for such Test  Period, that the maximum Consolidated Leverage Ratio permitted pursuant to Section 7.15(a) for such  Test Period was 2.75:1:00 (without giving effect to any permitted increase to such maximum  Consolidated Leverage Ratio corresponding to such Test Period as the result of the prior consummation  of a Permitted Acquisition).  Section 7.07 [Reserved].  Section 7.08 Transactions with Affiliates.  Enter into any transaction (or series of related transactions) of any kind with any Affiliate of any  Loan Party, irrespective of whether in the ordinary course of business, other than on fair and reasonable  terms at least as favorable, in all material respects, to Borrower and the other Loan Parties as would  reasonably be obtainable by such Person in a comparable arms’ length transaction with a Person other  than an Affiliate (it being understood that in the case of a joint venture or non-wholly owned Subsidiary,  such determination may be made as of the time relevant agreements with respect to such transactions are  entered into and may be based in the context of the overall commercial relationship with such joint  venture or non-wholly owned Subsidiary); provided that the foregoing restriction will not apply to (a)  





 






   -132-         transactions between or among (i) Borrower and its wholly owned Subsidiaries or between or among  Borrower’s wholly owned Subsidiaries not involving any other Affiliate that is not a wholly owned  Subsidiary or (ii) any Loan Party and any other Loan Party to the extent otherwise permitted by this  Agreement, (b) Restricted Payments permitted under Section 7.06, (c) Guaranties permitted under  Section 7.03(d), (d) employment and severance arrangements (including equity incentive plans and  employee benefit plans and arrangements) with their respective present or former officers and employees  in the ordinary course of business, (e) payment of fees and other compensation and reimbursement and  reasonable out-of-pocket costs to, and indemnities for the benefit of, directors, officers, employees and  consultants of Borrower and its Subsidiaries in the ordinary course of business, (f) the transactions  described on Schedule 7.08, (g) the issuance of Equity Interests permitted to be issued under this  Agreement, (h) the payment by any Subsidiary of management fees, licensing fees and similar fees to  Borrower or any Loan Party and (i) transactions between or among Borrower and its Subsidiaries not  otherwise permitted hereunder where the aggregate value of such transaction (or series of related  transactions) does not exceed $5,000,000.  Section 7.09 Burdensome Agreements.  Except for (a) this Agreement and the other Loan Documents, (b) agreements described on  Schedule 7.09 (including any modification, replacement, renewal or extension thereof), (c) any  agreement in effect at the time any Person becomes a Restricted Subsidiary, so long as such agreement  was not entered into solely in contemplation of such Person becoming a Restricted Subsidiary (and any  modification, replacement, renewal or extension thereof), (d) restrictions imposed by Law, (e) customary  restrictions and conditions contained in any agreement relating to the sale of any property not prohibited  hereunder pending the consummation of such sale, (f) customary non-assignment, anti-subletting or anti- encumbrance provisions of leases, subleases, licenses, sublicenses, joint venture agreements and similar  agreements, (g) customary restrictions and conditions imposed by Organizational Documents or any  related joint venture, shareholders' or similar agreement regarding the transfer of ownership, (h) any  agreements relating to Foreign Subsidiaries, Foreign Subsidiary Holdcos or Exempt Subsidiaries (to the  extent restrictions or encumbrances are only applicable to such Foreign Subsidiary, Foreign Subsidiary  Holdco or Exempt Subsidiary), (i) customary provisions in joint venture agreements and other similar  agreements (provided that such provisions apply only to such Joint Venture and to Equity Interests in  such Joint Venture), (j) customary net worth provisions or similar financial maintenance provisions  contained in real property leases entered into by a Restricted Subsidiary, so long as Borrower has  determined in good faith that such net worth provisions could not reasonably be expected to impair the  ability of Borrower and the Restricted Subsidiaries to meet their ongoing obligations under the Loan  Documents, (k) restrictions on cash or other deposits imposed by customers of Borrower or any  Restricted Subsidiary under contracts entered into in the ordinary course of business or (l) otherwise as  provided or permitted in this Agreement, enter into, assume or permit to exist any agreement (other than  this Agreement or any other Loan Document) or consensual encumbrance or restriction that:  (i)  (i) prohibits or restricts the ability of any Restricted  Subsidiary to make Restricted Payments to Borrower or any Guarantor or to otherwise transfer property  to or invest in Borrower or any Guarantor;  (ii) (ii) prohibits or restricts the ability of any Restricted Subsidiary  (other than any Excluded Subsidiary) to Guarantee the Obligations of Borrower and the other Loan  Parties under the Loan Documents;   (iii) (iii) prohibits or restricts the ability of any Loan Party to repay or  prepay any Indebtedness owed by such Loan Party or Restricted Subsidiary to Borrower or any other  Loan Party;  





 






   -133-         (iv) (iv) limits the ability of any Loan Party to create, incur, assume or  suffer to exist Liens on property of such Person in favor of Administrative Agent pursuant to the  Collateral Documents; or   (v) (v) prohibits or restricts the ability of any Loan Party to act as a  Loan Party pursuant to the Loan Documents.  Section 7.10 Use of Proceeds.  Use any portion of the proceeds of any Credit Extension (or, for purposes of clauses (c) and (d)  below, lend, contribute or otherwise make available such proceeds to any Subsidiary, Joint Venture  partner or other Person):  (a) for any purpose other than (i) the repayment in full of the Existing Senior Credit  Facilities (including, in accordance with Section 10.20), (ii) to pay Transaction Costs, (iii) for Capital  Expenditures, (iv) to make Restricted Payments (including any repurchase of Equity Interests of Borrower  or any of its Subsidiaries) not prohibited hereunder, (v) to fund Permitted Acquisitions and other  Investments not prohibited hereunder, (vi) to fund the ongoing working capital and general business  needs of Borrower and its Subsidiaries and (vii) to fund working capital and other general corporate  purposes not prohibited hereunder;  (b) for any purpose that entails a violation of Regulations U or X adopted by the  FRB;  (c) (i) to fund any activities or business of or with any Person, or in any country or  territory, that, at the time of such funding, is the target of Sanctions or (ii) in any other manner that would  result in a violation of Sanctions by any Person (including any Person participating in the Credit  Extensions, whether as Administrative Agent, an Arranger or a Lending Party or as  underwriter, advisor,  investor or otherwise) other than to the extent this covenant would result in a violation of Council  Regulation (EC) No 2271/96, as amended (or any implementing law or regulation in any member state of  the European Union or the United Kingdom); or  (d) for any payments that could constitute a material violation of any anti-bribery or  other anti-corruption Law applicable to the Loan Parties.    Section 7.11 Maintenance of Business.  Engage to any material extent in any business other than businesses of the type conducted by  Borrower and its Restricted Subsidiaries on the Second Restatement Effective Date and any Related  Business, provided that Borrower and its Restricted Subsidiaries may discontinue or dispose of existing  product lines or product groups, subject to the other restrictions of this Agreement.  Section 7.12 [Reserved].  Section 7.13 Accounting Changes.  Make any (a) material change in Borrower’s or any of its Consolidated Subsidiary’s accounting  policies or financial reporting practices, except as required or permitted (including in connection with any  early adoption up upcoming changes in GAAP) by GAAP or (b) change in Borrower’s or any of its  Consolidated Subsidiary’s Fiscal Year (except any change to the Fiscal Year of any Subsidiary of  





 






   -134-         Borrower acquired or formed after the Second Restatement Effective Date in order to correspond to the  Fiscal Year of Borrower).  Section 7.14 Limitation on Issuance of Equity Interests.  (a) Issue (i) any Preferred Equity (other than (A) Qualified Preferred Stock issued by  Borrower and (B) Preferred Equity issued by a Subsidiary of Borrower to its direct parent company or  companies) or (ii) any redeemable common Equity Interests other than redeemable common Equity  Interests that is or are redeemable at the sole option of Borrower or such Subsidiary, as the case may be.  (b) Permit any Restricted Subsidiary (other than a Subsidiary that is a Joint Venture)  to issue any Equity Interests (including by way of sales of treasury stock) or any options or warrants to  purchase, or securities convertible into, Equity Interests, except (i) for transfers and replacements of then  outstanding shares of Equity Interests, (ii) for stock splits, stock dividends and other issuances which do  not decrease the percentage ownership of Borrower and its Restricted Subsidiaries in any class of the  Equity Interests of such Restricted Subsidiary, (iii) to Borrower or any Restricted Subsidiary of the  Borrower (provided no Guarantor will issue Equity Interests (or any options or warrants to purchase, or  securities convertible into, Equity Interests except to the extent otherwise permitted hereunder) to a  Subsidiary that is not a Guarantor), (iv) in the case of any Foreign Subsidiary, to qualify directors to the  extent required by applicable Law and for other nominal share issuances to Persons other than Borrower  and its Restricted Subsidiaries to the extent required under applicable Law, (v) for issuances by Restricted  Subsidiaries which are newly created or acquired in accordance with the terms of this Agreement, (vi) in  connection with any transaction permitted under Sections 7.02(d), 7.04(a) or 7.04(b) and (vii) as  permitted by clause (B) of the parenthetical contained in Section 7.14(a).  Section 7.15 Financial Covenants.  (a) Maximum Consolidated Leverage Ratio.  Maintain a Consolidated Leverage  Ratio, as determined as of the last day of each Fiscal Period, of greater than 3.50:1.00; provided, however,  that the foregoing maximum Consolidated Leverage Ratio will be increased to 4:00:1.00 for the last day  of each of the four consecutive Fiscal Periods ending on or after the date of consummation of an  Acquisition constituting a Material Acquisition if such Acquisition is permitted under Section 7.02  (including as a Permitted Acquisition) or is otherwise approved by Required Lenders pursuant to Section  10.01.  Following such fourth consecutive Fiscal Period end date, the maximum Consolidated Leverage  Ratio covenant will be restored to 3.50:1.00 (unless otherwise adjusted in accordance with this  Agreement).   (b) Minimum Consolidated Interest Coverage Ratio.  Maintain a Consolidated  Interest Coverage Ratio, as determined as of the last day of each Fiscal Period, of less than 3.50:1.00.  ARTICLE VIII  Events of Default and Remedies  Section 8.01 Events of Default.  Each of the following will constitute an event of default hereunder (each, an “Event of Default”):  (a) Non-Payment.  Borrower fails to (i) pay when and as required to be paid herein,  any amount of principal of any Loan or any Credit Obligation or deposit of funds as Cash Collateral in  respect of Credit Obligations; or (ii) pay within three Business Days after the same becomes due, any  





 






   -135-         interest on any Loan or on any Credit Obligation, any fee due hereunder, or any other amount payable  hereunder or under any other Loan Document; or  (b) Specific Covenants.  Any Loan Party fails to perform or observe any term,  covenant or agreement contained in any of Section 6.03(a), Section 6.04 (as it relates to Borrower) or  Article VII; or    (c) Representations and Warranties.  Any representation, warranty, statement or  certification made by any Loan Party or any of its Subsidiaries in this Agreement or in any other Loan  Document or in any other document, instrument or Record delivered or made available to Administrative  Agent or any other Lending Party in connection with any Loan Document that is subject to materiality or  a Material Adverse Effect qualification will not be true and correct in any respect when made or deemed  made or any representation, warranty, certification or statement of fact made or deemed made by or on  behalf of any Loan Party or any of its Subsidiaries in this Agreement or in any other Loan Document or in  any other document, instrument or Record delivered or made available to Administrative Agent or any  other Lending Party in connection with any Loan Document that is not subject to materiality or a Material  Adverse Effect will not be true and correct in any material respect when made or deemed made; or  (d) Other Defaults.  (i) Any Loan Party fails to perform or observe any term,  covenant or agreement contained in Section 6.11 on its part to be performed or observed and such failure  continues for ten days after the date on which notice thereof is given to a Loan Party by Administrative  Agent or any Lending Party or otherwise, or (ii) any Loan Party fails to perform or observe any other  covenant or agreement (not specified in the preceding clause (i) or in Section 8.01(a), Section 8.01(b) or  Section 8.01(c)) contained in this Agreement or in any other Loan Document on its part to be performed  or observed and such failure continues for thirty days the date on which notice thereof is given to a Loan  Party by Administrative Agent or any Lending Party or otherwise; or   (e) Cross-Default.  (i) Any Loan Party or Subsidiary thereof (A) fails to make any  payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or  otherwise and after giving effect to any grace or cure period) in respect of any Indebtedness (other than  Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount  (including undrawn committed or available amounts and including amounts owing to all creditors under  any combined or syndicated credit arrangement) of more than the Threshold Amount; or (B) after giving  effect to any applicable grace or cure period, an “event of default” occurs with respect to any such  Indebtedness having an aggregate principal amount (including undrawn committed or available amounts  and including amounts owing to all creditors under any combined or syndicated credit arrangement) of  more than the Threshold Amount or contained in any document evidencing, securing or relating to any of  the foregoing, or any other event occurs, the effect of which “event of default” or other event is to cause,  or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or  holders), as the case may be, to cause, with the giving of notice if required, such Indebtedness to be  demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or  otherwise) prior to its stated maturity (including the foreclosure or similar action on any Lien securing  such Indebtedness); or (ii) there occurs under any Swap Contract an Early Termination Date (as defined  in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which  Borrower or any of its Subsidiaries is the Defaulting Party (as defined in such Swap Contract) or (B) any  Termination Event (as so defined) under such Swap Contract as to which any Loan Party or any  Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination Value  owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or  (f) Insolvency; Voluntary Proceedings.  Any Loan Party or any Material  Subsidiary thereof (i) ceases or fails to be Solvent (for purposes of this Section 8.01(f), determined  





 






   -136-         without regard to any intercompany payables), or generally fails to pay, or admits in writing its inability  to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity  or otherwise; (ii) except as permitted under Section 7.04, voluntarily liquidates, dissolves or ceases to  conduct its business in the ordinary course; (iii) commences any Insolvency Proceeding with respect to  itself; or (iv) takes any action to effectuate or authorize any of the foregoing; or  (g) Involuntary Proceedings.  (i) Any involuntary Insolvency Proceeding is  commenced or filed against any Loan Party or any Material Subsidiary thereof, or any writ, judgment,  warrant of attachment, execution or similar process, is issued or levied against a substantial part of any  Loan Party’s properties or assets or the properties or assets of any Material Subsidiary thereof, and any  such proceeding or petition will not be dismissed, or such writ, judgment, warrant of attachment,  execution or similar process will not be released, vacated or fully bonded within sixty days after  commencement, filing or levy; (ii) any Loan Party or any Material Subsidiary thereof admits the material  allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order  under non-United States Debtor Relief Law) is ordered in any Insolvency Proceeding; or (iii) any Loan  Party or any Material Subsidiary thereof acquiesces in the appointment of a receiver, trustee, custodian,  conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or a  substantial portion of its property, assets or business; or  (h) Judgments.  There is entered or issued against any Loan Party or any Subsidiary  thereof (i) a final (non-interlocutory) judgment, order or decree by any Governmental Authority or a final  or binding award by an arbitrator or arbitration panel or other similar alternative dispute resolution body  for the payment of money in an amount, singularly or in the aggregate, exceeding the Threshold Amount  (to the extent not covered by independent third-party insurance as to which the insurer does not dispute  coverage); or (ii) any one or more non-monetary final judgments that have, or could reasonably be  expected to have or result in, individually or in the aggregate, a Material Adverse Effect and, in either  case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order and such  enforcement proceedings have not been stayed within thirty days after the commencement thereof or (B)  there is a period of sixty consecutive days during which a stay of enforcement of such judgment, by  reason of a pending appeal or otherwise, is not in effect; or  (i) ERISA.  (i) An ERISA Event occurs with respect to a Pension Plan or  Multiemployer Plan which has resulted or could reasonably be expected to result in a Material Adverse  Effect or (ii) any Loan Party or any ERISA Affiliate fails to pay when due any installment payment with  respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an  aggregate amount that could reasonably be expected to have or result in a Material Adverse Effect; or   (j) Invalidity of Loan Documents.  Any Loan Document or any material provision  thereof, at any time after its execution and delivery and for any reason other than as expressly permitted  hereunder or thereunder or in connection with the satisfaction in full of all the Obligations, 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 provision thereof; or any Loan Party denies that it has any or further liability or  obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document or  any provision thereof; or   (k) Collateral Documents. Any Collateral Document after delivery thereof pursuant  to Section 4.01 or Section 6.11 will for any reason (other than in accordance with or as otherwise  permitted by the terms of this Agreement or such Collateral Document or in connection with the payment  in full of the Obligations) cease to create a valid and perfected (to the extent required to be perfected  under the Collateral Documents) first priority Lien (subject to Permitted Liens) on all or any material  portion of the Collateral purported to be covered thereby; or  





 






   -137-         (l) Change of Control.  A Change of Control occurs.  Section 8.02 Waivers of Events of Defaults.  Any Event of Default (or any Default that, with the lapsing of the applicable grace period, if any,  would become an Event of Default) may be waived only with the written consent of Required Lenders;  except that an Event of Default (or a Default) under any of Sections 8.01(a), (f), (g), (j) or (k) may only  be waived with the written consent of all Lenders.  Any Event of Default (or Default) so waived will be  deemed to have been cured and not to be continuing; but no such waiver will be deemed a continuing  waiver or will extend to or affect any subsequent like default or impair any rights arising therefrom.  Section 8.03 Remedies Upon Event of Default.  Upon the occurrence and during the continuance of any Default or Event of Default, the Lending  Parties will have no obligation to advance money or extend any additional Credit Extension to or for the  benefit of Borrower, whether in the form of the making of Loans, the issuance of Credits or otherwise.  In  addition, upon the occurrence and during the continuance of any Event of Default, Administrative Agent  will, at the request of, or may, with the consent of, Required Lenders, take any or all of the actions  described in this Section 8.03, all of which are hereby authorized by Borrower and each of the other Loan  Parties.  (a) Termination of Commitments.  Declare, by written notice to Borrower, the  Aggregate Commitments, including any commitments of any Lender or the Swing Line Lender to make  and advance Loans and any obligation of any L/C Issuer to make or issue L/C Credit Extensions, to be  terminated, whereupon such commitments and obligations will be terminated, but without affecting the  Secured Parties’ Liens in and on the Collateral;  (b) Acceleration of Obligations.  Declare all or any portion of the unpaid principal  amount the outstanding Loans, the interest accrued and unpaid thereon and the other amounts and  Obligations owing or payable under this Agreement or under any other Loan Document or any other  instrument executed by Borrower or any other Loan Party pursuant to the Loan Documents (exclusive of  any Secured Swap Obligations and any Secured Cash Management Obligations) to be immediately due  and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby  expressly waived by Borrower and each such other Loan Party;  (c) Cash Collateralization of Credit Obligations.  Require that Borrower Cash  Collateralize the Credit Obligations in an amount equal to 103% of the then Outstanding Amount thereof;  (d) Discretionary Advances.  Make advances of Loans after the occurrence of any  Event of Default, without thereby waiving their right to demand payment of the Obligations under this  Agreement, or any of the other Loan Documents, or any other rights or remedies described in this  Agreement or any other Loan Document, and without liability to make any other or further advances,  notwithstanding Administrative Agent’s or any Lending Party’s previous exercise of any such rights and  remedies; or  (e) Exercise of Rights and Remedies.  Exercise on behalf of itself and the Lending  Parties, in addition to all rights and remedies granted or otherwise made available to Administrative  Agent or the Lending Parties under this Agreement, any and all rights and remedies granted or otherwise  made available to Administrative Agent or the Lending Parties under the Collateral Documents and other  Loan Documents or otherwise under applicable Law or in equity;  





