thirdamendmenttoamendeda






Execution Version     27509012.26  THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT  This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this  “Third Amendment”) dated as of February 3, 2022, by and among SPECTRUM BRANDS, INC., a  Delaware corporation (the “Lead Borrower”), SB/RH HOLDINGS, LLC, a Delaware limited liability  company (“Holdings”), ROYAL BANK OF CANADA, as administrative agent (in such capacity, the  “Administrative Agent”) under the Loan Documents and the financial institutions party hereto (the “2022  Revolving Lenders”), as 2022 Revolving Lenders.  Unless otherwise indicated, all capitalized terms used  herein and not otherwise defined herein shall have the respective meanings provided to such terms in the  Credit Agreement referred to below.  W I T N E S S E T H :  WHEREAS, the Lead Borrower, Holdings, the Administrative Agent, each lender from time to  time party thereto (the “Lenders”) and the other parties thereto have entered into the Amended and Restated  Credit Agreement, dated as of June 30, 2020 (as the same has been amended, restated, supplemented and/or  otherwise modified from time to time prior to the Third Amendment Effective Date referred to below, the  “Credit Agreement” and, as modified by this Third Amendment, the “Amended Credit Agreement”);  WHEREAS, the Lead Borrower has notified the Administrative Agent pursuant to Section 2.22 of  the Credit Agreement that it wishes to obtain a new tranche of revolving commitments of a different Class  as the existing Revolving Facilities, as so contemplated by Section 2.22(e)(iii) of the Credit Agreement,  with such revolving commitments being in an amount equal to (i) on the Third Amendment Effective Date  (as defined below), $150.0 million and (ii) on and after the date of the satisfaction of the Conditions  Subsequent (as defined below), an additional $350.0 million, with such new tranche being established in  accordance with the requirements set forth in Section 2.22 of the Credit Agreement and on the terms and  conditions provided herein (the “2022 Revolving Facility”, the revolving commitments of each 2022  Revolving Lender thereunder, the “2022 Revolving Credit Commitments” and the Revolving Loans made  by each 2022 Revolving Lender pursuant thereto, the “2022 Revolving Loans”);   WHEREAS, the 2022 Revolving Lenders have severally, and not jointly, agreed to provide the  percentage of the 2022 Revolving Facility set forth opposite their respective names on Schedule I hereto,  on the terms and conditions provided herein;   WHEREAS, it is intended that the Lead Borrower will acquire (the “Acquisition”) all of the  Membership Interests (as defined in the Purchase Agreement referred to below) of the Company (as defined  below) pursuant to that certain Membership Interest Purchase Agreement, dated as of the date hereof (as  amended, supplemented, waived or otherwise modified from time to time, the “Purchase Agreement”), by  and among (i) HPC Brands, LLC, a Delaware limited liability company (the “Company”), (ii) Tristar  Products, Inc., a Florida corporation (“Seller”), (iii) the Lead Borrower, as “Purchaser”, and (iv) Kishore  (Keith) Mirchandani, as “Founder”; and  WHEREAS, contemporaneously with the effectiveness of this Third Amendment on the Third  Amendment Effective Date, the Lead Borrower wishes to (i) make certain amendments to the Credit  Agreement to provide for the 2022 Revolving Facility, and (ii) make certain other modifications to the  Credit Agreement set forth herein;  NOW, THEREFORE, in consideration of the premises and the agreements contained herein, the  parties hereto agree as follows:  SECTION 1. 2022 Revolving Facility.   





 






2  27509012.26  (a) Subject solely to the terms and conditions set forth herein (including the  immediately succeeding sub-clauses (b) and (c)), the 2022 Revolving Lenders hereby agree severally, and  not jointly, to provide the aggregate principal amount of 2022 Revolving Credit Commitments set forth  opposite their respective names on Schedule I hereto.    (b) The initial $150,000,000 of 2022 Revolving Credit Commitments shall become  effective under the Amended Credit Agreement upon the occurrence of the Third Amendment Effective  Date. Once effective, such 2022 Revolving Credit Commitments, and the 2022 Revolving Loans incurred  thereunder, shall constitute “Revolving Credit Commitments” and “Commitments”, and “Revolving  Loans” and “Loans”, respectively, for all purposes of the Amended Credit Agreement and the other  applicable Loan Documents.  (c) The remaining $350,000,000 of 2022 Revolving Credit Commitments (the  “Remaining 2022 Revolving Commitments”) shall become effective under the Amended Credit Agreement  upon the satisfaction (or waiver by the 2022 Revolving Lenders) of the Conditions Subsequent. Once  effective, such 2022 Revolving Credit Commitments, and the 2022 Revolving Loans incurred thereunder,  shall constitute “Revolving Credit Commitments” and “Commitments”, and “Revolving Loans” and  “Loans”, respectively, for all purposes of the Amended Credit Agreement and the other applicable Loan  Documents.  For the avoidance of doubt, the Remaining 2022 Revolving Commitments, once effective, and  the 2022 Revolving Loans thereunder, once incurred, shall be identical to and form part of the same tranche  as the initial 2022 Revolving Credit Commitments and initial 2022 Revolving Loans.  (d) Upon the occurrence of the Third Amendment Effective Date, the 2022 Revolving  Lenders (i) shall be obligated to provide the 2022 Revolving Facility as provided in this Third Amendment  on the terms set forth in the Amended Credit Agreement and in this Third Amendment and (ii) to the extent  provided in this Third Amendment, shall have the rights and obligations of a “Revolving Lender” and a  “Lender” thereunder and under the other applicable Loan Documents.   (e) The 2022 Revolving Facility (i) is revolving in nature and the 2022 Revolving  Loans thereunder may be repaid or prepaid and reborrowed by the Lead Borrower in accordance with, and  subject solely to the satisfaction (or waiver by the 2022 Revolving Lenders) of the conditions set forth in,  this Third Amendment and the Amended Credit Agreement and (ii) does not require any scheduled  amortization or mandatory commitment reductions prior to the maturity date of the Revolving Facility as  in effect immediately prior to the effectiveness of this Third Amendment.  (f) (i) No assignment, participation or novation by any 2022 Revolving Lender shall  become effective with respect to all or any portion of the 2022 Revolving Credit Commitments of such  2022 Revolving Lender until the earlier of (x) the Acquisition Funding Date (as defined below) and (y) the  Outside Date (as defined below) and (ii) unless the Lead Borrower otherwise agrees in writing in its sole  discretion, each 2022 Revolving Lender shall retain exclusive control over all rights and obligations with  respect to its 2022 Revolving Credit Commitments, including all rights with respect to consents,  modifications, supplements, waivers and amendments, until the earlier of (x) the Acquisition Funding Date  and (y) the Outside Date.  (g) In accordance with Section 2.22(j) of the Amended Credit Agreement, the consent  of the 2022 Revolving Lenders (but no other Lenders) shall be required to waive, amend or modify any  condition precedent set forth in Section 3 hereof or, solely as it relates to the 2022 Revolving Facility,  Section 4.02 of the Amended Credit Agreement, in each case to the extent that such waiver, amendment or  modification is not in contravention of Section 2.22(a) through (h) of the Credit Agreement.   





 






3  27509012.26  SECTION 2. Amendments.  Subject to the terms and conditions set forth herein and the  occurrence of the Third Amendment Effective Date:  (a) the Credit Agreement is hereby amended to delete the stricken text (indicated  textually in the same manner as the following example: stricken text or stricken text) and to add the double- underlined text (indicated textually in the same manner as the following example: double-underlined text  or double-underlined text) as set forth in the pages of the Amended Credit Agreement attached as Annex I  hereto; and  (b) Schedule 1.01(a) to the Credit Agreement is hereby amended by inserting the  schedule in the form attached hereto as Annex II at the end of the section under the heading “Revolving  Credit Commitments” set forth therein.  (c) Exhibit B to the Credit Agreement is hereby replaced in its entity with the form of  Borrowing Request attached hereto as Annex III.  (d) Exhibit D to the Credit Agreement is hereby replaced in its entity with the form of  Interest Election Request attached hereto as Annex IV.  SECTION 3. Conditions   (a) Conditions to the Third Amendment Effective Date. This Third Amendment shall  become effective on the date when each of the following conditions shall have been satisfied (or waived by  the 2022 Revolving Lenders) (such date, the “Third Amendment Effective Date”):  (i) the Lead Borrower, the Administrative Agent and each 2022 Revolving  Lender shall have signed a counterpart hereof (whether the same or different counterparts) and shall  have delivered (including by way of facsimile or other electronic transmission) the same to Fried,  Frank, Harris, Shriver & Jacobson LLP;  (ii) the Administrative Agent shall have received from the Lead Borrower a  certificate executed by a Responsible Officer of the Lead Borrower, certifying that on the Third  Amendment Effective Date:   (A) both immediately prior to and after giving effect to this Third  Amendment, no Event of Default shall have occurred and be continuing; and  (B) each of the representations and warranties set forth in the Credit  Agreement and in the other Loan Documents (including the representations and warranties set forth  in Section 6 of this Third Amendment) shall be true and correct in all material respects (except (I)  with respect to representations and warranties expressly made as of an earlier date, in which case  such representations and warranties shall be true and correct in all material respects as of such  earlier date and (II) that if any such representation or warranty contains any materiality qualifier,  such representation or warranty shall be true and correct in all respects);   (iii) the Administrative Agent shall have received the Acknowledgment and  Confirmation, substantially in the form of Exhibit A hereto, executed and delivered by a  Responsible Officer of each of Holdings, the Lead Borrower and each Person that is a Subsidiary  Guarantor as of the Third Amendment Effective Date;  





 






4  27509012.26  (iv) the Administrative Agent shall have received (i) either (x) a copy of the  certificate or articles of incorporation or equivalent organizational document, including all  amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of  the state of its organization or (y) confirmation from such Loan Party that there has been no change  to such organizational documents since last delivered to the Administrative Agent, (ii) a certificate  of the secretary or assistant secretary of each of the Loan Parties (or another Responsible Officer  of each of the Loan Parties) dated the Third Amendment Effective Date and certifying (A) that  either (x) attached thereto is a true and complete copy of the by-laws or operating, management,  partnership or similar agreement of such Loan Party as in effect on the Third Amendment Effective  Date and at all times since a date prior to the date of the resolutions described in clause (B) below  or (y) there has been no change to such governing documents since last delivered to the  Administrative Agent, (B) that attached thereto is a true and complete copy of resolutions duly  adopted by the board of directors or other equivalent governing body of such Loan Party  authorizing the execution, delivery and performance of this Third Amendment and/or the  Acknowledgment and Confirmation referred to above and that such resolutions have not been  modified, rescinded or amended and are in full force and effect, (C) that any attached certificate or  articles of incorporation, equivalent organizational document, by-laws, operating, management,  partnership or similar agreement of such Loan Party has not been amended (in the case of the  articles of incorporation of each such Loan Party, since the date of the last amendment thereto  shown on the certificate of good standing furnished pursuant to clause (E) below), (D) as to the  incumbency and specimen signature of each officer executing this Third Amendment or any other  document delivered in connection herewith on behalf of such Loan Party and (E) good standing  certificates for each Loan Party from the jurisdiction in which it is organized, each dated a recent  date prior to the Third Amendment Effective Date; and (iii) a certificate of another officer as to the  incumbency and specimen signature of the secretary or assistant secretary (or other Responsible  Officer) executing the certificate delivered pursuant to clause (ii) above (it being understood and  agreed that each reference in this Section 3(a)(iv) to the Loan Parties refers to the Loan Parties as  of the Third Amendment Effective Date);  (v) the Administrative Agent and each 2022 Revolving Lender shall have  received a customary written opinion from each of (x) Davis Polk & Wardwell LLP, as New York  counsel to the Loan Parties, and (y) Morris Nichols Arsht & Tunnell, as special Delaware counsel  to the Loan Parties, in each case, reasonably acceptable to the Administrative Agent and each such  2022 Revolving Lender dated the Third Amendment Effective Date;   (vi) so long as reasonably requested in writing by the Administrative Agent or  the 2022 Lead Arranger (as defined below) at least five Business Days prior to the Third  Amendment Effective Date, the Administrative Agent and the 2022 Lead Arranger shall have  received, at least two Business Days prior to the Third Amendment Effective Date, all  documentation and other information with respect to the Loan Parties (prior to giving effect to the  Acquisition) that is required by regulatory authorities under applicable “know your customer” and  anti-money laundering rules and regulations, including the USA PATRIOT Act and the beneficial  ownership regulation required by 31 C.F.R. § 1010.230 (and the parties hereto acknowledge and  agree that the condition set forth in this sub-clause (vi) has been satisfied as of the Third  Amendment Effective Date); and  (vii) the Administrative Agent shall have received from the Lead Borrower a  solvency certificate from the chief financial officer (or other officer with reasonably equivalent  responsibilities) of the Lead Borrower substantially in the form of Exhibit M to the Credit  Agreement.  





 






5  27509012.26  For purposes of determining whether the conditions specified in this Section 3(a) have been  satisfied on the Third Amendment Effective Date, the Administrative Agent and each 2022 Revolving  Lender that has executed this Third Amendment shall be deemed to have consented to, approved or  accepted, or to be satisfied with, each document or other matter required under this Section 3(a) to be  consented to or approved by or acceptable or satisfactory to the Administrative Agent or such 2022  Revolving Lender, as the case may be.  (b) Conditions Subsequent. The Remaining 2022 Revolving Commitments shall  become effective on the date when each of the following conditions shall have been satisfied (or waived by  the 2022 Revolving Lenders) on or prior to the Outside Date (such conditions, collectively, the “Conditions  Subsequent”):  (i) the Third Amendment Effective Date shall have occurred in accordance  with the terms of this Third Amendment;   (ii) the Administrative Agent shall have received a Borrowing Request  (substantially in the form attached hereto as Annex III) as required by Section 2.03 of the Amended  Credit Agreement for an aggregate principal amount of $350,000,000 of 2022 Revolving Loans;   (iii) the Administrative Agent shall have received all fees required to be paid  by the Lead Borrower on or prior to such time pursuant to the Fee Letter;   (iv) the Administrative Agent shall have received all expenses required to be  paid by the Lead Borrower on or prior to such time pursuant to Section 4 of this Third Amendment  to the extent an invoice has been delivered to the Lead Borrower at least three Business Days prior  to the funding of such 2022 Revolving Loans (or such shorter period as may be reasonably agreed  by the Lead Borrower);   (v) at the election of the Lead Borrower in its sole discretion, either (i) the  conditions precedent set forth in Section 4.02 of the Amended Credit Agreement shall be satisfied  on the date on which the 2022 Revolving Loans under the Remaining 2022 Revolving  Commitments have been extended to the Lead Borrower or (ii) the Specified Conditions Precedent  (as defined below) have been satisfied; and  (vi) the Administrative Agent shall have received from the Lead Borrower a  solvency certificate from the chief financial officer (or other officer with reasonably equivalent  responsibilities) of the Lead Borrower substantially in the form of Exhibit M to the Credit  Agreement (to the extent the proceeds of the 2022 Revolving Loans funded on such date will be  used to fund the consideration of the Acquisition, as so modified so that such certification shall be  made on the Acquisition Funding Date immediately after giving effect to the consummation of the  Transactions (as defined below)).  Upon the satisfaction (or waiver by the 2022 Revolving Lenders) on or prior to the Outside Date  of the Conditions Subsequent, the 2022 Revolving Lenders, without the satisfaction of any other conditions,  shall extend the 2022 Revolving Loans under the Remaining 2022 Revolving Commitments to the Lead  Borrower in accordance with the Borrowing Request provided in Section 3(b)(ii).  For the avoidance of doubt, if the Lead Borrower elects to satisfy the Specified Conditions  Precedent in order to satisfy the condition in Section 3(b)(v), the 2022 Revolving Lenders agree that the  obligations of the 2022 Revolving Lenders to provide the Remaining 2022 Revolving Commitments, and  to extend the 2022 Revolving Loans thereunder, shall not be subject to the satisfaction of the conditions set  





 






6  27509012.26  forth in Section 4.02 of the Amended Credit Agreement nor shall the making of such 2022 Revolving Loans  be deemed to constitute a representation and warranty by the Lead Borrower as to the matters specified in  paragraphs (b) and (c) thereof.  In accordance with Sections 2.22(a)(xi) and (xii) of the Amended Credit  Agreement, the Lead Borrower shall be deemed to elect to treat the Acquisition as a “Limited Condition  Acquisition” under the Amended Credit Agreement if the Lead Borrower elects to satisfy the Specified  Conditions Precedent.  As used herein, the “Specified Conditions Precedent” means the following conditions precedent:  (a) the Administrative Agent shall have received from the Lead Borrower a certificate  executed by a Responsible Officer of the Lead Borrower, certifying that substantially concurrently with the  funding of such 2022 Revolving Loans, the Acquisition shall have been consummated (the funding of such  2022 Revolving Loans and the consummation of the Acquisition, collectively, the “Transactions”);  (b) the Administrative Agent shall have received from the Lead Borrower a certificate  executed by a Responsible Officer of the Lead Borrower, certifying as of the date on which such 2022  Revolving Loans are funded, both immediately prior to and after giving effect to the Transactions, no Event  of Default under Sections 7.01(a), (f) or (g) of the Amended Credit Agreement shall have occurred or be  continuing;  (c) the Administrative Agent shall have received from the Lead Borrower a certificate  executed by a Responsible Officer of the Lead Borrower, certifying that, on the Closing Date (as defined  in the Purchase Agreement), the Company has delivered to the Lead Borrower (or an Affiliate thereof) a  certificate certifying that (x) the representations set forth in Sections 3.1, 3.2, 3.3, 3.6(a) and 3.7 of the  Purchase Agreement are true and correct in all material respects (other than Sections 3.6(a) and 3.7 of the  Purchase Agreement, which shall be true and correct subject only to de minimis exceptions) as of the  Closing Date (as defined in the Purchase Agreement) as though such representations and warranties were  made as of the Closing Date (as defined in the Purchase Agreement) (or on the date when made in the case  of any representation or warranty which specifically relates to an earlier date) and (y) the representations  and warranties made in Section 3.5 of the Purchase Agreement are true and correct (without giving effect  to any qualifications or limitations as to “materiality” or “material adverse effect” or similar qualifiers  contained therein), in each case, as of the Closing Date (as defined in the Purchase Agreement) as though  such representations and warranties were made as of the Closing Date (as defined in the Purchase  Agreement) (or on the date when made in the case of any representation or warranty which specifically  relates to an earlier date) except to the extent the failure of such representations and warranties to be so true  and correct as of such dates would not, individually or in the aggregate, reasonably be expected to have a  Material Adverse Effect (as defined in the Purchase Agreement); and  (d) the Administrative Agent shall have received from the Lead Borrower a certificate  executed by a Responsible Officer of the Lead Borrower, certifying that on the date of funding such 2022  Revolving Loans (the “Acquisition Funding Date”), the following representations and warranties set forth  in the Amended Credit Agreement of the Lead Borrower and, solely to the extent applicable to Holdings in  the lead-in sentence to Article 3 of the Amended Credit Agreement, Holdings, shall be true and correct in  all material respects on and as of the Acquisition Funding Date (except that if any such representation or  warranty contains any materiality qualifier, such representation or warranty shall be true and correct in all  respects): Sections 3.01(a), 3.08, 3.16(c) (provided that references in Section 3.16(c) (I) to the “Loans” shall  be deemed to be a reference to the use of proceeds of the 2022 Revolving Loans funded on the Acquisition  Funding Date hereunder and (II) to “Letters of Credit” shall be disregarded for purposes of this  representation), 3.17(a)(ii) and 3.17(c) (provided that, references in Sections 3.17(a)(ii) and 3.17(c) (I) to  “Loans” shall be deemed to be a reference to the use of proceeds of the 2022 Revolving Loans funded on  the Acquisition Funding Date hereunder and (II) to “Letters of Credit” shall be disregarded for purposes of  





 






7  27509012.26  this representation) and 3.17(b)(ii) (in the case of Section 3.17(b)(ii), modified so the representation is  limited to the use of proceeds of the 2022 Revolving Loans funded on the Acquisition Funding Date  hereunder not violating the USA PATRIOT Act).  SECTION 4. Costs and Expenses.  The Lead Borrower hereby reconfirms its obligations  pursuant to Section 9.03(a) of the Amended Credit Agreement to pay and reimburse the Administrative  Agent, the 2022 Lead Arranger and each 2022 Revolving Lender and their respective Affiliates for all  reasonable and documented out-of-pocket costs and expenses (but limited, in the case of legal fees and  expenses, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one  firm of outside counsel to all such Persons taken as a whole) incurred in connection with the negotiation,  preparation, execution and delivery of this Third Amendment and all other documents and instruments  delivered in connection herewith.  SECTION 5. Loan Document.  This Third Amendment shall constitute a “Loan Document” for  all purposes of the Amended Credit Agreement and the other Loan Documents.  SECTION 6. Representations and Warranties.  To induce the Administrative Agent and the 2022  Revolving Lenders to enter into this Third Amendment, each Loan Party hereto hereby represents and  warrants that, immediately prior to and immediately after giving effect to this Third Amendment:  (a) the execution, delivery and performance by it of this Third Amendment and, in the  case of Holdings and the Lead Borrower, the performance by it of the Amended Credit Agreement does not  (i) violate any Requirements of Law applicable to it (which violation could reasonably be expected to have  a Material Adverse Effect) or its Organizational Documents or (ii) violate or result in a default under any  of its material Contractual Obligations (which violation or default could reasonably be expected to have a  Material Adverse Effect);  (b) it has all requisite organizational power and authority to enter into this Third  Amendment and the execution, delivery and performance by it of this Third Amendment and, in the case  of Holdings and the Lead Borrower, the performance by it of the Amended Credit Agreement has been duly  authorized by all necessary organizational action by it; and  (c) it has duly executed and delivered this Third Amendment, and this Third  Amendment, the Amended Credit Agreement and each other Loan Document to which it is a party  constitutes the legally valid and binding obligations of it, enforceable against it in accordance with their  respective terms, subject to the Legal Reservations.  SECTION 7. Post-Closing Covenant.  Without limiting any of the requirements of Section 5.12  of the Amended Credit Agreement, no later than ten (10) Business Days following the consummation of  the Acquisition (or such later date as may be reasonably agreed by the Administrative Agent), the Lead  Borrower shall, and shall cause its applicable Restricted Subsidiaries to, deliver to the Administrative  Agent:   (a) a joinder to the Loan Guaranty in substantially the form attached as an exhibit  thereto, duly executed and delivered by the Company;   (b) a supplement to the Security Agreement in substantially the form attached as an  exhibit thereto, duly executed and delivered by the Company;   (c) any original certificates representing any Capital Stock issued by the Company,  accompanied by undated stock powers or transfer powers executed in blank; and   





 






8  27509012.26  (d) a UCC-1 financing statement listing the Company as debtor in appropriate form  for filing in its jurisdiction of organization.  Notwithstanding the foregoing, if the Acquisition is not consummated on or prior to the  Outside Date, the obligations under this Section 7 shall automatically terminate; provided that this  sentence shall in no way alter any of the separate obligations of the Lead Borrower under Section 5.12 of  the Credit Agreement.    SECTION 8. Outside Date.  Notwithstanding anything to the contrary herein, in the event that  the Conditions Subsequent have not been satisfied on or prior to the date that is five (5) Business Days after  the Outside Date (as defined in the Purchase Agreement as in effect on the date hereof) (the “Outside Date”),  the 2022 Revolving Lenders shall have no obligation to provide the Remaining 2022 Revolving  Commitments unless the 2022 Revolving Lenders shall, in their sole discretion, agree to an extension in  writing of their obligation to provide the Remaining 2022 Revolving Commitments.   SECTION 9. Reference to and Effect on the Credit Agreement and the Loan Documents.  (a) On and after the Third Amendment Effective Date, each reference in the Credit  Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit  Agreement shall mean and be a reference to the Credit Agreement, as amended by this Third Amendment.  (b) The Credit Agreement and each of the other Loan Documents, as specifically  amended by this Third Amendment, are and shall continue to be in full force and effect and are hereby in  all respects ratified and confirmed.  Without limiting the generality of the foregoing, the Collateral  Documents and all of the Collateral described therein do and shall continue to secure the payment of all  Obligations of the applicable Loan Parties under the Loan Documents, in each case, as amended by this  Third Amendment.  (c) The execution, delivery and effectiveness of this Third Amendment shall not,  except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or  the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of  any of the Loan Documents.  SECTION 10. Governing Law.  THIS THIRD AMENDMENT SHALL BE GOVERNED BY,  AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK;  provided that the governing law of the Purchase Agreement shall govern in determining (i) the interpretation  of the representations described in clause (c) of the definition of “Specified Conditions Precedent”,  including the interpretation of any materiality qualifiers with respect thereto (including the interpretation  of “Material Adverse Effect” as defined in the Purchase Agreement) and (ii) whether the Acquisition has  been consummated in accordance with the terms of the Purchase Agreement (in each case, without regard  to the principles of conflicts of laws thereof, to the extent that the same are not mandatorily applicable by  statute and would require or permit the application of the law of another jurisdiction).  SECTION 11. Counterparts.  This Third Amendment may be executed in any number of  counterparts and by the different parties hereto on separate counterparts, each of which counterparts when  executed and delivered shall be an original, but all of which shall together constitute one and the same  instrument.  Delivery by facsimile or electronic transmission of an executed counterpart of a signature page  to this Third Amendment shall be effective as delivery of an original executed counterpart of this Third  Amendment. The words “execution,” “signed,” “signature,” and words of like import in this Third  Amendment and the other Loan Documents including any Assignment and Assumption shall be deemed to  include electronic signatures or electronic records, each of which shall be of the same legal effect, validity  





 






9  27509012.26  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.  [Signature Pages to follow]  





 






  [Signature Page to Third Amendment to Spectrum A&R Credit Agreement]        27509012.26  IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Third  Amendment to be duly executed and delivered by the parties hereto as of the date first above written.  SPECTRUM BRANDS, INC.,  as the Lead Borrower  By _________________________  Name:   Title:  SB/RH HOLDINGS, LLC,   as Holdings  By _________________________  Name:   Title:     





 






  [Signature Page to Third Amendment to Spectrum A&R Credit Agreement]        27509012.26  ROYAL BANK OF CANADA,   as a 2022 Revolving Lender   By: _________________________  Name:   Title:  ROYAL BANK OF CANADA,   as Administrative Agent  By: _________________________  Name:   Title:  





 






     27509012.26  ANNEX I  Amended Credit Agreement  See attached.    





 






     27509012.26  ANNEX II  Schedule 1.01(a)  Commitment Schedule    LENDER 2022 REVOLVING CREDIT  COMMITMENT  ROYAL BANK OF CANADA $500,000,000.00  AGGREGATE $500,000,000.00  





 






     27509012.26  ANNEX III  Form of Borrowing Request  See attached.  





 






     27509012.26  ANNEX IV  Form of Interest Election Request  See attached.        





 






     27509012.26  EXHIBIT A  FORM OF ACKNOWLEDGMENT AND CONFIRMATION  1. Reference is made to the Third Amendment, dated as of February 3, 2022 (the “Third  Amendment”), to the Amended and Restated Credit Agreement dated as of June 30, 2020 (as amended,  restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit  Agreement”), among SPECTRUM BRANDS, INC., a Delaware corporation (the “Lead Borrower”),  SB/RH HOLDINGS LLC, a Delaware limited liability company (“Holdings”), ROYAL BANK OF  CANADA, as Administrative Agent, and the financial institutions party thereto from time to time, as  Lenders.  Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the  Credit Agreement or Third Amendment, as applicable.  2. Certain provisions of the Credit Agreement are being amended and/or modified pursuant  to the Third Amendment.  Each of the parties hereto hereby agrees that, with respect to each Loan Document  to which it is a party, after giving effect to the Third Amendment:  (a) all of its obligations, liabilities and indebtedness under such Loan Document,  including guarantee obligations, shall remain in full force and effect on a continuous basis  (including with respect to any 2022 Revolving Loans); and  (b) all of the Liens and security interests created and arising under such Loan  Document remain in full force and effect on a continuous basis, and the perfected status and priority  to the extent provided for in Section 3.14 of the Credit Agreement of each such Lien and security  interest continues in full force and effect on a continuous basis, unimpaired, uninterrupted and  undischarged as collateral security for the applicable Obligations (including with respect to any  2022 Revolving Loans), to the extent provided in such Loan Documents.  3. THIS ACKNOWLEDGMENT AND CONFIRMATION SHALL BE GOVERNED BY,  AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.  4. This Acknowledgment and Confirmation may be executed by one or more of the parties  hereto on any number of separate counterparts (including by telecopy or other electronic transmission), and  all of said counterparts taken together shall be deemed to constitute one and the same instrument.  [rest of page intentionally left blank]  





 






  [Signature Page to Acknowledgement and Confirmation - Third Amendment to A&R Spectrum Credit Agreement]     27509012.26  IN WITNESS WHEREOF, the parties hereto have caused this Acknowledgment and Confirmation  to be duly executed and delivered by their proper and duly authorized officers as of the day and year first  above written.  SPECTRUM BRANDS, INC.,  as the Lead Borrower  By: _________________________  Name:   Title:  SB/RH HOLDINGS, LLC,   as Holdings  By: _________________________  Name:   Title:  UNITED INDUSTRIES CORPORATION  ROV HOLDING, INC.  By: _________________________  Name:   Title:   SPECTRUM BRANDS PET LLC  By: _________________________  Name:   Title:    





 






  [Signature Page to Acknowledgement and Confirmation - Third Amendment to A&R Spectrum Credit Agreement]     27509012.26  SALIX ANIMAL HEALTH, LLC  By: _________________________  Name:   Title:  ALASKA MERGER ACQUISITION CORP.  By: _________________________  Name:   Title:  GLOFISH LLC  By: _________________________  Name:   Title:  SPECTRUM BRANDS PET GROUP INC.  By: _________________________  Name:   Title:  





 






    #95384462v18   #95384462v18   ANNEX I    AMENDED AND RESTATED CREDIT AGREEMENT    dated as of June 23, 2015,   as amended and restated on June 30, 2020,  as amended on March 3, 2021,  as amended on December 10, 2021,   as amended on February 3, 2022    among    SPECTRUM BRANDS, INC.  as the Lead Borrower,    SB/RH HOLDINGS, LLC,  as Holdings    THE LENDERS PARTY HERETO    and    ROYAL BANK OF CANADA  as Administrative Agent and Collateral Agent    and    ROYAL BANK OF CANADA, JPMORGAN CHASE BANK, N.A. and BANK OF AMERICA, N.A.   as Issuing Banks    and    RBC CAPITAL MARKETS*,   J.P. MORGAN SECURITIES LLC, CREDIT SUISSE SECURITIES (USA) LLC and  BARCLAYS BANK PLC  as Joint Bookrunners and Joint Lead Arrangers  and  JPMORGAN CHASE BANK, N.A.  as Documentation Agent  and  ROYAL BANK OF CANADA  as Syndication Agent      * RBC Capital Markets is a brand name for the capital markets business of Royal Bank of Canada and its affiliates.  





 






TABLE OF CONTENTS    Page  -i-  #95384462v18   #95384462v18   ARTICLE 1    DEFINITIONS  Section 1.01 Defined Terms ................................................................................................................................ 1  Section 1.02 Classification of Loans and Borrowings ................................................................................... 6166  Section 1.03 Terms Generally ........................................................................................................................ 6167  Section 1.04 Accounting Terms; GAAP. ....................................................................................................... 6167  Section 1.05 Effectuation of Transactions ..................................................................................................... 6268  Section 1.06 Timing of Payment of Performance .......................................................................................... 6268  Section 1.07 Times of Day ............................................................................................................................. 6268  Section 1.08 [Reserved]. ................................................................................................................................ 6368  Section 1.09 Currency Generally. .................................................................................................................. 6368  Section 1.10 Cashless Rollovers .................................................................................................................... 6369  Section 1.11 Certain Calculations and Tests. ................................................................................................. 6469  Section 1.12 Rounding ................................................................................................................................... 6470  Section 1.13 Available Amount Threshold .................................................................................................... 6470  Section 1.14 Divisions ................................................................................................................................... 6470  Section 1.15 Interest Rates; Benchmark Notification ........................................................................................ 70  ARTICLE 2    THE CREDITS  Section 2.01 Commitments. ........................................................................................................................... 6571  Section 2.02 Loans and Borrowings. ............................................................................................................. 6572  Section 2.03 Requests for Borrowings ........................................................................................................... 6673  Section 2.04 [Reserved]. ................................................................................................................................ 6774  Section 2.05 Letters of Credit. ....................................................................................................................... 6874  Section 2.06 [Reserved]. ................................................................................................................................ 7582  Section 2.07 Funding of Borrowings. ............................................................................................................ 7582  Section 2.08 Type; Interest Elections. ........................................................................................................... 7682  Section 2.09 Termination and Reduction of Commitments. .......................................................................... 7783  Section 2.10 Repayment of Loans; Evidence of Debt. .................................................................................. 7784  Section 2.11 Prepayment of Loans. ............................................................................................................... 7885  Section 2.12 Fees. .......................................................................................................................................... 8390  Section 2.13 Interest. ..................................................................................................................................... 8491  Section 2.14 Alternate Rate of Interest .......................................................................................................... 8693  Section 2.15 Increased Costs. ........................................................................................................................ 8895  Section 2.16 Break Funding Payments .......................................................................................................... 8996  





 






  -ii-  #95384462v18   #95384462v18   Section 2.17 Taxes. ........................................................................................................................................ 8996  Section 2.18 Payments Generally; Allocation of Proceeds; Sharing of Payments. ...................................... 93100  Section 2.19 Mitigation Obligations; Replacement of Lenders. .................................................................. 94102  Section 2.20 Illegality. ................................................................................................................................. 95103  Section 2.21 Defaulting Lenders .................................................................................................................. 97104  Section 2.22 Incremental Credit Extensions. ............................................................................................... 98106  Section 2.23 Extensions of Loans and Revolving Commitments. ............................................................. 104111  Section 2.24 Lead Borrower as Borrower Representative ......................................................................... 106114  Section 2.25 Currency Equivalents. ........................................................................................................... 107114  Section 2.26 Ancillary Facilities. ............................................................................................................... 107114  Section 2.27 Benchmark Replacement. ..................................................................................................... 112119  ARTICLE 3    REPRESENTATIONS AND WARRANTIES  Section 3.01 Organization; Powers ............................................................................................................ 113121  Section 3.02 Authorization; Enforceability ................................................................................................ 113121  Section 3.03 Governmental Approvals; No Conflicts ................................................................................ 113121  Section 3.04 Financial Condition; No Material Adverse Effect. ............................................................... 113122  Section 3.05 Properties; Intellectual Property. ........................................................................................... 113122  Section 3.06 Litigation and Environmental Matters. ................................................................................. 114122  Section 3.07 Compliance with Laws .......................................................................................................... 114123  Section 3.08 Investment Company Status .................................................................................................. 114123  Section 3.09 Taxes ..................................................................................................................................... 114123  Section 3.10 ERISA. .................................................................................................................................. 114123  Section 3.11 Disclosure. ............................................................................................................................ 115123  Section 3.12 Solvency ................................................................................................................................ 115123  Section 3.13 Capitalization and Subsidiaries ............................................................................................. 115124  Section 3.14 Security Interest in Collateral ................................................................................................ 115124  Section 3.15 Labor Disputes ...................................................................................................................... 115124  Section 3.16 Federal Reserve Regulations. ................................................................................................ 116124  Section 3.17 Economic and Trade Sanctions and Anti-Corruption Laws. ................................................. 116124  Section 3.18 Senior Indebtedness .............................................................................................................. 116125  Section 3.19 Use of Proceeds ..................................................................................................................... 117125  Section 3.20 Insurance ............................................................................................................................... 117125  Section 3.21 Central Administration; COMI ............................................................................................. 117125  





 






  -iii-  #95384462v18   #95384462v18   ARTICLE 4    CONDITIONS  Section 4.01 Closing Date .......................................................................................................................... 117125  Section 4.02 Each Credit Extension ........................................................................................................... 118127  ARTICLE 5    AFFIRMATIVE COVENANTS  Section 5.01 Financial Statements and Other Reports ............................................................................... 119127  Section 5.02 Existence ............................................................................................................................... 122130  Section 5.03 Payment of Taxes .................................................................................................................. 122130  Section 5.04 Maintenance of Properties .................................................................................................... 122130  Section 5.05 Insurance ............................................................................................................................... 122130  Section 5.06 Inspections ............................................................................................................................ 122131  Section 5.07 Maintenance of Book and Records ....................................................................................... 123131  Section 5.08 Compliance with Laws .......................................................................................................... 123131  Section 5.09 Environmental. ...................................................................................................................... 123131  Section 5.10 Designation of Subsidiaries................................................................................................... 123132  Section 5.11 Use of Proceeds ..................................................................................................................... 124132  Section 5.12 Covenant to Guarantee Obligations and Give Security. ........................................................ 124132  Section 5.13 Maintenance of Ratings ........................................................................................................ 125133  Section 5.14 [Reserved]. ............................................................................................................................ 125133  Section 5.15 Further Assurances ................................................................................................................ 125134  Section 5.16 Closing Date Post-Closing Deliverables ............................................................................... 125134  ARTICLE 6    NEGATIVE COVENANTS  Section 6.01 Indebtedness .......................................................................................................................... 126134  Section 6.02 Liens ...................................................................................................................................... 132140  Section 6.03 No Further Negative Pledges ................................................................................................ 135143  Section 6.04 Restricted Payments; Certain Payments of Indebtedness. ..................................................... 136145  Section 6.05 Restrictions on Subsidiary Distributions ............................................................................... 141149  Section 6.06 Investments ........................................................................................................................... 142150  Section 6.07 Fundamental Changes; Disposition of Assets ....................................................................... 145154  Section 6.08 [Reserved] ............................................................................................................................. 149157  Section 6.09 Transactions with Affiliates .................................................................................................. 149157  Section 6.10 Conduct of Business .............................................................................................................. 150159  Section 6.11 Amendments or Waivers of Organizational Documents ....................................................... 150159  Section 6.12 Amendments of or Waivers with Respect to Certain Agreements ........................................ 150159  





 