 






   -138-         provided, that upon the occurrence of an actual or deemed entry of an order for relief with respect  to Borrower under any Debtor Relief Law, the obligation of each Lender or Swing Line Lender to make  or advance Loans and any obligation of any L/C Issuer to make or issue L/C Credit Extensions will  automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other  amounts and Obligations as aforesaid will automatically become due and payable, and the obligation of  Borrower to Cash Collateralize the Credit Obligations in an amount equal to 103% of the then  Outstanding Amount thereof will automatically become effective, in each case, without further act of  Administrative Agent or any Lending Party.  Section 8.04 Standards for Exercising Rights and Remedies.  To the extent that applicable Law imposes duties on Administrative Agent to exercise remedies in  a commercially reasonable manner, Borrower and each other Loan Party acknowledges and agrees that it  is not commercially unreasonable for Administrative Agent (a) to fail to incur expenses reasonably  deemed significant by Administrative Agent to prepare Collateral for disposition or otherwise to fail to  complete raw material or work in process into finished goods or other finished products for disposition,  (b) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not  required by other law, to fail to obtain governmental or third party consents for the collection or  disposition of Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against  account debtors or other persons obligated on Collateral or to fail to remove Liens on or any adverse  claims against Collateral, (d) to exercise collection remedies against account debtors and other persons  obligated on Collateral directly or through the use of collection agencies and other collection specialists,  (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or  not the Collateral is of a specialized nature, (f) to contact other persons, whether or not in the same  business as Borrowers, for expressions of interest in acquiring all or any portion of the Collateral, (g) to  hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the  collateral is of a specialized nature, (h) to dispose of Collateral by utilizing internet sites that provide for  the auction of assets of the types included in the Collateral or that have the reasonable capability of doing  so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail  markets, (j) to disclaim disposition warranties, (k) to purchase insurance or credit enhancements to insure  Administrative Agent against risks of loss, collection or disposition of Collateral or to provide to  Administrative Agent a guaranteed return from the collection or disposition of Collateral, (l) to the extent  deemed appropriate by Administrative Agent, to obtain the services of brokers, investment bankers,  consultants and other professionals to assist Administrative Agent in the collection or disposition of any  of the Collateral or (m) to conduct going out of business sales and otherwise liquidate the inventory.   Borrower and each Loan Party acknowledge that the purpose of this Section 8.04 is to provide non- exhaustive indications of what actions or omissions by Administrative Agent would fulfill Administrative  Agent’s duties under the UCC of the state or any other relevant jurisdiction in Administrative Agent’s  exercise of remedies against the Collateral and that other actions or omissions by Administrative Agent  will not be deemed to fail to fulfill such duties solely on account of not being indicated in this Section  8.04.  Without limitation upon the foregoing, nothing contained in this Section 8.04 will be construed to  grant any rights to Borrower or any Loan Party or to impose any duties on Administrative Agent that  would not have been granted or imposed by this Agreement or any other Loan Document or by applicable  Law in the absence of this Section 8.04.   Section 8.05 Application of Funds.  Following the occurrence and during the continuation of an Event of Default or following any  exercise of remedies provided for in Section 8.03 (or after the Loans have automatically become  immediately due and payable and the Credit Obligations have automatically been required to be Cash  Collateralized as set forth in the proviso to Section 8.03), any amounts received on account of the  





 






   -139-         Obligations will, subject to the provisions of Section 2.15 and Section 3.07, be applied by Administrative  Agent in the following order (on a pro rata basis within each level of priority):  (a) First, to payment in full of that portion of the Obligations constituting fees,  indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to  Administrative Agent payable hereunder and amounts payable under Article III) payable to  Administrative Agent in its capacity as such;  (b) Second, to payment in full of that portion of the Obligations constituting fees,  indemnities and other amounts (other than principal, interest, Revolving Credit Commitment Fees  and  Credit Fees) payable to the Lending Parties (including fees, charges and disbursements of counsel to the  respective Lending Parties arising under the Loan Documents and payable hereunder and amounts  payable under Article III), ratably among them in proportion to the respective amounts described in this  clause Second payable to them;  (c) Third, to payment in full of that portion of the Obligations constituting accrued  and unpaid interest on the Loans, L/C Borrowings and other Obligations arising under the Loan  Documents and accrued and unpaid Revolving Credit Commitment Fees and Credit Fees, ratably among  the Lending Parties in proportion to the respective amounts described in this clause Third payable to  them;  (d) Fourth, to payment in full of that portion of the Obligations constituting (a)  unpaid principal of all Loans and the L/C Borrowings, (ii) Secured Swap Obligations then owing  (including any Swap Termination Value owing with respect thereto) and (iii) Secured Cash Management  Obligations then owing, ratably among the Lenders, the Hedge Banks and the Cash Management Banks  in proportion to the respective amounts described in this clause Fourth held by them;  (e) Fifth, to Administrative Agent for the account of the L/C Issuers, to Cash  Collateralize in full that portion of Credit Obligations comprised of the aggregate undrawn amount of  Credits to the extent not otherwise Cash Collateralized by Borrower pursuant to Sections 2.03 and  Section 2.15;  (f) Sixth, to payment in full of all other Obligations (including the provision of  amounts to Administrative Agent to be held by Administrative Agent, for the benefit of the Cash  Management Banks, as the amount necessary to secure the Loan Parties’ obligations in respect of  unliquidated or contingent Secured Cash Management Obligations); and  (g) Seventh, the balance, if any, after all of the Obligations have been paid in full, to  Borrower or as otherwise required by Law.  Subject to Section 2.03(c) and Section 2.15, amounts used to Cash Collateralize the aggregate  undrawn amount of Credits pursuant to the foregoing clause Fifth will be applied to satisfy drawings  under such Credits as they occur. If any amount remains on deposit as Cash Collateral after all Credits  have either been fully drawn or expired, such remaining amount will be applied to the other Obligations,  if any, in the order set forth in this Section 8.05.  Notwithstanding the foregoing:  (i) Secured Swap Obligations and Secured Cash Management Obligations  will be excluded from the application described above if Administrative Agent has not received written  notice thereof, together with such supporting documentation as Administrative Agent may reasonably  





 






   -140-         request, from the applicable Hedge Bank or Cash Management Bank, as the case may be.  Each Hedge  Bank or Cash Management Bank that has given the notice contemplated by the preceding sentence will,  by such notice, be deemed to have acknowledged and accepted the appointment of Administrative Agent  pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto; it being  understood and agreed that the rights and benefits of any such Hedge Bank or Cash Management Bank  under the Loan Documents consist exclusively of such Hedge Bank’s or Cash Management Bank’s, as the  case may be, right to share in payments and collections out of the Collateral arising after the occurrence  and during the continuation of an Event of Default as more fully set forth herein.  In connection with any  such distribution of payments and collections, Administrative Agent will be entitled to assume no  amounts are due to any Hedge Bank or Cash Management Bank unless such Hedge Bank or Cash  Management Bank has notified Administrative Agent in writing of the amount of any such liability owed  to it prior to such distribution.  Except as otherwise expressly set forth herein or in any Collateral  Document, no Person that obtains the benefit of the provisions of this Section 8.05 or any of the  Collateral by virtue of the provisions hereof or of any Collateral Document will have any right to notice  of any action or to consent to, direct or object to any action hereunder or under any other Loan Document  or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than  in its capacity as a Lending Party and, in such case, only to the extent expressly provided in the Loan  Documents.  Notwithstanding any provision in Article IX to the contrary, Administrative Agent will be  required to verify the payment of, or that other satisfactory arrangements have been made with respect to,  Secured Swap Obligations and Secured Cash Management Obligations only if and to the extent  Administrative Agent has received written notice of such Obligations, together with such supporting  documentation as Administrative Agent may request, from the applicable Hedge Bank or Cash  Management Bank.  (ii) Excluded Swap Obligations with respect to any Loan Party that is a  Subsidiary of Borrower shall not be paid with amounts received from such Subsidiary or its assets, but  appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the  allocation to Obligations otherwise set forth in this Section 8.05.  ARTICLE IX  Administrative Agent  Section 9.01 Appointment and Authorization of Administrative Agent.  (a) Appointment. Each Lending Party hereby irrevocably appoints HSBC to act on  its behalf as Administrative Agent hereunder and under the other Loan Documents, including to act in  such representative capacity as secured party on behalf and for the benefit of each such Lending Party  under this Agreement and the other Loan Documents, and authorizes Administrative Agent to take such  actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the terms  hereof and thereof, together with such actions and powers as are reasonably incidental thereto.  The  provisions of this Article IX are solely for the benefit of Administrative Agent and the Lending Parties,  and neither Borrower nor any other Loan Party will have rights as a third party beneficiary of any of such  provisions or be bound by such provisions (other than as provided in Section 9.06 and Section 9.10). It is  understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any  other similar term) with reference to Administrative Agent is not intended to connote any fiduciary or  other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such  term is used as a matter of market custom, and is intended to create or reflect only an administrative  relationship between contracting parties.  Any entity into which Administrative Agent in its individual  capacity may be merged or converted or with which it may be consolidated, or any corporation resulting  from any merger, conversion or consolidations which Administrative Agent in its individual capacity may  be party, or any corporation to which substantially all of the corporate trust or agency business of  





 






   -141-         Administrative Agent in its individual capacity may be transferred, will be Administrative Agent under  this Agreement and the other Loan Documents without further action.  (b) Collateral Agent.  Administrative Agent shall also act as the “collateral agent”  under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank  and a potential Cash Management Bank) hereby irrevocably appoints and authorizes Administrative  Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all  Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with  such powers and discretion as are reasonably incidental thereto. In this connection, Administrative Agent,  as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative  Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any  portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies  thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions  of this Article IX and Article X as though such co-agents, sub-agents and attorneys-in-fact were the  “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.  Section 9.02 Rights as a Lender.  If the Person serving as Administrative Agent hereunder is also “Swing Line Lender,” “L/C  Issuer” or a “Lender,” such Person will have the same rights and powers in such capacity(ies) as any  other Person in such capacity(ies) and may exercise the same as though it were not Administrative Agent.   Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the  financial advisor or in any other advisory capacity for and generally engage in any kind of business with  Borrower or any Subsidiary or other Affiliate thereof as if such Person were not Administrative Agent  hereunder and without any duty to account therefor to any other Lending Party.  Section 9.03 Exculpatory Provisions.  Administrative Agent will not have any duties or obligations except those expressly set forth  herein and in the other Loan Documents, and its duties hereunder will be administrative in nature.   Without limiting the generality of the foregoing, Administrative Agent will not:  (a) be subject to any fiduciary or other implied duties, regardless of whether a  Default or Event of Default has occurred and is continuing;  (b) have any duty to take any discretionary action or exercise any discretionary  powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan  Documents that Administrative Agent is required to exercise as directed in writing by Required Lenders  (or such other number or percentage of Lenders as will be expressly provided for herein or in any other  Loan Documents), Swing Line Lender or L/C Issuer, as applicable; provided that Administrative Agent  will not be required to take any action that, in its opinion or the opinion of its counsel, may expose  Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including  any action that 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;  (c) except as expressly set forth herein and in the other Loan Documents, have any  duty to disclose, and will not be liable for the failure to disclose, any information relating to Borrower or  any of its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or  any of its Affiliates in any capacity;   





 






   -142-         (d) be liable for any action taken or not taken by it (i) with the consent or at the  request of Required Lenders (or such other number or percentage of Lenders as will be necessary, or as  Administrative Agent will believe in good faith will be necessary, under the circumstances as provided in  Section 8.02 and Section 10.01), or (ii) in the absence of its own gross negligence or willful misconduct,  as determined by a court of competent jurisdiction by final and nonappealable judgment;   (e) be liable for not performing any act or fulfilling any duty, obligation or  responsibility under this Agreement or any other Loan Document by reason of any occurrence beyond the  control of Administrative Agent (including but not limited to any act or provision of any present or future  Law or regulation or Governmental Authority, any act of God or war, civil unrest, local or national  disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or  facsimile or other wire or communication facility); and  (f) be required to expend or risk any of its own funds or otherwise incur any  liability, financial or otherwise, in the performance of its duties under this Agreement or any of the other  Loan Documents or in the exercise of any of its rights or powers hereunder or thereunder.  The obligations of Administrative Agent and the Lending Parties under this Agreement or any other Loan  Documents are several and not joint.  Failure by any one Lending Party to perform its obligations will  not, except to the extent otherwise expressly provided, affect the obligations (or liability) of  Administrative Agent or any other Lending Party hereunder or thereunder.  (g) Administrative Agent will be deemed not to have knowledge of any Default or  Event of Default, unless and until Borrower, a Loan Party, or a Lending Party provides written notice to  Administrative Agent describing such Default or Event of Default.  Administrative Agent will not be  responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation  made in or in connection with this Agreement or any other Loan Document, (B) the contents of any  certificate, report or other document delivered hereunder or thereunder or in connection herewith or  therewith, (C) the performance or observance of any of the covenants, agreements or other terms or  conditions set forth herein or therein or the occurrence of any Default or Event of Default, (D) the  validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any  other agreement, instrument or document or (E) the satisfaction of any condition set forth in Article IV or  elsewhere herein, other than to confirm receipt of items expressly required to be delivered to  Administrative Agent. Administrative Agent will have no duty to disclose, and will not be liable for the  failure to disclose, except as expressly set forth in this Agreement or in any other Loan Document to  which Administrative Agent is a party, any information relating to Borrower or any of its Affiliates that is  communicated to or obtained by Administrative Agent or any of its Affiliates in any capacity.  Section 9.04 Reliance by Administrative Agent.  Administrative Agent will be entitled to rely upon, and will not incur any liability for relying  upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including  any electronic message, Internet or intranet website posting or other distribution) believed by it to be  genuine and to have been signed, sent or otherwise authenticated by the proper Person.  Administrative  Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been  made by the proper Person and will not incur any liability for relying thereon.  In determining compliance  with any condition hereunder to the making of a Loan, or the issuance of a Credit, that by its terms must  be fulfilled to the satisfaction of a specified Lending Party, Administrative Agent may presume that such  condition is satisfactory to such Lending Party, unless Administrative Agent will have received notice to  the contrary from such Lending Party prior to the making of such Loan or the issuance, extension,  renewal or increase of such Credit.  In this regard, for purposes of determining compliance with the  





 






   -143-         conditions set forth in Section 4.01, each Lending Party that has executed this Agreement will be deemed  to have consented to, approved or accepted, or to be satisfied with, each document and matter either sent,  or made available, by Administrative Agent to such Lending Party for consent, approval, acceptance or  satisfaction, or required thereunder to be to be consent to or approved by or acceptable or satisfactory to  such Lending Party, unless Administrative Agent will have received notice from such Lending Party not  less than two days prior to the Second Restatement Effective Date specifying such Lending Party’s  objection thereto and such objection will not have been withdrawn by notice to Administrative Agent to  such effect on or prior to the Second Restatement Effective Date.  Administrative Agent may consult with  legal counsel (who may be counsel for Borrower), independent accountants and other experts it selects  and will not be liable for any action it takes or does not take in accordance with the advice of any such  counsel, accountants or experts.  Section 9.05 Delegation of Duties.  Administrative Agent may perform any and all of its duties and exercise its rights and powers  hereunder or under any other Loan Document by or through any one or more sub-agents it appoints.   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 Related Parties.  The exculpatory provisions of this Article IX  will apply to any such sub-agent and to the Related Parties of Administrative Agent and any such  sub-agent and will apply to their respective activities in connection with the syndication of the credit  facilities provided for herein, as well as activities as Administrative Agent.  Administrative Agent shall  not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of  competent jurisdiction determines in a final and nonappealable judgment that Administrative Agent acted  with gross negligence or willful misconduct in the selection of such sub-agents.  Section 9.06 Resignation of Administrative Agent.  (a) Administrative Agent may at any time give notice of its resignation to the  Lending Parties and Borrower.  Upon receipt of any such notice of resignation, Required Lenders will  have the right, in consultation with Borrower, to appoint a successor, which shall be a bank with an office  in the United States, or an Affiliate of any such bank with an office in the United States (provided that so  long as no Event of Default has occurred and is continuing, such successor shall be subject to approval by  Borrower (which approval shall not be unreasonably withheld or delayed)).  If no such successor will  have been so appointed by Required Lenders (and, to the extent no Event of Default has occurred and is  occurring, approved by Borrower) and will have accepted such appointment within thirty days after the  retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by  Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but  shall not be obligated to), on behalf of the Lending Parties, appoint a successor Administrative Agent  meeting the qualifications set forth above.  Whether or not a successor has been appointed, such  resignation will become effective in accordance with such notice on the Resignation Effective Date.  In  the event that Administrative Agent’s resignation cannot become effective (whether by the terms of this  Section 9.06(a) or otherwise) before the appointment of any successor Administrative Agent, then each  Loan Party and each Lending Party hereby agrees that if by the thirtieth calendar day following  Administrative Agent’s notice of resignation, the Required Lenders and Borrower have not appointed a  replacement Administrative Agent, then Administrative Agent will be entitled to apply to a court of  competent jurisdiction for the appointment of a successor Administrative Agent or other appropriate  relief.  Any costs and expenses (including reasonable attorneys’ fees and expenses) incurred by  Administrative Agent in connection with such application to a court will be reimbursable by the Loan  Parties in accordance with the terms hereof.   





 






   -144-         (b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to  clause (d) of the definition thereof set forth in Section 1.01, Required Lenders may, to the extent  permitted by applicable Law, by notice in writing to Borrower and such Person remove such Person as  Administrative Agent and, in consultation with Borrower, appoint a successor (provided that so long as  no Event of Default has occurred and is continuing, such successor shall be subject to approval by  Borrower (which approval shall not be unreasonably withheld or delayed)).  If no such successor will  have been so appointed by Required Lenders (with approval if required) and shall have accepted such  appointment within thirty days (or such earlier day as shall be agreed by Required Lenders) (the  “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with  such notice on the Removal Effective Date.  (c) Effective as of and from the Resignation Effective Date or the Removal Effective  Date (as applicable), (i) the retiring or removed Administrative Agent will be discharged from its duties  and obligations hereunder and under the other Loan Documents (except that in the case of any collateral  security, including any Cash Collateral, held by Administrative Agent for the benefit of the Secured  Parties or the L/C Issuers under any of the Loan Documents, the retiring or removed Administrative  Agent will continue to hold such collateral security until such time as a successor Administrative Agent is  appointed) and (ii) except for any indemnity payments owed to the retiring or removed Administrative  Agent, all payments, communications and determinations provided to be made by, to or through  Administrative Agent shall instead be made by or to each Lending Party directly, until such time, if any,  as Required Lenders appoint a successor Administrative Agent as provided for above.  Upon the  acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed  to and become vested with all of the rights, powers, privileges and duties of the retiring or removed  Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed  Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of  its duties and obligations hereunder or under the other Loan Documents.  The fees payable by Borrower  to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise  agreed between Borrower and such successor.  After the retiring or removed Administrative Agent’s  resignation or removal hereunder and under the other Loan Documents, the provisions of this Article IX  and Section 10.04 will continue in effect for the benefit of such retiring or removed Administrative  Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be  taken by any of them while the retiring or removed Administrative Agent was acting as Administrative  Agent.  (d) The resignation by HSBC as Administrative Agent pursuant to this Section 9.06  may, at HSBC’s election, as confirmed by giving notice thereof to the Lending Parties and Borrower, also  constitute its resignation as an L/C Issuer and Swing Line Lender.  In the event HSBC so elects to also  resign as an L/C Issuer and as Swing Line Lender, upon the acceptance of a successor’s appointment as  Administrative Agent hereunder (i) such successor will succeed to and become vested with all of the  rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender; (ii) the retiring L/C  Issuer and Swing Line Lender will be discharged from all of their respective duties and obligations  hereunder or under the other Loan Documents; (iii) the successor L/C Issuer will issue letters of credit or  bank undertakings in substitution for the Credits, if any, outstanding at the time of such succession or  make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of  the retiring L/C Issuer with respect to such Credits; and (iv) the successor Swing Line Lenders will  purchase the outstanding Swing Line Loans of the resigning Swing Line Lender at par.  Section 9.07 Non-Reliance on Administrative Agent and Other Lenders.  Each Lending Party acknowledges that it has, independently and without reliance upon  Administrative Agent, any other Lending Party or any of their Related Parties and based on such  





 






   -145-         documents and information as it has deemed appropriate, made its own credit analysis and decision to  enter into this Agreement.  Each Lending Party also acknowledges that it will, independently and without  reliance upon Administrative Agent, any other Lending Party or any of their Related Parties and based on  such documents and information as it will from time to time deem appropriate, continue to make its own  decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or  any related agreement or any document furnished hereunder or thereunder.  Section 9.08 No Other Duties, Etc.  Notwithstanding anything to the contrary contained herein, no Person identified herein or on the  facing page or signature pages hereof as a “Syndication Agent,” “Co-Syndication Agent,”  “Documentation Agent,” “Co-Documentation Agent,” “Co-Agent,” “Book Manager,” “Book Runner,”  “Lead Arranger,” “Arranger,” “Co-Lead Arranger” or “Co-Arranger,” if any, will have or be deemed to  have any right, power, obligation, liability, responsibility or duty under this Agreement or the other Loan  Documents, other than in such Person’s capacity as (a) Administrative Agent or a Lending Party  hereunder and (b) an Indemnitee hereunder, and no such Person will have or be deemed to have any  fiduciary relationship with any Lender.  Each Lender acknowledges that it has not relied, and will not  rely, on such Persons in deciding to enter into this Agreement or any other Loan Document or in taking or  not taking any action hereunder or thereunder.  Section 9.09 Administrative Agent May File Proofs of Claim.  (a) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,  reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan  Party, Administrative Agent (irrespective of whether the principal of any Loan or Credit Obligation will  then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether  Administrative Agent will have made any demand on Borrower) will be entitled and empowered, by  intervention in such proceeding or otherwise (i) to file and prove a claim for the whole amount of the  principal and interest owing and unpaid in respect of the Loans, Credit Obligations 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 Lending Parties and Administrative Agent (including any claim for the  reasonable compensation, expenses, disbursements and advances of the Lending Parties and  Administrative Agent and their respective agents and counsel and all other amounts due the Lending  Parties and Administrative Agent under Sections 2.03(h), 2.09, 3.05 and 10.04) allowed in such judicial  proceeding, and (ii) to collect and receive any monies or other property payable or deliverable on any  such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator,  sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lending  Party to make such payments to Administrative Agent and, in the event that Administrative Agent will  consent to the making of such payments directly to the Lending Parties, to pay to Administrative Agent  any amount due for the reasonable compensation, expenses, disbursements and advances of  Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under  Sections 2.03(h), 2.09, 3.05 and 10.04.  Nothing contained herein will be deemed to authorize  Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lending Party any  plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of  any Lending Party or to authorize Administrative Agent to vote in respect of the claim of any Lending  Party in any such proceeding.  (b) The Loan Parties and the Secured Parties hereby irrevocably authorize  Administrative Agent, based upon the written instructions of Required Lenders, to (i) credit bid and in  such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of  the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including under  





 






   -146-         Sections 363, 365 and/or 1129 of the Bankruptcy Code or any similar Laws in any other jurisdictions to  which a Loan Party is subject, or (ii) credit bid and in such manner purchase (either directly or through  one or more acquisition vehicles) all or any portion of the Collateral at any other sale or foreclosure  conducted by (or with the consent or at the direction of) Administrative Agent (whether by judicial action  or otherwise) in accordance with applicable Law including Section 9-610 or 9-620 of the UCC.  In  connection with any such credit bid and purchase, the Secured Obligations owed to the Secured Parties  shall be entitled to be, and shall be, credit bid ratably, after giving effect to the priorities outlined in the  waterfall of payment in Section 8.05 (with Secured Obligations with respect to contingent or unliquidated  claims (excluding Credit Obligations and other contingent or unliquidated claims of a fixed or readily  determinable amount) being disregarded for such purpose), and the Secured Parties whose Secured  Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their  Secured Obligations credit bid in relation to the aggregate amount of Secured Obligations so credit bid) in  the asset or assets so purchased (including debt and Equity Interests issued by the acquisition vehicle or  vehicles that are used to consummate such purchase).  Except as provided above and otherwise expressly  provided for herein or in the other Collateral Documents, Administrative Agent will not execute and  deliver a release of any Lien on any Collateral.  Upon the request of Administrative Agent or Borrower at  any time, the Secured Parties will confirm in writing Administrative Agent’s authority to release any such  Liens on particular types or items of Collateral pursuant to this Section 9.09(b).  Section 9.10 Collateral Matters.  (a) Directions by the Lending Parties.  Each Lending Party hereby irrevocably  authorizes and directs Administrative Agent, at its option and in its discretion: (i) to enter into the  Collateral Documents for the benefit or, as appropriate, in the name and on behalf, of such Person; (ii)  without the necessity of any notice to or further consent from any such Person from time to time prior to  an Event of Default, to take any action with respect to any Collateral or any Collateral Document that  may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to the  Collateral Documents; (iii) to release any Lien on any property granted to or held by Administrative  Agent under any Collateral Document (A) upon termination of the Aggregate Commitments and the  payment in full of all Obligations, (B) that is sold or to be sold as part of or in connection with any  Disposition permitted hereunder or under any other Loan Document, (C) subject to Section 10.01, if  approved, authorized or ratified in writing by Required Lenders, (D) in connection with any foreclosure  sale or other disposition of Collateral after the occurrence of an Event of Default or (E) that is held by an  Subsidiary that is not or ceases to be a Loan Party in accordance with the terms of this Agreement; (iv) to  subordinate any Lien on any property granted to or held by Administrative Agent under any Collateral  Document to the holder of any Lien on such property that is permitted by this Agreement or any other  Loan Document; (v) to release any Lien on any property subject to Liens permitted under Sections 7.01(i)  or (p); and (vi) to release any Guarantor from all Guaranteed Obligations under the Loan Documents  upon a transaction permitted hereunder which results in such Guarantor ceasing to be a Subsidiary of  the Borrower and in connection therewith release all Liens granted by such Guarantor under the Loan  Documents securing such Guaranteed Obligations.  Upon any termination of any such Liens,  Administrative Agent will promptly, at the sole expense of Borrower, execute and deliver such  instruments (including UCC filings and filings with the United States Patent and Trademark Office or  United States Copyright Office) as may be reasonably requested by the Borrower to facilitate and  further such termination.  Upon request by Administrative Agent at any time, each Lending Party will  confirm in writing Administrative Agent’s authority to release or subordinate its interest in particular  types or items of Collateral pursuant to this Section 9.10.  Each Lending Party agrees that any action  taken by Administrative Agent in accordance with the terms of this Agreement or the other Loan  Documents relating to the Collateral and the exercise by Administrative Agent of its powers set forth  therein or herein, together with such other powers that are reasonably incidental thereto, will be binding  upon all of the Lending Parties.  





 






   -147-         (b) Certain Actions by Administrative Agent.  Subject to clauses (iii) through (v)  of Section 9.10(a), Administrative Agent will (and is hereby irrevocably authorized by each Lending  Party to) execute such documents as may be necessary to evidence the release or subordination of Liens  granted to Administrative Agent herein or in any Collateral Document or pursuant hereto or thereto upon  the applicable Collateral; provided that (i) Administrative Agent will not be required to execute any such  document on terms that, in Administrative Agent’s opinion, would expose Administrative Agent to or  create any liability or entail any consequence other than the release or subordination of such Liens  without recourse or warranty, and (ii) such release or subordination will not in any manner discharge,  affect or impair the Obligations or any Liens upon (or obligations of Borrower or any other Loan Party in  respect of) all interests retained by Borrower or any other Loan Party, including the proceeds of the sale,  all of which will continue to constitute part of the Collateral.  In the event of any sale or transfer of  Collateral, or any foreclosure with respect to any of the Collateral, Administrative Agent will be  authorized to deduct all expenses reasonably incurred by Administrative Agent from the proceeds of any  such sale, transfer or foreclosure.  (c) No Obligations Regarding Certain Actions.  Administrative Agent will have  no obligation whatsoever to any Lending Party or any other Person to assure that the Collateral exists or  is owned by Borrower or any other Loan Party or is cared for, protected or insured, that Taxes or Liens  upon or affecting the Collateral, including the maintenance thereof, have been paid, or that the Liens  granted to Administrative Agent herein or in any of the Collateral Documents or pursuant hereto or  thereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are  entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under  any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to  Administrative Agent in this Section 9.10 or in any of the Collateral Documents, it being understood and  agreed that in respect of the Collateral, or any act, omission or event related thereto, Administrative Agent  may act in any manner it may deem appropriate, in its sole discretion, given Administrative Agent’s own  interest in the Collateral as one of the Lenders, as Swing Line Lender and as an L/C Issuer.  (d) Enforcement of Loan Documents.  Subject to the terms of this Agreement and  the other Loan Documents, Administrative Agent agrees to administer and enforce this Agreement and  the other Loan Documents to which it is a party and otherwise to perform its duties and obligations as  Administrative Agent hereunder and thereunder in accordance with the terms hereof and thereof;  provided, however, that Administrative Agent will have no duties or responsibilities except those  expressly set forth in this Agreement or in any other Loan Document to which it is a party as  Administrative Agent, and no implied covenants or obligations shall be read into this Agreement or any  other such Loan Document against Administrative Agent.  Section 9.11 Certain ERISA Matters.  (a) Each Lender (A) represents and warrants, as of the date such Person became a  Lender party hereto, to, and (B) 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, Administrative Agent and not to  or for the benefit of 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 Section  3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lending Party’s entrance  into, participation in, administration of and performance of the Credit Extensions, the Commitments, or  this agreement,  





 






   -148-         (ii) the transaction exemption set forth in one or more PTEs, such as PTE  84–14 (a class exemption for certain transactions determined by independent qualified professional asset  managers), PTE 95–60 (a class exemption for certain transactions involving insurance company general  accounts), PTE 90–1 (a class exemption for certain transactions involving insurance company pooled  separate accounts), PTE 91–38 (a class exemption for certain transactions involving bank collective  investment funds) or PTE 96–23 (a class exemption for certain transactions determined by in-house asset  managers), is applicable with respect to such Lender’s entrance into, participation in, administration of  and performance of the Credit Extensions, the Commitments and this Agreement,  (iii)  (1) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84–14), (2) such Qualified  Professional Asset Manager made the investment decision on behalf of such Lender to enter into,  participate in, administer and perform the Credit Extensions, the Commitments and this Agreement, (3)  the entrance into, participation in, administration of and performance of the Credit Extensions, the  Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of  PTE 84–14 and (4) 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 Credit Extensions, the Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in  writing between Administrative Agent, in its sole discretion, and such Lender.  For purposes of this Section 9.11(a), “Benefit Plans” means any of (a) an “employee benefit  plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to  Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or  otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee  benefit plan” or “plan”.  (b) In addition, unless either (x) clause (i) in the immediately preceding Section  9.11(a) is true with respect to a Lender or (y) a Lender provided another representation, warranty and  covenant in accordance with clause (iv) in the immediately preceding Section 9.11(a), such Lender  further (aa) represents and warrants, as of the date such Person became a Lender party hereto, to, and (bb)  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, Administrative Agent and not to or for the benefit of Borrower or  any other Loan Party, that Administrative Agent is not a fiduciary with respect to the assets of such  Lender involved in such Lender’s entrance into, participation in, administration of and performance of the  Credit Extensions, the Commitments and this Agreement (including in connection with the reservation or  exercise of any rights by Administrative Agent under this Agreement, any Loan Document or any  documents related hereto or thereto).  Section 9.12 Agency for Perfection.  Administrative Agent hereby appoints each other Lending Party as its agent (and each Lending  Party hereby accepts such appointment) for the purpose of perfecting Administrative Agent’s Liens in  assets which, in accordance with Article 9 of the UCC can be perfected only by possession.  Should any  Lending Party obtain possession of any such Collateral, such Lending Party will notify Administrative  Agent thereof, and, promptly upon Administrative Agent’s request therefor will deliver such Collateral to  Administrative Agent or in accordance with Administrative Agent’s instructions.  Section 9.13 Legal Representation of Administrative Agent.  





 






   -149-         In connection with the negotiation, drafting, and execution of this Agreement and the other Loan  Documents, or in connection with future legal representation relating to loan administration, amendments,  modifications, waivers, or enforcement of remedies, Sheppard Mullin Richter & Hampton, LLP only has  represented and only will represent HSBC (and its Affiliate HSBC Securities (USA) Inc.) in its capacity  as Administrative Agent, as a Lending Party and in its capacity as an Arranger.  Each other Lending Party  hereby acknowledges that Sheppard Mullin Richter & Hampton, LLP does not represent it in connection  with any such matters.  Section 9.14 Erroneous Payments.  (a) If Administrative Agent notifies a Lending Party or a Secured Party, or any  Person who has received funds on behalf of a Lending Party or a Secured Party (any such Lending  Party, Secured Party or other recipient, a “Payment Recipient”) that Administrative Agent has  determined in its sole discretion (whether or not after receipt of any notice under Section 9.14(b)  that any funds received by such Payment Recipient from Administrative Agent or any of its  Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such  Payment Recipient (whether or not known to such Lending Party, Secured Party or other Payment  Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment  of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous  Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such  Erroneous Payment shall at all times remain the property of Administrative Agent and shall be  segregated by the Payment Recipient and held in trust for the benefit of Administrative Agent, and  such Lending Party or Secured Party shall (or, with respect to any Payment Recipient who received  such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later  than two Business Days thereafter, return to Administrative Agent the amount of any such  Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in  the currency so received), together with interest thereon in respect of each day from and including  the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to  the date such amount is repaid to Administrative Agent in same day funds at the greater of the  Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking  industry rules on interbank compensation from time to time in effect.  A notice of Administrative Agent  to any Payment Recipient under this Section 9.14(a) shall be conclusive, absent manifest error.  (b) Without limiting Section 9.14(a), each Lending Party or Secured Party, or  any other Payment Recipient who has received funds on behalf of a Lending Party or a Secured  Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether  received as a payment, prepayment or repayment of principal, interest, fees, distribution or  otherwise) from 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, prepayment or repayment sent by  Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or  repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or  repayment sent by Administrative Agent (or any of its Affiliates), or (z) that such Lending Party, or  Secured Party, or other Payment Recipient otherwise becomes aware was transmitted, or received, in  error or by mistake (in whole or in part) in each case:  (i) (A) in the case of immediately preceding clauses (x) and (y), an error  shall be presumed to have been made (absent written confirmation from Administrative Agent to the  contrary) or (B) in the case of immediately preceding clause (z), an error has been made, in each  case, with respect to such payment, prepayment or repayment; and  





 






   -150-         (ii) such Lending Party or Secured Party shall (and shall cause any other  Payment Recipient that receives funds on its respective behalf to) promptly (and, in all events, within  one Business Day of its knowledge of such error) notify Administrative Agent of its receipt of such  payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so  notifying Administrative Agent pursuant to this Section 9.14(b).  (c) Each Lending Party or Secured Party hereby authorizes Administrative Agent  to set off, net and apply any and all amounts at any time owing to such Lending Party or Secured  Party under any Loan Document, or otherwise payable or distributable by Administrative Agent to  such Lending Party or Secured Party from any source, against any amount due to Administrative  Agent under Section 9.14(a) or under the indemnification provisions of this Agreement.  (d) In the event that an Erroneous Payment (or portion thereof) is not recovered  by Administrative Agent for any reason, after demand therefor by Administrative Agent in  accordance with immediately preceding Section 9.14(a), from any Lending Party that has received  such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such  Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an  “Erroneous Payment Return Deficiency”), upon Administrative Agent’s notice to such Lending  Party at any time, (i) such Lending Party shall be deemed to have assigned its Loans (but not its  Commitments) with respect to which such Erroneous Payment was made in an amount equal to the  Erroneous Payment Return Deficiency (or such lesser amount as Administrative Agent may specify)  (such assignment of the Loans (but not Commitments), the “Erroneous Payment Deficiency  Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by  Administrative Agent in such instance), and is hereby (together with Borrower) deemed to execute  and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating  an Assignment and Assumption by reference pursuant to an approved Electronic Platform as to  which Administrative Agent and such parties are participants) with respect to such Erroneous  Payment Deficiency Assignment, and such Lending shall deliver any Notes evidencing such Loans  to Administrative Agent, (ii) Administrative Agent as the assignee Lender shall be deemed to  acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition,   Administrative Agent as the assignee Lending Party shall become a Lending Party hereunder with  respect to such Erroneous Payment Deficiency Assignment and the assigning Lending Party shall  cease to be a Lending Party hereunder solely with respect to such Erroneous Payment Deficiency  Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification  provisions of this Agreement and its applicable Commitments which shall survive as to such  assigning Lending Party, and (iv) Administrative Agent may reflect in the Register its ownership  interest in the Loans subject to the Erroneous Payment Deficiency Assignment.  Administrative  Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency  Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency  owing by the applicable Lending Party shall be reduced by the net proceeds of the sale of such Loan  (or portion thereof), and Administrative Agent shall retain all other rights, remedies and claims  against such Lending Party (and/or against any recipient that receives funds on its respective behalf).  For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the  Commitments of any Lending Party and such Commitments shall remain available in accordance  with the terms of this Agreement.  In addition, each party hereto agrees that, except to the extent that  Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous  Payment Deficiency Assignment, and irrespective of whether Administrative Agent may be  equitably subrogated, Administrative Agent shall be contractually subrogated to all the rights and  interests of the applicable Lending Party or Secured Party under the Loan Documents with respect to  each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).  