  -iv-  #95384462v18   #95384462v18   Section 6.13 Fiscal Year ............................................................................................................................ 151159  Section 6.14 Permitted Activities of Holdings ........................................................................................... 151159  Section 6.15 Financial Covenant. .............................................................................................................. 152160  Section 6.16 Center of Main Interests ........................................................................................................ 153161  ARTICLE 7    EVENTS OF DEFAULT  Section 7.01 Events of Default .................................................................................................................. 153161  ARTICLE 8    THE ADMINISTRATIVE AGENT  ARTICLE 9    MISCELLANEOUS  Section 9.01 Notices. ................................................................................................................................. 162170  Section 9.02 Waivers; Amendments. ......................................................................................................... 163172  Section 9.03 Expenses; Indemnity. ............................................................................................................ 169178  Section 9.04 Waiver of Claim .................................................................................................................... 171179  Section 9.05 Successors and Assigns. ........................................................................................................ 171179  Section 9.06 Survival ................................................................................................................................. 177185  Section 9.07 Counterparts; Integration; Effectiveness ............................................................................... 177186  Section 9.08 Severability ........................................................................................................................... 178186  Section 9.09 Right of Setoff ....................................................................................................................... 178186  Section 9.10 Governing Law; Jurisdiction; Consent to Service of Process. .............................................. 178186  Section 9.11 Waiver of Jury Trial .............................................................................................................. 179187  Section 9.12 Headings ............................................................................................................................... 179188  Section 9.13 Confidentiality ...................................................................................................................... 179188  Section 9.14 No Fiduciary Duty ................................................................................................................ 180189  Section 9.15 Several Obligations ............................................................................................................... 181189  Section 9.16 USA PATRIOT Act .............................................................................................................. 181189  Section 9.17 Disclosure ............................................................................................................................. 181189  Section 9.18 Appointment for Perfection................................................................................................... 181189  Section 9.19 Interest Rate Limitation ........................................................................................................ 181189  Section 9.20 Judgment Currency ............................................................................................................... 181190  Section 9.21 Conflicts ................................................................................................................................ 182190  Section 9.22 Release of Guarantors ........................................................................................................... 182190  Section 9.23 Reaffirmation ........................................................................................................................ 182190  Section 9.24 Acknowledgement and Consent to Bail-In of Affected Financial Institutions ...................... 182191  Section 9.25 Acknowledgement Regarding Any Supported QFCs ........................................................... 183191  





 






  -v-  #95384462v18   #95384462v18   Section 9.26 ERISA Representation of the Lenders .................................................................................. 183191  





 






  -vi-  #95384462v18   #95384462v18   SCHEDULES:  Schedule 1.01(a) — Commitment Schedule  Schedule 1.01(b)-I — Existing Dollar Letters of Credit  Schedule 1.01(b)-II — Existing Multicurrency Letters of Credit  Schedule 3.05 — Fee Owned Material Real Estate Assets  Schedule 3.13 — Subsidiaries  Schedule 5.10 — Unrestricted Subsidiaries  Schedule 5.16 — Closing Date Post-Closing Deliverables  Schedule 6.01 — Existing Indebtedness  Schedule 6.02 — Existing Liens  Schedule 6.06 — Existing Investments  Schedule 6.07 — Certain Dispositions  Schedule 6.09 — Affiliate Transactions  EXHIBITS:  Exhibit A-1 — Form of Assignment and Assumption  Exhibit A-2 — Form of Affiliated Lender Assignment and Assumption  Exhibit B — Form of Borrowing Request  Exhibit C — Form of Compliance Certificate  Exhibit D — Form of Interest Election Request  Exhibit E — Form of Perfection Certificate  Exhibit F — Form of Perfection Certificate Supplement  Exhibit G — Form of Promissory Note  Exhibit H — Form of Prepayment Notice  Exhibit I — Form of Guaranty Agreement  Exhibit J — Form of Security Agreement  Exhibit K — Form of Letter of Credit Request  Exhibit L-1 — Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not  Partnerships For U.S. Federal Income Tax Purposes)  Exhibit L-2 — Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not  Partnerships For U.S. Federal Income Tax Purposes)  Exhibit L-3 — Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are  Partnerships For U.S. Federal Income Tax Purposes)  Exhibit L-4 — Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships  For U.S. Federal Income Tax Purposes)  Exhibit M — Form of Solvency Certificate  Exhibit N — Form of Pari First Lien Intercreditor Agreement  Exhibit O — Form of First Lien/Second Lien Intercreditor Agreement  





 






  #95384462v18   #95384462v18   CREDIT AGREEMENT  AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 23, 2015 as amended and  restated as of June 30, 2020 (the “Agreement”) by and among SPECTRUM BRANDS, INC., a Delaware  corporation (the “Lead Borrower”), SB/RH HOLDINGS, LLC, a Delaware limited liability company  (“Holdings”), the Lenders (such term and each other capitalized term used but not defined in this introductory  statement having the meaning given to it in Article I), ROYAL BANK OF CANADA (“Royal Bank”), in its  capacities as administrative agent for the Lenders (in such capacity, including any successor thereto, the  “Administrative Agent”), as collateral agent for the Lenders (in such capacity, including any successor thereto, the  “Collateral Agent”), and ROYAL BANK OF CANADA, JPMORGAN CHASE BANK, N.A. (“JPM”) and BANK  OF AMERICA, N.A. (“BofA”), each as an Issuing Bank.  RECITALS  A. The Lead Borrower has requested that, immediately upon (or contemporaneously with) the  satisfaction in full of the applicable conditions precedent set forth in Section 4.01 below, the initialInitial Revolving  Lenders extend credit to the Borrowers in the form of U.S. Dollar revolving commitments in the aggregate initial  commitment amount equivalent to $500 million and multicurrency revolving commitments in the aggregate  commitment amount equivalent to $100 million, in each case for the making, from time to time, of revolving loans;  same day base rate loans denominated in U.S. Dollars; ancillary facilities; and the issuance, from time to time, of  letters of credit, in each case on the terms and subject to the conditions set forth in this Agreement.  B. The initial Lenders have indicated their willingness to extend such credit, and the Issuing Banks  have indicated their willingness to issue Letters of Credit, in each case on the terms and subject to the conditions set  forth herein.  Accordingly, the parties hereto agree as follows:  ARTICLE 1    DEFINITIONS  Section 1.01 Defined Terms.  As used in this Agreement, the following terms have the meanings  specified below:  “2021 Term Commitments” has the meaning assigned to such term in the First Amendment.  “2021 Term Facility” has the meaning assigned to such term in the First Amendment.  “2021 Term Loans” has the meaning assigned to such term in the First Amendment.  “2021 Term Lenders” has the meaning assigned to such term in the First Amendment.  “2022 Revolving Credit Commitments” has the meaning assigned to such term in the Third  Amendment.  “2022 Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate  Outstanding Amount at such time of all 2022 Revolving Loans of such Lender.  “2022 Revolving Facility” has the meaning assigned to such term in the Third Amendment.  “2022 Revolving Lenders” has the meaning assigned to such term in the Third Amendment.  “2022 Revolving Loans” has the meaning assigned to such term in the Third Amendment.  “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the  Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate or the  





 






  -2-       #95384462v18   #95384462v18   Canadian Base Rate, as applicable; provided that, (i) with respect to the Initial Revolving Facility, in no event shall  the ABR be less than 1.75%; provided further that,, (ii) with respect to the 2022 Revolving Facility, in no event shall  the ABR be less than 1.50% and (iii) with respect to the Initial Term Loan Facility, in no event shall the ABR be less  than 1.50%.  “ACH” means automated clearing house transfers.  “Acquisition Funding Date” has the meaning assigned to such term in the Third Amendment.  “Additional Agreement” has the meaning assigned to such term in Article 8.  “Additional Borrowers” means the Pre-Approved Borrowers and the Other Non-U.S. Revolving  Facility Borrowers.  “Additional Commitments” means any commitments hereunder added pursuant to Section 2.22,  2.23 or 9.02(c).  “Additional Lender” has the meaning assigned to such term in Section 2.22(b).  “Additional Loans” means the Additional Revolving Loans and the Additional Term Loans.  “Additional Revolving Commitments” means any revolving credit commitment added pursuant  to Section 2.22, 2.23 or 9.02(c)(ii).  “Additional Revolving Facility” means any revolving credit facility added pursuant to  Section 2.22, 2.23 or 9.02(c)(ii).  “Additional Revolving Loans” means any revolving loan added hereunder pursuant to  Section 2.22, 2.23 or 9.02(c)(ii).  “Additional Rights” has the meaning assigned to such term in Section 6.01(p).  “Additional Rights to Extending Revolving Lenders” has the meaning assigned to such term in  Section 2.23(a)(i).  “Additional Rights to Incremental Equivalent Debt Lenders” has the meaning assigned to such  term in Section 6.01(z).  “Additional Term Commitments” means any term commitment added pursuant to Section 2.22,  2.23 or 9.02(c)(i).  “Additional Term Loans” means any term loan added pursuant to Section 2.22, 2.23  or 9.02(c)(i).  “Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a)  Term SOFR for such calculation plus (b) the Term SOFR Adjustment.  “Adjustment Date” means the date of delivery of financial statements required to be delivered  pursuant to Section 5.01(a) or Section 5.01(b), as applicable.  “Administrative Agent” has the meaning assigned to such term in the preamble to this  Agreement.  





 






  -3-       #95384462v18   #95384462v18   “Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s  address and, as appropriate, account as set forth on Schedule 9.01 with respect to such currency, or such other address  or account with respect to such currency as the Administrative Agent may from time to time notify the Lead Borrower  and the Lenders.  “Administrative Questionnaire” has the meaning assigned to such term in Section 2.22(d).  “Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or  otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Holdings, the Lead  Borrower or any of its Restricted Subsidiaries) at law or in equity, or before or by any Governmental Authority,  domestic or foreign (including any Environmental Claim), whether pending or, to the knowledge of Holdings, the  Lead Borrower or any of its Restricted Subsidiaries, threatened in writing, against or affecting Holdings, the Lead  Borrower or any of its Restricted Subsidiaries or any property of Holdings, the Lead Borrower or any of its  Restricted Subsidiaries.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.  “Affiliate” means, as applied to any Person, any other Person directly or indirectly Controlling,  Controlled by, or under common Control with, that Person.  None of the Administrative Agent, the Arrangers, any  Lender (other than any Affiliated Lender) or any of their respective Affiliates shall be considered an Affiliate of  Holdings or any subsidiary thereof.  “Affiliate Ancillary Borrower” means any Affiliate of a Borrower (or, with respect to the Lead  Borrower only, any Restricted Subsidiary of the Lead Borrower) that becomes a Borrower in respect of an Ancillary  Facility pursuant to Section 2.26(b).  “Affiliated Lender” means Super Holdco, Holdings, the Lead Borrower and/or any subsidiary of  Super Holdco.  “Affiliated Lender Assignment and Assumption” means an assignment and assumption entered  into by a Lender and an Affiliated Lender (with the consent of any party whose consent is required by Section 9.05)  and accepted by the Administrative Agent in the form of Exhibit A-2 or any other form approved by the  Administrative Agent and the Lead Borrower.  “Agreed Currency” means Dollars, Canadian Dollars, Pounds Sterling or Euros, as applicable.  “Aggregate Dollar2022 Revolving Credit Exposure” means, at any time, the aggregate amount  of the Lenders’ Dollar2022 Revolving Credit Exposures at such time.  “Aggregate MulticurrencyDollar Revolving Credit Exposure” means, at any time, the  aggregate amount of the Lenders’ MulticurrencyDollar Revolving Credit Exposures at such time.  “Aggregate Initial Revolving Credit Exposure” means the Aggregate Dollar Revolving Credit  Exposure and the Aggregate Multicurrency Revolving Credit Exposure.   “Aggregate Multicurrency Revolving Credit Exposure” means, at any time, the aggregate  amount of the Lenders’ Multicurrency Revolving Credit Exposures at such time.  “Agreement” has the meaning assigned to such term in the preamble to this Agreement.  “Agreement Currency” has the meaning assigned to such term in Section 9.20.  





 






  -4-       #95384462v18   #95384462v18   “Alternate Base Rate” means, for any day, (a) with respect to Loans (other than the 2022  Revolving Loans) denominated in U.S. Dollars, a rate per annum equal to the highest of (ai) the Federal Funds  Effective Rate in effect on such day plus 0.50% (provided that such rate shall not be less than 0%), (bii) to the extent  ascertainable, the Published LIBO Rate (which rate shall be calculated based upon an Interest Period of one month  and shall be determined on a daily basis) plus 1.00%; and (ciii) the Prime Rate; and (b) with respect to the 2022  Revolving Loans, a rate per annum equal to the highest of (i) the Federal Funds Effective Rate in effect on such day  plus 0.50% (provided that such rate shall not be less than 0%), (ii) the Adjusted Term SOFR for a one-month tenor  in effect for such day plus 1.00%; and (iii) the Prime Rate.  Any change in the Alternate Base Rate due to a change  in the Prime Rate, the Federal Funds Effective Rate or, the Published LIBO Rate or the Adjusted Term SOFR, as the  case may be, shall be effective from and including the effective date of such change in the Prime Rate, the Federal  Funds Effective Rate or, the Published LIBO Rate or the Adjusted Term SOFR, as the case may be.  “Ancillary Commencement Date” means, with respect to any Ancillary Facility, the date (which  must be a Business Day) on which such Ancillary Facility is first made available.  “Ancillary Commitment” means, with respect to any Ancillary Lender and any Ancillary  Facility, the maximum applicable Dollar Equivalent amount which such Ancillary Lender has agreed (whether or  not subject to the satisfaction of conditions precedent) to make available from time to time under an Ancillary  Facility in accordance with Section 2.26 hereof to the extent such amount has not been cancelled or reduced under  this Agreement or the Ancillary Documents relating to such Ancillary Facility.  “Ancillary Document” means each document or instrument relating to or evidencing the terms of  an Ancillary Facility designated by the Lead Borrower, the Ancillary Lender and the Administrative Agent as an  “Ancillary Document”.  “Ancillary Facility” means (a) any overdraft, automated payment, check drawing and/or other  current account facility, (b) any short term loan facility denominated in local currencies, (c) any foreign exchange  facilities, (d) any letter of credit, suretyship, guarantee and/or bonding facility or any other instrument to provide a  contingent liability, (e) any derivatives facility and/or (f) any other facility or financial accommodation that may be  required in connection with the business of the Lead Borrower and its Restricted Subsidiaries.  “Ancillary Lender” means each Multicurrency Revolving Lender (or Affiliate of a Multicurrency  Revolving Lender) that makes available an Ancillary Facility in accordance with Section 2.26.  For the avoidance of  doubt, no 2022 Revolving Lender (in its capacity as such) shall be an Ancillary Lender.   “Ancillary Outstandings” means, at any time, with respect to any Ancillary Lender and any  Ancillary Facility then in effect, the Dollar Equivalent of the sum of the following amounts outstanding under such  Ancillary Facility:  (a) the principal amount owing under each overdraft facility and on-demand short term loan  facility (net of any credit balance on any account of any Borrower or Restricted Subsidiary under any Ancillary  Facility with the relevant Ancillary Lender to the extent that such credit balance is freely available to be set off by  such Ancillary Lender against liabilities owing by such Borrower under such Ancillary Facility), (b) the face amount  of each guaranty, bond and letter of credit provided or issued under such Ancillary Facility and (c) the amount fairly  representing the aggregate exposure (excluding interest and similar charges) of such Ancillary Lender under each  other type of accommodation provided under such Ancillary Facility, in each case as determined by such Ancillary  Lender acting reasonably in accordance with its normal banking practice and the terms of the relevant Ancillary  Document.  “Ancillary Obligations” means all obligations in respect of Ancillary Outstandings.  “Applicable Percentage” means, (a) with respect to any Term Lender for any Class, a percentage  equal to a fraction the numerator of which is the aggregate outstanding principal amount of the Loans and unused  Commitments of such Term Lender for such Class and the denominator of which is the aggregate outstanding  principal amount of the Loans and unused Commitments of all Term Lenders for such Class and (b) with respect to  any Revolving Lender for any Class, the percentage of the Total Revolving Credit Commitment for such Class  represented by such Lender’s Revolving Credit Commitment for such Class; provided that for purposes of  





 






  -5-       #95384462v18   #95384462v18   Section 2.21 and otherwise herein, when there is a Defaulting Lender, any such Defaulting Lender’s Revolving  Credit Commitment shall be disregarded in the relevant calculations.  In the case of clause (b), in the event the  Revolving Credit Commitments for any Class shall have expired or been terminated, the Applicable Percentages of  any Revolving Lender of such Class shall be determined on the basis of the Revolving Credit Exposure of the  applicable Revolving Lenders of such Class, giving effect to any assignments and to any Revolving Lender’s status  as a Defaulting Lender at the time of determination.  “Applicable Price” has the meaning assigned to such term in the definition of “Dutch Auction”.  “Applicable Rate” means, for any day,   (a) with respect to Initial Term Loans that are (i) ABR Loans, 1.00% per annum and (ii)  LIBO Rate Loans, 2.00% per annum; and  (b) with respect to 2022 Revolving Loans, the rate per annum set forth below under the  applicable caption below, as the case may be, based upon the Total Leverage Ratio as of the last day of the most  recently ended Test Period; provided that until the first Adjustment Date following the completion of the first Fiscal  Quarter ended after the Third Amendment Effective Date, the “Applicable Rate” shall be the applicable rate per  annum set forth below in Category 2:  Total  Leverage Ratio  ABR Spread for  2022 Revolving  Loans  Adjusted  Term SOFR  Spread for  2022  Revolving  Loans      Category 1        Greater than 5.00  to 1.00 1.75% 2.75%      Category 2        Less than or equal  to 5.00 to 1.00 but  greater than 4.00  to 1.00  1.25% 2.25%      Category 3        Less than or equal  to 4.00 to 1.00 but  greater than 3.00  to 1.00    1.00% 2.00%  Category 4        Less than or equal  to 3.00 to 1.00 0.75% 1.75%    provided, the rates set forth above in Categories 1, 2, 3 and 4, respectively, shall in each case  automatically increase by 25 basis points on the date that is 270 days after the Third Amendment  Effective Date and shall increase by an additional 25 basis points on each 90-day anniversary of  such date; and  





 






  -6-       #95384462v18   #95384462v18   (bc) with respect to Revolving Loans (other than the 2022 Revolving Loans), the rate per  annum applicable to the relevant Class of Loans set forth below under the applicable caption below, as the case may  be, based upon the Total Leverage Ratio as of the last day of the most recently ended Test Period; provided that until  the first Adjustment Date following the completion of the first Fiscal Quarter ended after the Closing Date, the  “Applicable Rate” shall be the applicable rate per annum set forth below in Category 1:  Total  Leverage Ratio  ABR Spread for  Revolving Loans  LIBO Rate  Revolving  Loans, SONIA  Rate  Revolving  Loans and  EURIBOR  Rate  Revolving  Loans  ABR Spread  for CAD  Revolving  Loans  BA Rate  Spread for  CAD  Revolving  Loans        Category 1            Greater than 5.00  to 1.00 1.75% 2.75% 1.75% 2.75%        Category 2            Less than or equal  to 5.00 to 1.00 but  greater than 4.00  to 1.00  1.25% 2.25% 1.25% 2.25%        Category 3            Less than or equal  to 4.00 to 1.00 but  greater than 3.00  to 1.00    1.00% 2.00% 1.00% 2.00%  Category 4            Less than or equal  to 3.00 to 1.00 0.75% 1.75% 0.75% 1.75%    The Applicable Rate shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the  Total Leverage Ratio in accordance with the tables above; provided that if financial statements are not delivered  when required pursuant to Section 5.01(a) or (b), as applicable, the “Applicable Rate” shall be the rate per annum set  forth above in Category 1 under each applicable table until such financial statements are delivered in compliance  with Section 5.01(a) or (b), as applicable.  “Approved Fund” means, with respect to any Lender, any Person (other than a natural person)  that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of  credit in the ordinary course of its activities and is administered, advised or managed by (a) such Lender, (b) any  Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers, advises or manages such  Lender.  





 






  -7-       #95384462v18   #95384462v18   “Arrangers” means, (i) with respect to the Initial Revolving Credit Commitments, each of RBC  Capital Markets1, JPMorgan Chase Bank N.A., Credit Suisse Securities (USA) LLC and Barclays Bank PLC as joint  bookrunners and joint lead arrangers and, (ii) with respect to the Initial Term Loans, each of RBC Capital Markets,  Credit Suisse Loan Funding LLC, Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Barclays Bank PLC,  BofA Securities, Inc., Wells Fargo Securities, LLC, Deutsche Bank Securities Inc., BNP Paribas Securities Corp.  and CJS Securities as joint bookrunners and joint lead arrangers and (iii) with respect to the 2022 Revolving Credit  Commitments, RBC Capital Markets.  “Assignment and Assumption” means an assignment and assumption entered into by a Lender  and an assignee (with the consent of any party whose consent is required by Section 9.05), and accepted by the  Administrative Agent in the form of Exhibit A-1 or any other form approved by the Administrative Agent and the  Lead Borrower.   “Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.  “Auction Agent” means (a) the Administrative Agent or any of its Affiliates or (b) any other  financial institution or advisor engaged by the Lead Borrower (whether or not an Affiliate of the Administrative  Agent) to act as an arranger in connection with any Auction pursuant to the definition of “Dutch Auction”; provided  that the Lead Borrower shall not designate the Administrative Agent as the Auction Agent without the written  consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation  to agree to act as the Auction Agent); provided, further, that neither the Lead Borrower nor any of its Affiliates may  act as the Auction Agent.  “Auction Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.  “Auction Notice” has the meaning assigned to such term in the definition of “Dutch Auction”.  “Auction Party” has the meaning set forth in the definition of “Dutch Auction”.  “Auction Response Date” has the meaning assigned to such term in the definition of “Dutch  Auction”.  “Available Amount” means, at any time, an amount equal to, without duplication:  (a) the sum of:   (i) $350,000,000; plus  (ii) 50% of the Consolidated Net Income of the Lead Borrower for the period (taken  as one accounting period) from October 1, 2019 to the end of the Lead Borrower’s most recently  ended fiscal quarter in respect of which a Compliance Certificate has been delivered hereunder  (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus  (iii) the amount of any capital contributions or other proceeds of any issuance of  Capital Stock after October 1, 2019 (other than any amounts (x) constituting a Cure Amount or an  Available Excluded Contribution Amount or an Excluded Debt Contribution or proceeds of an  issuance of Disqualified Capital Stock, (y) received from the Lead Borrower or any Restricted  Subsidiary or (z) incurred from the proceeds of any loan or advance made pursuant to  Section 6.06(h)(ii)) received as Cash equity by the Lead Borrower or any of its Restricted  Subsidiaries, plus the fair market value, as reasonably determined by the Lead Borrower, of Cash  Equivalents, marketable securities or other property received by the Lead Borrower or any  Restricted Subsidiary as a capital contribution or in return for any issuance of Capital Stock (other  than any amounts (x) constituting a Cure Amount or an Available Excluded Contribution Amount    1 RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.  





 






  -8-       #95384462v18   #95384462v18   or an Excluded Debt Contribution or proceeds of any issuance of Disqualified Capital Stock or  (y) received from the Lead Borrower or any Restricted Subsidiary), in each case, during the period  from and including the day immediately following October 1, 2019 through and including such  time; plus  (iv) the aggregate principal amount of any Indebtedness or Disqualified Capital Stock,  in each case, of the Lead Borrower or any Restricted Subsidiary issued after October 1, 2019  (other than Indebtedness or such Disqualified Capital Stock issued to the Lead Borrower or any  Restricted Subsidiary), which has been converted into or exchanged for Capital Stock of the Lead  Borrower, any Restricted Subsidiary or any Parent Company that does not constitute Disqualified  Capital Stock, together with the fair market value of any Cash Equivalents and the fair market  value (as reasonably determined by the Lead Borrower) of any property or assets received by the  Lead Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case,  during the period from and including the day immediately following October 1, 2019 through and  including such time; plus  (v) the net proceeds received by the Lead Borrower or any Restricted Subsidiary  during the period from and including the day immediately following the Closing Date through and  including such time in connection with the Disposition to any Person (other than the Lead  Borrower or any Restricted Subsidiary) of any Investment made pursuant to Section 6.06(r)(i);  plus  (vi) to the extent not already reflected as a return of capital with respect to such  Investment for purposes of determining the amount of such Investment, the proceeds received by  the Lead Borrower or any Restricted Subsidiary during the period from and including the day  immediately following the Closing Date through and including such time in connection with Cash  returns, Cash profits, Cash distributions and similar Cash amounts, including Cash principal  repayments of loans, in each case received in respect of any Investment made after the Closing  Date pursuant to Section 6.06(r)(i) (in an amount not to exceed the original amount of such  Investment); plus  (vii) an amount equal to the sum of (A) the amount of any Investments by the Lead  Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted  Subsidiary (in an amount not to exceed the original amount of such Investment) that has been  redesignated as a Restricted Subsidiary, or has been merged, consolidated or amalgamated with or  into, or is liquidated, wound up or dissolved into, the Lead Borrower or any Restricted Subsidiary  and (B) the fair market value (as reasonably determined by the Lead Borrower) of the property or  assets of any Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed  (in an amount not to exceed the original amount of the Investment in such Unrestricted Subsidiary  pursuant to Section 6.06(r)(i)) to the Lead Borrower or any Restricted Subsidiary, in each case,  during the period from and including the day immediately following the Closing Date through and  including such time; minus  (b) an amount equal to the sum of (i) Restricted Payments made pursuant to  Section 6.04(a)(iii)(A), plus (ii) Restricted Debt Payments made pursuant to Section 6.04(b)(vi)(A), plus  (iii) Investments made pursuant to Section 6.06(r)(i), in each case, after the Closing Date and prior to such time, or  contemporaneously therewith.  “Available Ancillary Commitment” means, with respect to any Ancillary Facility, the relevant  Ancillary Lender’s Ancillary Commitment minus the amount of Ancillary Outstandings under such Ancillary  Facility.  “Available Excluded Contribution Amount” means the aggregate amount of Cash or Cash  Equivalents or the fair market value of other assets or property (as reasonably determined by the Lead Borrower, but  





 






  -9-       #95384462v18   #95384462v18   excluding any Cure Amount) received by the Lead Borrower or any of its Restricted Subsidiaries after the Closing  Date from:  (1) contributions in respect of Qualified Capital Stock (other than any amounts  received from the Lead Borrower or any of its Restricted Subsidiaries), and  (2) the sale of Qualified Capital Stock of the Lead Borrower or any of its Restricted  Subsidiaries (other than (x) to the Lead Borrower or any Restricted Subsidiary of the Lead  Borrower, (y) pursuant to any management equity plan or stock option plan or any other  management or employee benefit plan or (z) with the proceeds of any loan or advance made  pursuant to Section 6.06(h)(ii)),  in each case, designated as Available Excluded Contribution Amounts pursuant to a certificate of a Responsible  Officer on or promptly after the date the relevant capital contribution is made or the relevant proceeds are received,  as the case may be, and which are excluded from the calculation of the Available Amount.  “Available Tenor” means, as of any date of determination and with respect to a then-current  Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component  thereof) that is or may be used for determining the length of an Interest Period pursuant to this Agreement or (y)  otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that  is or may be used for determining any frequency of making payments of interest calculated with reference to such  Benchmark, in each case, 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 2.27.  “BA Rate” means, in respect of any Interest Period, the higher of the average rate applicable to  Canadian Dollar bankers’ acceptances for a period equal to such Interest Period displayed and identified as such on  the Refinitiv Canadian Dollar Offered Rate (“CDOR”) page (and if such page is not available, any successor or  similar service as may be selected by the Administrative Agent), rounded to the nearest 1/100th of 1% (with .005%  being rounded up), at  approximately 11:00 a.m. (Eastern Time), on the related Interest Rate Determination Date,  plus, for any Lender which is not a Schedule I bank under the Bank Act (Canada), 0.10% per annum, provided that  if such rate does not appear on the CDOR Page (or the substituted page of any successor or similar service selected  by the Administrative Agent) on such day the BA Rate on such day shall be the rate for such period applicable to  Canadian Dollar bankers’ acceptances quoted by a bank listed in Schedule I of the Bank Act (Canada), as selected  by the Administrative Agent, as of 11:00 a.m. (Eastern Time) on such day or, if such day is not a Business Day, then  on the immediately preceding Business Day plus 0.10% per annum; provided that BA Rate shall not be less than  0.75%. For the avoidance of doubt, the BA Rate, is a reference rate only, and nothing herein shall obligate any  Lender to accept bankers’ acceptances.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article  55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing  law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU  Bail-In Legislation Schedule and (b) with respect to the United Kingdom,  Part I of the United Kingdom Banking Act  2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating  to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other  than through liquidation, administration or other insolvency proceedings).  “Banking Services” means each and any of the following bank services provided to any Loan  Party (a) under any arrangement that is in effect on the Closing Date between any Loan Party and a counterparty that  is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger as of the Closing Date or (b) under  any arrangement that is entered into after the Closing Date by any Loan Party with any counterparty that is (or is an  Affiliate of) the Administrative Agent, any Lender or any Arranger at the time such arrangement is entered into:   commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services,  





 






  -10-       #95384462v18   #95384462v18   overdraft protections, check drawing services, automated payment services (including depository, overdraft,  controlled disbursement, ACH transactions, return items and interstate depository network services), employee  credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or  otherwise in connection with cash management and Deposit Accounts.  “Banking Services Obligations” means any and all obligations of any Loan Party, whether  absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals,  extensions and modifications thereof and substitutions therefor), in connection with Banking Services, in each case,  that has been designated to the Administrative Agent in writing by the Lead Borrower as being Banking Services  Obligations for the purposes of the Loan Documents, it being understood that each counterparty thereto shall be  deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan Documents and (B) to agree  to be bound by the provisions of Article 8, Section 9.03 and Section 9.10, as if it were a Lender.  “Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).  “Benchmark” means, initially, (i) with respect to any LIBO Rate Loans, the LIBO Rate and (ii)  with respect to any SOFR Loans, Adjusted Term SOFR; provided that if a Benchmark Transition Event has occurred  with respect to the Adjusted Term SOFR, as applicable, or the applicable then-current Benchmark, then “Benchmark”  means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior  benchmark rate pursuant to clause (a) of Section 2.27.  “Benchmark Replacement” means:   (a) “Benchmark Replacement” means thewith respect to the LIBO Rate, the sum of: (a) the  alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and  the Lead Borrower giving due consideration to (i) any selection or recommendation of a replacement 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 rate of interest as a replacement to the LIBO Rate for U.S. dollar-denominated  syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark  Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for  the purposes of this Agreement.; and  (a) with respect to Term SOFR, the first alternative set forth in the order below that can be  determined by the Administrative Agent for the applicable Benchmark Replacement Date:  (i) Daily Simple SOFR; or  (ii) the sum of: (A) the alternate benchmark rate that has been selected by the  Administrative Agent and the Lead Borrower giving due consideration to (1) any selection or  recommendation of a replacement benchmark rate or the mechanism for determining such a rate  by the Relevant Governmental Body or (2) any evolving or then-prevailing market convention for  determining a benchmark rate as a replacement to Term SOFR for U.S. Dollar-denominated  syndicated credit facilities and (B) the related Benchmark Replacement Adjustment.  If the Benchmark Replacement as determined pursuant to clause (i) or (ii) above would be less  than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of  this Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment” means  with respect to any replacement of the LIBO  Rateany then-current Benchmark with an Unadjusted Benchmark Replacement for each applicable Interest Period, the  spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or  negative value or zero) that has been selected by the Administrative Agent and the Lead Borrower 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 the LIBO Ratesuch Benchmark with the applicable Unadjusted  





 






  -11-       #95384462v18   #95384462v18   Benchmark Replacement by the Relevant Governmental Body 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 LIBO Rate or Term SOFR with the applicable Unadjusted Benchmark Replacement for U.S. dollar  denominated syndicated credit facilities at such time.  “Benchmark Replacement Conforming Changes” means with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the definition of “Interest  Period,” timing and frequency of determining rates and making payments of interest and other administrative matters)  that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such  Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner  substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of  such market practice is not administratively feasible or if the Administrative Agent determines that no market practice  for the administration of thesuch Benchmark Replacement exists, in such other manner of administration as the  Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).  “Benchmark Replacement Date” means,   (a) “Benchmark Replacement Date” means with respect to the LIBO Rate, the earlier to  occur of the following events with respect to the LIBO Rate: (ai) in the case of clause (a)(i) or (ba)(ii) of the  definition of “Benchmark Transition Event,” 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 the LIBO Rate permanently or  indefinitely ceases to provide of the LIBO Rate; or (bii) in the case of clause (ca)(iii) of the definition of  “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.;  and  (b) with respect to Term SOFR, the earliest to occur of the following events:  (1) in the case of clause (b)(1) or (b)(2) of the definition of “Benchmark Transition  Event,” the later of (a) the date of the public statement or publication of information referenced  therein and (b) the date on which the Term SOFR Administrator (or the published component used  in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of  Term SOFR (or such component thereof); or  (2) in the case of clause (b)(3) of the definition of “Benchmark Transition Event,” the  first date on which Term SOFR (or the published component used in the calculation thereof) has  been determined and announced by or on behalf of the Term SOFR Administrator (or such  component thereof) or the regulatory supervisor for the Term SOFR Administrator (or such  component thereof) to be non-representative or non-compliant with or non-aligned with the IOSCO  Principles; provided, that such non-representativeness, non-compliance or non-alignment will be  determined by reference to the most recent statement or publication referenced in such clause (b)(3)  and even if any Available Tenor of Term SOFR (or such component thereof) continues to be  provided on such date.   For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have  occurred in the case of clause (b)(1) or (b)(2) above with respect to Term SOFR upon the occurrence  of the applicable event or events set forth therein with respect to all then-current Available Tenors  of Term SOFR (or the published component used in the calculation thereof).  “Benchmark Transition Event” means,   (a) with respect to the LIBO Rate, the occurrence of one or more of the following events  with respect to the LIBO Rate: (ai) a public statement or publication of information by or on behalf of the  administrator of the LIBO Rate announcing that such administrator has ceased or will cease to provide a London  interbank offered rate, permanently or indefinitely, provided that, at the time of such statement or publication, there  is no successor administrator that will continue to provide the LIBO Rate; (bii) a public statement or publication of  





 






  -12-       #95384462v18   #95384462v18   information by the regulatory supervisor for the administrator of the LIBO Rate, the U.S. Federal Reserve System,  an insolvency official with jurisdiction over the administrator for the LIBO Rate, a resolution authority with  jurisdiction over the administrator for the LIBO Rate or a court or an entity with similar insolvency or resolution  authority over the administrator for the LIBO Rate, which states that the administrator of the LIBO Rate has ceased  or will cease to provide the LIBO Rate permanently or indefinitely, provided that, at the time of such statement or  publication, there is no successor administrator that will continue to provide the LIBO Rate; or (ciii) a public  statement or publication of information by the regulatory supervisor for the administrator of the LIBO Rate  announcing that the LIBO Rate is no longer representative.; and  (b) with respect to Term SOFR, the occurrence of one or more of the following events:  (1) a public statement or publication of information by or on behalf of the Term SOFR  Administrator (or the published component used in the calculation thereof) announcing that such  administrator has ceased or will cease to provide all Available Tenors of Term SOFR (or such  component thereof), permanently or indefinitely, provided that, at the time of such statement or  publication, there is no successor administrator that will continue to provide any Available Tenor of  Term SOFR (or such component thereof);  (2) a public statement or publication of information by the regulatory supervisor for  the Term SOFR Administrator (or the published component used in the calculation thereof), the  Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an  insolvency official with jurisdiction over the Term SOFR Administrator (or such component), a  resolution authority with jurisdiction over the Term SOFR Administrator (or such component) or a  court or an entity with similar insolvency or resolution authority over the Term SOFR Administrator  (or such component), in each case, which states that the Term SOFR Administrator has ceased or  will cease to provide all Available Tenors of Term SOFR (or such component thereof) permanently  or indefinitely, provided that, at the time of such statement or publication, there is no successor  administrator that will continue to provide any Available Tenor of Term SOFR (or such component  thereof); or  (3) a public statement or publication of information by or on behalf of the Term SOFR  Administrator (or the published component used in the calculation thereof) or the regulatory  supervisor for the Term SOFR Administrator (or the published component used in the calculation  thereof) announcing that all Available Tenors of Term SOFR (or such component thereof) are no  longer, or as of a specified future date will no longer be, representative or in compliance with or  aligned with the IOSCO Principles.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have  occurred with respect to Term SOFR if a public statement or publication of information set forth  above has occurred with respect to each then-current Available Tenor of Term SOFR (or the  published component used in the calculation thereof).  “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 (90) 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 the Administrative Agent or the Required Lenders, as applicable, by  notice to the Lead Borrower, the 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 the LIBO Rate or Term SOFR and solely to the extent  that the LIBO Rate or Term SOFR has not been replaced with a Benchmark Replacement, the period (x) beginning at  the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has  





 






  -13-       #95384462v18   #95384462v18   replaced the LIBO Rate or Term SOFR, as applicable, for all purposes hereunder in accordance with Section 2.17 and  (y) ending at the time that a Benchmark Replacement has replaced the LIBO Rate or Term SOFR, as applicable, for  all purposes hereunder pursuant to Section 2.27.  “Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is  subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose  assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of  the Code) the assets of any such “employee benefit plan” or “plan.”  “BHC Act Affiliate” of 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” means the Board of Governors of the Federal Reserve System of the U.S.  “BofA” has the meaning assigned to such term in the preamble to this Agreement.  “Bona Fide Debt Fund” means any debt fund, investment vehicle, regulated bank entity or  unregulated lending entity that is engaged in making, purchasing, holding or otherwise investing in commercial  loans and similar extensions of credit in the ordinary course of business which is managed, sponsored or advised by  any Person controlling, controlled by or under common control with (a) any competitor of the Lead Borrower and/or  any of its subsidiaries or (b) any Affiliate of such competitor, but with respect to which no personnel involved with  any investment in such Person (i) makes, has the right to make or participates with others in making any investment  decisions with respect to such debt fund, investment vehicle, regulated bank entity or unregulated lending entity or  (ii) has access to any information (other than information that is publicly available) relating to Holdings, the Lead  Borrower or their respective subsidiaries or any entity that forms a part of any of their respective businesses; it being  understood and agreed that the term “Bona Fide Debt Fund” shall not include any Person that is separately identified  to the Arrangers in accordance with clause (a) of the definition of “Disqualified Institution” or any Affiliate of any  such Person that is reasonably identifiable on the basis of such Affiliate’s name.  “Borrower Joinder Agreement” means a borrower joinder agreement in a form (including  structural and tax considerations (including customary tax provisions for Borrowers incorporated in any jurisdiction  other than the U.S., to the extent not already provided for in this Agreement, in Section 2.17 and related definitions,  including gross-up provisions with respect to the obligations of the U.K. Borrower on terms satisfactory to the  Administrative Agent and the Arrangers) and collateral and guarantee arrangements (including collateral allocation  mechanism arrangements)) reasonably satisfactory to the Administrative Agent and the Lead Borrower.  “Borrower Representative” means the entity appointed to act on behalf of the Borrowers  pursuant to Section 2.24.  “Borrowers” means the Lead Borrower and the Revolving Facility Borrowers; provided that if  any Non-U.S. Borrower incurs any Obligations under a Non-U.S. Facility, and if the Administrative Agent and the  Lenders holding such Obligations agree that collateral in a non-U.S. jurisdiction will be provided to support such  Non-U.S. Obligations, then the Borrowers and the Administrative Agent on behalf of the Lenders will enter into an  agreement that will include customary collateral allocation mechanism sharing provisions between such  Non-U.S. Facility and the U.S. Credit Facilities that will be automatically triggered upon the occurrence of an event  of default resulting from (i) bankruptcy, insolvency proceedings, etc., (ii) inability to pay debts, attachment, etc.,  (iii) payment default on final maturity or (iv) an acceleration of the loans or commitments under such  Non-U.S. Facility; provided, further, to the extent (x) that any portion of such Non-U.S. Facility is made available in  a currency other than U.S. Dollars or (y) any portion of the Revolving Facility, Incremental Revolving Facility or  Revolving Facility incurred pursuant to a Refinancing Amendment may be funded in currency other than  U.S. Dollars, the customary collateral allocation mechanism settlement currency will be U.S. Dollars pursuant to  which Outstanding Amounts denominated in a currency other than U.S. Dollars of any Borrower will convert into,  and continue as, U.S. Dollar-denominated Obligations.  