 






   -151-         (e) The parties hereto agree that an Erroneous Payment shall not pay, prepay,  repay, discharge or otherwise satisfy any Obligations owed by Borrower or any other Loan Party,  except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount  of such Erroneous Payment that is, comprised of funds received by Administrative Agent from  Borrower or any other Loan Party for the purpose of making such Erroneous Payment.  (f) To the extent permitted by applicable Law, no Payment Recipient shall assert  any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim,  counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or  counterclaim by Administrative Agent for the return of any Erroneous Payment received, including  without limitation waiver of any defense based on “discharge for value” or any similar doctrine.  (g) Each party’s obligations, agreements and waivers under this Section 9.14 shall  survive the resignation or replacement of Administrative Agent, the termination of the Commitments  and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) (other than  contingent obligations not yet due and payable) under any Loan Document.  ARTICLE X  General Provisions  Section 10.01 Amendments, Etc.  No amendment or, subject to Section 8.02, waiver of any provision of this Agreement or any  other Loan Document, and no consent to any departure by Borrower or any other Loan Party therefrom  (including any cure of any Event of Default), will be effective unless in writing signed by Required  Lenders (or Administrative Agent at the written request of Required Lenders) and Borrower or the  applicable Loan Party, as the case may be, and each such waiver or consent will be effective only in the  specific instance and for the specific purpose for which given; provided that no such amendment, waiver  or consent will:  (a) waive any condition set forth in Section 4.01 or, in the case of the initial Credit  Extension, Section 4.02 without the written consent of each Lender;  (b) as to any Credit Extension after the Second Restatement Effective Date, (i) waive  any condition set forth in Section 4.02 as to any Credit Extension under the Revolving Credit Facility  without the written consent of Required Revolving Credit Lenders (which shall not require the consent of  the Required Lenders or all Lender in addition thereto) or (ii) waive any condition set forth in Section  4.02 as to any Credit Extension of any Incremental Term Loan without the written consent of a majority  of the Lenders holding Incremental Term Loan Commitments with respect thereto (which, in each case,  shall not require the consent of the Required Lenders or all Lenders in addition thereto);  (c) increase or extend the expiration date of any of the Commitments of any Lender  (or reinstate any Commitment terminated pursuant to Section 8.03) without the written consent of such  affected Lender (which shall not require the consent of the Required Lenders in addition thereto);  (d) postpone any date fixed by this Agreement or any other Loan Document for any  payment, of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or  under such other Loan Document without the written consent of each affected Lender;  (e) reduce the principal of, or the rate of interest specified herein on, any Loan or  L/C Borrowing, or (subject to clause (i) of the proviso below to this Section 10.01(e)) any fees or other  





 






   -152-         amounts payable hereunder or under any other Loan Document, without the written consent of each  affected Lender (which shall not require the consent of the Required Lenders in addition thereto);  provided, however, that only the consent of the Required Lenders will be necessary (i) to amend the  definition of “Default Rate” or to waive any obligation of Borrower to pay interest or Credit Fees at the  Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if  the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to  reduce any fee payable hereunder;   (f) change (i) Section 2.13 or Section 8.05 in a manner that would alter the pro rata  sharing of payments required thereby without the written consent of each Lender or (ii) the order of  application of any reduction in the Commitments or any prepayment of Loans from the application  thereof set forth in the applicable provisions of Sections 2.05(d) and (e) in any manner that materially and  adversely affects the Lenders under a Facility without the written consent of (A) if such Facility is the  Revolving Credit Facility, the Required Revolving Credit Lenders or (B) if such Facility is the  Incremental Term Loan Facility, the Required Incremental Term Loan Lenders (provided that,  notwithstanding the foregoing, any Incremental Term Loan Facility that may be added to this Agreement  may share in the payments applicable to the other term loan facilities with the written consent of Required  Lenders);    (g) change (i) any provision of this Section 10.01 or the definition of “Required  Lenders” or any other provision hereof specifying the number or percentage of Lenders required to  amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent  hereunder (other than the definitions specified in clause (ii) of this Section 10.01(g)), without the written  consent of each Lender, (ii)(A) the definition of “Required Revolving Credit Lenders”, “Revolving Credit  Maturity Date” or “Revolving Credit Stated Maturity Date” or (B) Section 2.06 to allow for non-pro rata  application of any reductions in the Aggregate Revolving Credit Commitments without the written  consent of each Revolving Credit Lender (which shall not require the consent of the Required Lenders in  addition thereto), (iii) any provision of Section 3.07 or Section 8.05 without the written consent of each  Lender, (iv) the definition of “Required Incremental Term Loan Lenders” or “Incremental Term Loan  Maturity Date” without the written consent of each Incremental Term Loan Lender (which shall not  require the consent of the Required Lenders in addition thereto), (v) any provision of Section 10.06 or the  definition of “Eligible Assignee,” “Participant,” “Defaulting Lender” or “Specified Lender” without the  written consent of each Lender or (vi) the definition of “Alternate Currency” or any provision of Section  1.02(l) with the consent of each Lender;  (h) release all or substantially all of the Collateral in any transaction or series of  related transactions, or contractually subordinate Administrative Agent’s security interests in or Liens on  all or substantially all of the Collateral, without the written consent of each Lender (except with respect to  a transaction expressly permitted by this Agreement or in the applicable Collateral Document);  (i) release all or substantially all of the value of the Guaranties of the Obligations  without the written consent of each Lender (except with respect to a transaction expressly permitted by  Section 7.04); or  (j) impose any greater restriction on the ability of any Lender under a Facility to  assign any of its rights or obligations hereunder without the written consent of, (i) if such Facility is the  Revolving Credit Facility, the Required Revolving Credit Lenders (which shall not require the consent of  the Required Lenders in addition thereto) or (ii) if such Facility is the Incremental Term Loan Facility, the  Required Incremental Term Loan Lenders (which shall not require the consent of the Required Lenders in  addition thereto);  





 






   -153-         and provided, further, that (i) no amendment, waiver or consent will, unless in writing and signed  by each L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuers  under this Agreement or any Issuer Document relating to any Credit issued or to be issued by it; (ii) no  amendment, waiver or consent will, unless in writing and signed by Swing Line Lender in addition to the  Lenders required above, affect the rights or duties of Swing Line Lender under this Agreement; (iii) no  amendment, waiver or consent will, unless in writing and signed by Administrative Agent in addition to  the Lenders required above, affect the rights or duties of Administrative Agent under this Agreement or  any other Loan Document; (iv) the Fee Letter may be amended, or rights or privileges thereunder waived,  in a writing executed only by the parties thereto; and (v) any Financing Statement may be amended,  supplemented, terminated or otherwise modified as agreed to between Borrower and Administrative  Agent in connection with any transaction not prohibited by the Loan Documents if such amendment,  supplement, termination or other modification is determined by Borrower and Administrative Agent (in  their discretion) as being necessary, appropriate or advisable in connection therewith.  Notwithstanding  anything to the contrary herein, no Defaulting Lender will have any right to approve or disapprove any  amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms  requires the consent of all Lenders or each affected Lender may be effected with the consent of the  applicable Lenders other than Defaulting Lenders), except that (A) the Commitments of any Defaulting  Lender may not be increased or extended without the consent of such Lender, (B) the amount of principal  and accrued fees and interest owing to the Defaulting Lender may not be reduced without the consent of  such Lender (excluding changes to imposition of the Default Rate or changes to fees and interest relating  to changes to any financial covenant or the defined terms relating thereto), and (C) any waiver,  amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms  affects any Defaulting Lender more adversely than other affected Lenders will require the consent of such  Defaulting Lender.  Notwithstanding any provision herein to the contrary, this Agreement may be amended with the  written consent of Required Lenders, Administrative Agent and Borrower (1) to add one or more  Incremental Term Loan tranches to this Agreement or Additional Revolving Credit Commitments, in each  case subject to the limitations in Section 2.14, and to permit the extensions of credit and all related  obligations and liabilities arising in connection therewith from time to time outstanding to share ratably  (or on a basis subordinated to the existing Facilities hereunder) (and to permit such additional (x)  Incremental Term Loan tranches to share in the allocation of prepayments in a manner ratable with other  then outstanding Incremental Term Loan tranches and (y) Revolving Credit Commitments (and related  Loans) to share in the allocation of prepayments in a manner ratable with other then outstanding  Revolving Credit Commitments or Revolving Credit Loans), in the benefits of this Agreement and the  other Loan Documents with the obligations and liabilities from time to time outstanding in respect of the  existing facilities hereunder, and (2) in connection with the foregoing, to permit, as deemed appropriate  by Administrative Agent and approved by the Required Lenders, the Lenders providing such additional  credit facilities to participate in any required vote or action required to be approved by the Required  Lenders or by any other number, percentage or class of Lenders hereunder.  Notwithstanding any provision herein to the contrary, this Agreement may be amended with the  written consent of Administrative Agent and Borrower, without the input or consent of any other Lender,  effect amendments to this Agreement and the other Loan Documents to correct any obvious error or any  error or omission of a technical nature or any ambiguity.  Section 10.02 Notices; Effectiveness; Electronic Communications.  (a) Notices Generally.  All notices and other communications provided for herein  will be in writing and will be delivered by hand or overnight courier service, mailed by certified or  





 






   -154-         registered mail, sent by facsimile transmission or sent by approved electronic transmission in accordance  with Section 10.02(b), and all notices and other communications will be made as follows:  (i) if to any Loan Party, Administrative Agent, any L/C Issuer or Swing  Line Lender, to the address, facsimile number or e-mail address specified for such Person on Schedule  10.02; and  (ii) if to any Lender, to the address, facsimile number or e-mail address  specified in its Administrative Detail Form (including, as appropriate, notices delivered solely to the  Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of  notices that may contain material non-public information relating to Borrower).  Notices sent by hand or overnight courier service, or mailed by certified or registered mail, will  be deemed to have been given when received, and notices sent by facsimile transmission or by means of  approved electronic communication will be deemed to have been given when sent (except that, if not  given during normal business hours for the recipient, will be deemed to have been given at the opening of  business on the next business day for the recipient); provided that notices delivered through electronic  communications to the extent provided by Section 10.02(b) will be effective as provided in such  subsection (b).  (b) Electronic Communications.  (i) Each Lending Party agrees that notices and other communications to it  hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or  intranet websites) pursuant to procedures approved by Administrative Agent; provided that the foregoing  will not apply to notices to any Lending Party pursuant to Article II if such Lending Party has notified  Administrative Agent that it is incapable of receiving notices under Article II by electronic  communication.  In furtherance of the foregoing, each Lending Party hereby agrees to notify  Administrative Agent in writing, on or before the date such Lending Party becomes a party to this  Agreement, of such Lending Party’s e-mail address to which a notice may be sent (and from time to time  thereafter to ensure that Administrative Agent has on record an effective e-mail address for such Lending  Party).  Each of Administrative Agent and Borrower may, in its discretion, agree to accept notices and  other communications to it hereunder by means of electronic communication pursuant to procedures  approved by it; provided that approval of such procedures may be limited to particular notices or  communications.  (ii) Unless Administrative Agent otherwise prescribes, (A) notices and other  communications sent to an e-mail address will 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 (B) notices or communications posted to  an Internet or intranet website will be deemed received upon the deemed receipt by the intended recipient  at its e-mail address as described in the foregoing clause (A) of notification that such notice or  communication is available and identifying the website address therefor; provided that, for both the  preceding clauses (A) and (B), 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.  (iii) Borrower and each Loan Party hereby acknowledges and agrees that (A)  Administrative Agent may, but will not be obligated to, make the Communications available to Lending  Parties by posting some or all of the Communications on an Electronic Platform, (B) the distribution of  materials and information through an electronic medium is not necessarily secure and that there are  





 






   -155-         confidentiality and other risks associated with any such distribution, (C) the Electronic Platform is  provided and used on an “As Is,” “As Available” basis and (D) neither Administrative Agent nor any of  its Affiliates warrants the accuracy, completeness, timeliness, sufficiency or sequencing of the Specified  Materials posted on the Electronic Platform.  Administrative Agent and its Related Parties (the “Agent  Parties”) do not warrant the adequacy of the Electronic Platform and expressly disclaim liability for  errors or omissions in 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 Electronic Platform.  In no event shall any Agent Party have any liability to  Borrower or any other Loan Party, any Lending Party or any other Person or entity for damages of any  kind, including direct or indirect, special, incidental or consequential damages, losses or expenses  (whether in tort, contract or otherwise) arising out of any other Loan Party’s or Administrative Agent’s  transmission of Communications through the Electronic Platform, except to the extent resulting from the  gross negligence or willful misconduct by such Agent Party or such Agent Party’s material breach of its  obligations under this Agreement or any other applicable Loan Document, in each case as determined by  a court of competent jurisdiction by final and nonappealable judgment.  (iv) Each Lending Party hereby agrees that notice to it in accordance with  Section 10.02(b)(ii)(B) specifying that any Specified Materials (and as such, constituting  Communications) have been posted to the Electronic Platform will, for purposes of this Agreement,  constitute effective delivery to such Lending Party of such Specified Materials.  (v) Each Lending Party (A) acknowledges that the Specified Materials,  including information furnished to it by any Loan Party or Administrative Agent pursuant to, or in the  course of administering, the Loan Documents, may include material, non-public information concerning  Borrower and the other Loan Parties and their respective Affiliates or their respective securities and  businesses, and (B) confirms that it (1) has developed compliance procedures regarding the use of  material, non-public information and (2) will handle such material, non-public information in accordance  with such procedures and applicable Laws, including Federal and state securities Laws.    (c) Change of Address, Etc.  Borrower, Administrative Agent, Swing Line Lender  and any L/C Issuer may change their respective address(es), facsimile number(s) or e-mail address(es) for  notices and other communications hereunder by notice to the other parties hereto (or, in the case of  Borrower, to Administrative Agent for distribution to the other parties hereto).  Each Lender may change  its address(es), facsimile number(s) or e-mail address(es) for notices and other communications hereunder  by notice to Borrower, Administrative Agent, Swing Line Lender and L/C Issuer.  (d) Reliance by Administrative Agent and the Lending Parties.  Administrative  Agent and the Lending Parties will be entitled to rely and act upon any notices (including electronically  delivered Requests for Credit Extension) purportedly given by or on behalf of Borrower even if (i) such  notices were not made in a manner specified herein, were incomplete or were not preceded or followed by  any other form of notice specified herein or (ii) the terms thereof, as understood by the recipient, varied  from any confirmation thereof.  Borrower will indemnify Administrative Agent and each Lending Party  and their respective Related Parties from all losses, costs, expenses and liabilities resulting from the  reliance by such Person on each notice purportedly given by or on behalf of Borrower; provided that such  indemnity will not be available to the extent that such losses, costs, expenses and liabilities resulted from  the gross negligence or willful misconduct of the party seeking indemnification or from such party’s  material breach of its obligations under this Agreement or any other applicable Loan Document, in each  case as determined by a court of competent jurisdiction by final and nonappealable judgment.  All  telephonic notices to and other telephonic communications with Administrative Agent may be recorded  by Administrative Agent, and each of the parties hereto hereby consents to such recording.   





 






   -156-         Section 10.03 No Waiver; Cumulative Remedies; Enforcement.  No failure by Administrative Agent or any Lending Party to exercise, and no delay by any such  Person in exercising, any right, remedy, power or privilege hereunder will operate as a waiver thereof; no  single or partial exercise of any right, remedy, power or privilege hereunder will preclude any other or  further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights,  remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies,  powers and privileges provided by law.  Notwithstanding anything to the contrary contained herein or in any other Loan Document, the  authority to enforce rights and remedies hereunder and under the other Loan Documents against Borrower  or any other Loan Party will be vested exclusively in, and all actions and proceedings at law in connection  with such enforcement will be instituted and maintained exclusively by, Administrative Agent in  accordance with Section 8.03 for the benefit of all the Lending Parties; provided, however, that the  foregoing will not prohibit (a) Administrative Agent from exercising on its own behalf the rights and  remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the  other Loan Documents, (b) any L/C Issuer or Swing Line Lender from exercising the rights and remedies  that inure to its benefit (solely in its capacity as an L/C Issuer or as Swing Line Lender, as the case may  be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in  accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any Lending Party from filing  proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding  relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is  no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i)  Required Lenders will have the rights otherwise ascribed to Administrative Agent pursuant to Section  8.03 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and  subject to Section 2.13, any Lender may, with the consent of Required Lenders, enforce any rights and  remedies available to it and as authorized by Required Lenders.  Section 10.04 Expenses; Indemnity; Damage Waiver.  (a) Costs and Expenses.  Borrower will pay or reimburse, promptly upon written  demand therefor, (i) all reasonable and documented out-of-pocket fees, expenses, charges and  disbursements incurred by Administrative Agent and the Arrangers and their respective Affiliates  (limited, in the case of legal fees and expenses, to the reasonable and documented fees, expenses, charges  and disbursements of Sheppard, Mullin, Richter & Hampton LLP and, to the extent determined by  Administrative Agent in good faith to be necessary or advisable, one local counsel in each relevant  material jurisdiction (which may include a single local counsel acting in multiple jurisdictions)), all  reasonable charges of electronic loan administration platforms, and all reasonable audit or inspection,  consulting, search and filing, registration and recording and other similar fees and other expenses) in  connection with the syndication of the credit facilities provided for herein, the preparation, negotiation,  execution, delivery and administration of this Agreement and the other Loan Documents or any  amendments, modifications or waivers of, or consents with respect to, the provisions hereof or thereof  (whether or not the transactions contemplated hereby or thereby will be consummated); (ii) all reasonable  and documented out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance,  amendment, renewal or extension of any Credit or any demand for payment thereunder; and (iii) all  out-of-pocket expenses incurred by Administrative Agent, the Arrangers or the Lending Parties (limited,  in the case of legal fees and expenses, to the reasonable and documented fees, expenses, charges and  disbursements of Sheppard, Mullin, Richter & Hampton LLP and, to the extent determined by  Administrative Agent in good faith to be necessary or advisable, one local counsel in each relevant  material jurisdiction (which may include a single local counsel acting in multiple jurisdictions) and, in the  case of an actual conflict of interest where one nor more Lender(s) affected by such conflict notifies  





 






   -157-         Administrative Agent of the existence of such conflict and thereafter retains its own counsel, one  additional conflicts counsel for the affected Lender(s) similarly situated) in connection with the  enforcement or protection of its rights (A) in connection with this Agreement and the other Loan  Documents, including its rights under this Section 10.04 or (B) in connection with the Loans made or  Credits issued hereunder, including all such out-of-pocket expenses incurred during any workout or  restructuring (or negotiations in connection with the foregoing) in respect of such Loans or Credits.  This  Section 10.04(a) will not apply with respect to Taxes to the extent governed by Section 3.01 and Section  3.04.  (b) Indemnification by Borrower.  Borrower will indemnify each Indemnitee  against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities,  settlement costs and related fees, expenses, charges and disbursements (limited, in the case of legal fees,  expenses, charges and disbursements, to the reasonable and documented fees, charges and disbursements  of one counsel for all Indemnitees and to the extent determined by Administrative Agent in good faith to  be necessary or advisable, one local counsel in each relevant material jurisdiction (which may include a  single local counsel acting in multiple jurisdictions) and, in the case of an actual conflict of interest where  the Indemnitee affected by such conflict notifies Administrative Agent of the existence of such conflict  and thereafter retains its own counsel, one additional counsel for the affected Indemnitees similarly  situated) 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 document contemplated hereby or thereby, the performance  by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the  Transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any sub-agent)  and its Related Parties only, the administration of this Agreement and the other Loan Documents; (ii) any  Loan or Credit or the use or proposed use of the proceeds therefrom (including any refusal by any L/C  Issuer to honor a demand for payment under a Credit if the documents presented in connection with such  demand do not strictly comply with the terms of such Credit); (iii) any actual or alleged presence or  release of Hazardous Materials on or from any property owned or operated by any Loan Party or any  Subsidiary thereof, or any Environmental Claim related in any way to any Loan Party or any Subsidiary  thereof; or (iv) any actual or prospective claim, investigation, litigation or other proceeding (including any  administrative proceeding or any arbitration or other alternative dispute resolution proceeding) relating to  any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party  or by Borrower or any other Loan Party or any of their respective Affiliates, and regardless of whether  any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out  of the comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity will  not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related  expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to  have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or (2)  such Indemnitee's material breach of its obligations under this Agreement or any other applicable Loan  Document, or (B) arise out of any investigation, litigation or proceeding (or preparation of a defense in  connection therewith) solely between or among Indemnitees not arising from any act or omission by   Borrower or any of its Subsidiaries or Affiliates (other than any proceeding against any Indemnitee in its  capacity or fulfilling its role as Administrative Agent, Arranger, syndication agent or similar role, or the  Swing Line Lender or L/C Issuer, in its capacity as such).  This Section 10.04(b) will not apply with  respect to Taxes to the extent governed by Section 3.01.  (c) Reimbursement by Lenders.  If and to the extent Borrower for any reason fails  to pay when due any amount that it is required to pay under Section 10.04(a) or Section 10.04(b) to  Administrative Agent (or any sub-agent thereof), Swing Line Lender, any L/C Issuer or any Related Party  of any of the foregoing, each Lender severally agrees to pay to Administrative Agent (or any such  sub-agent), Swing Line Lender, the L/C Issuer or such Related Party, as the case may be, such Lender’s  pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment  





 






   -158-         is sought based on its Percentage Share at such time) of such unpaid amount (including any such unpaid  amount in respect of a claim asserted by such Lender; provided that with respect to such unpaid amounts  owed to the L/C Issuer or the Swing Line Lender solely in its capacity as such, only the Revolving Credit   Lenders will be required to pay such unpaid amounts, such payment to be made severally among them  based on such Revolving Credit Lenders’ applicable Revolving Creditor Percentage Share (determined as  of the time that the applicable unreimbursed expense or indemnity payment is sought); provided, further,  that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case  may be, was incurred by or asserted against Administrative Agent (or any such sub-agent), Swing Line  Lender, any L/C Issuer or any Related Party of any of the foregoing acting for Administrative Agent (or  any such sub-agent), Swing Line Lender or the L/C Issuer in connection with such capacity.  The  obligations of Lenders under this Section 10.04(c) are subject to the provisions of Section 2.12(d).  (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by  applicable Law, neither Borrower nor any other Loan Party nor Administrative Agent nor any Lending  Party will assert, and Borrower, each other Loan Party, Administrative Agent and each Lending Party  hereby waives, any claim against any Indemnitee and/or any Loan Party, 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 document  contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Credit, or the use of  the proceeds thereof; provided, however, that nothing contained in this Section 10.04(d) shall be deemed  to waive or otherwise limit or impair Administrative Agent’s, any Lending Party or any other  Indemnitee’s right to assert, enforce and collect a claim of indemnification under Section 10.04(b),  including for any special, indirect, consequential or punitive damages suffered by or incurred to any other  Person and that otherwise would subject to indemnification pursuant to Section 10.04(b).  No Indemnitee  referred to in Section 10.04(b) nor any Loan Party will 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 Person by it 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 or Loan Party or such Indemnitee’s or Loan Party’s material breach of its obligations  under this Agreement or any other applicable Loan Document, in each case as determined by a final and  nonappealable judgment of a court of competent jurisdiction.  (e) Payments.  All amounts due under this Section 10.04 will be payable not later  than ten Business Days after demand therefor.  (f) Survival.  The agreements in this Section 10.04 will survive the resignation of  Administrative Agent, Swing Line Lender and L/C Issuer, the replacement of any Lender, the termination  of the Aggregate Commitments and the payment in full of the Obligations.  Section 10.05 Marshalling; Payments Set Aside.  Neither Administrative Agent nor any Lending Party will be under any obligation to marshal any  asset in favor of Borrower or any other Loan Party or any other Person or against or in payment of any or  all of the Obligations.  To the extent that any payment by or on behalf of Borrower or any Loan Party is  made to Administrative Agent or any Lending Party, or Administrative Agent or any Lending Party  exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is  subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including  pursuant to any settlement entered into by Administrative Agent or any Lending Party in such Person’s  discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under  any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof  





 






   -159-         originally intended to be satisfied will be revived and continued in full force and effect as if such payment  had not been made or such setoff had not occurred, and (b) each Lending Party severally agrees to pay to  Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered  from or repaid by Administrative Agent plus interest thereon from the date of such demand to the date  such payment is made at a rate per annum equal to the Federal Funds Rate.  The obligations of each  Lending Party under clause (b) of the preceding sentence will survive the payment in full of the  Obligations and the termination of this Agreement.  Section 10.06 Successors and Assigns.  (a) Successors and Assigns Generally.  The provisions of this Agreement will be  binding upon and inure to the benefit of the parties hereto and their respective successors and assigns  permitted hereby, except that neither Borrower nor any other Loan Party may assign or otherwise transfer  any of its rights or obligations hereunder without the prior written consent of Administrative Agent and  each Lending Party (it being understood that a merger or consolidation permitted under this Agreement  shall not constitute such an assignment or transfer), and neither Swing Line Lender nor any Lender may  assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in  accordance with the provisions of Section 10.06(b), (ii) by way of participation in accordance with the  provisions of Section 10.06(d) or (iii) by way of pledge or assignment of a security interest subject to the  restrictions of Section 10.06(g) (and any other attempted assignment or transfer by any party hereto will  be null and void).  Nothing in this Agreement, expressed or implied, will 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 Section 10.06(e) and, to the extent expressly contemplated hereby,  the Related Parties of each of Administrative Agent and each Lending Party) any legal or equitable right,  remedy or claim under or by reason of this Agreement.  (b) Assignments by Swing Line Lender or any Lender.  Swing Line Lender or any  Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and  obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans  (including for purposes of this subsection (b), participations in Credit Obligations and in Swing Line  Loans, as applicable) at the time owing to it); provided that any such assignment will be subject to the  following conditions:  (i) Minimum Amounts.  (A) in the case of (1) an assignment of the entire remaining amount  of the assigning Lender’s Commitment and/or the Loans at the time owing to it (in each case with respect  to any Facility), (2) contemporaneous assignments to related Approved Funds that equal at least the  amount specified in Section 10.06(b)(i)(B) in the aggregate or (3) an assignment to a Lender, an Affiliate  of a Lender or an Approved Fund, no minimum amount need be assigned; and  (B) in any case not described in Section 10.06(b)(i)(A), the  aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or,  if the applicable Commitment is not then in effect, the principal outstanding balance of the 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 Administrative Agent or, if “Trade Date” is  specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000  unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing,  Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).  





 






   -160-         (ii) Proportionate Amounts.  Each partial assignment will be made as an  assignment of a proportionate part of all the assigning Lender’s rights and obligations under this  Agreement with respect to the Loan or the Commitment(s) assigned, except that this clause (ii) will not  prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities  on a non-pro rata basis.  (iii) Required Consents.  No consent will be required for any assignment  except to the extent required by Section 10.06(b)(i)(B) and, in addition:  (A) the consent of Borrower (such consent not to be unreasonably  withheld or delayed) will be required unless (1) an Event of Default has occurred and is continuing at the  time of such assignment, or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved  Fund; provided that Borrower will be deemed to have consented to any such assignment unless it objects  thereto by written notice to Administrative Agent within ten Business Days after having received notice  thereof;   (B) the consent of Administrative Agent (such consent not to be  unreasonably withheld or delayed) will be required for assignments in respect of (i) the Revolving Credit  Facility or any unfunded Commitments with respect to the Incremental Term Loan Facility if such  assignment is to a Person that is not a Lender with a Commitment in respect of such Facility, an Affiliate  of such Lender or an Approved Fund with respect to such Lender, or (ii) any Incremental Term Loans to a  Person who is not a Lender, an Affiliate of a Lender or an Approved Fund;  and  (C) the consent of each L/C Issuer and the Swing Line Lender (such  consent not to be unreasonably withheld or delayed) will be required for any assignment in respect of the  Revolving Credit Facility, unless such assignment is to a Lender, an Affiliate of a Lender or an Approved  Fund.  (iv) Assignment and Assumption.  The parties to each assignment will  execute and deliver to Administrative Agent an Assignment and Assumption, together with a processing  and recordation fee of $3,500; provided that Administrative Agent may, in its sole discretion, elect to  waive such processing and recordation fee in the case of any assignment.  The assignee, if it is not a  Lender, will deliver to Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons.  No assignment will be made to  (A) Borrower or any other Loan Party or any of its or their respective Subsidiaries or Affiliates, (B) to any  Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,  would constitute a Defaulting Lender or (C) to a Disqualified Institution.  (vi) No Assignment to Natural Persons.  No assignment will be made to a  natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the  primary benefit of, a natural Person).  (vii) Certain Additional Payments.  In connection with any assignment of  rights and obligations of any Defaulting Lender hereunder, no assignment will 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 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 Borrower and  Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the  Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to  





 






   -161-         (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative  Agent and each Lending Party hereunder (and interest accrued thereon), and (B) acquire (and fund as  appropriate) its full pro rata share of all Loans and participations in Credits and Swing Line Loans in  accordance with its applicable Pro Rata Share.  Notwithstanding the foregoing, in the event that any  assignment of rights and obligations of any Defaulting Lender hereunder will become effective under  applicable Law without compliance with the provisions of this Section 10.06(b)(vii), then the assignee of  such interest will be deemed to be a Defaulting Lender for all purposes of this Agreement until such  compliance occurs.  Subject to acceptance and recording thereof by Administrative Agent pursuant to Section  10.06(c), from and after the effective date specified in each Assignment and Assumption, the assignee  thereunder shall be a party to this Agreement 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 will, 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 Article III and  Section 10.04 with respect to facts and circumstances occurring prior to the effective date of such  assignment; 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.  Any assignment or transfer by a Lender of  rights or obligations under this Agreement that does not comply with this paragraph will be treated for  purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in  accordance with Section 10.06(d).  (c) Register.  Administrative Agent, acting solely for this purpose as an non- fiduciary agent of Borrower, will maintain at Administrative Agent’s Office a copy of each Assignment  and Assumption delivered to it and a Register.  The entries in the Register will be conclusive absent  manifest error, and Borrower, Administrative Agent and the Lending Parties will 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.  The Register will be available for inspection by Borrower and each Lending Party at any  reasonable time and from time to time upon reasonable prior notice. This Section 10.06(c) shall be  construed so that the Loans and L/C Credit Extensions are at all times maintained in “registered form”  within the meaning of section 163(f), 871(h)(2) and 881(c) of the Code.  (d) Participations.  Any Lender may at any time, without the consent of, or notice  to, Borrower or Administrative Agent, sell participations to any Person other than a natural person (or a  holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a  natural Person), Disqualified Institutions, Borrower or any Affiliate of Borrower (each a “Participant”) in  all or a portion of such Person’s rights and/or obligations under this Agreement (including all or a portion  of its Commitment(s) and/or the Loans (including such Lender’s participations in Credit Obligations  and/or Swing Line Loans) owing to it); provided that (i) any sale of a participation to a proposed  Participant that would not otherwise qualify as an Eligible Assignee or that is a Defaulting Lender must  be approved by Administrative Agent, (ii) such Person’s obligations under this Agreement will remain  unchanged, (iii) such Person will remain solely responsible to the other parties hereto for the performance  of such obligations and (iv) Borrower, Administrative Agent and the Lending Parties will continue to deal  solely and directly with such Person in connection with such Person’s rights and obligations under this  Agreement.  Each Lender will be responsible for the indemnity under Section 10.04(c) with respect to  any payments made by such Lender to its Participant(s).  