 






  -14-       #95384462v18   #95384462v18   “Borrowing” means any Loans of the same Type and Class made, converted or continued on the  same date and, in the case of Eurocurrency Rate Loans, SOFR Loans or EURIBOR Rate Revolving Loans, as to  which a single Interest Period is in effect.  “Borrowing Request” means a request by a Borrower for a Borrowing in accordance with  Section 2.03 and substantially in the form attached hereto as Exhibit B or such other form that is reasonably  acceptable to the Administrative Agent and the Lead Borrower.  “Business Day” means any day that is not a Saturday, Sunday or other day on which commercial  banks in New York City are authorized or required by law to remain closed; provided that, (a) when used in  connection with an ABR Loan or a Eurocurrency Rate Loan or any other Loan in an Agreed Currency, the term  “Business Day” shall also exclude any day on which banks are not open for dealings in the London interbank market  and/or the principal financial center of the country of such Agreed Currency (and, if the Borrowings or LC  Disbursements which are the subject of a borrowing, drawing, payment, reimbursement or rate selection are  denominated in Euros, the term “Business Day” shall also exclude any non-TARGET Day), (b) when used in  connection with a SONIA Rate Revolving Loan, any day excluding any day which is a day on which commercial  banks are authorized or required to close in London and, (c) when used in connection with a Canadian Dollar Loan  or BA Rate Loan, any day excluding any day which is a legal holiday in the Province of Ontario or is a day on  which commercial banks are authorized or required to close in Toronto, Ontario and (d) when used in connection  with a SOFR Loan, or any other calculation or determination involving SOFR, the term “Business Day” means any  day that is only a U.S. Government Securities Business Day.  “Canadian Anti-Terrorism Laws” means any Canadian law, judgment, order, executive order,  decree, ordinance, rule or regulation related to terrorism financing or money laundering including Part II.1 of the  Criminal Code, R.S.C. 1985, c.C-46, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C.  2000, c. 17, regulations promulgated pursuant to the Special Economic Measures Act, S.C. 1992, c. 17 and the  United Nations Act, R.S.C. 1985, c. U-2, in each case, as amended.  “Canadian Base Rate” means the highest of (x) the rate of interest per annum established from  time to time by the Administrative Agent as the reference rate of interest for the determination of interest rates that  the Administrative Agent will charge to customers in Canada for Canadian Dollar demand loans in Canada, and (y)  the rate of interest per annum that is equal to the BA Rate for an interest period of one month plus 1.00% per annum;  provided that (x) Canadian Base Rate shall not be less than 1.75%.  “Canadian Borrower” has the meaning assigned to such term in the definition of “Revolving  Facility Borrowers”.  “Canadian Dollars” and “C$” means the lawful currency of Canada.  “Capital Lease” means, as applied to any Person, any lease of any property (whether real,  personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital  lease on the balance sheet of that Person.  “Capital Stock” means any and all shares, interests, participations or other equivalents (however  designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a  corporation), including partnership interests and membership interests, and any and all warrants, rights or options to  purchase or other arrangements or rights to acquire any of the foregoing, but excluding for the avoidance of doubt  any Indebtedness convertible into or exchangeable for any of the foregoing.  “Cash” means money, currency or a credit balance in any Deposit Account, in each case  determined in accordance with GAAP.  “Cash Equivalents” means, as at any date of determination, (a) readily marketable securities  (i) issued or directly and unconditionally guaranteed or insured as to interest and principal by the U.S. government  





 






  -15-       #95384462v18   #95384462v18   or (ii) issued by any agency or instrumentality of the U.S. the obligations of which are backed by the full faith and  credit of the U.S., in each case maturing within one year after such date and, in each case, repurchase agreements  and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations issued by any state of  the U.S. or any political subdivision of any such state or any public instrumentality thereof, in each case maturing  within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P  or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an  equivalent rating from another nationally recognized statistical rating agency) and, in each case, repurchase  agreements and reverse repurchase agreements relating thereto; (c) commercial paper maturing no more than one  year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from  S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an  equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money market deposits,  time deposit accounts, certificates of deposit or bankers’ acceptances (or similar instruments) maturing within one  year after such date and issued or accepted by any Lender or by any bank organized under, or authorized to operate  as a bank under, the laws of the U.S., any state thereof or the District of Columbia or any political subdivision  thereof and that has capital and surplus of not less than $100,000,000 and, in each case, repurchase agreements and  reverse repurchase agreements relating thereto; and (e) shares of any money market mutual fund that has  (i) substantially all of its assets invested in the types of investments referred to in clauses (a) through (d) above,  (ii) net assets of not less than $250,000,000 and (iii) a rating of at least A-2 from S&P or at least P-2 from Moody’s.  In the case of any Investment by any Foreign Subsidiary, “Cash Equivalents” shall also include  (x) Investments of the type and maturity described in clauses (a) through (e) above of foreign obligors, which  Investments or obligors (or the parent companies thereof) have the ratings described in such clauses or equivalent  ratings from comparable foreign rating agencies and (y) other short-term Investments utilized by Foreign  Subsidiaries in accordance with normal investment practices for cash management in Investments analogous to the  Investments described in clauses (a) through (e) and in this paragraph.  “CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.  “CFC Holdco” means a direct or indirect Domestic Subsidiary substantially all of whose assets  consist of the capital stock of one or more CFCs.  “Change in Law” means (a) the adoption of any law, treaty, rule or regulation after the Closing  Date, (b) any change in any law, treaty, rule or regulation or in the interpretation or application thereof by any  Governmental Authority after the Closing Date or (c) compliance by any Lender or any Issuing Bank (or, for  purposes of Section 2.15(b), by any lending office of such Lender or such Issuing Bank or by such Lender’s or such  Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of  law) of any Governmental Authority made or issued after the Closing Date (other than any such request, guideline or  directive to comply with any law, rule or regulation that was in effect on the Closing Date).  For purposes of this  definition and Section 2.15, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,  rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation  thereof and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International  Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or U.S. or foreign  regulatory authorities, in each case pursuant to Basel III, shall in each case described in clauses (a), (b) and  (c) above, be deemed to be a Change in Law, regardless of the date enacted, adopted, issued or implemented.  A “Change of Control” shall be deemed to have occurred if (a) any “person” or “group” (within  the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the Closing Date), shall own,  directly or indirectly, beneficially or of record, shares representing more than 35% of the aggregate ordinary voting  power represented by the issued and outstanding capital stock of Super Holdco, (b) a majority of the seats (other  than vacant seats) on the board of directors of Super Holdco shall at any time be occupied by persons who were  neither (i) nominated by the board of directors of Super Holdco (or any committee thereof with the authority to  nominate directors) nor (ii) appointed by directors so nominated, (c) any change in control (or similar event,  however denominated) with respect to Super Holdco, Holdings or the Lead Borrower shall occur under and as  defined in any indenture or agreement in respect of Indebtedness exceeding the Threshold Amount, (d) Super  Holdco shall cease to directly own, beneficially and of record, 100% of the issued and outstanding Capital Stock of  





 






  -16-       #95384462v18   #95384462v18   Holdings, (e) Holdings shall cease to directly own, beneficially and of record, 100% of the issued and outstanding  Capital Stock of the Lead Borrower or (f) following the joinder of any additional Borrowers, as permitted hereunder,  and for so long as such Borrower has any Obligations, the Lead Borrower shall cease to directly or indirectly own,  beneficially and of record, 100% of the issued and outstanding Capital Stock of any other Borrower.  “Charge” means any charge, fee, expense, cost, losses, accrual or reserve of any kind.  “Charged Amounts” has the meaning assigned to such term in Section 9.19.  “Class”, when used in reference to any Loan, Borrowing or Commitment, refers to whether such  Loan, or the Loans comprising such Borrowing, are Initial Term Loans, Revolving Loans (or as applicable, Dollar  Revolving Loans or, Multicurrency Revolving Loans or 2022 Revolving Loans) or respective Commitments related  thereto or other loans or commitments added as a separate Class pursuant to Section 2.22, 2.23 or 9.02(c).  “Closing Date” means the date on which the conditions specified in Section 4.01 are satisfied (or  waived in accordance with Section 9.02).  “Code” means the Internal Revenue Code of 1986 as amended.  “Collateral” means any and all property of any Loan Party subject (or purported to be subject) to  a Lien under any Collateral Document and any and all other property of any Loan Party, now existing or hereafter  acquired, that is or becomes subject (or purported to be subject) to a Lien pursuant to any Collateral Document to  secure the Secured Obligations.  “Collateral Agent” has the meaning assigned to such term in the preamble to this Agreement.  “Collateral and Guarantee Requirement” means, at any time, subject to (x) the applicable  limitations set forth in this Agreement and/or any other Loan Document and (y) the time periods (and extensions  thereof) set forth in Section 5.12, the requirement that:  (a) the Administrative Agent shall have received:  (i) (A) a joinder to the Loan Guaranty in substantially the form attached as an exhibit  thereto, (B) a supplement to the Security Agreement in substantially the form attached as an  exhibit thereto, (C) if the respective Loan Party required to comply with the requirements set forth  in this definition pursuant to Section 5.12 owns registrations of or applications for U.S. Patents,  Trademarks and/or Copyrights that constitute Collateral, any Notices of Grant of Security Interest  in Intellectual Property, (D) the information required by the Perfection Certificate for the Loan  Party and (E) UCC financing statements in appropriate form for filing in such jurisdictions as the  Administrative Agent may reasonably request; and  (ii) each item of Collateral that such Loan Party is required to deliver under  Section 2.02 of the Security Agreement (which, for the avoidance of doubt, shall be delivered  within the time periods set forth in Section 5.12(a));  (b) the Administrative Agent shall have received with respect to any Material Real Estate  Assets acquired after the Closing Date, a Mortgage and any necessary UCC fixture filing in respect thereof, in each  case together with, to the extent customary and appropriate (as reasonably determined by the Administrative Agent  and the Lead Borrower):  (i) evidence that (A) counterparts of such Mortgage have been duly executed,  acknowledged and delivered and such Mortgage and any corresponding UCC or equivalent fixture  filing are in form suitable for filing or recording in all filing or recording offices that the  Administrative Agent may reasonably deem necessary in order to create a valid and subsisting  





 






  -17-       #95384462v18   #95384462v18   Lien on such Material Real Estate Asset in favor of the Administrative Agent for the benefit of the  Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings have  been duly recorded or filed, as applicable, and (C) all filing and recording taxes and fees have  been paid or otherwise provided for in a manner reasonably satisfactory to the Administrative  Agent;  (ii) one or more fully paid policies of title insurance (the “Mortgage Policies”) in an  amount reasonably acceptable to the Administrative Agent (not to exceed the fair market value of  the Material Real Estate Asset covered thereby (as reasonably determined by the Lead Borrower))  issued by a nationally recognized title insurance company in the applicable jurisdiction that is  reasonably acceptable to the Administrative Agent, insuring the relevant Mortgage as having  created a valid subsisting Lien on the real property described therein with the ranking or the  priority which it is expressed to have in such Mortgage, subject only to Permitted Liens, together  with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably  request to the extent the same are available in the applicable jurisdiction;  (iii) customary legal opinions of local counsel for the relevant Loan Party in the  jurisdiction in which such Material Real Estate Asset is located, and if applicable, in the  jurisdiction of formation of the relevant Loan Party, in each case as the Administrative Agent may  reasonably request; and  (iv) surveys (or no-change affidavits or similar documents sufficient for the title  insurance company issuing the Mortgage Policies to omit the preprinted survey exception therein  and issue the endorsements required by clause (ii) above) and appraisals (if required under the  Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and, no later  than 5 Business Days before the effective day of any Mortgage, “Life-of-Loan” flood  certifications and any borrower notices required under Regulation H (together with evidence of  available federal flood insurance for any such Flood Hazard Property located in a flood hazard  area); provided that the Administrative Agent may in its reasonable discretion accept any such  existing survey, appraisal, certification or notice so long as such existing survey, appraisal,  certification or notice satisfies any applicable legal requirements.  “Collateral Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage,  (iii) each Notice of Grant of Security Interest in Intellectual Property, (iv) any supplement to any of the foregoing  delivered to the Administrative Agent pursuant to the definition of “Collateral and Guarantee Requirement”, (v) the  Perfection Certificate (including any Perfection Certificate delivered to the Administrative Agent pursuant to the  definition of “Collateral and Guarantee Requirement”) and any Perfection Certificate Supplement (including any  Perfection Certificate Supplement delivered to the Administrative Agent pursuant to the definition of “Collateral and  Guarantee Requirement”) and (vi) each of the other instruments and documents pursuant to which any Loan Party  grants a Lien on any Collateral as security for payment of the Secured Obligations.  “Commercial Letter of Credit” means any Letter of Credit issued for the purpose of providing  the primary payment mechanism in connection with the purchase of any materials, goods or services by the Lead  Borrower or any of its subsidiaries in the ordinary course of business of such Person.  “Commercial Tort Claim” has the meaning set forth in Article 9 of the UCC.  “Commitment” means, with respect to each Lender, such Lender’s Initial Term Commitment,  Initial Revolving Credit Commitment, 2022 Revolving Credit Commitment and Additional Commitment, as  applicable, in effect as of such time.  “Commitment Fee Rate” means, for each calendar quarter or portion thereof, the applicable rate  per annum set forth below based upon the Total Leverage Ratio as of the last day of the last Test Period; provided  that (x) in the case of the Dollar Revolving Facility and the Multicurrency Revolving Facility, until the first  Adjustment Date following the completion of the first Fiscal Quarter ending after the Closing Date, the  





 






  -18-       #95384462v18   #95384462v18   “Commitment Fee Rate” shall be the applicable rate per annum set forth below in Category 1: and (y) in the case of  the 2022 Revolving Facility, until the first Adjustment Date following the completion of the first Fiscal Quarter  ending after the Third Amendment Effective Date, the “Commitment Fee Rate” shall be the applicable rate per  annum set forth below in Category 2:  Total Leverage Ratio Dollar Revolving Facility and,  Multicurrency Revolving  Facility and 2022 Revolving  Facility Commitment Fee Rate     Category 1      Greater than 5.00 to 1.00 0.45%     Category 2      Less than or equal to 5.00 to 1.00  but greater than 4.00 to 1.00  0.40%     Category 3      Less than or equal to 4.00 to 1.00  but greater than 3.00 to 1.00    0.35%  Category 4      Equal to or less than 3.00 to 1.00 0.30%      provided, solely with respect to the 2022 Revolving Facility, the rates set forth above in  Categories 1, 2, 3 and 4, respectively, shall in each case automatically increase by 25 basis points  on the date that is 270 days after the Third Amendment Effective Date and shall increase by an  additional 25 basis points on each 90-day anniversary of such date.  The Commitment Fee Rate shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon  the Total Leverage Ratio in accordance with the table set forth above; provided that if financial statements are not  delivered when required pursuant to Section 5.01(a) or (b), as applicable, the Commitment Fee Rate shall be the rate  per annum set forth above in Category 1 until such financial statements are delivered in compliance with Section  5.01(a) or (b), as applicable.  “Commitment Schedule” means the Schedule attached hereto as Schedule 1.01(a).  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).  “Company Competitor” means any competitor of the Borrowers and/or any of their subsidiaries.  “Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.  “Confidential Information” has the meaning assigned to such term in Section 9.13.  “Consolidated Adjusted EBITDA” means, with respect to any specified Person for any period,  the Consolidated Net Income of such Person for such period plus, without duplication:  





 






  -19-       #95384462v18   #95384462v18   (a) provision for taxes based on income or profits of such Person and its Restricted  Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such  Consolidated Net Income; plus  (b) Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the  extent that any such Fixed Charges were deducted in computing such Consolidated Net Income; plus  (c) depreciation, amortization (including amortization of goodwill, software and other  intangibles but excluding amortization of prepaid Cash expenses that were paid in a prior period) and other  non-Cash expenses (excluding any such non-Cash expense to the extent that it represents an accrual of or reserve for  Cash expenses in any future period or amortization of a prepaid Cash expense that was paid in a prior period) of  such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and  other non-Cash expenses were deducted in computing such Consolidated Net Income; plus  (d) (i) unusual or non-recurring charges, (ii) relocation costs and integration costs or reserves  (including such items related to proposed and completed acquisitions and Dispositions and to closure/consolidation  of facilities), (iii) Transaction Costs, (iv) Prior Transaction Costs, (v) severance costs, including such costs related to  proposed and completed Investments permitted by this Agreement and Dispositions and to closure/consolidation of  facilities, in each case incurred by the Lead Borrower and its Restricted Subsidiaries and (vi) transaction fees and  Charges (1) incurred in connection with the consummation of any transaction (or any transaction proposed and not  consummated) permitted under this Agreement, including the issuance or offering of Capital Stock, Investments,  acquisitions, Dispositions, recapitalizations, mergers, consolidations or amalgamations, option buyouts or  incurrences, repayments, refinancings, amendments or modifications of Indebtedness (including any amortization or  write-off of debt issuance or deferred financing costs, premiums and prepayment penalties) or similar transactions  and/or (2) that are actually reimbursed or reimbursable by third parties pursuant to indemnification or  reimbursement provisions or similar agreements or insurance; provided that in respect of any fee, cost, expense or  reserve that is added back in reliance on clause (2) above, such Person in good faith expects to receive  reimbursement for such fee, cost, expense or reserve within the next four Fiscal Quarters (it being understood that to  the extent any reimbursement amount is not actually received within such Fiscal Quarters, such reimbursement  amount shall be deducted in calculating Consolidated Adjusted EBITDA for such Fiscal Quarters); plus  (e) the amount of cost savings, operational expense improvements and synergies projected  by such Person in good faith to be realized as a result of actions taken during such period or to be taken in  connection with a transaction that is being given pro forma effect (calculated on a pro forma basis as though such  cost savings, operational expense improvements 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 a duly completed  certificate signed by a Responsible Officer of the Lead Borrower shall be delivered to the Administrative Agent  together with the Officer’s Certificate required to be delivered pursuant to Section 5.01(c), certifying that (x) such  cost savings, operational expense improvements and synergies are reasonably identifiable and factually supportable  (in the good faith determination of such Person, as certified by a chief financial officer, treasurer or equivalent  officer of such Person) and (y) such cost savings, operational expense improvements and synergies are expected in  good faith to be realized within 18 months of the end of such period; provided, further, that the aggregate amount  included in Consolidated Adjusted EBITDA pursuant to this clause (e) for any period shall not exceed15% of  Consolidated Adjusted EBITDA (calculated prior to giving effect to any adjustments pursuant to this clause (e));  minus  (f) to the extent such amounts otherwise increase Consolidated Net Income, (i) non- Cash  items increasing such Consolidated Net Income for such period other than the accrual of revenue consistent with  past practice, in each case, on a consolidated basis and determined in accordance with GAAP, (ii) unrealized net  gains (x) due to fluctuations in currency values and the related tax effects or (y) in the fair market value of any  arrangements under Derivative Transactions, (iii) the amount included in Consolidated Net Income pursuant to  clause (ix) of the definition thereof (as described in such clause) to the extent the relevant business interruption  insurance proceeds were not received within the time period required by such clause, and (iv) to the extent that such  Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (c)  above, the Cash payment in respect thereof in the relevant future period.  





 






  -20-       #95384462v18   #95384462v18   Notwithstanding anything to the contrary herein, it is agreed that for the purpose of calculating the  Total Leverage Ratio, Total Net Leverage Ratio, the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio  and the Fixed Charge Coverage Ratio for any period that includes the Fiscal Quarters ended March 29, 2020,  December 31, 2019, September 30, 2019, June 30, 2019, (i) Consolidated Adjusted EBITDA for the Fiscal Quarter  ended March 31, 2020 shall be deemed to be $143.6 million, (ii) Consolidated Adjusted EBITDA for the Fiscal  Quarter ended December 29, 2019 shall be deemed to be $102.5 million, (iii) Consolidated Adjusted EBITDA for  the Fiscal Quarter ended September 30, 2019 shall be deemed to be $163.3 million, and (iv) Consolidated Adjusted  EBITDA for the Fiscal Quarter ended June 30, 2019 shall be deemed to be $172.6 million; provided that (x) for the  four Fiscal Quarter period ended March 29, 2020, Consolidated Adjusted EBITDA, calculated on a Pro Forma  Basis, shall be deemed to be $582.0 million and (y) for any subsequent four Fiscal Quarter period that includes any  of the Fiscal Quarters described under clauses (ii) through (iv) above, Consolidated Adjusted EBITDA shall include  the applicable amounts set forth in such clauses and the Pro Forma Basis calculation shall be in accordance with the  terms thereof.  “Consolidated First Lien Debt” means, as to any Person at any date of determination, the  aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a first priority  Lien on any asset or property of such Person or its Restricted Subsidiaries.  “Consolidated Net Income” means, with respect to any specified Person for any period, the  aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, determined  in accordance with GAAP; provided that:  (i) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or  that is accounted for by the equity method of accounting shall be included only to the extent of the  amount of dividends or distributions paid in Cash to the specified Person or a Restricted  Subsidiary thereof;  (ii) the Net Income of any Restricted Subsidiary (other than a Subsidiary Guarantor)  shall be excluded to the extent that the declaration or payment of dividends or similar distributions  by that Restricted Subsidiary of that Net Income is not at the date of determination permitted  without any prior governmental approval (that has not been obtained) or, directly or indirectly, by  operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute,  rule or governmental regulation applicable to that Restricted Subsidiary or its equityholders;  (iii) the Net Income of any Person acquired during the specified period for any period  prior to the date of such acquisition shall be excluded;  (iv) the cumulative effect of a change in accounting principles shall be excluded;  (v) notwithstanding clause (i) above, the Net Income (but not loss) of any  Unrestricted Subsidiary shall be excluded, whether or not distributed to the specified Person or  one of its Subsidiaries;  (vi) (a) unrealized gains and losses due solely to fluctuations in currency values and  the related tax effects according to GAAP shall be excluded (until realized, at which time such  gains or losses shall be included); and (b) unrealized gains and losses with respect to obligations  under any Derivative Transactions shall be excluded (until realized, at which time such gains or  losses shall be included);  (vii) any non-Cash charge or expense realized or resulting from stock option plans,  employee benefit plans or post- employment benefit plans, or grants or sales of stock, stock  appreciation or similar rights, stock options, restricted stock, Disqualified Capital Stock or other  rights shall be excluded;  





 






  -21-       #95384462v18   #95384462v18   (viii) (a)(i) the non-Cash portion of “straight line” rent expense less (ii) the Cash portion  of “straight line” rent expense which exceeds the amount expensed in respect of such rent expense  shall be excluded and (b) non-Cash gains, losses, income and expenses resulting from fair value  accounting required by the applicable standard under GAAP and related interpretations shall be  excluded (until realized, at which time such gains or losses shall be included);  (ix) to the extent covered by insurance and actually reimbursed, or, so long as such  Person has made a determination that there exists reasonable evidence that such amount will in  fact be reimbursed by the insurer and only to the extent that such amount is (a) approved by the  applicable carrier in writing within 180 days and (b) in fact reimbursed within 365 days of the date  of such evidence (with a deduction for any amount so added back to the extent not so reimbursed  within 365 days), (i) expenses with respect to liability or casualty events or business interruption  shall be excluded and (ii) amounts received, or estimated in good faith to be received, from  insurance in respect of lost earnings in respect of liability or causality events or business  interruption shall be included (with a deduction for (x) amounts actually received up to such  estimated amount to the extent included in Net Income in a future period and (y) for estimated  amounts in excess of amounts actually received in a future period);  (x) any charges resulting from the application of FASB ASC 350, Intangibles —  Goodwill and Other, Accounting Standards Codification Topic 360-10-35-15, Impairment or  Disposal of Long­Lived Assets, Accounting Standards Codification Topic 480-10-25-4,  Distinguishing Liabilities from Equity—Overall Recognition, or Accounting Standards  Codification Topic 820 Fair Value Measurements and Disclosures, the amortization of intangibles  arising pursuant to FASB ASC 805, Business Combinations, non-Cash interest expense resulting  from the application of Accounting Standards Codification Topic 470-20 Debt—Debt with  Conversion Options—Recognition, and any non-Cash income tax expense that results from the  inability to include deferred tax liabilities related to indefinite-lived intangible assets as future  reversals of temporary differences under FASB ASC 740-10-30-18, shall be excluded; and  (xi) restructuring and related charges and acquisition and related integration charges,  including but not limited to, restructuring charges related to the Prior Transactions and the  Transactions, shall be excluded.  Notwithstanding the foregoing, for the purpose of calculating the Available Amount only, there  shall be excluded from Consolidated Net Income, without duplication, any income consisting of dividends,  repayments of loans or advances or other transfers of assets from non-wholly owned Restricted Subsidiaries,  Unrestricted Subsidiaries or joint ventures to the Lead Borrower or any of its Restricted Subsidiary, and any income  consisting of a return of capital, repayment or other proceeds from dispositions or repayments of Investments, in  each case to the extent such income would be included in Consolidated Net Income and such related dividends,  repayments, transfers, return of capital or other proceeds are applied by the Loan Parties to increase the Available  Amount.  “Consolidated Secured Debt” means, as to any Person at any date of determination, the  aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a Lien on any  asset or property of such Person or its Restricted Subsidiaries.  “Consolidated Total Assets” means, at any date, all amounts that would, in conformity with  GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of the  applicable Person at such date.  “Consolidated Total Debt” means, as to any Person at any date of determination, the aggregate  principal amount of all third party debt for borrowed money (including LC Disbursements that have not been  reimbursed in accordance with the terms hereof and the outstanding principal balance of all Indebtedness of such  Person represented by notes, bonds and similar instruments), Capital Leases and purchase money Indebtedness (but  excluding, for the avoidance of doubt, undrawn letters of credit).  





 






  -22-       #95384462v18   #95384462v18   “Consolidated Working Capital” means, as at any date of determination, the excess of Current  Assets over Current Liabilities.  “Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the  amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such  period exceeds (or is less than) Consolidated Working Capital as of the end of such period; provided that there shall  be excluded (a) the effect of reclassification during such period between current assets and long term assets and  current liabilities and long term liabilities (with a corresponding restatement of the prior period to give effect to such  reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any  Person, facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and  contingent obligations under any Hedge Agreement, and (d) the application of purchase or recapitalization  accounting.  “Contract Consideration” has the meaning assigned to such term in the definition of “Excess  Cash Flow”.   “Contractual Obligation” means, as applied to any Person, any provision of any Security issued  by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to  which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is  subject.  “Control” means the possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of a Person, whether through the ability to exercise voting power, by  contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.  “Copyright” means the following: (a) all copyrights, rights and interests in copyrights, works  protectable by copyright whether published or unpublished, copyright registrations and copyright applications;  (b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due  and/or payable under any of the foregoing, including, without limitation, damages or payments for past or future  infringements for any of the foregoing; (d) the right to sue for past, present, and future infringements of any of the  foregoing; and (e) all rights corresponding to any of the foregoing.  “Covered Entity” shall mean any of the following: (i) a “covered entity” as that term is defined  in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and  interpreted in accordance with, 12 C.F.R.§ 382.2(b).   “Covered Party” shall have the meaning provided in Section 9.25.  “Credit Extension” means each of (i) the making of a Revolving Loan or (ii) the issuance,  amendment, modification, renewal or extension of any Letter of Credit (other than any such amendment,  modification, renewal or extension that does not increase the Stated Amount of the relevant Letter of Credit).  “Credit Facilities” means the Initial Term Facility, the Initial Revolving Facility and the 2022  Revolving Facility.  “CS” has the meaning assigned to such term in the preamble to this Agreement.  “Cure Amount” has the meaning assigned to such term in Section 6.15(b).  “Cure Right” has the meaning assigned to such term in Section 6.15(b).  “Current Assets” means, at any time the consolidated current assets (other than Cash and Cash  Equivalents, the current portion of current and deferred Taxes, permitted loans made to third parties, assets held for  





 






  -23-       #95384462v18   #95384462v18   sale, pension assets, deferred bank fees and derivative financial instruments) of any Person and its Restricted  Subsidiaries.  “Current Liabilities” means, at any time, the consolidated current liabilities of any Person and its  Restricted Subsidiaries at such time, but excluding, without duplication, (a) the current portion of any long-term  Indebtedness, (b) outstanding revolving loans, (c) the current portion of interest expense, (d) the current portion of  any Capital Lease, (e) the current portion of current and deferred Taxes, (f) liabilities in respect of unpaid earn-outs,  (g) the current portion of any other long-term liabilities, (h) accruals relating to restructuring reserves, (i) liabilities  in respect of funds of third parties on deposit with the Lead Borrower or any of its Restricted Subsidiaries, (j) any  liability in respect of derivative financial instruments and (k) any liabilities recorded in connection with stock-based  awards, partnership interest-based awards, awards of profits interests, deferred compensation awards and similar  incentive based compensation awards or arrangements.  “Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to  SOFR for the day (such day, the “SOFR Determination Day”),  that is five (5) U.S. Government Securities  Business Days  prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate  Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government  Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by  the SOFR Administrator on the SOFR Administrator’s Website; provided, however, that if as of 5:00 p.m. (New  York City time) on any SOFR Determination Day Daily Simple SOFR for the applicable tenor has not been  published by the SOFR Administrator and a Benchmark Replacement Date with respect to Daily Simple SOFR has  not occurred, then Daily Simple SOFR will be the Daily Simple SOFR as published by the SOFR Administrator on  the first preceding U.S. Government Securities Business Day for which Daily Simple SOFR was published by the  SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than  three (3) U.S. Government Securities Business Days prior to such SOFR Determination Day; provided, that to the  extent such rate as determined above shall, at any time, be less than the Floor, such rate shall be deemed to be Floor  for all purposes herein.    “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship,  bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,  reorganization or similar debtor relief laws of the U.S. or other applicable jurisdictions from time to time in effect  and affecting the rights of creditors generally.  “Declined Proceeds” has the meaning assigned to such term in Section 2.11(b)(v).  “Default” means any event or condition which upon notice, lapse of time or both would become  an Event of Default.  “Defaulting Lender” means any Lender that has (a) defaulted in its obligations under this  Agreement, including without limitation, (x) to make a Loan within two Business Days of the date required to be  made by it hereunder or (y) to fund its participation in a Letter of Credit required to be funded by it hereunder within  two Business Days of the date such obligation arose or such Loan or Letter of Credit was required to be made or  funded, unless such Lender notifies the Administrative Agent and the Lead Borrower in writing that such failure is  the result of such Lender’s good faith determination that one or more conditions to funding (which conditions  precedent, together with the applicable default or breach of a representation, if any shall be specifically identified in  writing) has not been satisfied, (b) notified the Administrative Agent or any Issuing Bank or any Loan Party in  writing that it does not intend to satisfy any such obligation or has made a public statement to the effect that it does  not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to  extend credit generally, (c) failed, within three Business Days after the request of Administrative Agent or the Lead  Borrower, to confirm in writing that it will comply with the terms of this Agreement relating to its obligations to  fund prospective Loans and participations in then outstanding Letters of Credit; provided that such Lender shall  cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the  Administrative Agent, (d) after the Closing Date, become (or any parent company thereof has become) insolvent or  been determined by any Governmental Authority having regulatory authority over such Person or its assets, to be  insolvent, or the assets or management of which has been taken over by any Governmental Authority or (e) after the  





 






  -24-       #95384462v18   #95384462v18   Closing Date, become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,  trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or  liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its  consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any Lender  subject to this clause (e), the Lead Borrower and the Administrative Agent shall each have determined that such  Lender intends, and has all approvals required to enable it (in form and substance satisfactory to each of the Lead  Borrower and the Administrative Agent), to continue to perform its obligations as a Lender hereunder; provided that  no Lender shall be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital  Stock in such Lender or its parent by any Governmental Authority; provided that such action does not result in or  provide such Lender with immunity from the jurisdiction of courts within the U.S. 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 contract or agreement to which such Lender is a party.  “Default Right” shall have 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.  “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings  and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of  deposit.  “Derivative Transaction” means (a) any interest-rate transaction, including any interest-rate  swap, basis swap, forward rate agreement, interest rate option (including a cap, collar or floor), and any other  instrument linked to interest rates that gives rise to similar credit risks (including when-issued securities and forward  deposits accepted), (b) any exchange-rate transaction, including any cross-currency interest-rate swap, any forward  foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that gives rise to  similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked  option, any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar  credit risk and (d) any commodity (including precious metal) derivative transaction, including any  commodity-linked swap, any commodity-linked option, any forward commodity-linked contract, and any other  instrument linked to commodities that gives rise to similar credit risks; provided that no phantom stock or similar  plan providing for payments only on account of services provided by current or former directors, officers,  employees, members of management, managers or consultants of the Lead Borrower or its subsidiaries shall be a  Derivative Transaction.  “Designated Gross Amount” means the amount notified by the applicable Revolving Facility  Borrower to the Administrative Agent upon the establishment of a Multi-account Overdraft as being the maximum  amount of Gross Outstandings that will, at any time, be outstanding under that Multi-account Overdraft.  “Designated Net Amount” means the amount notified by the relevant Revolving Facility  Borrower to the Administrative Agent upon the establishment of a Multi-account Overdraft as being the maximum  amount of Net Outstandings that will, at any time, be outstanding under that Multi-account Overdraft.  “Designated Non-Cash Consideration” means the fair market value (as determined by the Lead  Borrower in good faith) of non-Cash consideration received by the Lead Borrower or any Restricted Subsidiary in  connection with any Disposition pursuant to Section 6.07(h) that is designated as Designated Non-Cash  Consideration pursuant to a certificate of a Responsible Officer of the Lead Borrower, setting forth the basis of such  valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection with a  subsequent sale or conversion of such Designated Non- Cash Consideration to Cash or Cash Equivalents).  “Discount Range” has the meaning assigned to such term in the definition of “Dutch Auction”.  “Disposition” or “Dispose” means the sale, lease, sublease, or other disposition of any property of  any Person.  





 






  -25-       #95384462v18   #95384462v18   “Disqualified Capital Stock” means any Capital Stock which, by its terms (or by the terms of any  security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures  (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable  (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the  option of the holder thereof (other than for Qualified Capital Stock and other than upon an asset sale or change in  control if such right is subject to the prior payment in full of the Obligations), in whole or in part, on or prior  to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any  such redemption is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date  shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless at the sole  option of the issuer thereof) for (i) debt securities or (ii) any Capital Stock that would constitute Disqualified Capital  Stock, in each case at any time on or prior to 91 days following the Latest Maturity Date at the time such Capital  Stock is issued, (c) contains any mandatory repurchase obligation or any other repurchase obligation at the option of  the holder thereof (other than for Qualified Capital Stock), in whole or in part, which may come into effect prior  to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any  such repurchase obligation is in part, only such part coming into effect prior to 91 days following the Latest  Maturity Date shall constitute Disqualified Capital Stock) or (d) provides for the scheduled payments of dividends in  Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided that  any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders  thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or  exercisable) the right to require the issuer thereof to redeem such Capital Stock upon the occurrence of any change  in control or any Disposition occurring prior to 91 days following the Latest Maturity Date at the time such Capital  Stock is issued shall not constitute Disqualified Capital Stock if such Capital Stock provides that the issuer thereof  will not redeem any such Capital Stock pursuant to such provisions prior to the Termination Date.  Notwithstanding the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan  for the benefit of directors, officers, employees, members of management, managers or consultants or by any such  plan to such directors, officers, employees, members of management, managers or consultants, in each case in the  ordinary course of business of Holdings, the Lead Borrower or any Restricted Subsidiary, such Capital Stock shall  not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in  order to satisfy applicable statutory or regulatory obligations, and (B) no Capital Stock held by any future, present or  former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or  Immediate Family Members) of the Lead Borrower (or any Parent Company or any subsidiary) shall be considered  Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management  equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock  ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.  “Disqualified Institution” means (a) each bank, financial institution or other institutional lender  and Company Competitor or Affiliate of a Company Competitor identified on a list made available to the Arrangers  on June 30, 2020 (as such list may be supplemented from time to time by the Lead Borrower pursuant to clause (b)  below) and (b) any other person designated in writing to the Administrative Agent after the Closing Date to the  extent such person becomes a Company Competitor or is or becomes an Affiliate of a Company Competitor (and is  reasonably identifiable as such on the basis of such Affiliate’s name), which designation shall become effective two  days after delivery of each such written supplement to the Administrative Agent, but which shall not apply  retroactively to disqualify any persons with respect to any amounts that such person has  previously acquired by  assignment or participation interest in the Loans and Commitments; provided that a Company Competitor or an  Affiliate of a Company Competitor shall not include any Bona Fide Debt Fund.  “Dollar Equivalent” means, with respect to (i) an amount denominated in U.S. Dollars, such  amount, (ii) an amount denominated in any Agreed Currency, the equivalent in U.S. Dollars of such amount  determined at the Exchange Rate on the applicable date designated by the Administrative Agent, and (iii) any  Ancillary Commitment (or Ancillary Outstandings), (A) if the amount specified in the notice delivered to the  Administrative Agent by the Borrower pursuant to Section 2.26(a)(ii) is in U.S. Dollars, the amount thereof and  (B) if the amount specified is denominated in Agreed Currency, the amount thereof converted to U.S. Dollars in  accordance with Section 1.09.  