 






   -162-         Any agreement, instrument or other document pursuant to which a Lender sells such a  participation will provide that such Person will retain the sole right to enforce this Agreement and the  other Loan Documents and to approve any amendment, modification or waiver of any provision of this  Agreement and the other Loan Documents; provided that such document may provide that such Person  will not, without the consent of the Participant, agree to any amendment, waiver or other modification  described in the first proviso to Section 10.01 that affects such Participant.  Borrower agrees that each  Participant will be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and  limitations therein, including the requirements under Section 3.01(d) (it being understood that the  documentation required under Section 3.01(d) will be delivered to the participating Lender)) to the same  extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.06(b);  provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 3.08 as if it  were an assignee under Section 10.06(b), and (B) will not be entitled to receive any greater payment  under Sections 3.01 and 3.04, with respect to any participation than its participating Lender would have  been entitled to receive, except to the extent such entitlement to receive a greater payment results from a  Change in Law that occurs after the Participant acquired the applicable participation, or unless the sale of  the participation to such Participant is made with Borrower’s prior written consent.  Each Lender that  sells a participation agrees, at Borrower’s request and expense, to use reasonable efforts to cooperate with  Borrower to effectuate the provisions of Section 3.08 with respect to any Participant.  Each Lender that  sells a participation will, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a  register on which it enters the name and address of each Participant and the principal amounts of (and  stated interest on) of each Participant’s interest in the Loans or other obligations under the Loan  Documents (the “Participant Register”); provided that no Lender will 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) of the United States Treasury Regulations.  The entries in the Participant Register  shall be conclusive absent manifest error, and such Lender will 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.  Administrative Agent (in its capacity as Administrative  Agent) will have no responsibility for maintaining a Participant Register.  (e) Limitations upon Participant Rights.  A Participant will not be entitled to  receive any greater payment under Section 3.01 or Section 3.04 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 that occurs after the Participant  acquired the applicable participation, or unless the sale of the participation to such Participant is made  with Borrower’s prior written consent.  A Participant that would be a Foreign Lender if it were a Lender  will not be entitled to the benefits of Section 3.01 unless Borrower is notified of the participation sold to  such Participant and such Participant agrees, for the benefit of Borrower, to comply with Section 3.01(e)  as though it were a Lender.  (f) Certain Pledges.  Any Lender may at any time pledge or assign a security  interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure  obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve  Bank; provided that no such pledge or assignment will release such Lender from any of its obligations  hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.  (g) Disqualified Institutions. (i) No assignment or participation shall be made to,  and no Additional Revolving Credit Commitment or Incremental Term Loan Commitment shall be  provided by, any Person that is a Disqualified Institution as of the date (the “Trade Date”) on which the  





 






   -163-         assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and  obligations under this Agreement to such Person or the applicable Additional Commitments Effective  Date, as the case may be (unless Borrower has consented to such assignment, Additional Revolving  Credit Commitment or Incremental Term Loan Commitment, as the case may be, in writing in its sole and  absolute discretion, in which case such Person will not be considered a Disqualified Institution for the  purpose of such assignment, participation or Incremental Commitment).  With respect to any assignee or  Lender having an Additional Revolving Credit Commitment or Incremental Term Loan Commitment that  becomes a Disqualified Institution after the applicable Trade Date (including as a result of the delivery of  a notice pursuant to, and/or the expiration of the notice period referred to in, the definition of  “Disqualified Institution”), (A) such assignee or Incremental Lender shall not retroactively be disqualified  from becoming a Lender and (B) the execution by Borrower of an Assignment and Assumption or joinder  agreement with respect to such assignee will not by itself result in such assignee no longer being  considered a Disqualified Institution. Any assignment or Incremental Commitment in violation of this  Section 10.6(g)(i) shall not be void, but the other provisions of this Section 10.6(g) shall apply.   (i) If any assignment or participation is made to, or any Additional  Revolving Credit Commitment or Incremental Term Loan Commitment is provided or held by, any  Disqualified Institution without Borrower’s prior written consent in violation of Section 10.6(g)(i), or if  any Person becomes a Disqualified Institution after the applicable Trade Date, then, notwithstanding  anything to the contrary contained in Section 2.13 or any other provisions of this Agreement,  Borrower  may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and  Administrative Agent, (A) terminate the Commitments of such Disqualified Institution and repay all  obligations of Borrower owing to such Disqualified Institution in connection with such Commitments  and/or (B) require such Disqualified Institution to assign, without recourse (in accordance with and  subject to the restrictions contained in this Section), all of its interest, rights and obligations under this  Agreement to one or more Eligible Assignees at the lesser of (x) the principal amount thereof and (y) the  amount that such Disqualified Institution paid to acquire such interests, rights and obligations, in each  case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it  hereunder.   (ii) Notwithstanding anything to the contrary contained in this Agreement,  Disqualified Institutions (A) will not (1) have the right to receive information, reports or other materials  provided to Lenders by Borrower, Administrative Agent or any other Lender, (2) attend or participate in  meetings attended by the Lenders and Administrative Agent or (3) access any electronic site established  for the Lenders or confidential communications from counsel to or financial advisors of Administrative  Agent or the Lenders, and (B) (x) for purposes of any consent to any amendment, waiver or modification  of, or any action under, and for the purpose of any direction to Administrative Agent or any Lender to  undertake any action (or refrain from taking any action) under this Agreement or any other Loan  Document, each Disqualified Institution will be deemed to have consented in the same proportion as the  Lenders that are not Disqualified Institutions consented to such matter, and (y) for purposes of voting on  any Debtor Relief Plan, each Disqualified Institution party hereto hereby agrees (1) not to vote on such  Debtor Relief Plan, (2) if such Disqualified Institution does vote on such Debtor Relief Plan  notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good  faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar  provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether  the applicable class has accepted or rejected such Debtor Relief Plan in accordance with Section 1126(c)  of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (3) not to contest  any request by any party for a determination by the Bankruptcy Court (or other applicable court of  competent jurisdiction) effectuating the foregoing clause (2).  





 






   -164-         (iii) Administrative Agent shall have the right, and Borrower hereby  expressly authorizes Administrative Agent, to (A) post the list of Disqualified Institutions provided by  Borrower and any updates thereto from time to time (collectively, the “DQ List”) on the Electronic  Platform, including that portion of the Electronic Platform that is designated for “public side” Lenders  and/or (B) provide the DQ List to each Lender requesting the same.  (h) Electronic Execution of Assignments.  The words “execution,” “signed,”  “signature,” and words of like import in any Assignment and Assumption will be deemed to include  electronic signatures or the keeping of records in electronic form, each of which will be of the same legal  effect, validity or enforceability as a manually executed signature or the use of a paper-based  recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law,  including the Federal Electronic Signatures in Global and National Commerce Act, the New York State  Electronic Signatures and Records Act or any other similar state laws based on the Uniform Electronic  Transactions Act.  (i) Resignation as an L/C Issuer or Swing Line Lender.  Notwithstanding  anything to the contrary contained herein, if at any time HSBC assigns all of its Commitments and Loans  pursuant to Section 10.06(b), HSBC may do either or both of the following: (i) upon thirty days’ notice to  Borrower and all Lenders, resign as an L/C Issuer or (ii) upon thirty days’ notice to Borrower, resign as  Swing Line Lender.  In the event of any such resignation as an L/C Issuer or Swing Line Lender,  Borrower will be entitled to appoint from among Lenders a successor an L/C Issuer or Swing Line Lender  (subject to such Lender’s consent to such appointment, at its sole discretion); provided that no failure by  Borrower to appoint any such successor will affect the resignation of HSBC as L/C Issuer or Swing Line  Lender, as the case may be.  If HSBC resigns as an L/C Issuer, it will retain all the rights and obligations  of an L/C Issuer hereunder with respect to all Credits outstanding as of the effective date of its resignation  as an L/C Issuer and all Credit Obligations with respect thereto (including the right to require Lenders to  make Revolving Credit Loans that are Base Rate Revolving Credit Loans or fund risk participations in  Unreimbursed Amounts pursuant to Section 2.03(c)).  If HSBC resigns as Swing Line Lender, it will  retain all the rights of Swing Line Lender provided for hereunder with respect to Swing Line Loans made  by it and outstanding as of the effective date of such resignation, including the right to require Lenders to  make Revolving Credit Loans that are Base Rate Loans or fund risk participations in outstanding Swing  Line Loans pursuant to Section 2.04(c).  Section 10.07 Treatment of Certain Information; Confidentiality.  Administrative Agent and each Lending Party each agrees to maintain the confidentiality of the  Information in accordance with its customary practice, except that Information may be disclosed: (a) to its  Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made  will be informed of the confidential nature of such Information and instructed to keep such Information  confidential); (b) to the extent required or requested by any regulatory authority, purporting to have  jurisdiction over such Person or is Related Parties (including any self-regulatory authority, such as the  National Association of Insurance Commissioners); (c) to the extent required by applicable Laws or  regulations or by any subpoena or similar legal process, provided that, if not prohibited by law, the  disclosing party will use commercially reasonable efforts (i) to notify Borrower in advance of such  disclosure so that Borrower may seek an appropriate protective order and (ii) to cooperate with Borrower  to obtain such protective order; (d) to Gold Sheets (published by Thomson Reuters LPC) or other similar  bank trade publication or online information service, provided that such disclosures of Information will be  limited to the material deal terms of the Facilities consistent with other customary disclosures by banks  and institutional lenders to such publications or online services for league table reporting purposes; (e) to  any other party hereto; (f) in connection with the exercise of any remedies hereunder or under any other  Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or  





 






   -165-         the enforcement of rights hereunder or thereunder; (g) subject to an agreement containing provisions  substantially the same as those of this Section 10.07 to (i) any assignee of or Participant in, or any  prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (ii) any  actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under  which payments are to be made by reference to Borrower and its obligations, this Agreement or payments  hereunder, provided that, in each case under this clause (g), no such disclosure shall be made to a  Disqualified Institution; (h) on a confidential basis to (A) any rating agency in connection with rating  Borrower or its Subsidiaries or the Facilities or (B) the CUSIP Service Bureau or any similar agency in  connection with the issuance and monitoring of CUSIP numbers with respect to the Facilities; (i) with the  consent of Borrower; or (j) to the extent such Information (1) becomes publicly available other than as a  result of a breach of this Section 10.07 or (2) becomes available to Administrative Agent, any Lending  Party or any of their respective Affiliates on a non-confidential basis from a source other than Borrower  or any Subsidiary thereof and not in contravention of this Section 10.07.  For purposes of this Section  10.07, “Information” means all information (including financial information) received from Borrower or  any other Loan Party or any of their respective Subsidiaries relating to Borrower or any such Loan Party  or any of such Affiliates or their respective businesses, assets, operations or condition (financial or  otherwise).  Any Person required to maintain the confidentiality of Information as provided in this  Section 10.07 will be considered to have complied with its obligation to do so if such Person has  exercised the same degree of care to maintain the confidentiality of such Information as such Person  would accord to its own confidential information.  Section 10.08 Right of Setoff.  If an Event of Default will have occurred and be continuing, each Lending Party and its  respective Affiliates is hereby authorized at any time and from time to time to the fullest extent permitted  by applicable 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, and other obligations (in whatever currency)  at any time owing, by such Lending Party or any such Affiliate to or for the credit or the account of  Borrower or any other Loan Party against any and all of the Obligations to such Lending Party or such  Affiliate, irrespective of whether or not such Lending Party or Affiliate will have made any demand under  this Agreement or any other Loan Document and although such obligations of Borrower or such Loan  Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lending Party  different from the branch, office or Affiliate holding such deposit or obligated on such obligations;  provided, that in the event that any Defaulting Lender will exercise any such right of setoff, (a) all  amounts so set off will be paid over immediately to Administrative Agent for further application in  accordance with the provisions of Section 3.07 and, pending such payment, will be segregated by such  Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent  and the Lending Parties, and (b) the Defaulting Lender will provide promptly to 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 Lending Party and its Affiliates under this Section 10.08  are in addition to other rights and remedies (including other rights of setoff) that such Lending Party or its  Affiliates may have.  Each Lending Party agrees to notify Borrower and Administrative Agent promptly  after any such setoff and application; provided that the failure to give such notice will not affect the  validity of such setoff and application.  Notwithstanding anything in this Section 10.08 to the contrary, no  Lending Party will exercise, or attempt to exercise, any right of set-off, banker’s lien or the like against  any deposit account or property of any Loan Party or any Subsidiary thereof held or maintained by such  Lending Party, in each case to the extent the deposits or other proceeds of such exercise, or attempt to  exercise, any right of set-off, banker’s lien or the like are, or are intended to be or are otherwise are held  out to be applied to the Obligations hereunder or otherwise secured by the Collateral, without the prior  written consent of Administrative Agent.  





 






   -166-         Section 10.09 Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or  agreed to be paid under the Loan Documents will not exceed the maximum rate of non-usurious interest  permitted by applicable Law.  If Administrative Agent or any Lender will receive interest in an amount  that exceeds the maximum rate of non-usurious interest permitted by applicable Law, the excess interest  will be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrower  or the Guarantors, as applicable.  In determining whether the interest contracted for, charged, or received  by Administrative Agent or a Lender exceeds the maximum rate of non-usurious interest permitted by  applicable Law, such Person may, to the extent permitted by applicable Law, (a) characterize any  payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary  prepayments and the effects thereof and (c) amortize, prorate, allocate, and spread in equal or unequal  parts the total amount of interest throughout the contemplated term of the Obligations hereunder.  Section 10.10 Counterparts; Integration; Effectiveness; Electronic Execution.  (a) Counterparts; Integration; Effectiveness. This Agreement may be  executed in counterparts (and by different parties hereto in different counterparts), each of which will  constitute an original, but all of which when taken together will constitute a single contract.  This  Agreement and the other Loan Documents constitute the entire agreement among the parties relating to  the subject matter hereof and supersede any and all previous documents, agreements and understandings,  oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement  will become effective when it will have been executed and delivered by Administrative Agent and when  Administrative Agent will have received counterparts hereof that, when taken together, bear the  signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of  this Agreement by facsimile or electronic transmission (such as by “pdf”) will be effective as delivery of  a manually executed counterpart of this Agreement.  (b) Electronic Execution.  The words “execute,” “execution,” “signed,” “signature,”  “delivery” and words of like import in or related to this Agreement, any other Loan Document or any  document, amendment, approval, consent, waiver, modification, information, notice, certificate, report,  statement, disclosure, or authorization to be signed or delivered in connection with this Agreement or any  other Loan Document or the transactions contemplated hereby shall be deemed to include Electronic  Signatures or execution in the form of an Electronic Record, and contract formations on electronic  platforms approved by Administrative Agent, 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 or  the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in  any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act,  the New York State Electronic Signatures and Records Act, or any other similar state laws based on the  Uniform Electronic Transactions Act.  Each party hereto agrees that any Electronic Signature or  execution in the form of an Electronic Record shall be valid and binding on itself and each of the other  parties hereto to the same extent as a manual, original signature.  For the avoidance of doubt, the  authorization under this Section 10.10(b) may include use or acceptance by the parties of a manually  signed paper which has been converted into electronic form (such as scanned into PDF format), or an  electronically signed paper converted into another format, for transmission, delivery and/or retention.   Notwithstanding anything contained herein to the contrary, Administrative Agent is under no obligation  to accept an Electronic Signature in any form or in any format unless expressly agreed to by  Administrative Agent pursuant to procedures approved by it; provided that  without limiting the  foregoing, (a) to the extent Administrative Agent has agreed to accept such Electronic Signature from any  party hereto, Administrative Agent and the other parties hereto shall be entitled to rely on any such  Electronic Signature purportedly given by or on behalf of the executing party without further verification  





 






   -167-         and (b) upon the request of Administrative Agent or any Lending Party, any Electronic Signature shall be  promptly followed by an original manually executed counterpart thereof.  Without limiting the generality  of the foregoing, each party hereto 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 any of the Loan Parties, electronic images of  this Agreement or any other Loan Document (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 10.11 Collateral Matters.  Subject to Section 10.15(m) and Section 10.18, Lenders agree, and agree to instruct (or otherwise  in the manner provided by this Agreement and the other Loan Documents, cause) Administrative Agent,  to (a) release any Lien on any property granted to or held by Administrative Agent under any Collateral  Document (i) upon termination of the Aggregate Commitments and the payment in full of all Obligations,  (ii) that is sold or to be sold as part of any Disposition permitted hereunder or under any other Loan  Document (provided that the Liens of Administrative Agent continue to attach to the proceeds thereof to  the extent such proceeds constitute Collateral), (iii) subject to Section 10.01, if approved, authorized or  ratified in writing by Required Lenders or (iv) in connection with any foreclosure sale or other  Disposition of Collateral after the occurrence of an Event of Default; and (b) release any Guarantor from  all Guaranteed Obligations under the Loan Documents upon a transaction permitted hereunder which  results in such Guarantor ceasing to be a Subsidiary of the Borrower and in connection therewith  release all Liens granted by such Guarantor under the Loan Documents securing such Guaranteed  Obligations or otherwise not being required to be a Guarantor under the Loan Documents (such as the  designation of a Restricted Subsidiary as an Unrestricted Subsidiary).  Upon any termination of any  such Liens or Guaranty, Administrative Agent will promptly, at the sole expense of Borrower, execute  and deliver such instruments (including UCC filings and filings with the United States Patent and  Trademark Office or United States Copyright Office) as may be reasonably requested by Borrower to  facilitate and further such termination.  Section 10.12 Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or  unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement  and the other Loan Documents will not be affected or impaired thereby and (b) the parties will endeavor  in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions  the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable  provisions.  The invalidity of a provision in a particular jurisdiction will not invalidate or render  unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions of this  Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to  Defaulting Lenders will be limited by Debtor Relief Laws, as determined in good faith by Administrative  Agent, L/C Issuer or Swing Line Lender, as applicable, then such provisions will be deemed to be in  effect only to the extent not so limited.  Section 10.13 Lender-Creditor Relationship.  The relationship between the Lending Parties and Administrative Agent, on the one hand, and  Borrower and the other Loan Parties, on the other, is solely that of creditor and debtor.  Neither any  Lending Party nor Administrative Agent has (or will be deemed to have) any fiduciary relationship or  





 






   -168-         duty to Borrower or any other Loan Party arising out of or in connection with, and there is no agency or  joint venture relationship between the Lending Parties and Administrative Agent, on the one hand, and  Borrower and the other Loan Parties, on the other, by virtue of this Agreement or any other Loan  Document or any of the Transactions contemplated herein or therein.  Section 10.14 USA Patriot Act Notice.  Each Lender that is subject to the PATRIOT Act and Administrative Agent (for itself and not on  behalf of any Lender) hereby notifies Borrower that pursuant to the requirements of the PATRIOT Act, it  is required to obtain, verify and record information that identifies Borrower, which information includes  the name and address of Borrower and such other information that will allow each such Lender or  Administrative Agent, as applicable, to identify Borrower in accordance with the PATRIOT Act.   Borrower shall, promptly following a request by Administrative Agent or any Lender, provide all  documentation and other information that Administrative Agent or such Lender requests in order to  comply with its ongoing obligations under applicable “know your customer” and anti-money laundering  Laws, including the PATRIOT Act.   Section 10.15 Guaranty.  (a) Guaranty.  Except as may be expressly otherwise limited in this Agreement as to  any specific Guarantor, each Guarantor at any time party hereto, jointly and severally, unconditionally  and irrevocably guarantees, as a guaranty of payment and performance and not merely as a guaranty of  collection, to the Secured Parties the full and prompt payment when due (whether at stated maturity, by  required prepayment, declaration, acceleration, demand or otherwise) and performance of the Obligations  (the “Guaranteed Obligations”).  The Guaranteed Obligations include interest that, but for a proceeding  under any Debtor Relief Law, would have accrued on such Guaranteed Obligations, whether or not a  claim is allowed against Borrower for such interest in any such proceeding.  (b) Separate Obligation.  Each Guarantor acknowledges and agrees that (i) the  Guaranteed Obligations are separate and distinct from any Indebtedness arising under or in connection  with any other document, including under any provision of this Agreement other than this Section 10.15,  executed at any time by such Guarantor in favor of any Secured Party; and (ii) such Guarantor will pay  and perform all of the Guaranteed Obligations as required under this Section 10.15, and the Secured  Parties may enforce any and all of their respective rights and remedies hereunder, without regard to any  other document, including any provision of this Agreement other than this Section 10.15, at any time  executed by such Guarantor in favor of any Secured Party, irrespective of whether any such other  document, or any provision thereof or hereof, will for any reason become unenforceable or any of the  Indebtedness thereunder will have been discharged, whether by performance, avoidance or otherwise  (other than payment of all Guaranteed Obligations).  Each Guarantor acknowledges that, in providing  benefits to Borrower, the Secured Parties are relying upon the enforceability of this Section 10.15 and the  Guaranteed Obligations as separate and distinct Indebtedness of each such Guarantor, and each Guarantor  agrees that the Secured Parties would be denied the full benefit of their bargain if at any time this Section  10.15 or the Guaranteed Obligations were treated any differently.  The fact that the Guaranty is set forth  in this Agreement rather than in a separate guaranty document is for the convenience of Borrower and  each Guarantor and will in no way impair or adversely affect the rights or benefits of the Secured Parties  under this Section 10.15.  Upon the occurrence of any Event of Default, a separate action or actions may  be brought against each such Guarantor, whether or not Borrower or any other Guarantor or any other  Person is joined therein or a separate action or actions are brought against Borrower or any such other  Guarantor or any such other Person.  (c) Insolvency Laws; Right of Contribution.  