 






  -26-       #95384462v18   #95384462v18   “Dollar LC Disbursement” means a payment or disbursement made by an Issuing Bank pursuant  to a Dollar Letter of Credit.  “Dollar LC Exposure” means, at any time, the sum of (a) the aggregate undrawn and unexpired  amount of all outstanding Dollar Letters of Credit at such time and (b) the aggregate principal amount of all Dollar  LC Disbursements that have not yet been reimbursed at such time.  The Dollar LC Exposure of any Revolving  Lender at any time shall equal its Dollar Revolving Applicable Percentage of the aggregate Dollar LC Exposure at  such time.  For all purposes of this Agreement, (x) if on any date of determination a Dollar Letter of Credit has  expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the  International Standby Practices (ISP98), such Dollar Letter of Credit shall be deemed to be “outstanding” in the  amount so remaining available to be drawn and (y) unless otherwise specified herein, the amount of a Dollar  Letter of Credit at any time shall be deemed to be the stated amount of such Dollar Letter of Credit in effect at  such time; provided that with respect to any Dollar Letter of Credit that, by its terms or the terms of any document  related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such  Dollar Letter of Credit shall be deemed to be the maximum stated amount of such Dollar Letter of Credit after  giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.  “Dollar LC Obligations” means, at any time, the sum of (a) the amount available to be drawn  under Dollar Letters of Credit then outstanding, assuming compliance with all requirements for drawings referenced  therein, plus (b) the aggregate principal amount of all unreimbursed Dollar LC Disbursements.  “Dollar Letter of Credit” means any Standby Letter of Credit or Commercial Letter of Credit  denominated in U.S. Dollars issued (or, in the case of any Existing Dollar Letter of Credit, deemed to be issued)  pursuant to this Agreement under the Dollar Revolving Facility.  “Dollar Letter of Credit Sublimit” means $60 million.  For the avoidance of doubt, Existing  Dollar Letters of Credit shall be counted towards the Dollar Letter of Credit Sublimit.   “Dollar Revolving Applicable Percentage” means, with respect to any Dollar Revolving Lender  for any Class, the percentage of the Total Dollar Revolving Credit Commitment represented by such Lender’s Dollar  Revolving Credit Commitment for such Class; provided that for purposes of Section 2.21 and otherwise herein,  when there is a Defaulting Lender, any such Defaulting Lender’s Dollar Revolving Credit Commitment shall be  disregarded in the relevant calculations.  In the event the Dollar Revolving Credit Commitments for any Class shall  have expired or been terminated, the Dollar Revolving Applicable Percentages of any Dollar Revolving Lender of  such Class shall be determined on the basis of the Dollar Revolving Credit Exposure of the applicable Dollar  Revolving Lenders of such Class, giving effect to any assignments and to any Dollar Revolving Lender’s status as a  Defaulting Lender at the time of determination.  “Dollar Revolving Credit Commitment” means, with respect to each Lender, (other than any  2022 Revolving Lender), the commitment of such Lender to make Dollar Revolving Loans (and acquire  participations in Dollar Letters of Credit) hereunder as set forth on the Commitment Schedule, or in the Assignment  and Assumption pursuant to which such Lender assumed its Dollar Revolving Credit Commitment, as applicable, as  the same may be (a) reduced from time to time pursuant to Section 2.09, Section 2.11, Section 2.19 or  Section 9.02(c), (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to  Section 9.05, (c) increased as part of an Incremental Revolving Facility or (d) other than for purposes of determining  the Required Lenders or the Required Revolving Lenders, if such Lender is an Ancillary Lender, decreased by the  amount of such Lender’s Ancillary Commitment (and increased to the extent such Ancillary Commitment is  subsequently reduced, cancelled or terminated).  “Dollar Revolving Credit Exposure” means, with respect to any Lender (other than any 2022  Revolving Lender) at any time, the aggregate Outstanding Amount at such time of all Dollar Revolving Loans of  such Lender plus the aggregate amount at such time of such Lender’s Dollar LC Exposure.  “Dollar Revolving Facility” means, at any time, the aggregate amount of the Dollar Revolving  Lenders’ Dollar Revolving Credit Commitments at such time, which shall be funded in U.S. Dollars.  





 






  -27-       #95384462v18   #95384462v18   “Dollar Revolving Lender” means a Lender (other than any 2022 Revolving Lender) with a  Dollar Revolving Credit Commitment or an Additional Revolving Commitment or an outstanding Dollar Revolving  Loan or Additional Revolving Loan.  “Dollar Revolving Loans” means the revolving Loans under the Dollar Revolving Facility made  by the Lenders to the Lead Borrower pursuant to Section 2.01(a)(iii), 2.22, 2.23 or 9.02(c)(ii).  “Dollar Revolving Credit Maturity Date” means the date that is five years after the Closing  Date.  “Domestic Subsidiary” means any Restricted Subsidiary incorporated or organized under the  laws of the U.S., any state thereof or the District of Columbia.  “DQ List” has the meaning assigned to such term in Section 9.05(f)(iv).  “Dutch Auction” means an auction (an “Auction”) conducted by any Affiliated Lender (any such  Person, the “Auction Party”) in order to purchase Initial Term Loans (or any Additional Term Loans), in  accordance with the following procedures; provided that no Auction Party shall initiate any Auction unless (I) at  least five Business Days have passed since the consummation of the most recent purchase of Term Loans pursuant  to an Auction conducted hereunder; or (II) at least three Business Days have passed since the date of the last Failed  Auction which was withdrawn pursuant to clause (c)(i) below:  (a) Notice Procedures.  In connection with any Auction, the Auction Party will provide  notification to the Auction Agent (for distribution to the relevant Lenders) of the Term Loans that will be the subject  of the Auction (an “Auction Notice”).  Each Auction Notice shall be in a form reasonably acceptable to the Auction  Agent and shall (i) specify the maximum aggregate principal amount of the Term Loans subject to the Auction, in a  minimum amount of $10,000,000 and whole increments of $1,000,000 in excess thereof (or, in any case, such lesser  amount of such Term Loans then outstanding or which is otherwise reasonably acceptable to the Auction Agent and  the Administrative Agent (if different from the Auction Agent)) (the “Auction Amount”), (ii) specify the discount  to par (which may be a range (the “Discount Range”) of percentages of the par principal amount of the Term Loans  subject to such Auction), that represents the range of purchase prices that the Auction Party would be willing to  accept in the Auction, (iii) be extended, at the sole discretion of the Auction Party, to (x) each Lender and/or  (y) each Lender with respect to any Term Loan on an individual Class basis and (iv) remain outstanding through the  Auction Response Date.  The Auction Agent will promptly provide each appropriate Lender with a copy of the  Auction Notice and a form of the Return Bid to be submitted by a responding Lender to the Auction Agent (or its  delegate) by no later than 5:00 p.m. on the date specified in the Auction Notice (or such later date as the Auction  Party may agree with the reasonable consent of the Auction Agent) (the “Auction Response Date”).  (b) Acceptance Procedures.  Based on the Reply Prices and Reply Amounts received by the  Auction Agent prior to the applicable Auction Response Date, the Auction Agent, in consultation with the Auction  Party, will determine the applicable price (the “Applicable Price”) for the Auction, which will be the lowest Reply  Price for which the Auction Party can complete the Auction at the Auction Amount; provided that, in the event that  the Reply Amounts are insufficient to allow the Auction Party to complete a purchase of the entire Auction Amount  (any such Auction, a “Failed Auction”), the Auction Party shall either, at its election, (i) withdraw the Auction or  (ii) complete the Auction at an Applicable Price equal to the highest Reply Price.  The Auction Party shall purchase  the relevant Term Loans (or the respective portions thereof) from each Lender with a Reply Price that is equal to or  lower than the Applicable Price (“Qualifying Bids”) at the Applicable Price; provided that if the aggregate proceeds  required to purchase all Term Loans subject to Qualifying Bids would exceed the Auction Amount for such Auction,  the Auction Party shall purchase such Term Loans at the Applicable Price ratably based on the principal amounts of  such Qualifying Bids (subject to rounding requirements specified by the Auction Agent in its discretion).  If a  Lender has submitted a Return Bid containing multiple bids at different Reply Prices, only the bid with the lowest  Reply Price that is equal to or less than the Applicable Price will be deemed to be the Qualifying Bid of such Lender  (e.g., a Reply Price of $100 with a discount to par of 2%, when compared to an Applicable Price of $100 with a 1%  discount to par, will not be deemed to be a Qualifying Bid, while, however, a Reply Price of $100 with a discount to  par of 2.50% would be deemed to be a Qualifying Bid).  The Auction Agent shall promptly, and in any case within  





 






  -28-       #95384462v18   #95384462v18   five Business Days following the Auction Response Date with respect to an Auction, notify (I) the Lead Borrower of  the respective Lenders’ responses to such solicitation, the effective date of the purchase of Term Loans pursuant to  such Auction, the Applicable Price, and the aggregate principal amount of the Term Loans and the tranches thereof  to be purchased pursuant to such Auction, (II) each participating Lender of the effective date of the purchase of  Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount and the tranches of  Term Loans to be purchased at the Applicable Price on such date, (III) each participating Lender of the aggregate  principal amount and the tranches of the Term Loans of such Lender to be purchased at the Applicable Price on such  date and (IV) if applicable, each participating Lender of any rounding and/or proration pursuant to the second  preceding sentence.  Each determination by the Auction Agent of the amounts stated in the foregoing notices to the  Lead Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error.  (c) Reply Procedures.  In connection with any Auction, each Lender holding the relevant  Term Loans subject to such Auction may, in its sole discretion, participate in such Auction and may provide the  Auction Agent with a notice of participation (the “Return Bid”) which shall be in a form reasonably acceptable to  the Auction Agent, and shall specify (i) a discount to par (that must be expressed as a price at which it is willing to  sell all or any portion of such Term Loans) (the “Reply Price”), which (when expressed as a percentage of the par  principal amount of such Term Loans) must be within the Discount Range, and (ii) a principal amount of such Term  Loans, which must be in whole increments of $1,000,000 (or, in any case, such lesser amount of such Term Loans of  such Lender then outstanding or which is otherwise reasonably acceptable to the Auction Agent) (the “Reply  Amount”).  Lenders may only submit one Return Bid per Auction, but each Return Bid may contain up to three bids  only one of which may result in a Qualifying Bid.  In addition to the Return Bid, the participating Lender must  execute and deliver, to be held in escrow by the Auction Agent, an Assignment and Assumption with the dollar  amount of the Term Loans to be assigned to be left in blank, which amount shall be completed by the Auction Agent  in accordance with the final determination of such Lender’s Qualifying Bid pursuant to clause (c) below.  Any  Lender whose Return Bid is not received by the Auction Agent by the Auction Response Date shall be deemed to  have declined to participate in the relevant Auction with respect to all of its Term Loans.  (d) Additional Procedures.  (i) Once initiated by an Auction Notice, the Auction Party may not withdraw an  Auction other than a Failed Auction.  Furthermore, in connection with any Auction, upon  submission by a Lender of a Qualifying Bid, such Lender will be obligated to sell the entirety or  its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.  (ii) To the extent not expressly provided for herein, each purchase of Term Loans  pursuant to an Auction shall be consummated pursuant to procedures consistent with the  provisions in this definition, established by the Auction Agent acting in its reasonable discretion  and as reasonably agreed by the Lead Borrower.  (iii) In connection with any Auction, the Lead Borrower and the Lenders  acknowledge and agree that the Auction Agent may require as a condition to any Auction, the  payment of customary fees and expenses by the Auction Party in connection therewith as agreed  between the Auction Party and the Auction Agent.  (iv) Notwithstanding anything in any Loan Document to the contrary, for purposes  of this definition, each notice or other communication required to be delivered or otherwise  provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the  Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or  communication; provided that any notice or communication actually received outside of normal  business hours shall be deemed to have been given as of the opening of business on the next  Business Day.  (v) The Lead Borrower and the Lenders acknowledge and agree that the Auction  Agent may perform any and all of its duties under this definition by itself or through any Affiliate  of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent  





 






  -29-       #95384462v18   #95384462v18   to such Affiliate and the performance of such delegated duties by such Affiliate.  The exculpatory  provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its  respective activities in connection with any purchase of Term Loans provided for in this definition  as well as activities of the Auction Agent.  “Early Opt-in Election” means the occurrence of: (a) (i) a determination by the Administrative  Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that  the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such  time, or that include language similar to that contained in Section 2.27 are being executed or amended, as applicable,  to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate, and (b) (i) the election by the  Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred  and the provision, as applicable, by the Administrative Agent of written notice of such election to the Lead Borrower  and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.  “ECF Percentage” means, (a) if the First Lien Net Leverage Ratio calculated on a Pro Forma Basis  as of the last day of the relevant Fiscal Year (giving pro forma effect to the prepayment required by Section 2.11(b)(i))  is greater than 2.75 to 1.00, 50%, (b) if the First Lien Net Leverage Ratio calculated on a Pro Forma Basis as of the  last day of the relevant Fiscal Year (giving pro forma effect to the prepayment required by Section 2.11(b)(i)) is less  than or equal to 2.75 to 1.00, but greater than 2.25 to 1.00, 25% and (c) if the First Lien Net Leverage Ratio calculated  on a Pro Forma Basis as of the last day of the relevant Fiscal Year (giving pro forma effect to the prepayment required  by Section 2.11(b)(i)) is less than or equal to 2.25 to 1.00, 0%.  “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established  in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any  financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses  (a) or (b) of this definition and is subject to consolidated supervision with its parent.   “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any person entrusted  with public administrative authority of any EEA Member Country (including any delegee) having responsibility for  the resolution of any EEA Financial Institution.  “Eligible Assignee” means (a) any Lender, (b) any commercial bank, insurance company, or  finance company, financial institution, any fund that invests in loans or any other “accredited investor” (as defined  in Regulation D of the Securities Act), (c) any Affiliate of any Lender, (d) any Approved Fund of any Lender or  (e) to the extent permitted under Section 9.05(g), any Affiliated Lender; provided that in any event, “Eligible  Assignee” shall not include (i) any natural person, (ii) any Disqualified Institution or (iii) except as permitted under  Section 9.05(g), the Lead Borrower or any of its Affiliates.   “Engagement Letter” means that certain Engagement Letter, dated as of June 15, 2020, by and  between the Lead Borrower, Royal Bank of Canada and JPMorgan Chase Bank, N.A..  “Environment” means ambient air, indoor air, surface water, groundwater, drinking water, land  surface and subsurface strata & natural resources such as wetlands, flora and fauna.  “Environmental Claim” means any written notice, notice of violation, claim, action, suit,  proceeding, demand, abatement order or other order (conditional or otherwise), by any Governmental Authority or  any other Person, arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental  Law; (b) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (c) in  connection with any actual or alleged damage, injury, threat or harm to the Environment.  





 






  -30-       #95384462v18   #95384462v18   “Environmental Laws” means any and all foreign or domestic, federal or state (or any  subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental  Authorizations, or any other applicable requirements of Governmental Authorities and common law relating to  (a) environmental matters, including those relating to any Hazardous Materials Activity; or (b) the generation, use,  storage, transportation or disposal of or exposure to Hazardous Materials, in any manner applicable to the Lead  Borrower or any of its Restricted Subsidiaries or any Facility.  “Environmental Liability” means any liability, contingent or otherwise (including any liability  for damages, costs of environmental investigation or remediation, fines, penalties or indemnities), resulting from or  based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,  treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or  threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other  consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the  rules and regulations promulgated thereunder.  “ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a member of a  controlled group of corporations within the meaning of Section 414(b) of the Code of which that Person is a  member; and (b) any trade or business (whether or not incorporated) which is a member of a group of trades or  businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a  member; or solely for purposes of Section 412 of the Code, an affiliated service group under Code Section 414(m).  “ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA  and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the 30-day notice  period has been waived); (b) the failure to meet the minimum funding standard of Section 412 of the Code with  respect to any Pension Plan, or the filing of any request for or receipt of a minimum funding waiver under  Section 412 of the Code with respect to any Pension Plan or a failure to make a required contribution to a  Multiemployer Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of  ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA;  (d) the withdrawal by the Lead Borrower, any of its Restricted Subsidiaries or any of its respective ERISA Affiliates  from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting  in liability to the Lead Borrower, any of its Restricted Subsidiaries or any of its respective ERISA Affiliates  pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any  Pension Plan; (f) the imposition of liability on the Lead Borrower, any of its Restricted Subsidiaries or any of its  respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of  Section 4212(c) of ERISA; (g) a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of  ERISA) of the Lead Borrower, any of its Restricted Subsidiaries or any of its respective ERISA Affiliates from any  Multiemployer Plan, or the receipt by the Lead Borrower, any of its Restricted Subsidiaries or any of its respective  ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to Section  4245 of  ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA or is in  “endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of ERISA; (h) a  failure by the Lead Borrower, any of its Restricted Subsidiaries or any of its respective ERISA Affiliates to pay  when due (after expiration of any applicable grace period) any installment payment with respect to withdrawal  liability under Section 4201 of ERISA; (i) a determination that any Pension Plan is, or is reasonably expected to be,  in “at-risk” status, within the meaning of Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA; or (j) the  incurrence of liability or the imposition of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to  ERISA with respect to any Pension Plan.  “Eurocurrency” means when used in reference to any Loan or Borrowing, shall refer to whether  such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the  LIBO Rate or the BA Rate, as applicable.  “European Insolvency Regulation” means Council Regulation (EC) No. 1346/2000 of May 29,  2012 on Insolvency Proceedings, as amended from time to time.  





 






  -31-       #95384462v18   #95384462v18   “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” means the Euro Interbank Offered Rate, as administered by the European Money  Markets Institute (or any other Person that takes over the administration of such rate) for a period equal in length to  such Interest Period, as displayed on the applicable Reuters page (or on any successor or substitute page or service  providing such quotations as determined by the Administrative Agent from time to time.  “EURIBOR Rate” means, for any day, with respect to any Credit Extension denominated in  Euros, the rate per annum equal to EURIBOR determined pursuant to the definition thereof; provided that in no  event shall the EURIBOR Rate be less than 0.75% per annum for the purposes of this Agreement.  “EURIBOR Rate Revolving Loan” means a Revolving Loan that bears interest at a rate based on  the definition of “EURIBOR Rate.” All EURIBOR Rate Revolving Loans must be denominated in Euros.  “Event of Default” has the meaning assigned to such term in Article 7.  “Excess Cash Flow” means, for any Test Period ending on the last day of any Fiscal Year, an  amount (if positive) equal to:  (a) the sum, without duplication, of the amounts for such period of the following:  (i) Consolidated Net Income for such period, plus  (ii) the Consolidated Working Capital Adjustment for such period, plus  (iii) Cash gains of the type excluded from the definition of “Net Income” to the  extent not otherwise included in calculating Consolidated Net Income (except to the extent such  gains consist of proceeds applied pursuant to Section 2.11(b)(ii)), minus  (b) the sum, without duplication, of the amounts for such period of the following:  (i) all permanent repayments of long term Indebtedness, including for purposes of  clarity, the current portion of any such Indebtedness (including (w) the principal component of  payments in respect of Capital Leases, (x) payments under Section 2.09(b), Section 2.10(a) or  (b) and Section 2.11(a) and (y) prepayments of Term Loans to the extent (and only to the extent)  made with the Net Proceeds of a Prepayment Asset Sale that resulted in an increase to  Consolidated Net Income and not in excess of the amount of such increase and (z) the amount of  any voluntary prepayments or purchases of Loans made by Holdings, the Lead Borrower or any of  their respective Subsidiaries pursuant to Section 9.05(g) (in an amount equal to the discounted  amount actually paid in respect of the principal amount of such Loans), but excluding (A) the  amount of all deductions and reductions to the amount of mandatory prepayments pursuant to  clause (B) of Section 2.11(b)(i), (B) all other repayments of the Term Loans and (C) repayments  of the Revolving Loans, any Additional Revolving Loans or loans under any revolving credit  facility or arrangement, except to the extent a corresponding amount of the commitments under  such revolving credit facility or arrangement are permanently reduced in connection with such  repayments), in each case, to the extent not financed with long-term Indebtedness (other than  revolving Indebtedness), plus  (ii) [reserved], plus  (iii) Fixed Charges (other than clause (4) of the definition of “Fixed Charges”) added  back pursuant to clause (b) of the definition of “Consolidated Adjusted EBITDA” to the extent  paid in Cash, plus  





 






  -32-       #95384462v18   #95384462v18   (iv) Taxes (including pursuant to any Tax sharing arrangement or any Tax  distribution) paid and provisions for Taxes, to the extent payable in Cash with respect to such  period, plus  (v) [reserved], plus  (vi) the aggregate amount of all Restricted Payments made under Sections 6.04(a)  (other than Section 6.04(a)(ix)) or otherwise consented to by the Required Lenders, in each case to  the extent actually paid in Cash during such period, or, at the option of the Lead Borrower, made  after such period and prior to the date of the applicable Excess Cash Flow payment (except, in  each case, to the extent financed with long-term Indebtedness (other than revolving  Indebtedness)), plus  (vii) amounts added back under clause (ix) of the definition of “Consolidated Net  Income” to the extent such amounts have not yet been received by the Lead Borrower or its  Restricted Subsidiaries, plus  (viii) an amount equal to all expenses, charges and losses either (A) excluded in  calculating Consolidated Net Income or (B) added back in calculating Consolidated Adjusted  EBITDA, in the case of clauses (A) and (B), to the extent paid in Cash, plus  (ix) without duplication of amounts deducted from Excess Cash Flow in respect of a  prior period, at the option of the Lead Borrower, the aggregate consideration required to be paid in  Cash by the Lead Borrower or its Restricted Subsidiaries pursuant to binding contracts (the  “Contract Consideration”) entered into prior to or during such period relating to capital  expenditures, acquisitions or Investments permitted by Section 6.06 (other than Investments in  (x) Cash and Cash Equivalents and (y) the Lead Borrower or any of its Restricted Subsidiaries) to  be consummated or made during the period of four consecutive Fiscal Quarters of the Lead  Borrower following the end of such period (except, in each case, to the extent financed with  long-term Indebtedness (other than revolving Indebtedness)); provided that to the extent the  aggregate amount actually utilized to finance such capital expenditures, acquisitions or  Investments during such subsequent period of four consecutive Fiscal Quarters is less than the  Contract Consideration, the amount of the resulting shortfall shall be added to the calculation of  Excess Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters, plus  (x) to the extent not expensed (or exceeding the amount expensed) during such  period or not deducted (or exceeding the amount deducted) in calculating Consolidated Net  Income, the aggregate amount of expenditures, fees, costs and expenses paid in Cash by the Lead  Borrower and its Restricted Subsidiaries during such period, other than to the extent financed with  long-term Indebtedness (other than revolving Indebtedness), plus  (xi) Cash payments (other than in respect of Taxes, which are governed by  clause (iv) above) made during such period for any liability the accrual of which in a prior period  did not increase Excess Cash Flow in such prior period (provided there was no other deduction to  Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except to the  extent financed with long-term Indebtedness (other than revolving Indebtedness), plus  (xii) Cash expenditures made in respect of any Hedge Agreement or other Derivative  Transaction during such period to the extent (A) not otherwise deducted in the calculation of  Consolidated Net Income or Consolidated Adjusted EBITDA and (B) not financed with long-term  Indebtedness (other than revolving Indebtedness), plus  (xiii) amounts paid in Cash (except to the extent financed with long-term  Indebtedness (other than revolving Indebtedness)) during such period on account of (A) items that  were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted  





 






  -33-       #95384462v18   #95384462v18   EBITDA in a prior period and (B) reserves or amounts established in purchase accounting to the  extent such reserves or amounts are added back to, or not deducted from, Consolidated Net  Income, plus  (xiv) without duplication of clause (b)(i) above, Cash payments made by Holdings or  its Restricted Subsidiaries during such period in respect of long-term liabilities, including for  purposes of clarity, the current portion of any such liabilities (other than Indebtedness) of  Holdings or its Restricted Subsidiaries, except to the extent such Cash payments were  (A) deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA  for such period or (B) financed with long-term Indebtedness (other than revolving Indebtedness).  “Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations of the  SEC promulgated thereunder.  “Exchange Currency” has the meaning assigned to such term in the definition of “Exchange  Rate”.  “Exchange Rate” means on any day with respect to any currency (the “Initial Currency”), the  rate at which such currency may be exchanged into another currency (the “Exchange Currency”), as set forth at  approximately the close of business on the Business Day that such conversion is to be made (or, if such conversion  is to be made before close of business on such Business Day, then at approximately the close of business on the  immediately preceding Business Day) on such day on the Reuters World Currency Page for the Initial Currency; in  the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be  determined by reference to such other publicly available service for displaying exchange rates as may be agreed  upon by the Administrative Agent and the Lead Borrower, or, in the absence of such agreement, such Exchange  Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market  where its foreign currency exchange operations in respect of the Initial Currency are then being conducted, at or  about the close of business on the Business Day that such conversion is to be made (or, if such conversion is to be  made before close of business on such Business Day, then at approximately the close of business on the immediately  preceding Business Day) for the purchase of the Exchange Currency for delivery two Business Days later; provided  that if at the time of any such determination, no such spot rate can reasonably be quoted, the Administrative Agent  may use any reasonable method as it deems applicable to determine such rate, and such determination shall be  conclusive absent manifest error.  “Excluded Assets” means each of the following:  (a) any contract, instrument, lease, licenses, agreement, franchise, charter, authorization, or  other document as to which the grant of a security interest would (i) constitute a violation of a restriction in favor of  a third party (other than the Lead Borrower or any of its Restricted Subsidiaries) or result in the abandonment,  invalidation or unenforceability of any right of the relevant Loan Party, unless and until any required consents shall  have been obtained, or (ii) result in a breach, termination (or a right of termination) or default under such contract,  instrument, lease, license, agreement, franchise, charter, authorization or other document (including pursuant to any  “change of control” or similar provision); provided, however, that any such asset will only constitute an Excluded  Asset under clause (i) or clause (ii) above to the extent such violation or breach, termination (or right of termination)  or default would not be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any  successor provision or provisions) of any relevant jurisdiction or any other applicable law; provided, further, that  any such asset shall cease to constitute an Excluded Asset at such time as the condition causing such violation,  breach, termination (or right of termination) or default or right to amend or require other actions no longer exists and  to the extent severable, the security interest granted under the applicable Collateral Document shall attach  immediately to any portion of such contract, instrument, lease, license, agreement, franchise, charter, authorization  or document that does not result in any of the consequences specified in clauses (i) and (ii) above,  (b) the Capital Stock of any (i) Immaterial Subsidiary (except to the extent the security  interest in such Capital Stock may be perfected by the filing of a Form UCC-1 (or similar) financing statement),  





 






  -34-       #95384462v18   #95384462v18   (ii) Unrestricted Subsidiary (except to the extent the security interest in such Capital Stock may be perfected by the  filing of a Form UCC-1 (or similar) financing statement), and/or (iii) not-for-profit subsidiary,  (c) (i) any intent-to-use (or similar) Trademark application prior to the filing and acceptance  of a “Statement of Use”, “Amendment to Allege Use” or similar filing with respect thereto, only to the extent, if  any, that, and solely during the period, in which, if any, the grant of a security interest therein may impair the  validity or enforceability of such intent-to-use Trademark application under applicable law and (ii) unless agreed to  by the Lead Borrower and the Administrative Agent, any IP Rights registered in any foreign jurisdiction,  (d) any asset or property, the grant or perfection of a security interest in which would  (A) require any governmental or third party consent, approval, license or authorization that has not been obtained,  (B) be prohibited by enforceable anti-assignment provisions of applicable Requirements of Law, except, in the case  of this clause (B), to the extent such prohibition would be rendered ineffective under the UCC or other applicable  law notwithstanding such prohibition, or (C) be prohibited by enforceable anti-assignment provisions of contracts  governing such asset in existence on the Closing Date (or on the date of acquisition of the relevant asset (and in each  case not entered into in anticipation of the Closing Date or such acquisition and except, in each case, to the extent  that term in such contract providing for such prohibition purports to prohibit the granting of a security interest over  all assets of such Loan Party or any other Loan Party)) other than to the extent such prohibition would be rendered in  effective under the UCC or other applicable law,  (e) (i) any leasehold Real Estate Asset, (ii) any owned Real Estate Asset that is not a  Material Real Estate Asset and (iii) any fixtures affixed to any Real Estate Asset to the extent a security interest in  such fixtures may not be perfected by a Form UCC-1 (or similar) financing statement in the jurisdiction of  organization of the applicable Loan Party or the jurisdiction of location of such assets, as applicable,  (f) any interest in any partnership, joint venture or non-Wholly-Owned Subsidiary which  cannot be pledged without (i) the consent of one or more third parties other than the Lead Borrower or any of its  Restricted Subsidiaries (after giving effect to Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor  provision or provisions) of any relevant jurisdiction or any other applicable law) or (ii) giving rise to a “right of first  refusal”, a “right of first offer” or a similar right that may be exercised by any third party,  (g) any Margin Stock,  (h) (i) the Capital Stock of any Foreign Subsidiary that is a CFC or of a CFC Holdco, other  than 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting  Capital Stock of each such first-tier subsidiary, (ii) the Capital Stock of any Subsidiary of such first-tier subsidiary  and (iii) the assets of any (x) Excluded Subsidiary or (y) Subsidiary substantially all of the assets of which consist of  the Capital Stock of an Excluded Subsidiary,  (i) Commercial Tort Claims with a value (as reasonably estimated by the Lead Borrower) of  less than $15,000,000,  (j) any Cash or Cash Equivalents comprised of (a) funds specially and exclusively used or to  be used for payroll and payroll taxes and other employee benefit payments to or for the benefit of any Loan Party’s  employees, (b) funds used or to be used to pay all Taxes required to be collected, remitted or withheld (including,  without limitation, U.S. federal and state withholding Taxes (including the employer’s share thereof)) and (c) any  other funds which any Loan Party holds as an escrow or fiduciary for the benefit of another Person,  (k) any accounts receivable and related assets (or interests therein) that are (i) sold to any  Receivables Subsidiary or (ii) otherwise pledged, factored, transferred or sold in connection with any Permitted  Receivables Financing,  (l) (i) as-extracted collateral, (ii) timber to be cut, (iii) farm products, or (iv) manufactured  homes, in the case of clauses (l)(iii) and (l)(iv), other than to the extent constituting inventory,  





 






  -35-       #95384462v18   #95384462v18   (m) assets subject to liens securing permitted securitization financing (including receivables  financings);  (n) any payroll accounts, tax accounts, accounts or funds held or received on behalf of third  parties,  (o) any asset subject to a Lien of the type permitted by Section 6.02(m), 6.02(n), or 6.02(o),  in each case if, to the extent and for so long as the grant of a Lien thereon or the assignment thereof to secure any  Secured Obligations is prohibited or requires the consent of any Person (other than any Loan Party) as a condition to  the creation of any other security interest on such asset, and  (p) any asset with respect to which the Administrative Agent and the Lead Borrower have  reasonably determined that the cost, burden, difficulty or consequence (including any effect on the ability of the  relevant Loan Party to conduct its operations and business in the ordinary course of business) of obtaining,  perfecting or maintaining a pledge or security interest therein, or obtaining such title insurance, legal opinions or  other deliverables in respect of such assets, or providing such Guarantees outweighs the benefit of a security interest  to the relevant Secured Parties afforded thereby.  “Excluded Debt Contribution” has the meaning assigned to such term in Section 6.01(r).  “Excluded Subsidiary” means:  (a) any Restricted Subsidiary that is not a Wholly-Owned Subsidiary,  (b) any Immaterial Subsidiary,  (c) any Restricted Subsidiary that is prohibited by law, regulation or contractual obligation  existing on the Closing Date or at the time such Restricted Subsidiary becomes a subsidiary (which Contractual  Obligation was not entered into in contemplation of such Restricted Subsidiary becoming a subsidiary) from  providing a Loan Guaranty or that would require a governmental (including regulatory) consent, approval, license or  authorization to provide a Loan Guaranty,  (d) any not-for-profit subsidiary,  (e) any special purpose entity used for any Permitted Receivables Financing,  (f) any Foreign Subsidiary that is a CFC,  (g) (i) any CFC Holdco and/or (ii) any Domestic Subsidiary that is a direct or indirect  subsidiary of any (x) Foreign Subsidiary that is a CFC or (y) CFC Holdco,  (h) any Unrestricted Subsidiary; and  (i) any other Restricted Subsidiary with respect to which, in the reasonable judgment of the  Administrative Agent and the Lead Borrower, the burden or cost of providing a Loan Guaranty outweighs the  benefits afforded thereby.  “Excluded Swap Obligation” means, with respect to any Guarantor under the Loan Guaranty,  any Swap Obligation if, and to the extent that, all or a portion of the Loan Guaranty of such Guarantor of, or the  grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Loan Guaranty thereof) is or  becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures  Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s  failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and  the regulations thereunder (determined after giving effect to Section 3.20 of the Loan Guaranty and any other  





 






  -36-       #95384462v18   #95384462v18   “keepwell,” support or other agreement for the benefit of such Guarantor) at the time the Loan Guaranty of such  Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation.  If a Swap  Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the  portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest is or  becomes illegal.  “Excluded Taxes” means, (i) with respect to the Administrative Agent, any Lender, any Ancillary  Lender, any Issuing Bank, or any other recipient of any payment to be made by or on account of any obligation of  any Loan Party hereunder, (a) Taxes imposed on (or measured by) its net income or franchise Taxes (i) by the  jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the  case of any Lender or any Ancillary Lender, in which its applicable lending office is located or (ii) that are Other  Connection Taxes, (b) any branch profits taxes imposed under Section 884(a) of the Code by the U.S. or any similar  tax imposed by any other jurisdiction described in clause (a), (c) in the case of any Lender or any Ancillary Lender,  any U.S. federal withholding tax that is imposed on amounts payable to such Lender or such Ancillary Lender  pursuant to a Requirement of Law in effect at the time such Lender becomes a party to this Agreement (or  designates a new lending office) or such Ancillary Lender becomes an Ancillary Lender, except (i) pursuant to an  assignment or designation of a new lending office under Section 2.19 and (ii) to the extent that such Lender (or its  assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to  receive additional amounts from any Loan Party with respect to such withholding tax pursuant to Section 2.17,  (d) any tax imposed as a result of a failure by any Lender, any Ancillary Lender or any Issuing Bank to comply with  Section 2.17(f) and (e) any U.S. withholding tax under FATCA.  “Existing Dollar Letter of Credit” means any letter of credit previously issued that (A) will  remain outstanding on the Closing Date and (b) is listed on Schedule 1.01(b)-I, including any extension or renewal  thereof.  “Existing Letter of Credit” means any Existing Dollar Letter of Credit or Existing Multicurrency  Letter of Credit.   “Existing Multicurrency Letter of Credit” means any letter of credit previously issued that (A)  will remain outstanding on the Closing Date and (b) is listed on Schedule 1.01(b)-II, including any extension or  renewal thereof.   “Extended Revolving Credit Commitment” has the meaning assigned to such term in  Section 2.23(a)(i).  “Extended Revolving Loans” has the meaning assigned to such term in Section 2.23(a)(i).  “Extended Term Loans” has the meaning assigned to such term in Section 2.23(a)(ii).  “Extension” has the meaning assigned to such term in Section 2.23(a).  “Extension Offer” has the meaning assigned to such term in Section 2.23(a).  “Facility” means any real property (including all buildings, fixtures or other improvements  located thereon) now, hereafter or, except with respect to Articles 5 and 6, hereof owned, leased, operated or used by  the Lead Borrower or any of its Restricted Subsidiaries.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or  any amended or successor version that is substantively comparable and not materially more onerous to comply  with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to  Section 1471(b)(1) of the Code, and any treaty, law, regulation or other official guidance enacted in any other  jurisdiction relating to any intergovernmental agreement between the U.S. and any other jurisdiction that facilitates  the implementation of such Sections of the Code.  





 






  -37-       #95384462v18   #95384462v18   “FCPA” has the meaning assigned to such term in Section 3.17(c).  “Federal Funds Effective Rate” means, for any day, the weighted average of the rates on  overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds  brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such  rate is not so published for any day that is a Business Day, the average of the quotations for such day for such  transactions received by Administrative Agent from three Federal funds brokers of recognized standing selected by  it; provided that, if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for  purposes of this Agreement.  “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.  “First Amendment” means the First Amendment to this Agreement, dated as of March 3, 2021,  by and among the Lead Borrower, the Administrative Agent and the 2021 Term Lenders party thereto.  “First Amendment Effective Date” means March 3, 2021.  “First Lien Net Leverage Ratio” means the ratio, as of any date of determination, of  (a) Consolidated First Lien Debt as of such date (net of (i) unrestricted Cash and Cash Equivalents and (ii) Cash and  Cash Equivalents restricted in favor of the Credit Facilities (which may also include Cash and Cash Equivalents  securing other Indebtedness secured by a Lien on the Collateral)) to (b) Consolidated Adjusted EBITDA for the Test  Period then most recently ended or the Test Period otherwise specified where the term “First Lien Net Leverage  Ratio” is used in this Agreement, in each case for the Lead Borrower and its Restricted Subsidiaries on a  consolidated basis.  “First Lien/Second Lien Intercreditor Agreement” means an intercreditor agreement  substantially in the form of Exhibit O hereto, or such other customary form reasonably acceptable to the  Administrative Agent and the Lead Borrower, as such document may be amended, restated, supplemented or  otherwise modified from time to time, and, in the case of any Borrower and/or Subsidiary Guarantor organized  outside of the United States, such intercreditor agreement shall reflect then customary market terms for  non-domestic Borrowers that are reasonably satisfactory to the Lead Borrower and the Administrative Agent.  “First Priority” means, with respect to any Lien purported to be created in any Collateral  pursuant to any Collateral Document, that, subject to any applicable Intercreditor Agreement such Lien is senior in  priority to any other Lien to which such Collateral is subject, other than any Permitted Lien.  “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.  “Fiscal Year” means the fiscal year of the Lead Borrower ending September 30 of each calendar  year.  “Fixed Amounts” has the meaning assigned to such term in Section 1.11(c).  “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the  ratio of the Consolidated Adjusted EBITDA of such Person for such period to the Fixed Charges of such Person for  such period.  “Fixed Charges” means, with respect to any specified Person for any period, the sum, without  duplication, of:  (1) the consolidated interest expense of such Person and its Restricted Subsidiaries  for such period, whether paid or accrued, including, without limitation, amortization of debt  issuance costs and original issue discount, non-Cash interest payments, the interest component of  





 






  -38-       #95384462v18   #95384462v18   any deferred payment obligations, the interest component of all payments associated with Capital  Leases, commissions, discounts and other fees and charges incurred in respect of letter of credit or  bankers’ acceptance financings, and net of the effect of all payments made, received or accrued in  connection with Hedging Obligations (but excluding unrealized gains or losses with respect  thereto), but excluding (i) amortization of deferred financing fees, debt issuance costs,  commissions, fees and expenses, (ii) any expensing of bridge, commitment and other financing  fees, (iii) any redemption premiums, prepayment fees, or other charges or penalties incurred in  connection with the Transactions or the Prior Transactions and (iv) any premiums, fees or other  charges incurred in connection with the refinancing of Indebtedness of the Lead Borrower on the  Closing Date, until such amounts are repaid in each case of (i) through (iv), to the extent included  in any of the foregoing items listed in clause (1)); plus  (2) the consolidated interest of such Person and its Restricted Subsidiaries that was  capitalized during such period; plus  (3) any interest expense on Indebtedness of another Person that is Guaranteed by  such Person or one of its Restricted Subsidiaries, or secured by a Lien on assets of such Person or  one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus  (4) the product of (a) all dividends, whether paid or accrued and whether or not in  Cash, on any series of Disqualified Capital Stock of such Person or any of its Restricted  Subsidiaries, other than (i) dividends on Capital Stock payable solely in Capital Stock of the Lead  Borrower (other than Disqualified Capital Stock) or (ii) dividends to the Lead Borrower or a  Restricted Subsidiary of the Lead Borrower, times (b) a fraction, the numerator of which is one  and the denominator of which is one minus the then current combined federal, state and local  statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and  in accordance with GAAP.  Notwithstanding the foregoing, any additional charges arising from (i) the application of  Accounting Standards Codification Topic 480-10-25-4 “Distinguishing Liabilities from Equity—Overall  Recognition” to any series of preferred stock other than Disqualified Capital Stock or (ii) the application of  Accounting Standards Codification Topic 470-20-25 “Debt—Debt with Conversion Options—Recognition,” in each  case, shall be disregarded in the calculation of Fixed Charges.  “Flood Hazard Property” means any parcel of any Material Real Estate Asset subject to a  Mortgage located in the U.S. in an area designated by the Federal Emergency Management Agency as having  special flood or mud slide hazards.  “Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as  now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or  hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or  hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter  in effect or any successor statute thereto and (v) Biggert-Waters Flood Insurance Reform Act of 2012 as now or  hereafter in effect or any successor statute thereto.  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the  execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect  to Term SOFR.   For the avoidance of doubt, the initial Floor for Term SOFR shall be 0.50%.   “Foreign Lender” means any Lender that is not a “United States person” within the meaning of  Section 7701(a)(30) of the Code.  “Foreign Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.  





 






  -39-       #95384462v18   #95384462v18   “Funding Account” has the meaning assigned to such term in Section 2.03(f).  “GAAP” means generally accepted accounting principles in the U.S. in effect and applicable to  the accounting period in respect of which reference to GAAP is made.  “German Borrower” has the meaning assigned to such term in the definition of “Revolving  Facility Borrowers”.  “Governmental Authority” means any federal, state, municipal, national or other government,  governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision  thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or  pertaining to any government or any court, in each case whether associated with a state or locality of the U.S., the  U.S., or a foreign government or any other political subdivision thereof (including any supra-national bodies such as  the European Union or the European Central Bank).  “Governmental Authorization” means any permit, license, authorization, plan, directive, consent  order or consent decree of or from any Governmental Authority.  “Granting Lender” has the meaning assigned to such term in Section 9.05(e).  “Gross Outstandings” means, in relation to a Multi-account Overdraft, the Ancillary  Outstandings of that Multi-account Overdraft but calculated on the basis that the words “net of any credit balance on  any account of any Borrower under any Ancillary Facility with the relevant Ancillary Lender to the extent that such  credit balance is freely available to be set-off by such Ancillary Lender against liabilities owing by such Borrower  under such Ancillary Facility” in clause (a) of the definition of “Ancillary Outstandings” were deleted.  “Guarantee” of or by any Person (the “Guarantor”) means any obligation, contingent or  otherwise, of the Guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other  monetary obligation of any other Person (the “Primary Obligor”) in any manner and including any obligation of  the Guarantor (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness  or other monetary obligation or to purchase (or to advance or supply funds for the purchase of) any security for the  payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of  such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity  capital or any other financial statement condition or liquidity of the Primary Obligor so as to enable the Primary  Obligor to pay such Indebtedness or other monetary obligation, (d) as an account party in respect of any letter of  credit or letter of guaranty issued to support such Indebtedness or monetary obligation, (e) entered into for the  purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of  the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part) or  (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of  any other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or  any right, contingent or otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any  such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the  ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or  entered into in connection with any acquisition, Disposition or other transaction permitted under this Agreement  (other than such obligations with respect to Indebtedness).  The amount of any Guarantee shall be deemed to be an  amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of  which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in  respect thereof as determined by the guaranteeing Person in good faith.  “Guarantor” has the meaning assigned to such term in the definition of “Guarantee”.  “Hazardous Materials” means any chemical, material, substance or waste, or any constituent  thereof, which is prohibited, limited or regulated as “toxic”, “hazardous” or as a “pollutant” or “contaminant” or  words of similar meaning or effect by any Environmental Law or any Governmental Authority.  





 






  -40-       #95384462v18   #95384462v18   “Hazardous Materials Activity” means any activity, event or occurrence involving any  Hazardous Material, including the use, manufacture, possession, storage, Release, threatened Release, discharge,  placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation,  disposal, disposition or handling of any Hazardous Material, and any corrective action or response action with  respect to any of the foregoing.  “Hedge Agreement” means any agreement with respect to any Derivative Transaction between  any Loan Party or any Restricted Subsidiary and any other Person.  “Hedging Obligations” means, with respect to any Person, the obligations of such Person under  any Hedge Agreement.  “Holdings” means (a) SB/RH Holdings, LLC, a Delaware limited liability company and (b) any  successor to Holdings following a transaction permitted by Section 6.14(d).  “Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary of the Lead Borrower  (a) that does not have assets in excess of 2.5% of Consolidated Total Assets of the Lead Borrower and its Restricted  Subsidiaries and (b) that does not contribute Consolidated Adjusted EBITDA in excess of 2.5% of the Consolidated  Adjusted EBITDA of the Lead Borrower and its Restricted Subsidiaries, in each case, as of the last day of the most  recently ended Test Period; provided that the Consolidated Total Assets and Consolidated Adjusted EBITDA (as so  determined) of all Immaterial Subsidiaries shall not exceed 5.0% of Consolidated Total Assets and 5.0% of  Consolidated Adjusted EBITDA, in each case, of the Lead Borrower and its Restricted Subsidiaries for the relevant  Test Period; provided, further, that, at all times prior to the first delivery of financial statements pursuant to  Section 5.01(a) or (b), this definition shall be applied based on the pro forma consolidated financial statements of the  Lead Borrower delivered pursuant to Section 4.01.  “Immediate Family Member” means, with respect to any individual, such individual’s child,  stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, domestic  partner, former domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including  adoptive relationships), any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of  which are any of the foregoing individuals, such individual’s estate (or an executor or administrator acting on its  behalf), heirs or legatees or any private foundation or fund that is controlled by any of the foregoing individuals or  any donor-advised fund of which any such individual is the donor.  “Incremental Cap” means:  (a) (i) the greater of $600,000,000 and 100% of Consolidated Adjusted EBITDA less (ii) the  aggregate principal amount of all Incremental Facilities and Incremental Equivalent Debt incurred or issued in  reliance on clause (a)(i) of this definition, plus  (b) in the case of any Incremental Facility that effectively extends the Maturity Date with  respect to any Class of Loans and/or commitments hereunder, an amount equal to the portion of the relevant Class of  Loans or commitments that will be replaced by such Incremental Facility, plus  (c) in the case of any Incremental Facility that effectively replaces any Revolving Credit  Commitment terminated in accordance with Section 2.19, an amount equal to the relevant terminated Revolving  Credit Commitment, plus  (d) (A) the amount of any optional prepayment of any Loan including any Loan under any  Incremental Facility or any Incremental Equivalent Debt (other than, in each case, incurred pursuant to clause (e)  below) in accordance with Section 2.11(a) (accompanied, to the extent such prepayments are of Revolving Loans,  by a commitment reduction in the like amount under the applicable Revolving Facility) and/or the amount of any  permanent reduction of any Revolving Credit Commitment or Additional Revolving Commitment so long as, in the  case of any optional prepayment, such prepayment was not funded (i) with the proceeds of any long-term  





 






  -41-       #95384462v18   #95384462v18   Indebtedness (other than revolving Indebtedness) or (ii) with the proceeds of any Incremental Facility incurred in  reliance on clause (b) or clause (c) above less (B) the aggregate principal amount of all Incremental Facilities and  Incremental Equivalent Debt incurred or issued in reliance on clause (d)(A) of this definition, plus  (e) an unlimited amount so long as, in the case of this clause (e), if such Incremental Facility  is secured by a Lien on the Collateral that is pari passu with the Lien securing the Credit Facilities on the Closing  Date, the First Lien Net Leverage Ratio would not exceed 3.25:1.00 (it being acknowledged that, solely to the extent  that amounts incurred under clause (a) or (d) and this clause (e) are incurred simultaneously, in calculating the  amount that may be incurred under clause (e), the First Lien Net Leverage Ratio may exceed 3.25 to 1.00 as a result  of the incurrence of the amount permitted to be incurred at such time under clause (a) or (d)), calculated on a Pro  Forma Basis, including the application of the proceeds thereof (without “netting” the Cash proceeds of the  applicable Incremental Facility) (and determined on the basis of the financial statements for the most recently ended  Test Period which have been delivered pursuant to Section 5.01(a) or 5.01(b)), and, in the case of any Incremental  Revolving Facility, assuming a full drawing under such Incremental Revolving Facility.  Any Incremental Facility shall be deemed to have been incurred in reliance on clause (d) above  prior to any amounts under clause (a) or (e) above.  Any Incremental Facility shall be deemed to have been incurred  in reliance on clause (e) above prior to any amounts under clause (a) above, unless the Lead Borrower specifies  otherwise.  “Incremental Commitment” means any commitment made by a lender to provide all or any  portion of any Incremental Facility or Incremental Loans.  “Incremental Equivalent Debt” has the meaning assigned to such term in Section 6.01(z).  “Incremental Facilities” has the meaning assigned to such term in Section 2.22(a).  “Incremental Loans” has the meaning assigned to such term in Section 2.22(a).  “Incremental Revolving Commitment” means any commitment made by a lender to provide all  or any portion of any Incremental Revolving Facility.  “Incremental Revolving Facility” has the meaning assigned to such term in Section 2.22(a).  “Incremental Revolving Facility Lender” means, with respect to any Incremental Revolving  Facility, each Revolving Lender providing any portion of such Incremental Revolving Facility.  “Incremental Revolving Loans” has the meaning assigned to such term in Section 2.22(a).  “Incremental Term Facility” has the meaning assigned to such term in Section 2.22(a).  “Incremental Term Loans” has the meaning assigned to such term in Section 2.22(a).  “Incremental Term Loan Borrowing Date” means, with respect to each Class of Incremental  Term Loans, each date on which Incremental Term Loans of such Class are incurred pursuant to Section 2.01(b) and  as otherwise specified in any amendment providing for Incremental Term Loans in accordance with Section 2.22.  “Incurrence-Based Amounts” has the meaning assigned to such term in Section 1.11(c).  “Indebtedness” as applied to any Person means, without duplication, (a) all indebtedness for  borrowed money; (b) that portion of obligations with respect to Capital Leases to the extent recorded as a liability on  a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; (c) all  obligations of such Person evidenced by bonds, debentures, notes or similar instruments to the extent the same  would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in  





 






  -42-       #95384462v18   #95384462v18   accordance with GAAP; (d) any obligation owed for all or any part of the deferred purchase price of property or  services (excluding (i) any earn out obligation or purchase price adjustment until such obligation becomes a liability  on the statement of financial position or balance sheet (excluding the footnotes thereto) in accordance with GAAP,  (ii) any such obligations incurred under ERISA, (iii) accrued expenses and trade accounts payable in the ordinary  course of business (including on an inter-company basis); (iv) liabilities associated with customer prepayments and  deposits; (v) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or  other unperformed obligation of the applicable seller and (vi) any Indebtedness defeased by such Person or by any  subsidiary of such Person), which purchase price is (i) due more than six months from the date of incurrence of the  obligation in respect thereof or (ii) evidenced by a note or similar written instrument; (e) all Indebtedness of others  secured by any Lien on any property or asset owned or held by such Person regardless of whether the Indebtedness  secured thereby shall have been assumed by such Person or is non-recourse to the credit of such Person; (f) the face  amount of any letter of credit issued for the account of such Person or as to which such Person is otherwise liable for  reimbursement of drawings; (g) the Guarantee by such Person of the Indebtedness of another; (h) all obligations of  such Person in respect of any Disqualified Capital Stock and (i) all net obligations such Person would incur in the  event of an early termination on the date Indebtedness of such Person is being determined in respect of any  Derivative Transaction, including any Hedge Agreement, whether or not entered into for hedging or speculative  purposes; provided that (i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness”  for any calculation of any financial ratio under this Agreement and (ii) the amount of Indebtedness of any Person for  purposes of clause (e) shall be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such  Indebtedness and (B) the fair market value of the property encumbered thereby as determined by such Person in  good faith.  For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any  partnership) in which such Person is a general partner, except to the extent such Person’s liability for such  Indebtedness is otherwise limited and only to the extent such Indebtedness would otherwise be included in the  calculation of Consolidated Total Debt; provided, further, that, notwithstanding anything herein to the contrary, the  term “Indebtedness” shall not include, and shall be calculated without giving effect to, the effects of Accounting  Standards Codification Topic 815 and related interpretations to the extent such effects would otherwise increase or  decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded  derivatives created by the terms of such Indebtedness and any such amounts that would have constituted  Indebtedness hereunder but for the application of this proviso shall not be deemed an incurrence of Indebtedness  hereunder.  Notwithstanding the foregoing, Indebtedness of the Lead Borrower and its Restricted Subsidiaries shall  exclude (1) liabilities under vendor agreements to the extent such liabilities may be satisfied exclusively through  non-Cash means such as purchase volume earning credits, (2) reserves for deferred taxes, (3) in the case of the Lead  Borrower or any Restricted Subsidiary, all intercompany Indebtedness having a term not exceeding 364 days  (inclusive of roll over or extensions of term) and made in the ordinary course of business and, if owed by a Loan  Party, expressly subordinated to the Secured Obligations and (4) intercompany liabilities in connection with the  treasury and cash management (including receivables and payables), tax and accounting operations of the Lead  Borrower and its Restricted Subsidiaries in the ordinary course of business.  “Indemnified Taxes” means Taxes, other than Excluded Taxes or Other Taxes, imposed on or  with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document.  “Indemnitee” has the meaning assigned to such term in Section 9.03(b).  “Information Memorandum” means the lender presentation delivered to the Lenders prior to the  Closing Date relating to the Lead Borrower and its subsidiaries and the Transactions in connection with the initial  syndication of the Initial Revolving Credit Commitments hereunder.  “Initial Term Loan Facility” means the 2021 Term Facility.  “Initial Revolving Credit Commitments” means the Revolving Credit Commitments made  available by the Revolving Lenders to the Lead Borrower on the Closing Date pursuant to Section 2.01(a)(iii).  “Initial Revolving Credit Exposure” means, with respect to any Lender at any time, such  Lender’s Dollar Revolving Credit Exposure and/or Multicurrency Revolving Credit Exposure.  





 






  -43-       #95384462v18   #95384462v18   “Initial Revolving Facility” means the Dollar Revolving Facility and the Multicurrency  Revolving Facility.  “Initial Revolving Lender” means a Dollar Revolving Lender or a Multicurrency Revolving  Lender.  “Initial Revolving Loans” means the Dollar Revolving Loans and/or Multicurrency Revolving  Loans.  “Initial Term Loan Facility” means the 2021 Term Facility.  “Initial Term Commitment” means the 2021 Term Commitment.   “Initial Term Loan Maturity Date” means the date that is seven years after the First Amendment  Effective Date.  “Initial Term Loans” means the 2021 Term Loans.  “Intercreditor Agreement” means any Pari First Lien Intercreditor Agreement, any Permitted  Pari Passu Intercreditor Agreement, any First Lien/Second Lien Intercreditor Agreement or any Permitted Junior  Intercreditor Agreement.  “Interest Election Request” means a request by the Lead Borrower in the form of Exhibit D or  another form reasonably acceptable to the Administrative Agent to convert or continue a Borrowing in accordance  with Section 2.08.  “Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each  March, June, September and December (commencing on September 30, 2020) and the Revolving Credit Maturity  Date or the maturity date applicable to such Loan, (b) with respect to any LIBO Rate Loan, SOFR Loan or BA Rate  Loan the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a  LIBO Rate Borrowing, SOFR Borrowing or BA Rate Borrowing with an Interest Period of more than three months’  duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’  duration been applicable to such Borrowing, and the Revolving Credit Maturity Date or the maturity date applicable  to such Loan and (c) with respect to any SONIA Rate Revolving Loan, the first Business Day of each month  commencing after the making of such SONIA Rate Revolving Loan and the Maturity Date.  “Interest Period” means with respect to any Eurocurrency Rate Borrowing or, EURIBOR Rate  Revolving Borrowing or SOFR Borrowing, the period commencing on the date of such Borrowing and ending on  the numerically corresponding day in the calendar month that is one, three or (other than with respect to BA Rate  Loans) six months (or, if agreed to by all relevant Lenders, twelve months or, if agreed to by the Administrative  Agent, a shorter period) thereafter, as the Lead Borrower may elect; provided that (i) if any Interest Period would  end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day  unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period  shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day  of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of  such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For  purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter  shall be the effective date of the most recent conversion or continuation of such Borrowing.  “Interest Rate Determination Date” means the date for calculating the interest rate for a  Eurocurrency Rate Loan or EURIBOR Rate Revolving Loan for an Interest Period, which date shall be in the case  of any Eurocurrency Rate Loan or EURIBOR Rate Revolving Loan, the second Business Day prior to first day of  the related Interest Period for such Loan.  





 






  -44-       #95384462v18   #95384462v18   “Investment” means (a) any purchase or other acquisition by the Lead Borrower or any of its  Restricted Subsidiaries of any of the Securities of any other Person (other than any Loan Party), (b) the acquisition  by purchase or otherwise (other than any purchase or other acquisition of inventory, materials, supplies and/or  equipment in the ordinary course of business) of all or a substantial portion of the business, property or fixed assets  of any other Person or any division or line of business or other business unit of any other Person and (c) any loan,  advance (other than any advance to any current or former employee, officer, director, member of management,  manager, consultant or independent contractor of the Lead Borrower, any Restricted Subsidiary or any Parent  Company for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary  course of business) or capital contribution by the Lead Borrower or any of its Restricted Subsidiaries to any other  Person.  Subject to Section 5.10, the amount of any Investment shall be the original cost of such Investment, plus the  cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs  or write-offs with respect thereto, but giving effect to any repayments of principal in the case of any Investment in  the form of a loan and any return of capital or return on Investment in the case of any equity Investment (whether as  a distribution, dividend, redemption or sale but not in excess of the amount of the relevant initial Investment).  For  purposes of covenant compliance, the amount of any Investment shall be the amount actually invested (measured at  the time made), without adjustment for subsequent increases or decreases in the value of such Investment but, other  than in the case of Section 6.06(ee), giving effect to any returns or distributions of capital or repayment of principal  actually received in Cash by such Person with respect thereto (but only to the extent that the aggregate amount of all  such returns, distributions and repayments with respect to such Investment does not exceed the principal amount of  such Investment and less any such amounts which increase the Available Amount) and “Invested” shall have a  corresponding meaning.  Notwithstanding the foregoing, Investment shall not include (x) intercompany loans or  advances in respect of intercompany current liabilities incurred in connection with the treasury and cash  management (including receivables and payables), tax and accounting operations of the Lead Borrower and its  Restricted Subsidiaries in the ordinary course of business and (y) in the case of the Lead Borrower or any Restricted  Subsidiary, intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or  extensions of terms) and made in the ordinary course of business and, if owed by a Loan Party, expressly  subordinated to the Secured Obligations.  “IOSCO Principles” shall have the meaning set forth in Section 2.27(d).  “IP Rights” has the meaning assigned to such term in Section 3.05(c).  “IRS” means the U.S. Internal Revenue Service.  “Issuing Bank” means, as the context may require, (a) (i) RBC in respect of the Letters of Credit  that will be issued from time to time in accordance with Section 2.05 and the Existing Letters of Credit issued by it  and (ii) JPM in respect of the Letters of Credit that will be issued from time to time in accordance with Section 2.05,  (each such Issuing Bank specified in clause (a), a “Primary Issuing Bank”), (b) BofA with respect of the Existing  Letters of Credit issued by it only and (c) any other Initial Revolving Lender that, at the request of the Lead  Borrower and with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), agrees to  become an Issuing Bank; provided that no Issuing Bank will be required to issue Commercial Letters of Credit. Each  Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by any Affiliate of such  Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of  Credit issued by such Affiliate.  For the avoidance of doubt, no 2022 Revolving Lender (in its capacity as such) shall  be an Issuing Bank.  “JPM” has the meaning assigned to such term in the preamble to this Agreement.  “Judgment Currency” has the meaning assigned to such term in Section 9.20.  “Junior Indebtedness” means any Subordinated Indebtedness (other than Indebtedness among  Holdings and/or its subsidiaries).  





 






  -45-       #95384462v18   #95384462v18   “Junior Lien Indebtedness” means any Indebtedness that is secured by a security interest on the  Collateral (other than Indebtedness among Holdings and/or its subsidiaries) that is expressly junior or subordinated  to the Lien securing the Credit Facilities.  “Latest Maturity Date” means, as of any date of determination, the latest maturity or expiration  date applicable to any Loan or commitment hereunder at such time, including the latest maturity or expiration date  of any Initial Term Loan, Additional Term Loan, Revolving Loan, Additional Revolving Loan, Revolving Credit  Commitment or Additional Commitment.  “Latest Revolving Loan Maturity Date” means, as of any date of determination, the latest  maturity or expiration date applicable to any revolving loan or revolving credit commitment hereunder at such time,  including the latest maturity or expiration date of any Revolving Loan, any Additional Revolving Loan, the  Revolving Credit Commitment or any Additional Revolving Commitment.  “LC Collateral Account” has the meaning assigned to such term in Section 2.05(j).  “LC Disbursement” means, at any time, a Dollar LC Disbursement and/or a Multicurrency LC  Disbursement, as the context requires.  “LC Exposure” means, with respect to aan Initial Revolving Lender, such Lender’s Dollar LC  Exposure and/or Multicurrency LC Exposure, as the context requires.  “LC Obligations” means, at any time, the sum of the Dollar LC Obligations and the  Multicurrency LC Obligations.  “Lead Borrower” has the meaning assigned to such term in the preamble to this Agreement.  “Legal Reservations” means the application of relevant Debtor Relief Laws, general principles of  equity and/or principles of good faith and fair dealing.  “Lenders” means the Term Lenders, the Revolving Lenders, any Additional Lender, any lender  with an Additional Commitment or an outstanding Additional Loan, any other Person that becomes a party hereto  pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to  an Assignment and Assumption and, as the context requires, any Ancillary Lender.  “Letter of Credit” means any Dollar Letter of Credit and/or any Multicurrency Letter of Credit.  “Letter-of-Credit Right” has the meaning set forth in Article 9 of the UCC.  “LIBO Rate” means, the Published LIBO Rate, as adjusted to reflect applicable reserves  prescribed by governmental authorities; provided that, (x) with respect to the Initial Revolving Facility, in no event  shall the LIBO Rate be less than 0.75% and (y) with respect to the Initial Term Loan Facility, in no event shall the  LIBO Rate be less than 0.50%.  “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 of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any  easement, right of way or other encumbrance on title to real property, and any Capital Lease having substantially the  same economic effect as any of the foregoing), in each case, in the nature of security; provided that in no event shall  an operating lease in and of itself be deemed to constitute a Lien.  “Limited Condition Acquisition” means a Permitted Acquisition or any other Investment  permitted hereunder that constitutes an acquisition (other than intercompany Investments) by the Lead Borrower or  





 






  -46-       #95384462v18   #95384462v18   one or more of the Restricted Subsidiaries, the consummation of which is not conditioned on the availability of, or  on obtaining, third party financing.  “Loan Documents” means this Agreement, the First Amendment, the Second Amendment, the  Third Amendment, any Borrowing Joinder Agreement, any Promissory Note, each Loan Guaranty, the Collateral  Documents, each Ancillary Document, any Intercreditor Agreement required to be entered into pursuant to the terms  of this Agreement and any other document or instrument designated by the Lead Borrower and the Administrative  Agent as a “Loan Document”.  Any reference in this Agreement or any other Loan Document to a Loan Document  shall include all appendices, exhibits or schedules thereto.  “Loan Guaranty” means (a) the Guaranty Agreement, substantially in the form of Exhibit I,  executed by each Loan Party party thereto and the Administrative Agent for the benefit of the Secured Parties and  (b) each other guaranty agreement executed by any Person pursuant to Section 5.12 in substantially the form  attached as Exhibit I or another form that is otherwise reasonably satisfactory to the Administrative Agent and the  Lead Borrower.  “Loan Parties” means Holdings, the Lead Borrower, each Subsidiary Guarantor, and, with respect  to any Ancillary Document, any applicable Affiliate Ancillary Borrower(s) and in each case their respective  successors and permitted assigns.  “Loans” means any Term Loan, any Revolving Loan or any Additional Revolving Loan.  “Loan Installment Date” has the meaning assigned to such term in Section 2.10(a).  “Margin Stock” has the meaning assigned to such term in Regulation U.  “Material Adverse Effect” means a material adverse effect on (i) the business, assets, financial  condition or results of operations, in each case, of Holdings, the Lead Borrower and its Restricted Subsidiaries,  taken as a whole, (ii) the rights and remedies (taken as a whole) of the Administrative Agent under the applicable  Loan Documents or (iii) the ability of the Loan Parties (taken as a whole) to perform their payment obligations  under the applicable Loan Documents.  “Material Debt Instrument” means any physical instrument evidencing any Indebtedness for  borrowed money which is required to be pledged to the Administrative Agent (or its bailee) pursuant to the Security  Agreement.  “Material Real Estate Asset” means any “fee-owned” Real Estate Asset acquired by any Loan  Party after the Closing Date having a fair market value (as reasonably determined by the Lead Borrower after taking  into account any liabilities with respect thereto that impact such fair market value) in excess of $30,000,000.  “Maturity Date” means (a) with respect to the Revolving Facility, the Revolving Credit Maturity  Date, (b) with respect to the Initial Term Loans, the Initial Term Loan Maturity Date, (c) as to any Replacement  Term Loans or Replacement Revolving Facility incurred pursuant to Section 9.02(c), the final maturity date for such  Replacement Term Loans or Replacement Revolving Facility, as the case may be, as set forth in the applicable  Refinancing Amendment; (d) with respect to any Incremental Term Loans, the final maturity date set forth in the  applicable documentation with respect thereto, (e) with respect to any Incremental Revolving Facility, the final  maturity date set forth in the applicable documentation with respect thereto and (f) with respect to any Extended  Revolving Credit Commitment or Extended Term Loans, the final maturity date set forth in the applicable Extension  Offer accepted by the respective Lender or Lenders.  “Maximum Rate” has the meaning assigned to such term in Section 9.19.  “Minimum Extension Condition” has the meaning assigned to such term in Section 2.23(b).  





 






  -47-       #95384462v18   #95384462v18   “Moody’s” means Moody’s Investors Service, Inc.  “Mortgage Policies” has the meaning assigned to such term in the definition of “Collateral and  Guarantee Requirement”.  “Mortgages” means any mortgage, deed of trust or other agreement which conveys or evidences a  Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the relevant Secured  Parties, on any Material Real Estate Asset constituting Collateral.  “Multi-account Overdraft” means an Ancillary Facility which is an overdraft facility comprising  more than one account.  “Multicurrency LC Disbursement” means a payment or disbursement made by an Issuing Bank  pursuant to a Multicurrency Letter of Credit.  “Multicurrency LC Exposure” means, at any time, the sum of (a) (x) the aggregate and  unexpired undrawn amount of all outstanding Multicurrency Letters of Credit denominated in U.S. Dollars at such  time plus (y) the Dollar Equivalent of the aggregate undrawn and unexpired amount of all outstanding  Multicurrency Letters of Credit denominated in Agreed Currencies at such time and (b) (x) the aggregate principal  amount of all Multicurrency LC Disbursements denominated in U.S. Dollars that have not yet been reimbursed at  such time plus (y) the Dollar Equivalent of the aggregate principal amount of all Multicurrency LC Disbursements  denominated in Agreed Currencies that have not yet been reimbursed at such time.  The Multicurrency LC Exposure  of any Revolving Lender at any time shall equal its Multicurrency Revolving Applicable Percentage of the  aggregate Multicurrency LC Exposure at such time.  For all purposes of this Agreement, (x) if on any date of  determination a Multicurrency Letter of Credit has expired by its terms but any amount may still be drawn  thereunder by reason of the operation of Rule 3.14 of the International Standby Practices (ISP98), such  Multicurrency Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be  drawn and (y) unless otherwise specified herein, the amount of a Multicurrency Letter of Credit at any time shall be  deemed to be the stated amount of such Multicurrency Letter of Credit in effect at such time (taking the Dollar  Equivalent thereof in the case of any Multicurrency Letter of  Credit  denominated  in  an  Alternate  Currency);   provided  that  with  respect  to  any Multicurrency Letter of Credit that, by its terms or the terms of any  document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of  such Multicurrency Letter of Credit shall be deemed to be the maximum stated amount of such Multicurrency  Letter of Credit after giving effect to all such increases (taking the Dollar Equivalent thereof in the case of any  Multicurrency Letter of Credit denominated in an Alternate Currency), whether or not such maximum stated amount  is in effect at such time.  “Multicurrency LC Obligations” means, at any time, the sum of (a) (x) the amount available to  be drawn under Multicurrency Letters of Credit denominated in U.S. Dollars then outstanding plus (y) the Dollar  Equivalent of the amount available to be drawn under Multicurrency Letters of Credit denominated in Agreed  Currencies then outstanding, in each case assuming compliance with all requirements for drawings referenced  therein, plus (b) (x) the aggregate principal amount of all unreimbursed Multicurrency LC Disbursements  denominated in U.S. Dollars plus (y) the Dollar Equivalent of the aggregate principal amount of all unreimbursed  Multicurrency LC Disbursements denominated in Agreed Currencies.  “Multicurrency Letter of Credit” means any Standby Letter of Credit or Commercial Letter of  Credit denominated in U.S. Dollars or an Agreed Currency issued (or in the case of any Existing Multicurrency  Letter of Credit, deemed to be issued) pursuant to this Agreement under the Multicurrency Revolving Facility.   “Multicurrency Letter of Credit Sublimit” means the Dollar Equivalent of $15 million.  For the  avoidance of doubt, Existing Multicurrency Letters of Credit shall be counted towards the Multicurrency Letter of  Credit Sublimit.  “Multicurrency Revolving Applicable Percentage” means, with respect to any Multicurrency  Revolving Lender for any Class, the percentage of the Total Multicurrency Revolving Credit Commitment for such  





 






  -48-       #95384462v18   #95384462v18   Class represented by such Lender’s Multicurrency Revolving Credit Commitment for such Class; provided that for  purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, any such Defaulting Lender’s  Multicurrency Revolving Credit Commitment shall be disregarded in the relevant calculations.  In the event the  Multicurrency Revolving Credit Commitments for any Class shall have expired or been terminated, the  Multicurrency Revolving Applicable Percentages of any Multicurrency Revolving Lender of such Class shall be  determined on the basis of the Multicurrency Revolving Credit Exposure of the applicable Multicurrency Revolving  Lenders of such Class, giving effect to any assignments and to any Multicurrency Revolving Lender’s status as a  Defaulting Lender at the time of determination.  “Multicurrency Revolving Credit Commitment” means, with respect to each Lender, the  commitment of such Lender to make Multicurrency Revolving Loans (and acquire participations in Multicurrency  Letters of Credit) hereunder as set forth on the Commitment Schedule, or in the Assignment and Assumption  pursuant to which such Lender assumed its Multicurrency Revolving Credit Commitment, as applicable, as the same  may be (a) reduced from time to time pursuant to Section 2.09, Section 2.11, Section 2.19 or Section 9.02(c),  (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.05,  (c) increased as part of an Incremental Revolving Facility or (d) other than for purposes of determining the Required  Lenders or the Required Revolving Lenders, if such Lender is an Ancillary Lender, decreased by the amount of such  Lender’s Ancillary Commitment (and increased to the extent such Ancillary Commitment is subsequently reduced,  cancelled or terminated).  “Multicurrency Revolving Credit Exposure” means, with respect to any Lender at any time,  (w) the aggregate Outstanding Amount at such time of all Multicurrency Revolving Loans of such Lender  denominated in U.S. Dollars plus (x) the aggregate Outstanding Amount at such time of the Dollar Equivalent of all  Multicurrency Revolving Loans of such Lender denominated in Agreed Currencies, plus (y) the aggregate amount at  such time of such Lender’s Multicurrency LC Exposure, plus (z) (i) the aggregate amount at such time of such  Lender’s Ancillary Outstandings incurred pursuant to an Ancillary Facility denominated in U.S. Dollars and (ii) the  Dollar Equivalent of the aggregate amount at such time of such Lender’s Ancillary Outstandings incurred pursuant  to an Ancillary Facility denominated in an Agreed Currency.  “Multicurrency Revolving Credit Maturity Date” means the date that is five years after the  Closing Date.  “Multicurrency Revolving Facility” means, at any time, the aggregate amount of the  Multicurrency Revolving Lenders’ Multicurrency Revolving Credit Commitments at such time, which may be  funded (A) in U.S. dollars and (B) in alternative currencies including Euros, Canadian Dollars and Pounds Sterling.  “Multicurrency Revolving Lender” means a Lender with a Multicurrency Revolving Credit  Commitment or an Additional Revolving Commitment or an outstanding Multicurrency Revolving Loan or  Additional Revolving Loan.  “Multicurrency Revolving Loans” means the revolving Loans made by the Lenders to the Lead  Borrower under the Multicurrency Revolving Facility pursuant to Section 2.01(a)(ii), 2.22, 2.23 or 9.02(c)(ii).  “Multicurrency Revolving Outstandings” means, in relation to any Multicurrency Revolving  Lender, the aggregate Dollar Equivalent of its participation in the Total Multicurrency Revolving Credit  Outstandings (together with the aggregate amount of all accrued interest, fees and commission owed to it as a  Lender under the Multicurrency Revolving Facility and, if it is also an Ancillary Lender, under any relevant  Ancillary Facility).  “Multiemployer Plan” means any employee benefit plan which is a “multiemployer plan” as  defined in Section 3(37) or 4001(a)(3) of ERISA, that is subject to the provisions of Title IV of ERISA, and in  respect of which the Lead Borrower or any of its Restricted Subsidiaries, or any of their respective ERISA  Affiliates, makes or is obligated to make contributions or with respect to which any of them has any obligation or  liability, contingent or otherwise.  





 






  -49-       #95384462v18   #95384462v18   “Narrative Report” means, with respect to the financial statements with respect to which it is  delivered, a management discussion and narrative report describing the operations of the Lead Borrower and its  Restricted Subsidiaries for the applicable Fiscal Quarter or Fiscal Year and for the period from the beginning of the  then-current Fiscal Year to the end of the period to which the relevant financial statements relate.  “Net Income” means, with respect to any specified Person, the net income (loss) of such Person,  determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding,  however:  (1) any gain or loss, together with any related provision for taxes on such gain or loss,  realized in connection with:  (a) any sale of assets outside the ordinary course of business  of such Person; or (b) the disposition of any securities by such Person or any of its  Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any  of its Restricted Subsidiaries; and  (2) any extraordinary gain or loss, together with any related provision for taxes on such  extraordinary gain or loss.   “Net Outstandings” means, in relation to a Multi-account Overdraft, the Ancillary Outstandings  of that Multi-account Overdraft.  “Net Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset Sale),  the Cash proceeds (including Cash Equivalents and Cash proceeds subsequently received (as and when received) in  respect of non-Cash consideration initially received), net of (i) selling costs and out-of-pocket expenses (including  reasonable broker’s fees or commissions, legal fees, transfer and similar Taxes and the Lead Borrower’s good faith  estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or any Tax distributions)  in connection with such Disposition), (ii) amounts provided as a reserve in accordance with GAAP against any  liabilities under any indemnification obligation or purchase price adjustment associated with such Disposition  (provided that to the extent and at the time any such amounts are released from such reserve, such amounts shall  constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any, interest and other amounts on any  Indebtedness (other than the Loans, and any other Indebtedness secured by a Lien that is pari passu with or  expressly subordinated to the Lien on the Collateral securing the Secured Obligations) which is secured by the asset  sold in such Disposition and which is required to be repaid or otherwise comes due or would be in default and is  repaid (other than any such Indebtedness that is assumed by the purchaser of such asset) and (iv) Cash escrows (until  released from escrow to the relevant Loan Party) from the sale price for such Disposition; and (b) with respect to  any issuance or incurrence of Indebtedness or Capital Stock, the Cash proceeds thereof, net of all Taxes and  customary fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection  therewith.   “Non-U.S. Borrower” means any Borrower that is not incorporated or organized under the laws  of the U.S., any state thereof or the District of Columbia.  “Non-U.S. Facility” means (i) any Incremental Facility and/or (ii) any facility incurred pursuant  to a Refinancing, in each case to the extent incurred by a Non-U.S. Borrower.  “Non-U.S. Obligations” means the Obligations of a non-U.S. Borrower.  “Non-U.S. Sanctions Laws and Regulations” means any economic or financial sanctions or  requirements imposed by the United Nations, the European Union, the Federal Republic of Germany or the United  Kingdom that apply to Holdings, the Borrowers or any of their respective Restricted Subsidiaries.  “Notice of Intent to Cure” has the meaning assigned to such term in Section 6.15(b).  