 






   -169-         (i) As used in this Section 10.15(c): (A) the term “Guarantor Applicable  Insolvency Laws” means the Laws of any Governmental Authority relating to bankruptcy, reorganization,  arrangement, adjustment of debts, relief of debtors, dissolution, insolvency, fraudulent transfers or  conveyances or other similar laws (including 11 U. S. C. §547, §548, §550 and other “avoidance”  provisions of the Bankruptcy Code) as applicable in any proceeding in which the validity or  enforceability of this Agreement or any other Loan Document against any Guarantor, or any Guarantor  Specified Lien is in issue; and (B) “Guarantor Specified Lien” means any Lien from time to time granted  by any Guarantor securing the Guaranteed Obligations.  Notwithstanding any provision of this Agreement  to the contrary, if, in any proceeding, a court of competent jurisdiction determines that with respect to any  Guarantor, this Agreement or any other Loan Document or any Guarantor Specified Lien would, but for  the operation of this Section 10.15(c), be subject to avoidance and/or recovery or be unenforceable by  reason of Guarantor Applicable Insolvency Laws, this Agreement, such other Loan Document and each  such Guarantor Specified Lien will be valid and enforceable against such Guarantor, only to the  maximum extent that would not cause this Agreement, such other Loan Document or such Guarantor  Specified Lien to be subject to avoidance, recovery or unenforceability.  To the extent that any payment  to, or realization by, Administrative Agent or any Lending Party on the Guaranteed Obligations exceeds  the limitations of this Section 10.15(c) and is otherwise subject to avoidance and recovery in any such  proceeding, the amount subject to avoidance will in all events be limited to the amount by which such  actual payment or realization exceeds such limitation, and this Agreement as limited will in all events  remain in full force and effect and be fully enforceable against such Guarantor.  This Section 10.15(c) is  intended solely to reserve the rights of the Secured Parties hereunder against each Guarantor, in such  proceeding to the maximum extent permitted by Guarantor Applicable Insolvency Laws and neither  Borrower, nor any Guarantor or any other guarantor of the Obligations nor any other Person will have any  right, claim or defense under this Section 10.15(c) that would not otherwise be available under Guarantor  Applicable Insolvency Laws in such proceeding.  (ii) Each Guarantor hereby agrees that, to the extent that any Guarantor will  have paid an amount hereunder to or on behalf of the Secured Parties that is greater than the net value of  the benefits received, directly or indirectly, by such paying Guarantor as a result of the Credit Extensions  and other credit accommodations extended hereunder, such paying Guarantor will be entitled to  contribution from any Guarantor that has not paid its proportionate share, based on benefits received as a  result of the making and issuance of the Credit Extensions.  Any amount payable as a contribution under  this Section 10.15(c) will be determined as of the date on which the related payment or distribution is  made by the Guarantor seeking contribution and each Guarantor acknowledges that the right to  contribution hereunder will constitute an asset of such Guarantor to which such contribution is owed.   Notwithstanding the foregoing, the provisions of this Section 10.15(c) will in no respect limit the  obligations and liabilities of any Guarantor to the Secured Parties hereunder or under any other Loan  Document, and each Guarantor will remain jointly and severally liable for the full payment and  performance of the Guaranteed Obligations.  (d) Qualified ECP Guarantors.  Each Qualified ECP Guarantor, jointly and  severally, hereby absolutely, unconditionally and irrevocably undertakes to provide such funds or other  support as may be needed from time to time by each other Guarantor to honor all of such Guarantor’s  obligations under this Agreement and the other Loan Documents in respect of Secured Swap Obligations  (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.15 for  the maximum amount of such liability that can be hereby incurred without rendering its obligations under  this Section 10.15, or otherwise under this Agreement or the other Loan Documents, voidable under  applicable Law, including voidable transfer, fraudulent conveyance or fraudulent transfer laws, and not  for any greater amount).  The obligations of each Qualified ECP Guarantor under this Section 10.15 shall  remain in full force and effect until the payment in full in cash of the Obligations (other than contingent  amounts not yet due), in each case, in accordance with and subject to the limitations set forth in Section  





 






   -170-         10.18.  Each Qualified ECP Guarantor intends that this Section 10.15 constitute, and this Section 10.15  shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other  Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  (e) Liability of Guarantors.  The liability of each Guarantor under this Section  10.15 will be irrevocable, absolute, independent and unconditional, and will not be affected by any  circumstance that might constitute a discharge of a surety or guarantor other than the payment and  performance in full of all Guaranteed Obligations.  In furtherance of the foregoing and without limiting  the generality thereof, each Guarantor agrees as follows:  (i) such Guarantor’s liability hereunder will be the immediate, direct, and  primary obligation of such Guarantor and will not be contingent upon any Secured Party’s exercise or  enforcement of any remedy it may have against Borrower or any other Person, or against any collateral or  other security for any Guaranteed Obligations;  (ii) this Guaranty is a guaranty of payment when due and not merely of  collectability;  (iii) Administrative Agent and the Lending Parties may enforce this Section  10.15 upon the occurrence of an Event of Default notwithstanding the existence of any dispute among  Administrative Agent and the Lending Parties, on the one hand, and Borrower or any other Person, on the  other hand, with respect to the existence of such Event of Default (it being understood and agreed that  nothing in this clause (iii) shall, or is intended to, limit or impair such Guarantor’s separate right to  dispute the existence of the Event of Default);  (iv) such Guarantor’s payment of a portion, but not all, of the Guaranteed  Obligations will in no way limit, affect, modify or abridge such Guarantor’s liability for any portion of  the Guaranteed Obligations remaining unsatisfied; and  (v) such Guarantor’s liability with respect to the Guaranteed Obligations will  remain in full force and effect without regard to, and will not be impaired or affected by, nor will such  Guarantor be exonerated or discharged by, any of the following events:  (A) any proceeding under any Debtor Relief Law;  (B) any limitation, discharge, or cessation of the liability of  Borrower or any Guarantor or other Person for any Guaranteed Obligations due to any applicable Law, or  any invalidity or unenforceability in whole or in part of any of the Guaranteed Obligations or the Loan  Documents;  (C) any merger, acquisition, consolidation or change in structure of  Borrower or any Guarantor or other Person, or any sale, lease, transfer or other disposition of any or all of  the assets or shares of Borrower or any other Guarantor or Person, except to the extent any Guarantor is  released from Guaranteed Obligations in connection therewith in accordance with the terms of this  Agreement;  (D) any assignment or other transfer, in whole or in part, of any  Secured Party’s interests in and rights under this Agreement (including this Section 10.15) or the other  Loan Documents;  





 






   -171-         (E) any claim, defense, counterclaim or setoff, other than that of  prior performance, that Borrower, any Guarantor or any other Person may have or assert, including any  defense of incapacity or lack of corporate or other authority to execute any of the Loan Documents;  (F) any Secured Party’s amendment, modification, renewal,  extension, cancellation or surrender of any Loan Document or any Guaranteed Obligations;  (G) any Secured Party’s exercise or non-exercise of any power, right  or remedy with respect to any Guaranteed Obligations or any collateral;  (H) any Secured Party’s vote, claim, distribution, election,  acceptance, action or inaction in any proceeding under any Debtor Relief Law; or  (I) any other guaranty, whether by such Guarantor or any other  Person, of all or any part of the Guaranteed Obligations or any other indebtedness, obligations or  liabilities of Borrower to any Secured Party.  (f) Consents of Guarantors.  Each Guarantor hereby unconditionally consents and  agrees that, without notice to or further assent from any such Guarantor:  (i) the principal amount of the Guaranteed Obligations may be increased or  decreased and additional indebtedness or obligations of Borrower under the Loan Documents may be  incurred and the time, manner, place or terms of any payment under any Loan Document may be  extended or changed, by one or more amendments, modifications, renewals or extensions of any Loan  Document or otherwise;  (ii) the time for Borrower’s (or any other Person’s) performance of or  compliance with any term, covenant or agreement on its part to be performed or observed under any Loan  Document may be extended, or such performance or compliance waived, or failure in or departure from  such performance or compliance consented to, all in such manner and upon such terms as the Secured  Parties (as applicable under the relevant Loan Documents) may deem proper;  (iii) the Secured Parties may request and accept other guaranties and may  take and hold security as collateral for the Guaranteed Obligations, and may, from time to time, in whole  or in part, exchange, sell, surrender, release, subordinate, modify, waive, rescind, compromise or extend  such other guaranties or security and may permit or consent to any such action or the result of any such  action, and may apply such security and direct the order or manner of sale thereof; and  (iv) the Secured Parties may exercise, or waive or otherwise refrain from  exercising, any other right, remedy, power or privilege even if the exercise thereof affects or eliminates  any right of subrogation or any other right of such Guarantor against Borrower.  (g) Guarantors’ Waivers.  Each Guarantor hereby waives and agrees not to assert:  (i) any right to require any Secured Party to proceed against Borrower, any  other Guarantor or any other Person, or to pursue any other right, remedy, power or privilege of any  Secured Party whatsoever;  (ii) the defense of the statute of limitations in any action hereunder or for the  collection or performance of the Guaranteed Obligations (and in this regard that the performance of any  act or any payment which tolls any statute of limitations applicable to Obligations under any of the Loan  





 






   -172-         Documents will similarly operate to toll the statute of limitations applicable to each such Guarantor’s  liability hereunder);  (iii) any defense arising by reason of any lack of corporate or other authority  or any other defense of Borrower, such Guarantor or any other Person (other than payment in full of the  Guaranteed Obligations or, subject to Section 10.15(i), that no Guaranteed Obligations were then due);  (iv) any defense based upon any Secured Party’s errors or omissions in the  administration of the Guaranteed Obligations;  (v) any rights to set-offs and counterclaims;  (vi) without limiting the generality of the foregoing, to the fullest extent  permitted by law, any defenses or benefits that may be derived from or afforded by applicable law  limiting the liability of or exonerating guarantors or sureties, or that may conflict with the terms of this  Section 10.15, including any and all benefits that otherwise might be available to such Guarantor under  California Civil Code Sections 1432, 2809, 2810, 2815, 2819, 2839, 2845, 2848, 2849, 2850, 2899 and  3433 and California Code of Civil Procedure Sections 580a, 580b, 580d and 726; and  (vii) any and all notice of the acceptance of this Guaranty, and any and all  notice of the creation, renewal, modification, extension or accrual of the Guaranteed Obligations, or the  reliance by the Secured Parties upon this Guaranty, or the exercise of any right, power or privilege  hereunder.  The Guaranteed Obligations will conclusively be deemed to have been created, contracted,  incurred and permitted to exist in reliance upon this Guaranty.  Each Guarantor waives promptness,  diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all  other notices to or upon Borrower, any Guarantor or any other Person with respect to the Guaranteed  Obligations.  (h) Stay of Acceleration. If acceleration of the time for payment of any of the  Obligations is stayed in connection with any case commenced by or against Borrower under any Debtor  Relief Law, or otherwise, all such amounts will nonetheless be jointly and severally payable by each  Guarantor immediately upon demand by Administrative Agent to the extent such acceleration would  otherwise be permitted but for such stay.  (i) Financial Condition of Borrower.  No Guarantor will have any right to require  any Secured Party to obtain or disclose any information with respect to (i) the financial condition or  character of Borrower or the ability of Borrower to pay and perform the Guaranteed Obligations, (ii) the  Guaranteed Obligations, (iii) any collateral or other security for any or all of the Guaranteed Obligations,  (iv) the existence or nonexistence of any other guarantees of all or any part of the Guaranteed Obligations,  (v) any action or inaction on the part of any Secured Party or any other Person or (vi) any other matter,  fact or occurrence whatsoever.  Each Guarantor hereby acknowledges that it has undertaken its own  independent investigation of the financial condition of Borrower and all other matters pertaining to this  Guaranty set forth in this Section 10.15 and further acknowledges that it is not relying in any manner  upon any representation or statement of any Secured Party with respect thereto.  (j) Subrogation.  Until the Guaranteed Obligations have been paid and performed in  full and the Aggregate Commitments have been terminated, no Guarantor will directly or indirectly  exercise (i) any rights that it may acquire by way of subrogation under this Section 10.15, by any  payment hereunder or otherwise, (ii) any rights of contribution, indemnification, reimbursement or similar  suretyship claims arising out of this Section 10.15 or (iii) any other right that it might otherwise have or  acquire (in any way whatsoever) that could entitle it at any time to share or participate in any right,  





 






   -173-         remedy or security of any Secured Party as against any Borrower or any other Guarantor or any other  Person, whether in connection with this Section 10.15, any of the other Loan Documents or otherwise.  (k) Subordination.  All payments on account of all indebtedness, liabilities and  other obligations of Borrower to any Guarantor, whether now existing or hereafter arising, and whether  due or to become due, absolute or contingent, liquidated or unliquidated, determined or undetermined (the  “Guarantor Subordinated Indebtedness”) will be subject, subordinate and junior in right of payment and  exercise of remedies, to the extent and in the manner set forth herein, to the prior payment in full in Cash  of the Guaranteed Obligations.  As long as any of the Guaranteed Obligations (other than unasserted  contingent indemnification obligations) will remain outstanding and unpaid, no Guarantor will accept or  receive any payment or distribution by or on behalf of Borrower or any other Guarantor, directly or  indirectly, or assets of Borrower or any other Guarantor, of any kind or character, whether in Cash,  property or securities, including on account of the purchase, redemption or other acquisition of Guarantor  Subordinated Indebtedness, as a result of any collection, sale or other disposition of collateral, or by  setoff, exchange or in any other manner, for or on account of the Guarantor Subordinated Indebtedness  (“Guarantor Subordinated Indebtedness Payments”), except that, each Guarantor will be entitled to  accept and receive payments on its Guarantor Subordinated Indebtedness not in contravention of any Law  or the terms of the Loan Documents so long as (i) no Event of Default has occurred and is occurring and  (ii) the Administrative Agent has not given notice that Guarantor Subordinated Indebtedness payments  are not permitted.  Notwithstanding the foregoing, Borrowers may pay, and Guarantors may accept and  receive, any Restricted Payment to the extent permitted in accordance with Section 7.06.  If any Guarantor Subordinated Indebtedness Payments will be received in contravention of this  Section 10.15, such Guarantor Subordinated Indebtedness Payments will be held in trust for the benefit of  the Secured Parties and will be paid over or delivered to Administrative Agent for application to the  payment in full in Cash of all Guaranteed Obligations remaining unpaid to the extent necessary to give  effect to this Section 10.15 after giving effect to any concurrent payments or distributions to the Secured  Parties in respect of the Guaranteed Obligations.  (l) Continuing Guaranty.  The Guaranty set forth in this Section 10.15 is a  continuing irrevocable guaranty and agreement of subordination and will continue in effect and be  binding upon each Guarantor until termination of the Aggregate Commitments and payment and  performance in full of the Guaranteed Obligations, including Guaranteed Obligations which may exist  continuously or which may arise from time to time under successive transactions, and each such  Guarantor expressly acknowledges that this Guaranty will remain in full force and effect notwithstanding  that there may be periods in which no Guaranteed Obligations exist.  (m) Reinstatement.  The Guaranty set forth in this Section 10.15 will continue to be  effective or will be reinstated and revived, as the case may be, if, for any reason, any payment of the  Guaranteed Obligations by or on behalf of Borrower (or receipt of any proceeds of Collateral) will be  rescinded, invalidated, declared to be fraudulent or preferential, set aside, voided or otherwise required to  be repaid to Borrower, its estate, trustee, receiver or any other Person (including under any Debtor Relief  Law), or must otherwise be restored by any Secured Party, whether as a result of proceedings under any  Debtor Relief Law or otherwise.  All losses, damages, costs and expenses that any Secured Party may  suffer or incur as a result of any voided or otherwise set aside payments will be specifically covered by  the indemnity in favor of the Secured Parties contained in Section 10.04.  (n) Substantial Benefits.  The Credit Extensions provided to or for the benefit of  Borrower hereunder by the Lending Parties have been and are to be contemporaneously used for the  benefit of Borrower and each Guarantor.  It is the position, intent and expectation of the parties that  Borrower and each such Guarantor have derived and will derive significant and substantial direct and  





 