 






  -50-       #95384462v18   #95384462v18   “Notices of Grant of Security Interest in Intellectual Property” means the notices of grant of  security interest substantially in the form attached as Exhibit II to the Security Agreement or such other form as shall  be reasonably acceptable to the Administrative Agent.  “Obligations” means all unpaid principal of and accrued and unpaid interest (including interest  accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of  whether allowed or allowable in such proceeding) on the Loans, all LC Exposures or amounts or liabilities arising  under or in respect of any Ancillary Facility, all accrued and unpaid fees and all expenses, reimbursements,  indemnities and all other advances to, debts, liabilities and obligations of the Loan Parties to the Lenders or to any  Lender, Ancillary Lender, the Administrative Agent, any Issuing Bank or any indemnified party arising under the  Loan Documents in respect of any Loan, any Letter of Credit or any Ancillary Facility, whether direct or indirect  (including those acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter  arising.  “OFAC” has the meaning assigned to such term in Section 3.17(a).  “Organizational Documents” means (a) with respect to any corporation, its certificate or articles  of incorporation or organization and its by-laws, (b) with respect to any limited partnership, its certificate of limited  partnership and its partnership agreement, (c) with respect to any general partnership, its partnership agreement,  (d) with respect to any limited liability company, its articles of organization or certificate of formation, and its  operating agreement, and (e) with respect to any other form of entity, such other organizational documents required  by local law or customary under such jurisdiction to document the formation and governance principles of such type  of entity.  In the event that any term or condition of this Agreement or any other Loan Document requires any  Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any  such “Organizational Document” shall only be to a document of a type customarily certified by such governmental  official.  “Other Applicable Indebtedness” has the meaning assigned to such term in Section 2.11(b)(ii).  “Other Non-U.S. Revolving Borrowers” has the meaning assigned to such term in the definition  of “Revolving Facility Borrowers”.  “Other Connection Taxes” means, with respect to any Lender or Administrative Agent, Taxes  imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax  (other than connections arising solely from such recipient having executed, delivered, become a party to, performed  its obligations under, received payments under, received or perfected a security interest under, or 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 any and all present or future stamp, court or documentary taxes or any  intangible, recording, filing or other excise or property taxes, charges or similar levies arising from any payment  made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement, but  not including, for the avoidance of doubt, any Excluded Taxes.  “Outstanding Amount” means (a) with respect to Term Loans and Revolving Loans on any date,  the amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and  prepayments or repayments of Term Loans and Revolving Loans (including any refinancings of (i) unreimbursed  LC Disbursements and/or (ii) Ancillary Outstandings as a Revolving Borrowing), as the case may be, occurring on  such date, (b) with respect to any Letters of Credit, the aggregate amount available to be drawn under such Letters of  Credit after giving effect to any changes in the aggregate amount available to be drawn under such Letters of Credit  or the issuance or expiry of any Letters of Credit, including as a result of any LC Disbursements and (c) with respect  to any LC Disbursements on any date, the amount of the aggregate outstanding amount of such LC Disbursements  on such date after giving effect to any disbursements with respect to any Letter of Credit occurring on such date and  any other changes in the aggregate amount of the LC Disbursements as of such date, including as a result of any  reimbursements by the Borrowers of unreimbursed LC Disbursements.  





 






  -51-       #95384462v18   #95384462v18   “Overnight Rate” means, for any day, with respect to any amount denominated in U.S. Dollars,  the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined by the Administrative Agent  or the applicable Issuing Bank, as the case may be, in accordance with banking industry rules on interbank  compensation.  “Parent Company” means (a) Holdings and (b) any other Person of which the Lead Borrower is  an indirect Wholly-Owned Subsidiary.  “Pari First Lien Intercreditor Agreement” means an intercreditor agreement substantially in the  form of Exhibit N hereto, or such other customary form reasonably acceptable to the Administrative Agent and the  Lead Borrower, as such document may be amended, restated, supplemented or otherwise modified from time to  time, and, in the case of any Borrower and/or Subsidiary Guarantor organized outside of the United States, such  intercreditor agreement shall reflect then customary market terms for non-domestic Borrowers that are reasonably  satisfactory to the Lead Borrower and the Administrative Agent.  “Participant” has the meaning assigned to such term in Section 9.05(c).  “Participant Register” has the meaning assigned to such term in Section 9.05(c).  “Party” means a party to this Agreement or, as applicable, any other Loan Document.  “Patent” means the following:  (a) any and all patents and patent applications; (b) all inventions  described and claimed therein; (c) all reissues, divisions, continuations, renewals, extensions and continuations in  part thereof; (d) all income, royalties, damages, claims, and payments now or hereafter due or payable under and  with respect thereto, including, without limitation, damages and payments for past and future infringements thereof;  (e) all rights to sue for past, present, and future infringements thereof; and (f) all rights corresponding to any of the  foregoing.  “PBGC” means the Pension Benefit Guaranty Corporation.  “Pension Plan” means any “employee pension benefit plan”, as defined in Section 3(2) of ERISA  (other than a Multiemployer Plan), that is subject to the provisions of Title IV of ERISA or Section 412 of the Code  or Section 302 of ERISA, which the Lead Borrower or any of its Restricted Subsidiaries, or any of their respective  ERISA Affiliates, maintains or contributes to or has an obligation to contribute to, or otherwise has any liability,  contingent or otherwise.  “Perfection Certificate” means a certificate substantially in the form of Exhibit E.  “Perfection Certificate Supplement” means a supplement to the Perfection Certificate  substantially in the form of Exhibit F.  “Perfection Requirements” means the filing of appropriate financing statements with the office  of the Secretary of State or other appropriate office of the state of organization of each Loan Party, the filing of  appropriate assignments or notices with the U.S. Patent and Trademark Office and the U.S. Copyright Office, the  proper recording or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate  Asset constituting Collateral, in each case in favor of the Administrative Agent for the benefit of the Secured Parties  and the delivery to the Administrative Agent of any stock certificate or promissory note required to be delivered  pursuant to the applicable Loan Documents, together with instruments of transfer executed in blank.  “Permitted Acquisition” means any acquisition by the Lead Borrower or any of its Restricted  Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the assets of, or any business  line, unit or division of, any Person or of a majority of the outstanding Capital Stock of any Person (but in any event  including any Investment in (x) any Restricted Subsidiary which serves to increase the Lead Borrower’s or any  Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary or (y) any joint venture for the  





 






  -52-       #95384462v18   #95384462v18   purpose of increasing the Lead Borrower’s or its relevant Restricted Subsidiary’s ownership interest in such joint  venture); provided that:  (a) no Default or Event of Default exists or would result after giving pro forma effect to  such acquisition (or, solely in the case of a Limited Condition Acquisition, no Default or event of Default under  Section 7.01(a), (f) or (g) exists or would result after giving pro forma effect to such acquisition); and (b) the Total  Net Leverage Ratio would not exceed 6.00:1.00 calculated on a Pro Forma Basis as of the most recently ended Test  Period.  “Permitted Junior Intercreditor Agreement” means, with respect to any Liens on Collateral  that are intended to be junior to any Liens securing the Initial Term Loans and Initial Revolving Credit  Commitments (and other Obligations that are pari passu with the Initial Term Loans and the Initial Revolving Credit  Commitments), either (as the Lead Borrower shall elect) (x) any First Lien/Second Lien Intercreditor Agreement if  such Liens secure “Second-Priority Obligations” (as defined therein), (y) another intercreditor agreement not  materially less favorable to the Lenders vis­à­vis such junior Liens than the First Lien/Second Lien Intercreditor  Agreement (as determined by the Lead Borrower in good faith) or (z) another intercreditor agreement the terms of  which are consistent with market terms governing security arrangements for the sharing of liens on a junior basis at  the time such intercreditor agreement is proposed to be established in light of the type of Indebtedness to be secured  by such liens, as determined by the Administrative Agent and the Lead Borrower in the exercise of their reasonable  commercial judgment.  “Permitted Liens” means Liens permitted pursuant to Section 6.02.  “Permitted Pari Passu Intercreditor Agreement” means, with respect to any Liens on Collateral  that are intended to be pari passu with the Liens securing the Initial Term Loans and Initial Revolving Credit  Commitments (and other Obligations that are pari passu with the Initial Term Loans and Initial Revolving Credit  Commitments), either (as the Lead Borrower shall elect) (x) the Pari First Lien Intercreditor Agreement, (y) another  intercreditor agreement not materially less favorable to the Lenders vis­à­vis such pari passu Liens than any Pari  First Lien Intercreditor Agreement (as determined by the Lead Borrower in good faith) or (z) another intercreditor  agreement the terms of which are consistent with market terms governing security arrangements for the sharing of  liens on a pari passu basis at the time such intercreditor agreement is proposed to be established in light of the type  of Indebtedness to be secured by such liens, as determined by the Administrative Agent and the Lead Borrower in  the exercise of their reasonable commercial judgment.  “Permitted Receivables Financing” means receivables securitizations or other receivables  financings (including any factoring, early pay and/or customer initiated supply chain financing program) that are  non-recourse to the Lead Borrower and the Restricted Subsidiaries (except for (w) recourse to any Foreign  Subsidiaries that own the assets underlying such financing (or have sold such assets in connection with such  financing), (x) any customary limited recourse or, to the extent applicable only to non-Loan Parties, that is  customary in the relevant local market, (y) any performance undertaking or Guarantee, to the extent applicable only  to non-Loan Parties, that is customary in the relevant local market, and (z) an unsecured parent Guarantee by  Holdings, the Lead Borrower or a Restricted Subsidiary that is a parent company of a Foreign Subsidiary of  obligations of Foreign Subsidiaries, and, in each case, reasonable extensions thereof); provided that, with respect to  Permitted Receivables Financings incurred in the form of a factoring program, the outstanding amount of such  Permitted Receivables Financing for the purposes of this definition shall be deemed to be equal to the Permitted  Receivables Net Investment for the last Test Period.  “Permitted Receivables Net Investment” means the aggregate Cash amount paid by the  purchasers under any Permitted Receivables Financing in the form of a factoring program in connection with their  purchase of accounts receivable and customary related assets or interests therein, as the same may be reduced from  time to time by collections with respect to such accounts receivable and related assets or otherwise in accordance  with the terms of such Permitted Receivables Financing (but excluding any such collections used to make payments  of commissions, discounts, yield and other fees and charges incurred in connection with any Permitted Receivables  Financing in the form of a factoring program which are payable to any Person other than Holdings, a Borrower or a  Restricted Subsidiary).  “Permitted Reorganization” has the meaning assigned to such term in Section 6.06(b).  





 






  -53-       #95384462v18   #95384462v18   “Person” means any natural person, corporation, limited liability company, trust, joint venture,  association, company, partnership, Governmental Authority or any other entity.   “Pounds Sterling” or “£” means the lawful currency of the United Kingdom.  “Pre-Approved Borrower” has the meaning assigned to such term in the definition of  “Revolving Facility Borrowers”.   “Prepayment Asset Sale” means any Disposition by any Loan Party made pursuant to  Section 6.07(h).  “Primary Issuing Bank” has the meaning assigned to such term in the definition of “Issuing  Bank”.  “Primary Obligor” has the meaning assigned to such term in the definition of “Guarantee”.  “Prime Rate” means (a) the rate of interest per annum determined by RBC from time to time as  its prime commercial lending rate for United States Dollar loans in the United States for such day (such rate is not  necessarily the lowest rate that Royal Bank of Canada is charging any corporate customer) or (b) if the  Administrative Agent has no “prime rate”, the rate of interest last quoted by The Wall Street Journal as the “Prime  Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate  published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates)  as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as  reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as  reasonably determined by the Administrative Agent).  “Prior Transaction Costs” means fees and expenses payable or otherwise borne by the Lead  Borrower and its Restricted Subsidiaries in connection with the Prior Transactions and incurred before the Closing  Date, including the costs of legal and financial advisors to the Lead Borrower.  “Prior Transactions” means, collectively, (a) the execution, delivery and performance by the  Lead Borrower and the other parties thereto of the new term loan commitment agreement no. 2 among Holdings, the  Lead Borrower, the lenders party thereto and Deutsche Bank AG New York Branch, as agent, pursuant to which the  Lead Borrower incurred term loans in an aggregate principal amount equal to €150 million and the making of the  borrowings thereunder on December 19, 2014, (b) the issuance of the Lead Borrower’s 6.125% Senior Notes  due 2024, (c) the issuance of the Lead Borrower’s 5.750% Senior Notes due 2025, (d) the issuance by Spectrum  Brands Holdings, Inc. of its registered equity offering closed on May 20, 2015 and (e) the consummation of the  acquisition of (i) Tell Manufacturing, Inc., (ii) Proctor and Gamble’s European pet food business, (iii) Salix Animal  Health, LLC and (iv) Armored AutoGroup Parent Inc.  “Pro Forma Basis” or “pro forma effect” means, as to any calculation of any test, financial ratio  or covenant, including the Total Leverage Ratio, Total Net Leverage Ratio, the First Lien Net Leverage Ratio, the  Secured Net Leverage Ratio, the Fixed Charge Coverage Ratio, any other financial ratio, Consolidated Adjusted  EBITDA or Consolidated Total Assets (including component definitions thereof), in the event that the specified  Person or any of its Subsidiaries incurs, assumes, guarantees, repays, retires, extinguishes, repurchases or redeems  any Indebtedness or issues, repurchases or redeems Disqualified Capital Stock subsequent to the commencement of  the period for which any of the Total Leverage Ratio, Total Net Leverage Ratio, the First Lien Net Leverage Ratio,  the Secured Net Leverage Ratio, the Fixed Charge Coverage Ratio, any other financial ratio, Consolidated Adjusted  EBITDA or Consolidated Total Assets is being calculated and on or prior to the date on which the event for which  the relevant calculation is made (the “Calculation Date”), then the Total Leverage Ratio, the First Lien Net  Leverage Ratio, the Secured Net Leverage Ratio, the Fixed Charge Coverage Ratio, any other financial ratio,  Consolidated Adjusted EBITDA or Consolidated Total Assets, as applicable, shall be calculated giving pro forma  effect to such incurrence, assumption, guarantee, repayment, retirement, extinguishment, repurchase or redemption  of Indebtedness, or such issuance, repurchase or redemption of Disqualified Capital Stock, and the use of the  proceeds therefrom as if the same had occurred at the beginning of the applicable four-quarter reference period.  





 






  -54-       #95384462v18   #95384462v18   In addition, for purposes of calculating the Total Leverage Ratio, Total Net Leverage Ratio, the  First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Fixed Charge Coverage Ratio, any other  financial ratio, Consolidated Adjusted EBITDA or Consolidated Total Assets:  (a) Investments or acquisitions and dispositions of business entities or property and  assets constituting a division or line of business of any Person that have been made by the  specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations  and including any related financing transactions, during the four-quarter reference period or  subsequent to such reference period and on or prior to the Calculation Date shall be given pro  forma effect as if they had occurred on the first day of the four-quarter reference period and  Consolidated Adjusted EBITDA for such reference period shall be calculated on a pro forma  basis, but without giving effect to clause (3) of the proviso set forth in the definition of  Consolidated Net Income;  (b) the Consolidated Adjusted EBITDA attributable to discontinued operations, as  determined in accordance with GAAP, shall be excluded;  (c) the Fixed Charges attributable to discontinued operations, as determined in  accordance with GAAP, shall be excluded, but only to the extent that the obligations giving rise to  such Fixed Charges will not be obligations of the specified Person or any of its Subsidiaries  following the Calculation Date; and  (d) consolidated interest expense attributable to interest on any Indebtedness  (whether existing or being incurred) computed on a pro forma basis and bearing a floating interest  rate shall be computed as if the rate in effect on the Calculation Date (taking into account any  interest rate option, swap, cap or similar agreement applicable to such Indebtedness if such  agreement has a remaining term in excess of 12 months or, if shorter, at least equal to the  remaining term of such Indebtedness) had been the applicable rate for the entire period.  Pro forma calculations made pursuant to the definition of the term “Pro Forma Basis” shall be  determined in good faith by a Responsible Officer of the Lead Borrower and, to the extent applicable, in compliance  with Section 1.11.  Any such pro forma calculation may include adjustments appropriate, in the reasonable good  faith determination of the Lead Borrower as set forth in an Officer’s Certificate, to reflect operating expense  reductions and other operating improvements or synergies reasonably expected to result from the applicable event.  In the case of any calculation for any event described above that occurs prior to the date on which  financial statements have been (or are required to be) delivered for the Fiscal Quarter ended June 30, 2020, any such  calculation required to be made on a “Pro Forma Basis” shall use the financial statements delivered pursuant to  Section 4.01(c)(ii) for the Fiscal Quarter ended March 29, 2020.  Notwithstanding anything to the contrary set forth in this definition, for the avoidance of doubt,  when calculating the Total Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment  Fee Rate” and Total Net Leverage Ratio for purposes of Section 6.15(a) (other than for the purpose of determining  pro forma compliance with Section 6.15(a) as a condition to taking any action under this Agreement), the events  described in the immediately preceding paragraphs that occurred subsequent to the end of the applicable four-quarter  reference period or Test Period, as applicable, shall not be given pro forma effect.  “Projections” means the projections of the Lead Borrower and its subsidiaries included in the  Information Memorandum (or a supplement thereto).  “Promissory Note” means a promissory note of the Lead Borrower payable to any Lender or its  registered assigns, in substantially the form of Exhibit G, evidencing the aggregate outstanding principal amount of  Loans of the Lead Borrower to such Lender resulting from the Loans made by such Lender.  





 






  -55-       #95384462v18   #95384462v18   “PTE” shall mean a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.  “Public Company Costs” means, as to any Person, costs associated with, or in anticipation of, or  preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations  promulgated in connection therewith and costs relating to compliance with the provisions of the Securities Act and  the Exchange Act, as applicable to companies with equity or debt securities held by the public, the rules of national  securities exchange companies with listed equity, directors’, managers’ and/or employees’ compensation, fees and  expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or  debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and  listing fees and other costs and/or expenses associated with being a public company.  “Published LIBO Rate” means, with respect to any Interest Period when used in reference to any  Loan or Borrowing in U.S. Dollars, (a) the rate of interest (rounded upwards, if necessary, to the nearest 1/100th)  equal to the rate determined by Administrative Agent to be the offered rate that appears on the appropriate page of  the Reuters screen that displays the ICE Benchmark Administration Limited rate for deposits in U.S. Dollars (for  delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (or the successor  thereto if ICE Benchmark Administration Limited is no longer making the applicable interest settlement rate  available) (the “Published LIBO Screen Rate”) for a term comparable to such Interest Period, at  approximately 11:00 a.m. (London time) on the applicable Interest Rate Determination Date; provided that if the  Published LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this  Agreement; provided, further, that if more than one rate is specified on such page, the rate will be an arithmetic  average of all such rates) and (b) if such rate is not available at such time for any reason, then the “Published LIBO  Screen Rate” for such Interest Period shall be the interest rate per annum reasonably determined by the  Administrative Agent in good faith to be the rate per annum at which deposits in U.S. Dollars for delivery on the  first day of such Interest Period in immediately available funds in the approximate amount of the Eurocurrency Rate  Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest  Period would be offered to the Administrative Agent (or an affiliate thereof) by major banks in the London or other  offshore interbank market for U.S. Dollars at their request at approximately 11:00 a.m. (London time) on the  applicable Interest Rate Determination Date.  “QFC” shall have 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” shall have the meaning provided in Section 9.25.  “Qualified Capital Stock” of any Person means any Capital Stock of such Person that is not  Disqualified Capital Stock.  “Qualifying Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.  “RBC” means Royal Bank of Canada.  “Real Estate Asset” means, at any time of determination, all right, title and interest (fee, leasehold  or otherwise) of any Loan Party in and to real property (including, but not limited to, land, improvements and  fixtures thereon).  “Receivables Subsidiary” means a wholly-owned Subsidiary of the Lead Borrower, which  engages in no activities other than in connection with Permitted Receivables Financings and which is designated (as  provided below) as a “Receivables Subsidiary”, (a) with which neither the Lead Borrower nor any of its Subsidiaries  has any contract, agreement, arrangement or understanding (other than pursuant to customary market terms in the  documentation relating to the Permitted Receivables Financing (including with respect to fees payable in the  ordinary course of business in connection with the servicing of accounts receivable and related assets)) on terms less  favorable to the Lead Borrower or such Subsidiary than those that might be obtained at the time from persons that  are not Affiliates of the Lead Borrower (as determined by the Company in good faith) and (b) to which neither the  





 






  -56-       #95384462v18   #95384462v18   Lead Borrower nor any other Subsidiary of the Lead Borrower has any obligation to maintain or preserve such  entity’s financial condition or cause such entity to achieve certain levels of operating results.  Any such designation  shall be evidenced to the Administrative Agent by filing with the Administrative Agent an officer’s certificate of the  Lead Borrower certifying that, to the best of such officer’s knowledge and belief after consultation with counsel,  such designation complied with the foregoing conditions.  “Refinancing” has the meaning assigned to such term in Section 4.01(f).  “Refinancing Amendment” means an amendment to this Agreement in form and substance  reasonably satisfactory to the Administrative Agent and the Lead Borrower executed by (a) Holdings and the Lead  Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion of the  Replacement Term Loans and/or the Replaced Revolving Facility being incurred pursuant thereto and in accordance  with Section 9.02(c).  “Refinancing Indebtedness” has the meaning assigned to such term in Section 6.01(p).  “Refunding Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).  “Register” has the meaning assigned to such term in Section 9.05(b)(iv).  “Regular Cash Dividend” means a quarterly Cash dividend at the current rate of $0.42 per share  (which is the amount publicly declared and in effect as of the Closing Date) on the common Capital Stock of Super  Holdco, commencing in the fiscal year beginning October 1, 2014.   “Regulation D” means Regulation D of the Board as from time to time in effect and all official  rulings and interpretations thereunder or thereof.  “Regulation H” means Regulation H of the Board as from time to time in effect and all official  rulings and interpretations thereunder or thereof.  “Regulation T” means Regulation T of the Board as from time to time in effect and all official  rulings and interpretations thereunder or thereof.  “Regulation U” means Regulation U of the Board as from time to time in effect and all official  rulings and interpretations thereunder or thereof.  “Regulation X” means Regulation X of the Board as from time to time in effect and all official  rulings and interpretations thereunder or thereof.  “Related Funds” means with respect to any Lender that is an Approved Fund, any other  Approved Fund that is managed by the same investment advisor as such Lender or by an Affiliate of such  investment advisor.  “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the  respective officers, directors, employees, agents, controlling persons and members of such Person and such Person’s  Affiliates.  “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,  deposit, disposal, discharge, dispersal, dumping or leaching of any Hazardous Material into the Environment  (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any  Hazardous Material).  “Relevant Governmental Body” means (a) with respect to Loans denominated in Dollars, the  Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee  





 






  -57-       #95384462v18   #95384462v18   officially endorsed or convened by the Board of Governors of the Federal Reserve System and/or the Federal  Reserve Bank of New York, or any successor thereto, (b) with respect to Revolving Loans denominated in Pounds  Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each  case, any successor thereto, (c) with respect to Revolving Loans denominated in Euros, the European Central Bank,  or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor  thereto, and (d) with respect to Revolving Loans denominated in any other Agreed Currency, (i) the central bank for  the currency in which such Revolving Loan is denominated or any central bank or other supervisor which is  responsible for supervising either (x) interest rates in such Agreed Currency or (y) the administrator of interest rates  in such Agreed Currency or (ii) any working group or committee officially endorsed or convened by (w) the central  bank for the currency in which any interest rates in such Agreed Currency is denominated, (x) any central bank or  other supervisor that is responsible for supervising either (A) interest rates in such Agreed Currency or (B) the  administrator of interest rates in such Agreed Currency, (y) a group of those central banks or other supervisors or (z)  the Financial Stability Board or any part thereof.  “Relevant Rate” means with respect to any Credit Extension denominated in (a) U.S. Dollars, the  LIBO Rate or Adjusted Term SOFR, as applicable, (b) Canadian Dollars, the CDOR Rate, (c) Pounds Sterling, the  SONIA Rate and (d) Euro, the EURIBOR Rate.  “Replaced Revolving Facility” has the meaning assigned to such term in Section 9.02(c).  “Replaced Term Loans” has the meaning assigned to such term in Section 9.02(c).  “Replacement Revolving Facility” has the meaning assigned to such term in Section 9.02(c).  “Replacement Term Loans” has the meaning assigned to such term in Section 9.02(c).  “Reply Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.  “Reply Price” has the meaning assigned to such term in the definition of “Dutch Auction”.  “Representative” has the meaning assigned to such term in Section 9.13.  “Repricing Transaction” means each of (a) the prepayment, repayment, refinancing, substitution  or replacement of the Initial Term Loans with the proceeds of, or conversion of all or any portion of the Initial Term  Loans into, any new or replacement tranche of long-term secured term loans that are broadly syndicated to banks  and other institutional investors in financings consistent with the Initial Term Loans having an effective interest cost  or weighted average yield (with the comparative determinations to be made in a manner consistent with generally  accepted financial practices) that is less than the effective interest cost or weighted average yield (calculated on a  four-year or lesser life to maturity) (as determined on the same basis) applicable to the Initial Term Loans so  prepaid, repaid, refinanced, substituted or replaced and (b)  any amendment, waiver or other modification to this  Agreement that would have the effect of reducing the effective interest cost of, or weighted average yield on the  same basis as set forth in the preceding clause (a) of, the Initial Term Loans (it being understood, in each case, that  (x) any prepayment premium with respect to a Repricing Transaction pursuant to Section 2.12(f) shall apply to any  required assignment by a non-consenting Lender in connection with any such amendment pursuant to Section  2.19(b) and (y) the effective interest cost or weighted average yield shall exclude any structuring, ticking,  amendment, agency, commitment, consent and arranger fees or similar fees unless such similar fees are paid by the  Lead Borrower to all Lenders generally in the primary syndication of the new or replacement tranche of term loans);  provided that, in each case of clauses (a) and (b), the primary purpose of such prepayment, repayment, refinancing,  substitution, replacement, amendment, waiver or other modification was to reduce the effective interest cost or  weighted average yield of the Initial Term Loans; provided, further that in no event shall any such prepayment,  repayment, refinancing, substitution, replacement, amendment, waiver or other modification in connection with a  Change of Control, material Disposition or Permitted Acquisition or similar Investment constitute a Repricing  Transaction.    





 






  -58-       #95384462v18   #95384462v18   “Required ECF Payment” has the meaning assigned to such term in Section 2.11(b)(i).  “Required Lenders” means, as of any date of determination, Lenders having more than 50% of  the sum of the Dollar Equivalent of (a) Total Outstandings (with the Dollar Equivalent of each Lender’s risk  participation and funded participation in LC Obligations being deemed “held” by such Lender for purposes of this  definition), (b) aggregate unused Term Commitments and (c) aggregate Unused Revolving Credit Commitments;  provided that the unused Term Commitments of, Unused Revolving Credit Commitments of, and the portion of the  Total Outstandings held or deemed held by any Defaulting Lender shall be excluded for purposes of making a  determination of Required Lenders.  “Required Revolving Lenders” means, as of any date of determination, Revolving Lenders  holding more than 50% of the Dollar Equivalent of (a) the Revolving Credit Commitments at such time and (b) after  the termination of the Revolving Credit Commitments, the Total Revolving Credit Outstandings at such time;  provided that the Revolving Credit Commitments of, and the portion of the Total Revolving Credit Outstandings  held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of  Required Revolving Lenders.  “Requirements of Law” means, with respect to any Person, collectively, the common law and all  federal, state, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and  regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or  judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations,  directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of  law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of  its property is subject.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” of any Person means the chief executive officer, the president, the chief  financial officer, the treasurer, any assistant treasurer, any executive vice president, any senior vice president, any  vice president or the chief operating officer of such Person and any other individual or similar official thereof  responsible for the administration of the obligations of such Person in respect of this Agreement, and, as to any  document delivered on the Closing Date, shall include any secretary or assistant secretary or any other individual or  similar official thereof with substantially equivalent responsibilities of a Loan Party.  Any document delivered  hereunder that is signed by a Responsible Officer of any Loan Party shall be conclusively presumed to have been  authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party, and such  Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.  “Responsible Officer Certification” means, with respect to the financial statements for which  such certification is required, the certification of a Responsible Officer of the Lead Borrower that such financial  statements fairly present, in all material respects, in accordance with GAAP, the consolidated financial condition of  the Lead Borrower as at the dates indicated and its consolidated income and cash flows for the periods indicated,  subject to changes resulting from audit and normal year-end adjustments.  “Restricted Amount” has the meaning set forth in Section 2.11(b)(iv).  “Restricted Debt” has the meaning set forth in Section 6.04(b).  “Restricted Debt Payment” has the meaning set forth in Section 6.04(b).  “Restricted Payment” means (a) any dividend or other distribution on account of any shares of  any class of the Capital Stock of the Lead Borrower, except a dividend payable solely in shares of Qualified Capital  Stock to the holders of such class; (b) any redemption, retirement, sinking fund or similar payment, purchase or  other acquisition for value of any shares of any class of the Capital Stock of the Lead Borrower and (c) any payment  





 






  -59-       #95384462v18   #95384462v18   made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of  any class of the Capital Stock of the Lead Borrower now or hereafter outstanding.  “Restricted Subsidiary” means, as to any Person, any subsidiary of such Person that is not an  Unrestricted Subsidiary.  Unless otherwise specified, “Restricted Subsidiary” means any Restricted Subsidiary of the  Lead Borrower.  “Return Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.  “Revolving Credit Commitment” means, with respect to each Lender, such Lender’s Dollar  Revolving Credit Commitment and/or, Multicurrency Revolving Credit Commitment and/or 2022 Revolving Credit  Commitment.  “Revolving Credit Exposure” means, with respect to any Lender at any time, such Lender’s  Dollar Revolving Credit Exposure and/or, Multicurrency Revolving Credit Exposure and/or 2022 Revolving Credit  Exposure.  “Revolving Credit Maturity Date” means the date that is five years after the Closing Date.  “Revolving Facility” means the Dollar Revolving Facility and, the Multicurrency Revolving  Facility and the 2022 Revolving Facility.  “Revolving Facility Borrowers” means on the Closing Date, the Lead Borrower and after the  Closing Date, in addition to the Lead Borrower subject to execution and delivery of a Borrower Joinder Agreement  and the delivery of customary corporate (and, if appropriate, shareholder) resolutions, officer certificates (and, if  appropriate, solvency certificates) and legal opinions addressed to the Administrative Agent and the other Secured  Parties of counsel for the Loan Parties (or, if applicable, in the relevant jurisdictions, counsel for the Secured Parties)  reasonably acceptable to the Administrative Agent as to such matters as the Administrative Agent may reasonably  request and such other instruments and documents as the Administrative Agent may reasonably request in  connection with such Borrower Joinder Agreement, (1) subject to the Administrative Agent’s and the Revolving  Lenders’ satisfactory receipt of documentation or other information as required by regulatory authorities under  applicable “know your customer” rules and regulations, a subsidiary of the Lead Borrower organized and domiciled  in Germany (the “German Borrower”), (2) Spectrum Brands Canada, Inc., a Canadian corporation (the “Canadian  Borrower”), (3) subject to the Administrative Agent’s and the Revolving Lenders’ satisfactory receipt of  documentation or other information as required by regulatory authorities under applicable “know your customer”  rules and regulations, a subsidiary of the Lead Borrower organized and domiciled in England (the “U.K. Borrower”  and collectively with the German Borrower and the Canadian Borrower, the “Pre-Approved Borrowers”) and  (4) subject to the consent of the Administrative Agent, each Revolving Lender and each Issuing Bank that is  requested to make available all or a part of the Revolving Credit Commitments thereto, and subject to the  Administrative Agent’s receipt of documentation or other information as required by regulatory authorities under  applicable “know your customer” rules and regulations, one or more additional subsidiaries of the Lead Borrower  organized in one or more different jurisdictions to be determined and as designated by the Lead Borrower as a  “Borrower” hereunder, in each case, after such additional Borrower has executed and delivered to the  Administrative Agent a Borrower Joinder Agreement and the delivery of customary corporate (and, if appropriate,  shareholder) resolutions, officer certificates (and, if appropriate, solvency certificates) and legal opinions addressed  to the Administrative Agent and the other Secured Parties of counsel for the Loan Parties (or, if applicable, in the  relevant jurisdictions, counsel for the Secured parties) reasonably acceptable to the Administrative Agent as to such  matters as the Administrative Agent may reasonably request and such other instruments and documents as the  Administrative Agent may reasonably request in connection with such Borrower Joinder Agreement (collectively,  “Other Non-U.S. Revolving Borrowers”).  Notwithstanding anything to the contrary herein, the Lead Borrower  shall be the only Revolving Facility Borrower under the 2022 Revolving Facility.   “Revolving Lender” means a Lender with a Revolving Credit Commitment or an Additional  Revolving Commitment or, after the termination of all Revolving Credit Commitments and Additional Revolving  Commitments, with an outstanding Revolving Loan or Additional Revolving Loan.  





 






  -60-       #95384462v18   #95384462v18   “Revolving Loans” means the Dollar Revolving Loans and/or, Multicurrency Revolving Loans  and/or 2022 Revolving Loans.  “S&P” means S&P Global Ratings, or any successor thereto.  “Sanctions Laws and Regulations” means (i) any sanctions or requirements imposed by, or  based upon the obligations or authorities set forth in, the PATRIOT Act, the Executive Order No. 13224 of  September 23, 2001, entitled Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten  to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), the U.S. International Emergency Economic Powers  Act (50 U.S.C. §§ 1701 et seq.), the U.S. Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), the U.S. Syria  Accountability and Lebanese Sovereignty Act, the U.S. Comprehensive Iran Sanctions, Accountability, and  Divestment Act of 2010 or the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act of 2012,  all as amended, or any of the foreign assets control regulations (including but not limited to 31 C.F.R., Subtitle B,  Chapter V, as amended) or any other law or executive order relating thereto administered by the U.S. Department of  the Treasury Office of Foreign Assets Control, and any similar law, regulation, or executive order enacted in the  United States after the date of this Agreement, (ii) any Canadian Anti-Terrorism Laws and (iii) any  Non-U.S. Sanctions Laws and Regulations.  “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any or all of its functions.  “Secured Hedging Obligations” means all Hedging Obligations (other than any Excluded Swap  Obligations) under each Hedge Agreement that (a) is in effect on the Closing Date between any Loan Party and a  counterparty that is the Administrative Agent, a Lender, an Arranger or any Affiliate of the Administrative Agent, a  Lender or an Arranger as of the Closing Date or (b) is entered into after the Closing Date between any Loan Party  and any counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or any Arranger at the time  such Hedge Agreement is entered into unless the Lead Borrower or the applicable counterparty thereto informs the  Administrative Agent in writing that such Hedge Agreement has been excluded from the Secured Hedging  Obligations for purposes of the Loan Documents, it being understood that each counterparty to any Secured Hedging  Obligation shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan  Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10 as if it were a  Lender.  “Secured Obligations” means all Obligations, together with (a) all Banking Services Obligations,  (b) all Secured Hedging Obligations and (c) all Ancillary Obligations.  “Secured Net Leverage Ratio” means the ratio, as of any date of determination, of  (a) Consolidated Secured Debt as of such date (net of (i) unrestricted Cash and Cash Equivalents and (ii) Cash and  Cash Equivalents restricted in favor of the Credit Facilities (which may also include Cash and Cash Equivalents  securing other Indebtedness secured by a Lien on the Collateral)) to (b) Consolidated Adjusted EBITDA for the Test  Period then most recently ended or the Test Period otherwise specified where the term “Secured Net Leverage  Ratio” is used in this Agreement, in each case for the Lead Borrower and its Restricted Subsidiaries on a  consolidated basis.  “Secured Parties” means (i) the Lenders, (ii) the Ancillary Lenders, (iii) the Administrative  Agent, (iv) the Collateral Agent, (v) each counterparty to a Hedge Agreement with a Loan Party the obligations  under which constitute Secured Hedging Obligations, (vi) each provider of Banking Services to any Loan Party the  obligations under which constitute Banking Services Obligations, (vii) the Arrangers and (viii) the beneficiaries of  each indemnification obligation undertaken by any Loan Party under any Loan Document.  “Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of  interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes,  or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any  instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or  interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the  





 






  -61-       #95384462v18   #95384462v18   foregoing; provided that “Securities” shall not include any earn-out agreement or obligation or any employee bonus  or other incentive compensation plan or agreement.  “Securities Act” means the Securities Act of 1933 and the rules and regulations of the SEC  promulgated thereunder.  “Security Agreement” means the Security Agreement, substantially in the form of Exhibit J,  among the Loan Parties and the Administrative Agent for the benefit of the Secured Parties.  “SOFR” means (x) with respect to each Loan (other than the 2022 Revolving Loans), for any day  means, 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 York’s  Website and (y) with respect to each 2022 Revolving Loan, a rate per annum equal to the secured overnight  financing rate as administered by the SOFR Administrator.  “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 website of the Federal Reserve Bank of New York,  currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as  such by the SOFR Administrator from time to time.  “SOFR Determination Day” has the meaning set forth in the definition of “Daily Simple SOFR”.  “SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR,  other  than pursuant to clause (b)(ii) of the definition of “Alternate Base Rate”.  “SOFR Rate Day” has the meaning set forth in the definition of “Daily Simple SOFR”.  “SONIA” means a rate equal to the Sterling Overnight Index Average as administered by the  SONIA Administrator.  “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.  “SONIA Rate” means, for any day, with respect to any Credit Extension denominated in Pounds  Sterling, the rate per annum equal to SONIA for the day that is five Business Days prior to such day, as such SONIA  is published by the SONIA Administrator on the SONIA Administrator’s Website; provided, that in no event shall the  SONIA Rate be less than 0.75% per annum for the purposes of this Agreement.  Any change in a SONIA Rate shall  be effective from and including the date of such change without further notice.  “SONIA Rate Conforming Changes” means with respect to SONIA, any technical, administrative  or operational changes (including technical, administrative or operational changes to the definition of  “SONIA,”  timing and frequency of determining rates and making payments of interest and other administrative matters) that the  Administrative Agent reasonably decides, in consultation with the Borrower, may be appropriate to reflect the  adoption and implementation of SONIA and to permit the administration thereof by the Administrative Agent in a  manner substantially consistent with market practice (or, if the Administrative Agent reasonably decides that adoption  of any portion of such market practice is not administratively feasible or if the Administrative Agent reasonably  determines that no market practice for the administration of SONIA exists, in such other manner of administration as  





 






  -62-       #95384462v18   #95384462v18   the Administrative Agent reasonably decides, in consultation with the Borrower, is reasonably necessary in connection  with the administration of this Agreement).  “SONIA Rate Revolving Loan” means a Revolving Loan that bears interest at a rate based on the  definition of “SONIA Rate.” All SONIA Rate Revolving Loans must be denominated in Pounds Sterling.  “SPC” has the meaning assigned to such term in Section 9.05(e).  “specified transaction” has the meaning assigned to such term in Section 1.09(a).  “Standby Letter of Credit” means any Letter of Credit other than any Commercial Letter of  Credit.  “Stated Amount” means, with respect to any Letter of Credit, at any time, the maximum amount  available to be drawn thereunder, in each case determined (x) as if any future automatic increases in the maximum  available amount provided for in any such Letter of Credit had in fact occurred at such time and (y) without regard  to whether any conditions to drawing could then be met but after giving effect to all previous drawings made  thereunder.  “Subject Proceeds” has the meaning assigned to such term in Section 2.11(b)(ii).  “Subject Transactions” has the meaning ascribed to such term in the definition of “Pro Forma  Basis”.  “Subordinated Indebtedness” means any Indebtedness of the Lead Borrower or any of its  Restricted Subsidiaries that is expressly subordinated in right of payment to the Obligations.  “Subsidiary” or “Subsidiaries” or “subsidiary” means, with respect to any Person, any  corporation, partnership, limited liability company, association, joint venture or other business entity of which more  than 50% of the total voting power of stock or other ownership interests entitled (without regard to the occurrence of  any contingency) to vote in the election of the Person or Persons (whether directors, trustees or other Persons  performing similar functions) having the power to direct or cause the direction of the management and policies  thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other  subsidiaries of such Person or a combination thereof; provided that in determining the percentage of ownership  interests of any Person controlled by another Person, no ownership interests in the nature of a “qualifying share” of  the former Person shall be deemed to be outstanding.  Unless otherwise specified, “subsidiary” means any  subsidiary of the Lead Borrower.  “Subsidiary Guarantor” means (x) on the Closing Date, each subsidiary of the Lead Borrower  (other than any subsidiary that is an Excluded Subsidiary on the Closing Date) and (y) thereafter, each subsidiary of  the Lead Borrower that guarantees the Secured Obligations pursuant to the terms of this Agreement, in each case,  until such time as the relevant subsidiary is released from its obligations under the Loan Guaranty in accordance  with the terms and provisions hereof.  “Successor Borrower” has the meaning assigned to such term in Section 6.07(a).  “Super Holdco” means Spectrum Brands Holdings, Inc., a Delaware corporation.  “Supported QFC” shall have the meaning provided in Section 9.25.  “Swap Obligations” means, with respect to any Loan Party, any obligation to pay or perform  under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the  Commodity Exchange Act.  





 






  -63-       #95384462v18   #95384462v18   “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 the Administrative Agent to be a suitable replacement) is open for the  settlement of payments in Euros.  “Taxes” means any and all present and future taxes, levies, imposts, duties, deductions,  withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority.  “Term Borrower” means the Lead Borrower.  “Term Commitments” means the Initial Term Commitments and/or any Additional Term  Commitments, as the context requires.  “Term Facility” means the Term Loans provided to or for the benefit of the Borrowers pursuant  to the terms of this Agreement.  “Term Lender” means a Lender with an Initial Term Commitment or an Additional Term  Commitment, or an outstanding Initial Term Loan or Additional Term Loan (including for the avoidance of doubt,  the 2021 Term Lenders).  “Term Loan” means the Initial Term Loans and, if applicable, any Additional Term Loans.  “Term SOFR” means, (x) with respect to each Loan (other than the 2022 Revolving Loans), the  forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental  Body. and (y) with respect to each 2022 Revolving Loan, for any Interest Period for a SOFR Loan, the greater of (a)  the Term SOFR Reference Rate (rounded upward to the next one-sixteenth (1/16th) of one percent (0.0625%), if  necessary) for a tenor comparable to the applicable Interest Period on the day (the “Term SOFR Determination  Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such  rate is published by the Term SOFR Administrator and (b) the Floor; provided, however, that if as of 5:00 p.m. (New  York City time) on any Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has  not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term  SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as  published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which  such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first  preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business  Days prior to such Term SOFR Determination Day.  “Term SOFR Adjustment” means, with respect to Term SOFR, 0.10% (10 basis points) for an  Interest Period of one-month’s duration, 0.15% (15 basis points) for an Interest Period of three-month’s duration, and  0.25% (25 basis points) for an Interest Period of six-months’ duration.   “Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or  a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable  discretion).  “Term SOFR Conforming Changes” means, with respect to either the use or administration of  Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical,  administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of  “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or  any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of  determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or  continuation notices, the applicability and length of lookback periods, the applicability of Section 2.27 and other  technical, administrative or operational matters) that the Administrative Agent decides, in consultation with the Lead  





 






  -64-       #95384462v18   #95384462v18   Borrower, may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and  administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if it  decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative  Agent determines that no market practice for the administration of any such rate exists, in such other manner of  administration as the Administrative Agent decides is necessary in connection with the administration of this  Agreement and the other Loan Documents).  “Term SOFR Determination Day” has the meaning assigned to it under the definition of Term  SOFR.  “Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.   “Termination Date” has the meaning assigned to such term in the lead-in to Article 5.  “Test Period” means, as of any date, the period of four consecutive Fiscal Quarters then most  recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been  delivered (or are required to have been delivered); it being understood and agreed that prior to the first delivery of  financial statements of Section 5.01(a), “Test Period” means the period of four consecutive Fiscal Quarters in  respect of which financial statements were delivered pursuant to Section 4.01(c).  “Third Amendment” means the Third Amendment to this Agreement, dated as of February 3,  2022, by and among the Lead Borrower, the Administrative Agent and the 2022 Revolving Lenders party thereto.  “Third Amendment Effective Date” means February 3, 2022.  “Threshold Amount” means $70,000,000.  “Total 2022 Revolving Credit Commitment” means, at any time, the aggregate amount of the  2022 Revolving Credit Commitments, as in effect at such time.  The Total 2022 Revolving Credit Commitment (i)  as of the Third Amendment Effective Date is $150,000,000 and (ii) if applicable, as of the date the Conditions  Subsequent (as defined in the Third Amendment) are satisfied (or waived by the 2022 Revolving Lenders), is  $500,000,000.  “Total Dollar Revolving Credit Commitment” means, at any time, the aggregate amount of the  Dollar Revolving Credit Commitments, as in effect at such time; provided, that such Total Dollar Revolving Credit  Commitment shall, unless otherwise agreed among the Lead Borrower and the Lenders providing such Incremental  Revolving Facility, be increased by 80% of any upsizing of the Initial Revolving Facility pursuant to any  Incremental Revolving Facility incurred after the Closing Date.  The Total Dollar Revolving Credit Commitment as  of the Closing Date is $500,000,000.  “Total Dollar Revolving Credit Outstandings” means the aggregate Outstanding Amount of all  Dollar Revolving Loans and Dollar LC Obligations.  “Total Initial Revolving Credit Commitment” means, at any time, the aggregate amount of the  Total Dollar Revolving Credit Commitment and the Total Multicurrency Revolving Credit Commitment.  “Total Initial Revolving Credit Outstandings” means the aggregate of all Total Dollar  Revolving Credit Outstandings and all Total Multicurrency Revolving Credit Outstandings.  “Total Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated  Total Debt outstanding as of such date to (b) Consolidated Adjusted EBITDA for the Test Period then most recently  ended or the Test Period otherwise specified where the term “Total Leverage Ratio” is used in this Agreement in  each case for the Lead Borrower and its Restricted Subsidiaries.  





 






  -65-       #95384462v18   #95384462v18   “Total Multicurrency Revolving Credit Commitment” means, at any time, the aggregate  amount of the Multicurrency Revolving Credit Commitments, as in effect at such time; provided, that such Total  Multicurrency Revolving Credit Commitment shall, unless otherwise agreed among the Lead Borrower and the  Lenders providing such Incremental Revolving Facility, be increased by 20% of any upsizing of the Initial  Revolving Facility pursuant to any Incremental Revolving Facility incurred after the Closing Date.  The Total  Multicurrency Revolving Credit Commitment as of the Closing Date is $100,000,000.  “Total Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated  Total Debt outstanding as of such date to (b) Consolidated Adjusted EBITDA for the Test Period then most recently  ended or the Test Period otherwise specified where the term “Total Leverage Ratio” is used in this Agreement in  each case for the Lead Borrower and its Restricted Subsidiaries.  “Total Multicurrency Revolving Credit Outstandings” means the aggregate Outstanding  Amount of all Multicurrency Revolving Loans and Multicurrency LC Obligations, and all Ancillary Outstandings.  “Total Multicurrency Revolving Outstandings” means the aggregate of all Multicurrency  Revolving Outstandings.  “Total Net Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated  Total Debt outstanding as of such date (net of (i) unrestricted Cash and Cash Equivalents and (ii) Cash and Cash  Equivalents restricted in favor of the Credit Facilities (which may also include Cash and Cash Equivalents securing  other Indebtedness secured by a Lien on the Collateral)) to (b) Consolidated Adjusted EBITDA for the Test Period  then most recently ended or the Test Period otherwise specified where the term “Total Net Leverage Ratio” is used  in this Agreement in each case for the Lead Borrower and its Restricted Subsidiaries.  “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all LC  Obligations, and all Ancillary Outstandings.  “Total Multicurrency Revolving Credit Outstandings” means the aggregate Outstanding  Amount of all Multicurrency Revolving Loans and Multicurrency LC Obligations, and all Ancillary Outstandings.  “Total Multicurrency Revolving Outstandings” means the aggregate of all Multicurrency  Revolving Outstandings.  “Total Revolving Credit Commitment” means the Total Dollar Revolving Credit Commitment,  Total Multicurrency Revolving Credit Commitment and the Total Multicurrency2022 Revolving Credit  Commitment. The Total Revolving Credit Commitment (i) as of the Closing Date is $600,000,000.Third  Amendment Effective Date is $750,000,000 and (ii) if applicable, as of the date the Conditions Subsequent (as  defined in the Third Amendment) are satisfied (or waived by the 2022 Revolving Lenders), is $1,100,000,000.   “Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all  Revolving Loans and LC Obligations, and all Ancillary Outstandings.  “Trade Date” has the meaning assigned to such term in Section 9.05(f)(i)  “Trademark” means the following:  (a) all trademarks (including service marks), common law  marks, trade names, trade dress, and logos, slogans and other indicia of origin under the laws of any jurisdiction in  the world, and the registrations and applications for registration thereof and the goodwill of the business symbolized  by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages, and payments now or  hereafter due or payable with respect thereto, including, without limitation, damages, claims, and payments for past  and future infringements thereof; (d) all rights to sue for past, present, and future infringements of the foregoing,  including the right to settle suits involving claims and demands for royalties owing; and (e) all domestic rights  corresponding to any of the foregoing.  





 






  -66-       #95384462v18   #95384462v18   “Transaction Costs” means fees, premiums, expenses and other transaction costs (including  original issue discount or upfront fees) payable or otherwise borne by the Lead Borrower and its subsidiaries in  connection with the Transactions and the transactions contemplated thereby.  “Transactions” means, collectively, (a) the execution, delivery and performance by the Loan  Parties of the Loan Documents to which they are a party and the Borrowing of Loans hereunder and (b) the payment  of the Transaction Costs.   “Treasury Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).  “Treasury Regulations” means the U.S. federal income tax regulations promulgated under the  Code.  “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on  such Loan, or on the Loans comprising such Borrowing, is determined by reference to the LIBO Rate, Term SOFR,  the Alternate Base Rate, the Canadian Base Rate, the BA Rate, the EURIBOR Rate or the SONIA Rate.  “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New  York or any other state the laws of which are required to be applied in connection with the issue or perfection of  security interests.  “U.K. Borrower” has the meaning assigned to such term in the definition of “Revolving Facility  Borrowers”.  “U.K. Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority)  or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the  United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and  certain affiliates of such credit institutions or investment firms.  “U.K. Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any U.K. Financial Institution.  “Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the  Benchmark Replacement Adjustment.  “Unfunded Advances/Participations” means (a) with respect to the Administrative Agent, the  aggregate amount, if any (i) made available to the Lead Borrower on the assumption that each Lender has made  available to the Administrative Agent such Lender’s share of the applicable Borrowing available to the  Administrative Agent as contemplated by Section 2.07(b) and/or Section 2.18(d) and (ii) with respect to which a  corresponding amount shall not in fact have been returned to the Administrative Agent by the Lead Borrower or  made available to the Administrative Agent by any such Lender and (b) with respect to any Issuing Bank, the  aggregate amount, if any, of LC Disbursements in respect of which aan Initial Revolving Lender shall have failed to  make Initial Revolving Loans to reimburse such Issuing Bank pursuant to Section 2.05(e).  “Unrestricted Subsidiary” means any subsidiary of the Lead Borrower designated by the Lead  Borrower as an Unrestricted Subsidiary on the Closing Date and listed on Schedule 5.10 or after the Closing Date  pursuant to Section 5.10.  “Unused 2022 Revolving Credit Commitment” of any Lender, at any time, means the remainder  of the 2022 Revolving Credit Commitment of such Lender at such time, if any, less the aggregate Outstanding  Amount of 2022 Revolving Loans made by such Lender at such time.  





 






  -67-       #95384462v18   #95384462v18   “Unused Dollar Revolving Credit Commitment” of any Lender, at any time, means the  remainder of the Dollar Revolving Credit Commitment of such Lender at such time, if any, less the sum of (a) the  aggregate Outstanding Amount of Dollar Revolving Loans made by such Lender and (b) such Lender’s Dollar LC  Exposure at such time.  “Unused Multicurrency Revolving Credit Commitment” of any Lender, at any time, means the  remainder of the Multicurrency Revolving Credit Commitment of such Lender at such time, if any, less the sum of  (a) the aggregate Outstanding Amount of Multicurrency Revolving Loans made by such Lender, (b) such Lender’s  Multicurrency LC Exposure at such time and (c) the Dollar Equivalent of all Ancillary Commitments denominated  in an Agreed Currency of such Lender (or its Affiliates) at such time.  “Unused Revolving Credit Commitment” of any Lender, at any time, means the Unused Dollar  Revolving Credit Commitment and/or Unused Multicurrency Revolving Credit Commitment.  “U.S.” means the United States of America.  “U.S. Credit Facilities” means the Credit Facilities incurred by the Lead Borrower or any  additional Borrower incorporated or organized under the laws of the U.S., any state thereof or the District of  Columbia.  “U.S. Dollars” or “$” refers to lawful money of the U.S.  “U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a  Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed  income departments of its members be closed for the entire day for purposes of trading in United States government  securities.  “U.S. Special Resolution Regimes” shall have the meaning provided in Section 9.25.  “U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f).  “USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate  Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law  October 26, 2001)).  “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the  number of years obtained by dividing:  (a) the sum of the products obtained by multiplying (i) the amount of each  then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment  at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse  between such date and the making of such payment; by (b) the then outstanding principal amount of such  Indebtedness.  “Wholly-Owned Subsidiary” of any Person means a subsidiary of such Person, 100% of the  Capital Stock of which (other than directors’ qualifying shares or shares required by law to be owned by a resident  of the relevant jurisdiction) shall be owned by such Person or by one or more Wholly-Owned Subsidiaries of such  Person.   “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  





 






  -68-       #95384462v18   #95384462v18   such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in  respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of  those powers.  Section 1.02 Classification of Loans and Borrowings.  For purposes of this Agreement, Loans may be  classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., an “ABR Loan” or, a “Eurocurrency  Rate Loan” or a “SOFR Loan”) or by Class and Type (e.g., a “Eurocurrency Rate Revolving Loan” or, a “SONIA  Rate Revolving Loan” or a “SOFR Revolving Loan”).  Borrowings also may be classified and referred to by  Class (e.g., a “Revolving Borrowing”) or by Type (e.g., an “ABR Borrowing” or, a “Eurocurrency Rate Borrowing”  or a “SOFR Borrowing”) or by Class and Type (e.g., an “ABR Rate Revolving Borrowing”, a “Eurocurrency Rate  Revolving Borrowing” or, a “SONIA Rate Revolving Borrowing” or a “SOFR Revolving Borrowing”).  Section 1.03 Terms Generally.  The definitions of terms herein shall apply equally to the singular and  plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding  masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be  followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and  effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement,  instrument or other document herein or in any Loan Document shall be construed as referring to such agreement,  instrument or other document as from time to time amended, restated, amended and restated, supplemented or  otherwise modified or extended, replaced or refinanced (subject to any restrictions or qualifications on such  amendments, restatements, amendment and restatements, supplements or modifications or extensions, replacements  or refinancings set forth herein), (b) any reference to any law in any Loan Document shall include all statutory and  regulatory provisions consolidating, amending, replacing, supplementing or interpreting such law, (c) any reference  herein or in any Loan Document to any Person shall be construed to include such Person’s successors and permitted  assigns, (d) the words “herein,” “hereof” and “hereunder,” and words of similar import, when used in any Loan  Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision  hereof, (e) all references herein or in any Loan Document to Articles, Sections, clauses, paragraphs, Exhibits and  Schedules shall be construed to refer to Articles, Sections, clauses and paragraphs of, and Exhibits and Schedules to,  such Loan Document, (f) in the computation of periods of time in any Loan Document from a specified date to a  later specified date, the word “from” means “from and including”, the words “to” and “until” mean “to but  excluding” and the word “through” means “to and including” and (g) the words “asset” and “property”, when used  in any Loan Document, shall be construed to have the same meaning and effect and to refer to any and all tangible  and intangible assets and properties, including Cash, securities, accounts and contract rights.  For purposes of  determining compliance at any time with Sections 6.01, 6.02, 6.04, 6.05, 6.06, 6.07 and 6.09, in the event that any  Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition or Affiliate transaction,  as applicable, meets the criteria of more than one of the categories of transactions or items permitted pursuant to any  clause of such Sections 6.01 (other than Sections 6.01(a), (c), (i), (q), (w) and (z)), 6.02 (other than Sections 6.02(a)  and (t)), 6.04, 6.05, 6.06, 6.07 and 6.09, the Lead Borrower, in its sole discretion, may, from time to time, classify or  reclassify such transaction or item (or portion thereof) and will only be required to include the amount and type of  such transaction (or portion thereof) in any one category.  It is understood and agreed that any Indebtedness, Lien,  Restricted Payment, Restricted Debt Payment, Investment, Disposition and/or Affiliate transaction need not be  permitted solely by reference to one category of permitted Indebtedness, Lien, Restricted Payment, Restricted Debt  Payment, Investment, Disposition and/or Affiliate transaction under Sections 6.01, 6.02, 6.04, 6.05, 6.06, 6.07  or 6.09, respectively, but may instead be permitted in part under any combination thereof.  Section 1.04 Accounting Terms; GAAP.  (a) All financial statements to be delivered pursuant to this Agreement shall be prepared in  accordance with GAAP as in effect from time to time and, except as otherwise expressly provided herein, all terms  of an accounting or financial nature that are used in calculating the Total Leverage Ratio, Total Net Leverage Ratio,  the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Fixed Charge Coverage Ratio, Consolidated  Adjusted EBITDA or Consolidated Total Assets shall be construed and interpreted in accordance with GAAP, as in  effect from time to time; provided that if the Lead Borrower notifies the Administrative Agent that the Lead  Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the  date of delivery of the financial statements described in Section 3.04(a) in GAAP or in the application thereof on the  





 






  -69-       #95384462v18   #95384462v18   operation of such provision (or if the Administrative Agent notifies the Lead Borrower that the Required Lenders  request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given  before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the  basis of GAAP as in effect and applied immediately before such change becomes effective until such notice shall  have been withdrawn or such provision amended in accordance herewith; provided, further, that if such an  amendment is requested by the Lead Borrower or the Required Lenders, then the Lead Borrower and the  Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions  (without the payment of any amendment or similar fee to the Lenders) to preserve the original intent thereof in light  of such change in GAAP or the application thereof; provided, further, that all terms of an accounting or financial  nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made  without giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred to  as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification or Financial  Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Lead  Borrower or any subsidiary at “fair value”, as defined therein and (ii) any treatment of Indebtedness in respect of  convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards  Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a  reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full  stated principal amount thereof.  (b) Notwithstanding anything to the contrary herein, but subject to Section 1.11, all financial  ratios and tests (including the Total Leverage Ratio, Total Net Leverage Ratio, the First Lien Net Leverage Ratio,  the Secured Net Leverage Ratio, the Fixed Charge Coverage Ratio and the amount of Consolidated Total Assets and  Consolidated Adjusted EBITDA) contained in this Agreement that are calculated with respect to any Test Period  during which any Subject Transaction occurs shall be calculated with respect to such Test Period and such Subject  Transaction on a Pro Forma Basis.  Further, if since the beginning of any such Test Period and on or prior to the date  of any required calculation of any financial ratio or test (x) any Subject Transaction has occurred or (y) any Person  that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Lead  Borrower or any of its Restricted Subsidiaries or any joint venture since the beginning of such Test Period has  consummated any Subject Transaction, then, in each case, any applicable financial ratio or test shall be calculated on  a Pro Forma Basis for such Test Period as if such Subject Transaction had occurred at the beginning of the  applicable Test Period (it being understood, for the avoidance of doubt, that solely for purposes of (x)  calculating quarterly compliance with Section 6.15 and (y) calculating the Total Leverage Ratio for purposes of the  definitions of “Applicable Rate” and/or “Commitment Fee Rate”, in each case, the date of the required calculation  shall be the last day of the Test Period, and no Subject Transaction occurring thereafter shall be taken into account).  (c) Notwithstanding anything to the contrary contained in paragraph (a) above or in the  definition of “Capital Lease”, with respect to  the accounting change requiring all leases to be capitalized, only those  leases that would have constituted Capital Leases in conformity with GAAP prior to such change  shall be  considered Capital Leases, and all calculations and deliverables under this Agreement or any other Loan Document  shall be made or delivered, as applicable, in accordance therewith (provided that together with all financial  statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of  any such accounting change, the Lead Borrower shall deliver a schedule showing the adjustments necessary to  reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).  Section 1.05 Effectuation of Transactions.  Each of the representations and warranties contained in this  Agreement (and all corresponding definitions) is made after giving effect to the Transactions, unless the context  otherwise requires.  Section 1.06 Timing of Payment of Performance.  When payment of any obligation or the performance  of any covenant, duty or obligation is stated to be due or required on a day which is not a Business Day, the date of  such payment (other than as described in the definition of “Interest Period”) or performance shall extend to the  immediately succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be  payable for the period of such extension.  





 






  -70-       #95384462v18   #95384462v18   Section 1.07 Times of Day.  Unless otherwise specified, all references herein to times of day shall be  references to New York City time (daylight or standard, as applicable).  Section 1.08 [Reserved].  Section 1.09 Currency Generally.  (a) For purposes of any determination under Article 5, Article 6 (other than Section 6.15(a)  and the calculation of compliance with any financial ratio for purposes of taking any action hereunder) or Article 7  with respect to the amount of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment,  Disposition, affiliate transaction or other transaction, event or circumstance, or any determination under any other  provision of this Agreement, (any of the foregoing, a “specified transaction”), in a currency other than  U.S. Dollars, (i) the U.S. Dollar equivalent amount of a specified transaction in a currency other than U.S. Dollars  shall be calculated based on the rate of exchange quoted by the Bloomberg Foreign Exchange Rates & World  Currencies Page (or any successor page thereto, or in the event such rate does not appear on any Bloomberg Page,  by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the  Administrative Agent and the Lead Borrower) for such foreign currency, as in effect at 11:00 a.m. (London time) on  the date of such specified transaction (which, in the case of any Restricted Payment, shall be deemed to be the date  of the declaration thereof and, in the case of the incurrence of Indebtedness, shall be deemed to be on the date first  committed); provided that if any Indebtedness is incurred (and, if applicable, associated Lien granted) to refinance  or replace other Indebtedness denominated in a currency other than U.S. Dollars, and the relevant refinancing or  replacement would cause the applicable U.S. Dollar-denominated restriction to be exceeded if calculated at the  relevant currency exchange rate in effect on the date of such refinancing or replacement, such  U.S. Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of  such refinancing or replacement Indebtedness (and, if applicable, associated Lien granted) does not exceed an  amount sufficient to repay the principal amount of such Indebtedness being refinanced or replaced, except by an  amount equal to (x) unpaid accrued interest and premiums (including tender premiums) thereon plus other  reasonable and customary fees and expenses (including upfront fees and original issue discount) incurred in  connection with such refinancing or replacement, (y) any existing commitments unutilized thereunder and  (z) additional amounts permitted to be incurred under Section 6.01 and (ii) for the avoidance of doubt, no Default or  Event of Default shall be deemed to have occurred solely as a result of a change in the rate of currency exchange  occurring after the time of any specified transaction so long as such specified transaction was permitted at the time  incurred, made, acquired, committed, entered or declared as set forth in clause (i).  For purposes of Section 6.15(a)  and the calculation of compliance with any financial ratio for purposes of taking any action hereunder, on any  relevant date of determination, amounts denominated in currencies other than U.S. Dollars shall be translated into  U.S. Dollars at the applicable currency exchange rate used in preparing the financial statements delivered pursuant  to Section 5.01(a) or (b), as applicable, for the relevant Test Period and will, with respect to any Indebtedness,  reflect the currency translation effects, determined in accordance with GAAP, of any Hedge Agreement permitted  hereunder in respect of currency exchange risks with respect to the applicable currency in effect on the date of  determination for the U.S. Dollar equivalent amount of such Indebtedness.  (b) Each provision of this Agreement shall be subject to such reasonable changes of  construction as the Administrative Agent may from time to time specify with the Lead Borrower’s consent to  appropriately reflect a change in currency of any country and any relevant market convention or practice relating to  such change in currency.  Section 1.10 Cashless Rollovers.  Notwithstanding anything to the contrary contained in this  Agreement or in any other Loan Document, to the extent that any Lender extends the maturity date of, or replaces,  renews or refinances, any of its then- existing Loans with Incremental Loans, Replacement Term Loans, Loans in  connection with any Replacement Revolving Facility, Extended Term Loans, Extended Revolving Loans or loans  incurred under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing  is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall  be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in  U.S. Dollars”, “in Agreed Currencies”, “in immediately available funds”, “in Cash” or any other similar  requirement.  Notwithstanding anything to the contrary set forth in this Agreement, any Lender may exchange,  





 






  -71-       #95384462v18   #95384462v18   continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or  similar transaction permitted by the terms of this Agreement pursuant to a cashless settlement mechanism approved  by the Borrowers, the Administrative Agent and such Lender.  Section 1.11 Certain Calculations and Tests.  (a) Notwithstanding anything to the contrary herein, to the extent that the terms of this  Agreement require (i) compliance with any financial ratio or test (including, without limitation, Section 6.15(a), any  First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Leverage Ratio test, any Total  Net Leverage Ratio test, any Fixed Charge Coverage Ratio test) and/or the amount of Consolidated Adjusted  EBITDA or Consolidated Total Assets or (ii) the absence of a Default or Event of Default (or any type of Default or  Event of Default) as a condition to (A) the making of any Restricted Payment and/or (B) the making of any  Restricted Debt Payment, the determination of whether the relevant condition is satisfied may be made, at the  election of the Lead Borrower, (1) in the case of any Restricted Payment, at the time of (or on the basis of the  financial statements for the most recently ended Test Period at the time of) (x) the declaration of such Restricted  Payment or (y) the making of such Restricted Payment and (2) in the case of any Restricted Debt Payment, at the  time of (or on the basis of the financial statements for the most recently ended Test Period at the time of)  (x) delivery of irrevocable (which may be conditional) notice with respect to such Restricted Debt Payment or  (y) the making of such Restricted Debt Payment, in each case, after giving effect to the relevant acquisition,  Restricted Payment and/or Restricted Debt Payment on a Pro Forma Basis.  (b) For purposes of determining the permissibility of any action, change, transaction or event  that requires a calculation of any financial ratio or test (including, without limitation, Section 6.15(a), any First Lien  Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Leverage Ratio test, any Total Net  Leverage Ratio test and/or any Fixed Charge Coverage Ratio test and/or the amount of Consolidated Adjusted  EBITDA or Consolidated Total Assets), such financial ratio or test shall be calculated at the time such action is  taken (subject to clause (a) above), such change is made, such transaction is consummated or such event occurs, as  the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change  in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is  consummated or such event occurs, as the case may be.  (c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or  transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require  compliance with a financial ratio or test (including, without limitation, Section 6.15(a), any First Lien Net Leverage  Ratio test, any Secured Net Leverage Ratio test, any Total Leverage Ratio test, any Total Net Leverage Ratio test  and/or any Fixed Charge Coverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently  with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this  Agreement that requires compliance with a financial ratio or test (including, without limitation, Section 6.15(a), any  First Lien Net Leverage Ratio test, any Secured Net Leverage Ratio test, any Total Leverage Ratio test, any Total  Net Leverage Ratio test and/or any Fixed Charge Coverage Ratio test) (any such amounts, the “Incurrence-Based  Amounts”), it is understood and agreed that the Fixed Amounts shall be disregarded in the calculation of the  financial ratio or test applicable to the Incurrence-Based Amounts.  Section 1.12 Rounding.  Any financial ratios required to be maintained by the Lead Borrower pursuant  to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement)  shall be calculated by dividing the appropriate component by the other component, carrying the result to one place  more than the number of places by which such ratio is expressed herein and rounding the result up or down to the  nearest number (with a rounding-up for five).  Section 1.13 Available Amount Threshold.  If more than one action occurs on any given date the  permissibility of the taking of which is determined hereunder by reference to the amount of the Available Amount  immediately prior to the taking of such action, the permissibility of the taking of each such action shall be  determined independently.  





 






  -72-       #95384462v18   #95384462v18   Section 1.14 Divisions. For the avoidance of doubt, any reference herein or in any Loan Document to  an assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited  liability company or other entity, or an allocation of assets to a series of a limited liability company or other entity  (or the unwinding of such a division or allocation), as if it were an assignment, sale or transfer, or similar term, as  applicable, to a separate Person. Any division of a limited liability company or other entity shall constitute a new  separate Person hereunder (and each division of any limited liability company or other entity that is a Subsidiary,  Restricted Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a  Person), and such new Person shall be deemed to have been formed on the first date of its existence by the holders  of its equity interests at such time.  Section 1.15 Interest Rates; Benchmark Notification. The interest rate on a Loan denominated in  Dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become,  the subject of regulatory reform.  Upon the occurrence of a Benchmark Transition Event, Section 2.27 provides a  mechanism for determining an alternative rate of interest.  The Administrative Agent does not warrant or accept any  responsibility for, and shall not have any liability with respect to, the continuation of, the administration of,  submission of, calculation of, performance of or any other matter related to any interest rate used in this Agreement  with respect to the 2022 Revolving Facility (including, without limitation, the Alternate Base Rate, SOFR, Adjusted  Term SOFR or Term SOFR) or any component definition thereof or rates referred to in the definition thereof, or  with respect to any alternative or successor rate thereto, or replacement rate thereof (including any Benchmark  Replacement), including without limitation, whether the composition or characteristics of any such alternative,  successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, or  have the same value or economic equivalence of as the existing interest rate (or any component thereof) being  replaced or have the same volume or liquidity as did any existing interest rate (or any component thereof) prior to its  discontinuance or unavailability.  The Administrative Agent and its affiliates and/or other related entities may  engage in transactions that affect the calculation of any interest rate (or component thereof) used in this Agreement  or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant  adjustments thereto, in each case, in a manner adverse to the Borrowers.  The Administrative Agent may select  information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any  component thereof, or rates referred to in the definition thereof, in each case pursuant to the terms of this  Agreement, and shall have no liability to the Borrowers, any Lender or any other person or entity for damages of  any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or  expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any  such rate (or component thereof) provided by any such information source or service.  Notwithstanding anything to  the contrary herein, this Section 1.15 and the notifications, disclaimers and limitations set forth herein shall only be  applicable to the 2022 Revolving Facility and the 2022 Revolving Lenders and not, for the avoidance of doubt, any  other Credit Facilities or Lenders.  ARTICLE 2    THE CREDITS  Section 2.01 Commitments.  (a) (i) Subject to the terms and conditions set forth herein (x) each Dollar Revolving Lender  severally, and not jointly, agrees to make Dollar Revolving Loans denominated in U.S. Dollars to the Revolving  Facility Borrowers in U.S. Dollars at any time and from time to time on and after the Closing Date, and until the  earlier of the Dollar Revolving Credit Maturity Date and the termination of the Dollar Revolving Credit  Commitment of such Dollar Revolving Lender in accordance with the terms hereof; provided that after giving effect  to any Borrowing of Dollar Revolving Loans, the Outstanding Amount of such Lender’s Dollar Revolving Credit  Exposure shall not exceed such Lender’s Dollar Revolving Credit Commitment and (y) each Multicurrency  Revolving Lender severally, and not jointly, agrees to make Multicurrency Revolving Loans denominated in U.S.  Dollars or Agreed Currencies to the Revolving Facility Borrowers in U.S. Dollars or Agreed Currencies at any time  and from time to time on and after the Closing Date, and until the earlier of the Multicurrency Revolving Credit  Maturity Date and the termination of the Multicurrency Revolving Credit Commitment of such Multicurrency  Revolving Lender in accordance with the terms hereof; provided that after giving effect to any Borrowing of  





 






  -73-       #95384462v18   #95384462v18   Multicurrency Revolving Loans, the Dollar Equivalent of the Outstanding Amount of such Lender’s Multicurrency  Revolving Credit Exposure shall not exceed the Dollar Equivalent of such Lender’s Multicurrency Revolving Credit  Commitment and, (ii) subject to the terms and conditions set forth in the First Amendment, each 2021 Term Lender  on the First Amendment Effective Date severally, and not jointly, agrees to make 2021 Term Loans on the First  Amendment Effective Date to the Lead Borrower in an amount equal to the 2021 Term Commitment of each 2021  Term Lender and (iii) subject to the terms and conditions set forth herein and in the Third Amendment, each 2022  Revolving Lender severally, and not jointly, agrees to make 2022 Revolving Loans denominated in U.S. Dollars to  the Lead Borrower at any time and from time to time on and after the Third Amendment Effective Date, and until  the earlier of the Revolving Credit Maturity Date and the termination of the 2022 Revolving Credit Commitment of  such 2022 Revolving Lender in accordance with the terms hereof. Within the foregoing limits and subject to the  terms, conditions and limitations set forth herein, the Revolving Facility Borrowers or the Lead Borrower, as  applicable, may borrow, pay or prepay and reborrow Revolving Loans.  Amounts paid or prepaid in respect of the  Term Loans may not be reborrowed. Subject to the terms of this Agreement and the Ancillary Documents, an  Ancillary Lender may make available an Ancillary Facility to any Revolving Facility Borrower in place of all or part  of its Multicurrency Revolving Credit Commitment.  (b) Subject to the terms and conditions of this Agreement, each Lender and each Additional  Lender with an Additional Term Commitment for a given Class of Incremental Term Loans severally, and not  jointly, agrees to make Incremental Term Loans to the Lead Borrower or any Additional Term Borrower, which  Incremental Term Loans shall not exceed for any such Lender or Additional Lender at the time of any incurrence  thereof, the Additional Term Commitment of such Lender or Additional Lender for such Class on the respective  Incremental Term Loan Borrowing Date.  Amounts repaid or prepaid in respect of such Incremental Term Loans  may not be reborrowed.  (c) Subject to the terms and conditions of this Agreement, each Lender and each Additional  Lender with an Additional Revolving Commitment for a given Class of Incremental Revolving Loans severally, and  not jointly, agrees to make Incremental Revolving Loans to any Revolving Facility Borrower at any time and from  time to time on and after the initial incurrence thereof, and until the earlier of the maturity thereof and the  termination of the Additional Revolving Commitment of such in accordance with the terms hereof; provided that  after giving effect to any Borrowing of Incremental Revolving Loans, the Outstanding Amount of such Lender’s  Revolving Credit Exposure in respect of Additional Revolving Loans shall not exceed such Lender’s Additional  Revolving Commitment in respect of Additional Revolving Loans.  Section 2.02 Loans and Borrowings.  (a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class  and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class.  (b) Subject to Section 2.01 and Section 2.14, each Borrowing shall be comprised entirely of  (i) in the case of Loans (other than the 2022 Revolving Loans) denominated in Dollars or Canadian Dollars, ABR  Loans or Eurocurrency Rate Loans as the Lead Borrower may request in accordance herewith, (ii) in the case of the  2022 Revolving Loans, ABR Loans or SOFR Loans as the Lead Borrower may request in accordance herewith, (iii)  in the case of Revolving Loans denominated in Euros, EURIBOR Rate Revolving Loans, (iiiiv) in the case of  Revolving Loans denominated in Pounds Sterling, SONIA Rate Revolving Loans or (ivv) in the case of Revolving  Loans (other than 2022 Revolving Loans), in Agreed Currencies.  Each Lender at its option may make any  Eurocurrency Rate Loan, SOFR Loan, Canadian Base Rate Loan, LIBO Rate Revolving Loan, CDOR Revolving  Loan, EURIBOR Rate Revolving Loan or SONIA Rate Revolving Loan by causing any domestic or foreign branch  or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the  obligation of the Lead Borrower to repay such Loan in accordance with the terms of this Agreement, (ii) such  Eurocurrency Rate Loan, SOFR Loan, ABR Loan, EURIBOR Rate Revolving Loan or SONIA Rate Revolving  Loan shall be deemed to have been made and held by such Lender, and the obligation of the Lead Borrower to repay  such Eurocurrency Rate Loan, SOFR Loan, Canadian Base Rate Loan, EURIBOR Rate Revolving Loan or SONIA  Rate Revolving Loan, as applicable, shall nevertheless be to such Lender for the account of such domestic or foreign  branch or Affiliate of such Lender and (iii) in exercising such option, such Lender shall use reasonable efforts to  minimize increased costs to the Lead Borrower resulting therefrom (which obligation of such Lender shall not  