   -174-         indirect benefits from the Credit Extensions to be made available by the Lending Parties under the Loan  Documents.  (o) Knowing and Explicit Waivers.  Each Guarantor acknowledges that it either  has obtained the advice of legal counsel or has had the opportunity to obtain such advice in connection  with the terms and provisions of this Section 10.15.  Each Subsidiary Guarantor acknowledges and agrees  that each of the waivers and consents set forth herein is made with full knowledge of its significance and  consequences, that all such waivers and consents herein are explicit and knowing and that each such  Guarantor expects such waivers and consents to be fully enforceable.  If, while any Guarantor Subordinated Indebtedness is outstanding, any proceeding under any  Debtor Relief Law is commenced by or against Borrower or its property, Administrative Agent, when so  instructed by any L/C Issuer, Swing Line Lender and Required Lenders, is hereby irrevocably authorized  and empowered (in the name of the Lending Parties or in the name of any Guarantor or otherwise), but  will have no obligation, to demand, sue for, collect and receive every payment or distribution in respect of  all Guarantor Subordinated Indebtedness and give acquittances therefor and to file claims and proofs of  claim and take such other action (including voting the Guarantor Subordinated Indebtedness) as it may  deem necessary or advisable for the exercise or enforcement of any of the rights or interests of the  Secured Parties; and each such Guarantor will promptly take such action as Administrative Agent (on  instruction from any L/C Issuer, Swing Line Lender and Required Lenders) may reasonably request (A)  to collect the Guarantor Subordinated Indebtedness for the account of the Lending Parties and to file  appropriate claims or proofs of claim in respect of the Guarantor Subordinated Indebtedness; (B) to  execute and deliver to Administrative Agent such powers of attorney, assignments and other instruments  as it may request to enable it to enforce any and all claims with respect to the Guarantor Subordinated  Indebtedness; and (C) to collect and receive any and all Guarantor Subordinated Indebtedness Payments.  Section 10.16 Governing Law; Jurisdiction; Etc.  (a) Governing Law.  This Agreement and the other Loan Documents and any  claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon,  arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan  Document, as expressly set forth therein) and the transactions contemplated hereby and thereby will be  governed by, and construed in accordance with, the laws of the State of New York, without regard to  principles of conflicts of law other than New York General Obligations Law 5-1401 and 5-1402.  (b) Submission to Jurisdiction.  Subject to the last sentence of this Section   10.16(b), each party hereto hereby irrevocably and unconditionally agrees that it will not commence any  action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or  in tort or otherwise, against any other party hereto or any Related Party of the foregoing in any way  relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in  any forum other than the courts of the Supreme Court of the State of New York sitting in New York  County in the Borough of Manhattan and of the United States District Court for the Southern District of  New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and  unconditionally submits to the exclusive (subject only to the last sentence of this Section 10.16(b))  jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding  shall be heard and determined in such New York State Court or, to the fullest extent permitted by  applicable Law, in such Federal court.  Each of the parties hereto agrees that a final judgment in any such  action, litigation or proceeding will be conclusive and may be enforced in other jurisdictions by suit on  the judgment or in any other manner provided by Law.  Nothing in this Agreement or in any other Loan  Document will affect any right that Administrative Agent or any Lending Party may otherwise have to  





 






   -175-         bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan  Party or any of its properties in the courts of any other jurisdiction.  (c) Waiver of Venue.  Each party hereto hereby irrevocably and unconditionally  waives, to the fullest extent permitted by applicable Law, any objection that it may now or hereafter have  to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other  Loan Document in any court referred to in subsection (b) of this Section 10.16.  Each of the parties hereto  hereby irrevocably waives, to the fullest extent permitted by applicable Law, the defense of an  inconvenient forum to the maintenance of such action or proceeding in any such court.  (d) Service of Process.  Each party hereto irrevocably consents to service of process  in the manner provided for notices in Section 10.02.  Nothing in this Agreement will affect the right of  any party hereto to serve process in any other manner permitted by applicable Law.  Section 10.17 Waiver of Right to Jury Trial.  (a) BORROWER AND EACH OTHER LOAN PARTY, ADMINISTRATIVE  AGENT AND EACH LENDING PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY  JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS  UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY  AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER  AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN  CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP  EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH  ACTION, PROCEEDING OR COUNTERCLAIM WILL BE TRIED BEFORE A COURT AND  NOT BEFORE A JURY.  BORROWER AND EACH OTHER LOAN PARTY HEREBY  ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR  ADMINISTRATIVE AGENT AND THE LENDING PARTIES ENTERING INTO THIS  AGREEMENT.  (B) EACH OF THE PARTIES HERETO REPRESENTS THAT EACH HAS  REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS  JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL ON SUCH  MATTERS.  IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE  FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.  (C) TO THE EXTENT THAT THE WAIVER OF JURY TRIAL IN SECTION  10.17(a) IS HELD OR OTHERWISE DETERMINED BY A COURT IN THE STATE OF  CALIFORNIA TO BE UNENFORCEABLE, THE PARTIES HERETO DESIRE THAT THEIR  DISPUTES BE RESOLVED BY A JUDGE OR RETIRED JUDGE APPLYING THE  APPLICABLE LAW.  THEREFORE, THE PARTIES HERETO AGREE TO REFER, FOR A  COMPLETE AND FINAL ADJUDICATION, ANY AND ALL ISSUES OF FACT OR LAW  INVOLVED IN ANY LITIGATION OR PROCEEDING (INCLUDING ALL DISCOVERY AND  LAW AND MOTION MATTERS, PRETRIAL MOTIONS, TRIAL MATTERS, AND POST- TRIAL MOTIONS (E.G., MOTIONS FOR RECONSIDERATION, NEW TRIAL AND TO TAX  COSTS, ATTORNEY FEES AND PREJUDGMENT INTEREST)) UP TO AND INCLUDING  FINAL JUDGMENT, BROUGHT TO RESOLVE ANY DISPUTE (WHETHER SOUNDING IN  CONTRACT, TORT, UNDER ANY STATUTE, OR OTHERWISE) BETWEEN THE LENDER  AND BORROWER ARISING OUT OF, CONNECTED WITH, OR RELATED OR INCIDENTAL  TO THE RELATIONSHIP ESTABLISHED BETWEEN THE PARTIES IN CONNECTION  WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR THE TRANSACTIONS RELATED  





 






   -176-         HERETO AND THERETO, TO A JUDICIAL REFEREE WHO WILL BE APPOINTED UNDER  A GENERAL REFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE  SECTION 638.  THE REFEREE’S DECISION WOULD STAND AS THE DECISION OF THE  COURT, WITH JUDGMENT TO BE ENTERED ON HIS STATEMENT OF DECISION IN THE  SAME MANNER AS IF THE ACTION HAD BEEN TRIED BY THE COURT.   ADMINISTRATIVE AGENT AND BORROWER WILL SELECT A SINGLE NEUTRAL  REFEREE, WHO WILL BE A RETIRED STATE OR FEDERAL JUDGE WITH AT LEAST  FIVE YEARS OF JUDICIAL EXPERIENCE IN CIVIL MATTERS.  IN THE EVENT THAT  ADMINISTRATIVE AGENT AND BORROWER CANNOT AGREE UPON A REFEREE, THE  REFEREE WILL BE APPOINTED BY THE COURT.  THE LOAN PARTIES WILL JOINTLY  AND SEVERALLY BEAR THE FEES AND EXPENSES OF THE REFEREE UNLESS THE  REFEREE OTHERWISE PROVIDES IN THE STATEMENT OF DECISION.  EACH PARTY  AGREES THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL  COUNTERPART OR A COPY OF THIS SECTION 10.17 WITH ANY COURT AS WRITTEN  EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE REFERENCE TO  A JUDICIAL REFEREE AS PROVIDED ABOVE.  Section 10.18 Survival.  All covenants, agreements, representations and warranties made by the Loan Parties in the Loan  Documents and in the certificates or other instruments delivered in connection with or pursuant to any  Loan Document will be considered to have been relied upon by the other parties hereto and shall survive  the execution and delivery of the Loan Documents and the making or issuance of any Credit Extension  hereunder, regardless of any investigation made by any such other party or on its behalf and  notwithstanding that Administrative Agent, any L/C Issuer or any Lender may have had notice or  knowledge of any Default or Event of Default or any incorrect representation or warranty at the time any  Credit Extension is extended hereunder, and shall continue in full force and effect until all Commitments  have expired or been terminated, all Obligations have been paid in full in cash and all Credits have  expired or been terminated.  The provisions of Sections 3.01, 3.04, 3.05 and 10.04 and Article IX shall  survive and remain in full force and effect regardless of the consummation of the transactions  contemplated hereby, the repayment of the Loans and all other amounts payable hereunder, the expiration  or termination of the Credits and the Commitments or the termination of this Agreement or any provision  hereof.  Notwithstanding the foregoing or anything else to the contrary set forth in this Agreement, in the  event that, in connection with the refinancing or repayment in full of the Loan Document Obligations  provided for herein, an L/C Issuer will have provided to Administrative Agent a written consent to the  release of the Revolving Credit Lenders from their obligations hereunder with respect to any Credit issued  by such L/C Issuer (whether as a result of the obligations of Borrower (and any other account party) in  respect of such Credit having been cash collateralized, supported by a standby letter of credit or otherwise  backstopped in an amount, by an institution and pursuant to arrangements in each case reasonably  satisfactory to such L/C Issuer), then from and after such time such Credit shall cease to be a “Credit”  outstanding hereunder for all purposes of this Agreement and the other Loan Documents, and the  Revolving Credit Lenders shall be deemed to have no participations in such Credit, and no obligations  with respect thereto, under Sections 2.03(c) or (d).  Section 10.19 Judgment Currency.  If, for the purpose of obtaining judgment in any court or obtaining an order enforcing a judgment,  it becomes necessary to convert any amount due under this Agreement in Dollars or in any other currency  (hereinafter in this Section 10.19 called the “first currency”) into any other currency (hereinafter in this  Section 10.19 called the “second currency”), then the conversion will be made at the rate of exchange at  which in accordance with normal banking procedures Administrative Agent could purchase the first  





 






   -177-         currency with such second currency at Administrative Agent’s close of business on the Business Day next  preceding the day on which the judgment is given or (as the case may be) the order is made.  Any  payment made to Administrative Agent or any Lending Party pursuant to this Agreement in the second  currency will constitute a discharge of the obligations of Borrower to pay to Administrative Agent and the  Lending Parties any amount originally due to Administrative Agent and the Lending Parties in the first  currency under this Agreement only to the extent of the amount of the first currency which Administrative  Agent and each of the Lending Parties is able, on the date of the receipt by it of such payment in any  second currency, to purchase, in accordance with Administrative Agent’s and such Lending Party’s  normal banking procedures, with the amount of such second currency so received.  If the amount of the  first currency falls short of the amount originally due to Administrative Agent and the Lending Parties in  the first currency under this Agreement, Borrower hereby agrees that it will indemnify each of  Administrative Agent and each of the Lending Parties against and save each of Administrative Agent and  each of the Lending Parties harmless from any shortfall so arising.  This indemnity will constitute an  obligation of Borrower separate and independent from the other obligations contained in this Agreement,  will give rise to a separate and independent cause of action and will continue in full force and effect  notwithstanding any judgment or order for a liquidated sum or sums in respect of amounts due to  Administrative Agent or any Lending Party under this Agreement or under any such judgment or order.   Any such shortfall will be deemed to constitute a loss suffered by each of Administrative Agent and each  such Lending Party, as the case may be, and Borrower will not be entitled to require any proof or  evidence of any actual loss.  The covenant contained in this Section 10.19 will survive the payment in full  of all of the other Obligations of Borrower under this Agreement and the other Loan Documents.  Section 10.20 Cashless Settlement.  Notwithstanding anything to the contrary contained in this Agreement, any Lender may  exchange, continue or rollover all or a portion of its Loans in connection with the amendment and  restatement of the Existing Senior Credit Facilities, or any other refinancing, extension, loan modification  or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement  mechanism approved in writing by Borrower, Administrative Agent and such Lender (including as set  forth in this Agreement).  Section 10.21 Acknowledgement and Consent to Bail-In of EEAAffected Financial  Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any liability  of any EEAAffected Financial Institution arising under any Loan Document, to the extent such liability is  unsecured, may be subject to the write-down and conversion powers of an EEAWrite-Down and  Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges  and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by an EEAthe  applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by  any party hereto that is an EEAAffected Financial Institution; and  (b) the effects of any Bail-in Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such EEAAffected Financial Institution, its parent undertaking, or a bridge  





 






   -178-         institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments  of ownership will be accepted by it in lieu of any rights with respect to any such liability under this  Agreement or any other Loan Document; or  (iii) the variation of the terms of such liability in connection with the exercise  of the write-down and conversion powers of any EEAAffected Resolution Authority.  Section 10.22 Acknowledgement Regarding Any Supported QFCs.  To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any  Swap Contract 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 United  States of America and/or any State thereof or the District of Columbia):    (a) (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; and    (b) (b)  in the event a Covered Party or a BHC Act Affiliate of a Covered Party  becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan  Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be  exercised against such Covered Party are permitted to be exercised to no greater extent than such Default  Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan  Documents were governed by the laws of the United States or a state of the United States. Without  limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect  to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported  QFC or any QFC Credit Support.    Section 10.23 Effect of Amendment and Restatement of the First Restated Credit  Agreement.    This Agreement is intended to amend and restate and supersede and replace in its entirety the  First Restated Credit Agreement and the Environmental Indemnity (as defined in the First Restated Credit  Agreement), without novation, with the Commitments set forth herein and the Lenders party hereto.   Without limiting the generality of the foregoing, on the Second Restatement Effective Date, any Lenders  party to the First Restated Credit Agreement not listed on the signature pages hereof shall cease to be  Lenders, and each Lender listed on the signature pages hereof not previously party to the First Restated  Credit Agreement shall be and become a Lender hereunder and shall have all of the rights and be  obligated to perform all of the obligations of a Lender hereunder to the extent of its Commitments.   Notwithstanding anything to the contrary contained in the First Restated Credit Agreement, in order to  effect the restructuring of the existing credit facilities as contemplated by this Agreement, all accrued and  





 






   -179-         unpaid interest, and all accrued and incurred and unpaid fees, costs and expenses payable under the First  Restated Credit Agreement, including all accrued and unpaid Commitment Fees under (and as defined in)  the First Restated Credit Agreement and Credit Fees under (and as defined in) the First Restated Credit  Agreement, and all fees and expenses outstanding under Section 10.04(a) and Section 10.04(b) of the  First Restated Credit Agreement and other similar costs and expenses, will be due and payable on the  Second Restatement Effective Date.  All previously outstanding promissory notes under the First Restated  Credit Agreement will be deemed cancelled upon the occurrence of the Second Restatement Effective  Date and the issuance of the Notes hereunder.  Additionally, those Lenders party hereto which are also  party to the First Restated Credit Agreement hereby waive any prior notice requirement under the First  Restated Credit Agreement with respect to the termination of commitments thereunder and the making of  any prepayments thereunder.  Upon the repayment in full of the First Restated Obligations outstanding  under the First Restated Credit Agreement using the proceeds of the Borrowing of the initial Credit  Extensions hereunder on the Second Restatement Effective Date, Administrative Agent will (i) cause the  Mortgage encumbering the Camarillo Facility and securing the outstanding First Restated Obligations to  be promptly reconveyed in full and (ii) except for those existing deposit and securities account control  agreements as Borrower may designate to Administrative Agent for purposes of establishing  Consolidated Net Cash in which Administrative Agent maintains a security interest perfected by control,  cause all existing deposit and securities account control agreements in favor of Administrative Agent, as  secured party, covering deposit or securities accounts of a Loan Party and securing the outstanding First  Restated Obligations to be promptly terminated.   [Signature pages follow]    





 






    [SIGNATURE PAGE TO SECOND AMENDED AND   RESTATED CREDIT AGREEMENT]         IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and Restated  Credit Agreement to be duly executed as of the date first written above.  BORROWER:    SEMTECH CORPORATION      By: ________________________  Name: Emeka N. Chukwu  Title:  Executive Vice President and Chief       Financial Officer      GUARANTORS:    SEMTECH CORPUS CHRISTI CORPORATION      By: ________________________  Name: Emeka N. Chukwu  Title:  President and Chief Financial Officer      SEMTECH SAN DIEGO CORPORATION      By: ________________________  Name: Emeka N. Chukwu  Title:  President and Chief Financial Officer      SEMTECH NEW YORK CORPORATION      By: ________________________    Name: Emeka N. Chukwu  Title:  President and Chief Financial Officer      SEMTECH COLORADO. INC.      By: ________________________    Name: Emeka N. Chukwu  Title:  President and Chief Financial Officer          





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]          SIERRA MONOLITHICS, INC.      By: ________________________  Name: Emeka N. Chukwu  Title:  President and Chief Financial Officer       SEMTECH EV, INC.      By: ________________________  Name: Emeka N. Chukwu  Title:  President and Treasurer      TRIUNE SYSTEMS, L.L.C.      By: ________________________  Name: Emeka N. Chukwu  Title:  Chief Financial Officer      TRIUNE IP, LLC      By: ________________________  Name: Emeka N. Chukwu  Title:  Chief Financial Officer  





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]            ADMINISTRATIVE AGENT:    HSBC BANK USA, NATIONAL ASSOCIATION      By: ________________________  Name: Keisha McLaughlin  Title:  AVP    L/C ISSUER:    HSBC BANK USA, NATIONAL ASSOCIATION      By: ________________________  Name: Andrew W. Hietala  Title:  Senior Vice President      SWING LINE LENDER:    HSBC BANK USA, NATIONAL ASSOCIATION      By: ________________________  Name: Andrew W. Hietala  Title:  Senior Vice President 





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]              





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]          LENDERS:    HSBC BANK USA, NATIONAL ASSOCIATION      By: ________________________  Name: Andrew W. Hietala  Title:  Senior Vice President      





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]            U.S. BANK NATIONAL ASSOCIATION      By: ________________________     _______________________  Name: G. Scott Lambert  Title:  Vice President  





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]            





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]          BANK OF THE WEST      By: ________________________  Name:  Charlene A. Davidson   Title:    Managing Director    By: ________________________  Name:  Eric Andersen   Title:    Vice President    





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]          BBVA USA      By: ________________________     _______________________  Name: Chris Dowler  Title:  Senior Vice President    





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]          WELLS FARGO BANK, N.A.       By: ________________________  Name: Greg Cohn  Title:  Senior Vice President    





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]          BANK OF CHINA, LOS ANGELES BRANCH      By: ________________________  Name: Yong Ou  Title:  SVP and Branch Manager    





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]          MUFG UNION BANK, N.A.      By: ________________________  Name: Lillian Kim  Title:  Director    





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]          BRANCH BANKING AND TRUST COMPANY      By: ________________________  Name: Jim C. Wright  Title:  Vice President    





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]          COMERICA BANK      By: ________________________  Name: Mark. C. Skrzynski Jr.  Title:  Vice President    





 






    [SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]          SILICON VALLEY BANK      By: ________________________  Name: Alex Grotevant  Title:  Vice President