 






  -74-       #95384462v18   #95384462v18   require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will  not be compensated hereunder or that it otherwise determines would be disadvantageous to it and in the event of  such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.15 shall  apply); provided, further that any such domestic or foreign branch or Affiliate of such Lender shall not be entitled to  any greater indemnification under Section 2.17 with respect to such Eurocurrency Rate Loan, SOFR Loan, Canadian  Base Rate Loan, EURIBOR Rate Revolving Loan or SONIA Rate Revolving Loan, as applicable than that to which  the applicable Lender was entitled on the date on which such Loan was made (except in connection with any  indemnification entitlement arising as a result of a Change in Law after the date on which such Loan was made).  (c) At the commencement of each Interest Period for any Borrowing of Revolving Loans,  such Borrowing shall comprise an aggregate principal amount that is an integral multiple of the Dollar Equivalent of  $100,000 and not less than Dollar Equivalent of $1,000,000; provided that an ABR Revolving Borrowing may be  made in a lesser aggregate amount that is (x) equal to the entire aggregate Unused Revolving Credit Commitments  or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).   Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at  any time be more than a total of 10 different Interest Periods in effect for Eurocurrency Rate Borrowings and SOFR  Borrowings at any time outstanding (or such greater number of different Interest Periods as the Administrative  Agent may agree from time to time).  (d) Notwithstanding any other provision of this Agreement, the Borrowers shall not, nor shall  it be entitled to, request, or to elect to convert or continue, any Borrowing if the Interest Period requested with  respect thereto would end after the Maturity Date applicable to such Loans or, in the case of an election to convert or  continue any Borrowing, would not be in the same currency.  Section 2.03 Requests for Borrowings.  Each Term Borrowing, each Revolving Borrowing, each  conversion of Term Loans or Revolving Loans from one Type to the other, and each continuation of Eurocurrency  Rate Loans, SOFR Loans, EURIBOR Rate Revolving Loans or SONIA Rate Revolving Loans shall be made upon  irrevocable notice by the applicable Borrower to the Administrative Agent.  Each such notice must be in writing or  by telephone (and promptly confirmed in writing) and must be received by the Administrative Agent (by hand  delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) (w) in the case of a Borrowing  denominated in U.S. Dollars, (1) not later than 12:00 p.m. New York City time three Business Days prior to the  requested day of any Borrowing, conversion or continuation of Eurocurrency Rate Loans or SOFR Loans (or (i) one  Business Day in the case of any Borrowing of Eurocurrency Rate Loans to be made on the Closing Date or (ii) one  Business Day in the case of any Borrowing of SOFR Loans to be made on the Third Amendment Effective Date or  the Acquisition Funding Date) or (2) not later than 11:00 a.m. New York City time on the requested date of any  Borrowing of ABR Loans (or, in each case, such later time as shall be acceptable to the Administrative Agent),  (x) in the case of a Borrowing denominated in Canadian Dollars, (1) not later than 12:00 p.m. New York City time  three Business Days prior to the requested day of any Borrowing, conversion or continuation of Eurocurrency Rate  Loans (or one Business Day in the case of any Borrowing of Eurocurrency Rate Loans to be made on the Closing  Date) or (2) not later than 10:00 a.m. New York City time one Business Day prior to the requested day of any  Borrowing of ABR Loans (or, in each case, such later time as shall be acceptable to the Administrative Agent and  the Multicurrency Revolving Lenders) and (y) in the case of a Borrowing denominated in Euros or Pounds Sterling,  not later than 11 a.m. London time, three Business Days prior to the requested day of any Borrowing, conversion or  continuation of EURIBOR Rate Revolving Loans or SONIA Rate Revolving Loans; provided, however, that if the  applicable Borrower wishes to request Eurocurrency Rate Loans or, EURIBOR Rate Revolving Loans or SOFR  Loans having an Interest Period of other than one, three or six months in duration as provided in the definition of  “Interest Period,” (A) the applicable notice from the applicable Borrower must be received by the Administrative  Agent (x) with respect to Loans denominated in U.S. Dollars or Canadian Dollars, not later than 12:00 p.m.  New York City time, five Business Days prior to the requested date of such Borrowing, conversion or continuation  and (y) with respect to Loans denominated in Euros, not later than 11 a.m. London time, five Business Days prior to  the requested date of such Borrowing, conversion or continuation and (B) (x) with respect to Loans denominated in  U.S. Dollars or Canadian Dollars, not later than 10:00 a.m. New York City time four Business Days before the  requested date of such Borrowing and (y) with respect to Loans denominated in Euros, not later than 10:00 a.m.  London time four Business Days before the requested date of such Borrowing, conversion or continuation, the  Administrative Agent shall notify the applicable Borrower whether or not the requested Interest Period has been  





 






  -75-       #95384462v18   #95384462v18   consented by all the appropriate Lenders.  Each written notice (or confirmation of telephonic notice) with respect to  a Borrowing by the applicable Borrower pursuant to this Section 2.03 shall be delivered to the Administrative Agent  in the form of a written Borrowing Request, appropriately completed and signed by a Responsible Officer of the  applicable Borrower.  Each such telephonic and written Borrowing Request shall specify the following information  in compliance with Section 2.02:  (a) the Class and currency of such Borrowing;  (b) the aggregate amount of the requested Borrowing;  (c) the date of such Borrowing, which shall be a Business Day;  (d) whether such Borrowing is to be an ABR Borrowing, a Eurocurrency Rate Borrowing,  SOFR Borrowing, a EURIBOR Rate Borrowing or a SONIA Rate Borrowing;  (e) in the case of a Eurocurrency Rate Borrowing, SOFR Borrowing or EURIBOR Rate  Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition  of the term “Interest Period”; and  (f) the location and number of the applicable Borrower’s account or any other designated  account(s) to which funds are to be disbursed (the “Funding Account”).  If no election as to the Type of Borrowing is specified with respect to Loans denominated in U.S. Dollars or  Canadian Dollars, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with  respect to any requested Eurocurrency Rate Borrowing or SOFR Borrowing, then the applicable Borrower shall be  deemed to have selected an Interest Period of one month’s duration.  If no election regarding the currency of such  Borrowing is specified with respect to any Multicurrency Revolving Loan, then the Loans so required shall be made  in U.S. Dollars.  The Administrative Agent shall advise each Lender of the details thereof and of the amount of the  Loan to be made as part of the requested Borrowing (x) in the case of any ABR Borrowing, on the same Business  Day of receipt of a Borrowing Request in accordance with this Section 2.03 or (y) in the case of any Eurocurrency  Rate Borrowing, SOFR Borrowing, EURIBOR Rate Borrowing or SONIA Rate Borrowing, no later than one  Business Day following receipt of a Borrowing Request in accordance with this Section 2.03. With respect to any  SONIA Rate Revolving Loans, the Administrative Agent and the Lead Borrower will have the right to make SONIA  Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other  Loan Document, any amendments implementing such SONIA Rate Conforming Changes will become effective  solely with the consent of the Administrative Agent in consultation with the Lead Borrower (as further provided in  the definition of SONIA Rate Conforming Changes) and without any further action or consent of any other party to  this Agreement or any other Loan Document; provided that, with respect to any such amendment effected, the  Administrative Agent shall post each such amendment implementing such SONIA Rate Conforming Changes to the  Lenders reasonably promptly after such amendment becomes effective.  Section 2.04 [Reserved].  Section 2.05 Letters of Credit.  (a) General.  (i) Dollar Letters of Credit.  Subject to the terms and conditions set forth herein,  (i) each Issuing Bank agrees, in each case in reliance upon the agreements of the other Initial  Revolving Lenders set forth in this Section 2.05, (A) from time to time on any Business Day  during the period from the Closing Date to the fifth Business Day prior to the Revolving Credit  Maturity Date, upon the request of the Lead Borrower, to issue Dollar Letters of Credit issued  only for the account of the Lead Borrower (or any Restricted Subsidiary; provided that to the  extent that any such Restricted Subsidiary is not a Loan Party, such Letter of Credit shall be  





 






  -76-       #95384462v18   #95384462v18   deemed an Investment in such Restricted Subsidiary and shall only be issued so long as it is  permitted under Section 6.06) and to amend or renew Dollar Letters of Credit previously issued by  it, in accordance with Section 2.05(b), and (B) to honor drafts under the Dollar Letters of Credit,  and (ii) the Dollar Revolving Lenders severally agree to participate in the Dollar Letters of Credit  issued pursuant to Section 2.05(d).  On and after the Closing Date, each Existing Dollar Letter of  Credit shall be deemed to be a Dollar Letter of Credit issued hereunder on the Closing Date for all  purposes under this Agreement and the other Loan Documents, subject to the last sentence of  Section 2.05(b).  Dollar Letters of Credit will be issued on a serial basis by each Primary Issuing  Bank, in each case, at the direction of the Administrative Agent, with (i) such issuance to result in  the Primary Issuing Banks sharing (to the extent reasonably practicable) ratably in the aggregate  exposure with respect to Letters of Credit and (ii) the Dollar Letter of Credit exposure of each  Primary Issuing Bank to be subject to an individual sub-limit, which shall be $20,000,000 for  RBC and $20,000,000 for JPM, or in either case, such other amounts from time to time as  otherwise mutually agreed to by each such Primary Issuing Bank and the Lead Borrower.  For the  avoidance of doubt, Existing Dollar Letters of Credit of a Primary Issuing Bank shall count  towards such Primary Issuing Bank’s individual sub-limit.   (ii) Multicurrency Letters of Credit.  Subject to the terms and conditions set forth  herein, (i) each Issuing Bank agrees, in each case in reliance upon the agreements of the other  Initial Revolving Lenders set forth in this Section 2.05, (A) from time to time on any Business  Day during the period from the Closing Date to the fifth Business Day prior to the Revolving  Credit Maturity Date, upon the request of the Lead Borrower, to issue Multicurrency Letters of  Credit issued only for the account of the Lead Borrower (or any Restricted Subsidiary; provided  that to the extent that any such Restricted Subsidiary is not a Loan Party, such Letter of Credit  shall be deemed an Investment in such Restricted Subsidiary and shall only be issued so long as it  is permitted under Section 6.06) and to amend or renew Multicurrency Letters of Credit previously  issued by it, in accordance with Section 2.05(b), and (B) to honor drafts under the Multicurrency  Letters of Credit, and (ii) the Multicurrency Revolving Lenders severally agree to participate in  the Multicurrency Letters of Credit issued pursuant to Section 2.05(d).  On and after the Closing  Date, each Existing Multicurrency Letter of Credit shall be deemed to be a Multicurrency Letter of  Credit issued hereunder on the Closing Date for all purposes under this Agreement and the other  Loan Documents, subject to the last sentence of Section 2.05(b).  Multicurrency Letters of Credit  will be issued on a serial basis by each Primary Issuing Bank, in each case, at the direction of the  Administrative Agent, with (i) such issuance to result in the Primary Issuing Banks sharing (to the  extent reasonably practicable) ratably in the aggregate exposure with respect to Multicurrency  Letters of Credit and (ii) the Multicurrency Letter of Credit exposure of each Primary Issuing  Bank to be subject to an individual sub-limit, the Dollar Equivalent of which shall be $10,000,000  for RBC and $5,000,000 for JPM, or in either case, such other amounts from time to time as  otherwise mutually agreed to by each such Primary Issuing Bank and the Lead Borrower.  For the  avoidance of doubt, Existing Multi-Currency Letters of Credit of a Primary Issuing Bank shall  count towards such Primary Issuing Bank’s individual sub-limit.   (iii) The Lead Borrower shall identify in the request for the issuance of a Letter of  Credit under which of the Multicurrency Revolving Facility or the Dollar Revolving Facility such  Letter of Credit shall be issued; provided that Letters of Credit denominated in a currency other  than U.S. Dollars may only be requested to be issued under the Multicurrency Revolving Facility  (and, for the avoidance of doubt, Letters of Credit in U.S. Dollars may be issued under either the  Dollar Revolving Facility or the Multicurrency Revolving Facility).  (iv) No Issuing Bank shall be under any obligation to issue any Letter of Credit if:  (A) any order, judgment or decree of any Governmental Authority or  arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing  such Letter of Credit, or any law applicable to such Issuing Bank or any request or  directive (whether or not having the force of law) from any Governmental Authority with  





 






  -77-       #95384462v18   #95384462v18   jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank  refrain from, the issuance of letters of credit generally or such Letter of Credit in  particular or shall impose upon such Issuing Bank with respect to such Letter of Credit  any restriction, reserve or capital requirement (for which such Issuing Bank is not  otherwise compensated hereunder) not in effect on the Closing Date, or shall impose  upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable  on the Closing Date and which such Issuing Bank in good faith deems material to it;  (B) the issuance of such Letter of Credit would violate one or more policies  of such Issuing Bank applicable to letters of credit generally;  (C) except as otherwise agreed by the Administrative Agent and such  Issuing Bank, such Letter of Credit is in an initial stated amount less than the Dollar  Equivalent of $100,000;  (D) except as otherwise agreed by the Administrative Agent and such  Issuing Bank, such Letter of Credit is to be denominated in a currency other than  U.S. Dollars or an Agreed Currency; or  (E) such Issuing Bank does not as of the issuance date of such requested  Letter of Credit issue Letters of Credit in the requested currency.  (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the  issuance of a Letter of Credit, the Lead Borrower shall deliver to the applicable Issuing Bank and the Administrative  Agent, at least three Business Days in advance of the requested date of issuance (or such shorter period as is  acceptable to the applicable Issuing Bank), a request to issue a Letter of Credit, which shall specify that it is being  issued under this Agreement, in the form of Exhibit K attached hereto.  To request an amendment, extension or  renewal of an outstanding Letter of Credit, (other than any automatic extension of a Letter of Credit permitted under  Section 2.05(c)) the Lead Borrower shall submit such a request to the applicable Issuing Bank (with a copy to the  Administrative Agent) at least three Business Days in advance of the requested date of amendment, extension or  renewal (or such shorter period as is acceptable to the applicable Issuing Bank), identifying the Letter of Credit to be  amended, extended or renewed, and specifying the proposed date (which shall be a Business Day) and other details  of the amendment, extension or renewal.  Requests for the issuance, amendment, extension or renewal of any Letter  of Credit must be accompanied by such other information (including information as required by regulatory  authorities under applicable “know your customer” rules and regulations) as shall be necessary to issue, amend,  extend or renew such Letter of Credit.  If requested by the applicable Issuing Bank, the Lead Borrower also shall  submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter  of Credit.  In the event of any inconsistency between the terms and conditions of this Agreement and the terms and  conditions of any form of letter of credit application or other agreement submitted by the Lead Borrower to, or  entered into by the Lead Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and  conditions of this Agreement shall control.  No Letter of Credit, letter of credit application or other document  entered into by the Lead Borrower with the applicable Issuing Bank relating to any Letter of Credit shall contain any  representations or warranties, covenants or events of default not set forth in this Agreement (and to the extent  inconsistent herewith shall be rendered null and void), and all representations and warranties, covenants and events  of default set forth therein shall contain standards, qualifications, thresholds and exceptions for materiality or  otherwise consistent with those set forth in this Agreement (and, to the extent inconsistent herewith, shall be deemed  to automatically incorporate the applicable standards, qualifications, thresholds and exceptions set forth herein  without action by any Person).  A Dollar Letter of Credit may be issued, amended, extended or renewed only if (and  on the issuance, amendment, extension or renewal of each Letter of Credit the Lead Borrower shall be deemed to  represent and warrant that), after giving effect to such issuance, amendment, extension, or renewal, (i) the Dollar LC  Exposure does not exceed the Dollar Letter of Credit Sublimit, (ii) the sum of (x) the aggregate outstanding principal  amount of all Dollar Revolving Loans made under the Dollar Revolving Facility plus (y) the aggregate amount of all  Dollar LC Obligations under the Dollar Revolving Facility would not exceed the Total Dollar Revolving Credit  Commitment and (iii) the sum of (x) the aggregate outstanding principal amount of all Dollar Revolving Loans of  any Dollar Revolving Lender made under the Dollar Revolving Facility plus (y) the Dollar Revolving Applicable  





 






  -78-       #95384462v18   #95384462v18   Percentage of the Dollar LC Obligations of any Dollar Revolving Lender under the Dollar Revolving Facility would  not exceed such Dollar Revolving Lender’s Dollar Revolving Credit Commitments.  A Multicurrency Letter of  Credit may be issued, amended, extended or renewed only if (and on the issuance, amendment, extension or renewal  of each Letter of Credit the Lead Borrower shall be deemed to represent and warrant that), after giving effect to such  issuance, amendment, extension, or renewal, (i) the Multicurrency LC Exposure does not exceed the Multicurrency  Letter of Credit Sublimit, (ii) the sum of (x) the Dollar Equivalent of the aggregate outstanding principal amount of  all Multicurrency Revolving Loans plus (y) the aggregate amount of all Multicurrency LC Obligations would not  exceed the Total Multicurrency Revolving Credit Commitment and (iii) the sum of (x) the Dollar Equivalent of the  aggregate outstanding principal amount of all Multicurrency Revolving Loans of any Multicurrency Revolving  Lender made under the Multicurrency Revolving Facility plus (y) the Multicurrency Revolving Applicable  Percentage of the Multicurrency LC Obligations of any Multicurrency Revolving Lender under the Multicurrency  Revolving Facility would not exceed such Multicurrency Revolving Lender’s Multicurrency Revolving Credit  Commitments.  Promptly after the delivery of any Letter of Credit or any amendment to a Letter of Credit to an  advising bank with respect thereto or to the beneficiary thereof, the applicable Issuing Bank will also deliver to the  Lead Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.   Notwithstanding anything to the contrary contained herein, there shall be no extensions or renewals of the Existing  Letters of Credit, which shall expire in accordance with the terms thereof as in effect on the Closing Date.  (c) Expiration Date.    (i) No Letter of Credit shall expire later than the earlier of (A) the date that is one  year after the date of the issuance of such Letter of Credit and (B) the date that is five Business  Days prior to the Revolving Credit Maturity Date; provided that any Standby Letter of Credit may  provide for the automatic extension thereof for any number of additional periods each of up to one  year in duration (none of which, in any event, shall extend beyond the date referred to in the  preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized  or backstopped on or before the date that such Letter of Credit is extended beyond the date  referred to in clause (B) above pursuant to arrangements reasonably satisfactory to the relevant  Issuing Bank.   (ii) No Commercial Letter of Credit shall expire later than the earlier to occur of  (A) 180 days after the issuance thereof (or in each case such longer period as may be agreed by the  relevant Issuing Bank and the applicable Borrower) and (B) the date that is five Business Days  prior to the Revolving Credit Maturity Date.  (d) Participations.  (i) By the issuance of a Dollar Letter of Credit (or an amendment to a Dollar Letter of  Credit increasing the amount thereof) and without any further action on the part of the applicable  Issuing Bank or the Dollar Revolving Lenders, the applicable Issuing Bank hereby grants to each  Dollar Revolving Lender, and each Dollar Revolving Lender hereby acquires from such Issuing  Bank, a participation in such Dollar Letter of Credit equal to such Dollar Revolving Lender’s  Dollar Revolving Applicable Percentage of the aggregate amount available to be drawn under  such Dollar Letter of Credit.  In consideration and in furtherance of the foregoing, each Dollar  Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative  Agent, for the account of the applicable Issuing Bank, such Dollar Revolving Lender’s Dollar  Revolving Applicable Percentage of each Dollar LC Disbursement made by such Issuing Bank  and not reimbursed by the Lead Borrower on the date due as provided in paragraph (e) of this  Section 2.05, or of any reimbursement payment required to be refunded to the applicable Borrower  for any reason.  Each Dollar Revolving Lender acknowledges and agrees that its obligation to  acquire participations pursuant to this paragraph in respect of Dollar Letters of Credit is absolute  and unconditional and shall not be affected by any circumstance whatsoever, including any  amendment, renewal or extension of any Dollar Letter of Credit or the occurrence and continuance  of a Default or Event of Default or reduction or termination of the Dollar Revolving Credit  





 






  -79-       #95384462v18   #95384462v18   Commitments, and that each such payment shall be made without any offset, abatement,  withholding or reduction whatsoever.  (ii) By the issuance of a Multicurrency Letter of Credit (or an amendment to a  Multicurrency Letter of Credit increasing the amount thereof) and without any further action on  the part of the applicable Issuing Bank or the Multicurrency Revolving Lenders, the applicable  Issuing Bank hereby grants to each Multicurrency Revolving Lender, and each Multicurrency  Revolving Lender hereby acquires from such Issuing Bank, a participation in such Multicurrency  Letter of Credit equal to such Multicurrency Revolving Lender’s Multicurrency Revolving  Applicable Percentage of the Dollar Equivalent of the aggregate amount available to be drawn  under such Multicurrency Letter of Credit.  In consideration and in furtherance of the foregoing,  each Multicurrency Revolving Lender hereby absolutely and unconditionally agrees to pay to the  Administrative Agent, for the account of the applicable Issuing Bank, such Multicurrency  Revolving Lender’s Multicurrency Revolving Applicable Percentage of each Multicurrency LC  Disbursement made by such Issuing Bank and not reimbursed by the applicable Borrower on the  date due as provided in paragraph (e) of this Section 2.05, or of any reimbursement payment  required to be refunded to the applicable Borrower for any reason.  Each Multicurrency Revolving  Lender acknowledges and agrees that its obligation to acquire participations pursuant to this  paragraph in respect of Multicurrency Letters of Credit is absolute and unconditional and shall not  be affected by any circumstance whatsoever, including any amendment, renewal or extension of  any Multicurrency Letter of Credit or the occurrence and continuance of a Default or Event of  Default or reduction or termination of the applicable Revolving Credit Commitments, and that  each such payment shall be made without any offset, abatement, withholding or reduction  whatsoever.  (e) Reimbursement.  (i) (A) If the applicable Issuing Bank makes any Dollar LC Disbursement in respect  of a Dollar Letter of Credit, the Lead Borrower shall reimburse such Dollar LC Disbursement by  paying to the Administrative Agent an amount equal to such Dollar LC Disbursement not later  than 1:00 p.m. on the Business Day immediately following the date on which the Lead Borrower  receives notice under paragraph (g) of this Section 2.05 of such Dollar LC Disbursement (or, in  the case of Dollar Letters of Credit, if such notice is received less than two hours prior to the  deadline for requesting ABR Revolving Borrowings pursuant to Section 2.03, on the second  Business Day immediately following the date on which the Lead Borrower receives such notice);  provided that the Lead Borrower may, subject to the conditions to borrowing set forth herein,  request in accordance with Section 2.03 that such payment, in the case of Dollar Letters of Credit,  be financed with an ABR Revolving Borrowing in an equivalent amount and, to the extent so  financed, the Lead Borrower’s obligation to make such payment shall be discharged and replaced  by the resulting ABR Revolving Borrowing.  If the Lead Borrower fails to make such payment or  otherwise reimburse such Dollar LC Disbursement when due, the Administrative Agent shall  notify each Dollar Revolving Lender of the applicable Dollar LC Disbursement, the payment then  due from the Lead Borrower in respect thereof and such Dollar Revolving Lender’s Dollar  Revolving Applicable Percentage thereof.  Promptly following receipt of such notice, each Dollar  Revolving Lender shall pay to the Administrative Agent its Dollar Revolving Applicable  Percentage of the payment then due from the Lead Borrower, in the same manner as provided in  Section 2.07 with respect to Loans made by such Dollar Revolving Lender (and Section 2.07 shall  apply, mutatis mutandis, to the payment obligations of the applicable Revolving Lenders), and the  Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received  by it from the Dollar Revolving Lenders.  Promptly following receipt by the Administrative Agent  of any payment from the Lead Borrower pursuant to this paragraph, the Administrative Agent  shall distribute such payment to the applicable Issuing Bank or, to the extent that Dollar Revolving  Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to  such Dollar Revolving Lenders and such Issuing Bank as their interests may appear.  





 






  -80-       #95384462v18   #95384462v18   (B) If the applicable Issuing Bank makes any Multicurrency LC  Disbursement in respect of a Multicurrency Letter of Credit, the Lead Borrower shall reimburse  such Multicurrency LC Disbursement and in the same currency issued unless otherwise agreed by  the relevant Issuing Bank and the Lead Borrower by paying to the Administrative Agent an  amount equal to such Multicurrency LC Disbursement not later than 1:00 p.m. on the Business  Day immediately following the date on which the Lead Borrower receives notice under  paragraph (g) of this Section 2.05 of such Multicurrency LC Disbursement (or, in the case of  Multicurrency Letters of Credit denominated in U.S. Dollars or Canadian Dollars, if such notice is  received less than two hours prior to the deadline for requesting ABR Revolving Borrowings  pursuant to Section 2.03, on the second Business Day immediately following the date on which  the Lead Borrower receives such notice); provided that the Lead Borrower may, subject to the  conditions to borrowing set forth herein, request in accordance with Section 2.03 that such  payment, in the case of Multicurrency Letters of Credit denominated in U.S. Dollars or Canadian  Dollars, be financed with an ABR Revolving Borrowing in an equivalent amount and, to the  extent so financed, the Lead Borrower’s obligation to make such payment shall be discharged and  replaced by the resulting ABR Revolving Borrowing.  If the Lead Borrower fails to make such  payment or otherwise reimburse such Multicurrency LC Disbursement when due, the  Administrative Agent shall notify each Multicurrency Revolving Lender of the applicable  Multicurrency LC Disbursement, the payment then due from the Lead Borrower in respect thereof  and such Revolving Lender’s Multicurrency Revolving Applicable Percentage of (x) in the case of  a Letter of Credit denominated in U.S. Dollars, such amount in U.S. Dollars, (y) in the case of a  Letter of Credit denominated in Canadian Dollars, Euros or Pounds Sterling, such amount in  Canadian Dollars, Euros or Pounds Sterling, respectively.  Promptly following receipt of such  notice, each Multicurrency Revolving Lender shall pay to the Administrative Agent its  Multicurrency Revolving Applicable Percentage of such payment then due from the Lead  Borrower (including, if the circumstances in clause (2) apply, the applicable additional amount), in  the same manner as provided in Section 2.07 with respect to Loans made by such Multicurrency  Revolving Lender in the applicable currency (and Section 2.07 shall apply, mutatis mutandis, to  the payment obligations of the Multicurrency Revolving Lenders), and the Administrative Agent  shall promptly pay to the applicable Issuing Bank the amounts so received by it from the  Multicurrency Revolving Lenders.  Promptly following receipt by the Administrative Agent of  any payment from the Lead Borrower pursuant to this paragraph, the Administrative Agent shall  distribute such payment to the applicable Issuing Bank or, to the extent that Multicurrency  Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing  Bank, then to such Multicurrency Revolving Lenders and such Issuing Bank as their interests may  appear.  (ii) If any Initial Revolving Lender fails to make available to the Administrative  Agent for the account of the applicable Issuing Bank any amount required to be paid by such  Initial Revolving Lender pursuant to the foregoing provisions of this Section 2.05(e) by the time  specified therein, such Issuing Bank shall be entitled to recover from such Initial Revolving  Lender (acting through the 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 such Issuing Bank at a rate per annum equal to the greater of the  Overnight Rate from time to time in effect and a rate determined by the Administrative Agent in  accordance with banking industry rules on interbank compensation.  A certificate of the applicable  Issuing Bank submitted to any Initial Revolving Lender (through the Administrative Agent) with  respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.  (f) Obligations Absolute.  The Lead Borrower’s obligation to reimburse LC Disbursements  as provided in paragraph (e) of this Section 2.05 shall be absolute, unconditional and irrevocable, and shall be  performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and  irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or  provision therein, (ii) any draft or other document presented under any Letter of Credit proving to be forged,  fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment  





 






  -81-       #95384462v18   #95384462v18   by the applicable Issuing Bank under any Letter of Credit against presentation of a draft or other document that does  not comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or  not similar to any of the foregoing, that might, but for the provisions of this Section 2.05, constitute a legal or  equitable discharge of, or provide a right of setoff against, the Lead Borrower’s obligations hereunder.  Neither the  Administrative Agent, the Revolving Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any  liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any  payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the  preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft,  notice or other communication under or relating to any Letter of Credit (including any document required to make a  drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond  the control of such Issuing Bank; provided that the foregoing shall not be construed to excuse such Issuing Bank  from liability to the Lead Borrower to the extent of any direct damages (as opposed to consequential damages,  claims in respect of which are hereby waived by the Lead Borrower to the extent permitted by applicable law)  suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether  drafts and other documents presented under a Letter of Credit comply with the terms thereof.  The parties hereto  expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of applicable  Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to  have exercised care in each such determination.  In furtherance of the foregoing and without limiting the generality  thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial  compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept  and make payment upon such documents without responsibility for further investigation, regardless of any notice or  information to the contrary, or refuse to accept and make payment upon such documents if such documents are not  in strict compliance with the terms of such Letter of Credit.  (g) Disbursement Procedures.  The applicable Issuing Bank shall, promptly following its  receipt thereof, examine all documents purporting to represent a demand for payment under a Dollar Letter of Credit  or a Multicurrency Letter of Credit.  Such Issuing Bank shall promptly notify the Administrative Agent and the Lead  Borrower in writing or by telephone (promptly confirmed in writing) of such demand for payment and whether such  Issuing Bank has made or will make a Dollar LC Disbursement or Multicurrency LC Disbursement, as applicable,  thereunder; provided that no failure to give or delay in giving such notice shall relieve the Lead Borrower of its  obligation to reimburse (x) such Issuing Bank and the Dollar Revolving Lenders with respect to any such Dollar LC  Disbursement or (y) such Issuing Bank and the Multicurrency Revolving Lenders with respect to any such  Multicurrency LC Disbursement, as applicable.  (h) Interim Interest.  (i) If any Issuing Bank makes any Dollar LC Disbursement, then, unless the Lead  Borrower reimburses such Dollar LC Disbursement in full on the date such Dollar LC  Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and  including the date such Dollar LC Disbursement is made to but excluding the date that the Lead  Borrower reimburses such Dollar LC Disbursement, at the rate per annum that would apply to  such amount if such amount were a Revolving ABR Loan; provided that if the Lead Borrower  fails to reimburse such Dollar LC Disbursement when due pursuant to paragraph (e) of this  Section 2.05, then Section 2.13(f) shall apply.  Interest accrued pursuant to this paragraph shall be  for the account of the applicable Issuing Bank, except that interest accrued on and after the date of  payment by any Dollar Revolving Lender pursuant to paragraph (e) of this Section 2.05 to  reimburse such Issuing Bank shall be for the account of such Dollar Revolving Lender to the  extent of such payment and shall be payable on the date on which the Lead Borrower is required to  reimburse the applicable Dollar LC Disbursement in full (and, thereafter, on demand).  (ii) If any Issuing Bank makes any Multicurrency LC Disbursement, then, unless the  Lead Borrower reimburses such Multicurrency LC Disbursement in full on the date such  Multicurrency LC Disbursement is made, the unpaid amount thereof shall bear interest, for each  day from and including the date such Multicurrency LC Disbursement is made to but excluding  the date that the Lead Borrower reimburses such Multicurrency LC Disbursement, at the rate per  





 






  -82-       #95384462v18   #95384462v18   annum that would apply to such amount if such amount were a Revolving ABR Loan; provided  that if the Lead Borrower fails to reimburse such Multicurrency LC Disbursement when due  pursuant to paragraph (e) of this Section 2.05, then Section 2.13(f) shall apply.  Interest accrued  pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that  interest accrued on and after the date of payment by any Multicurrency Revolving Lender pursuant  to paragraph (e) of this Section 2.05 to reimburse such Issuing Bank shall be for the account of  such Multicurrency Revolving Lender to the extent of such payment and shall be payable on the  date on which the Lead Borrower is required to reimburse the applicable Multicurrency LC  Disbursement in full (and, thereafter, on demand),  (i) Replacement or Resignation of an Issuing Bank or Addition of New Issuing Banks.  (i) Any Issuing Bank may be replaced with the consent of the Administrative Agent  (not to be unreasonably withheld or delayed) at any time by written agreement among the Lead  Borrower, the Administrative Agent and the successor Issuing Bank.  The Administrative Agent  shall notify the Initial Revolving Lenders of any such replacement of an Issuing Bank.  At the time  any such replacement becomes effective, the Lead Borrower shall pay all unpaid fees accrued for  the account of the replaced Issuing Bank pursuant to Section 2.12(b)(ii).  From and after the  effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and  obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to  be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer  to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing  Banks, as the context shall require.  After the replacement of any Issuing Bank hereunder, the  replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and  obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it  prior to such replacement, but shall not be required to issue additional Letters of Credit.  The Lead  Borrower may, at any time and from time to time with the consent of the Administrative Agent  (which consent shall not be unreasonably withheld or delayed) and the relevant Revolving  Lenders, designate one or more additional Revolving Lenders to act as an issuing bank under the  terms of this Agreement.  Any Revolving Lender designated as an issuing bank pursuant to this  paragraph (i) who agrees in writing to such designation shall be deemed to be an “Issuing Bank”  (in addition to being a Revolving Lender) in respect of Letters of Credit issued or to be issued by  such Revolving Lender, and, with respect to such Letters of Credit, such term shall thereafter  apply to the other Issuing Bank and such Revolving Lender.  (ii) Notwithstanding anything to the contrary contained herein, each Issuing Bank  may, upon ten days’ prior written notice to the Lead Borrower, each other Issuing Bank and the  Lenders, resign as Issuing Bank, which resignation shall be effective as of the date referenced in  such notice (but in no event less than ten days after the delivery of such written notice); it being  understood that in the event of any such resignation, any Letter of Credit then outstanding shall  remain outstanding (irrespective of whether any amounts have been drawn at such time).  In the  event of any such resignation as an Issuing Bank, the Lead Borrower shall be entitled to appoint  any Revolving Lender that accepts such appointment in writing as successor Issuing Bank.  Upon  the acceptance of any appointment as Issuing Bank hereunder, the successor Issuing Bank shall  thereupon succeed to and become vested with all the rights, powers, privileges and duties of the  retiring Issuing Bank, and the retiring Issuing Bank shall be discharged from its duties and  obligations in such capacity hereunder.  (j) Cash Collateralization.  (i) If any Event of Default exists, then on the Business Day that the Lead Borrower  receives notice from the Administrative Agent at the direction of the Required Revolving Lenders  demanding the deposit of Cash collateral pursuant to this paragraph (j), the Lead Borrower shall  deposit, in an interest-bearing account with the Administrative Agent, in the name of the  Administrative Agent and for the benefit of the relevant Revolving Lenders (the “LC Collateral  





 






  -83-       #95384462v18   #95384462v18   Account”), an amount in Cash equal to 101% of the Dollar Equivalent of the LC Exposure as of  such date (minus the amount then on deposit in the LC Collateral Account); provided that the  obligation to deposit such Cash collateral shall become effective immediately, and such deposit  shall become immediately due and payable, without demand or other notice of any kind, upon the  occurrence of any Event of Default with respect to the Lead Borrower described in Section 7.01(f)  or (g).  (ii) Any such deposit under clause (i) above shall be held by the Administrative Agent  as collateral for the payment and performance of the Secured Obligations in accordance with the  provisions of this paragraph (j).  The Administrative Agent shall have exclusive dominion and  control, including the exclusive right of withdrawal, over such account, and the Lead Borrower  hereby grants the Administrative Agent, for the benefit of the Secured Parties, a First Priority  security interest in the LC Collateral Account.  Interest or profits, if any, on such investments shall  accumulate in such account.  Moneys in such account shall be applied by the Administrative  Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been  reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement  obligations of the Lead Borrower for the LC Exposure at such time or, if the maturity of the Loans  has been accelerated (but subject to the consent of the Required Revolving Lenders) be applied to  satisfy other Secured Obligations.  If the Lead Borrower is required to provide an amount of Cash  collateral hereunder as a result of the occurrence of an Event of Default, such amount (together  with all interest and other earnings with respect thereto, to the extent not applied as aforesaid)  shall be returned to the Lead Borrower promptly but in no event later than three Business Days  after such Event of Default has been cured or waived.  (k) For the avoidance of doubt, no Letter of Credit shall be issued under the 2022 Revolving  Facility.  (l) Each 2022 Revolving Lender shall be deemed to have voted its interests as a Revolving  Lender in the same proportion as the allocation of voting with respect to such matter by Revolving Lenders who are  not 2022 Revolving Lenders for purposes of (x) any amendment, modification, waiver, consent or other action, or  directing or requiring the Administrative Agent to undertake any action (or refrain from taking any action) with  respect to or under this Section 2.05 or (y) any waiver, amendment or modification of the definition of “Dollar  Letter of Credit Sublimit” or “Multicurrency Letter of Credit Sublimit”.  Section 2.06 [Reserved].  Section 2.07 Funding of Borrowings.  (a) Except as otherwise agreed by the Lead Borrower and the Administrative Agent, each  Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of  immediately available funds by 1:00 p.m. to the account of the Administrative Agent most recently designated by it  for such purpose by notice to the Lenders in an amount equal to such Lender’s respective Applicable Percentage.   The Administrative Agent will make such Loans available to the Lead Borrower by promptly crediting the amounts  so received, in like funds, to the Funding Account or as otherwise directed by the Lead Borrower; provided that  ABR Revolving Loans made to finance the reimbursement of any LC Disbursement as provided in Section 2.05(e)  shall be remitted by the Administrative Agent to the applicable Issuing Bank.  (b) Unless the Administrative Agent has received notice from any Lender prior to the  proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s  share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on  such date in accordance with paragraph (a) of this Section 2.07 and may, in reliance upon such assumption, make  available to the Lead Borrower a corresponding amount.  In such event, if any Lender has not in fact made its share  of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Lead  Borrower severally agree to pay to the Administrative Agent forthwith on demand (without duplication) such  corresponding amount with interest thereon, for each day from and including the date such amount is made available  





 






  -84-       #95384462v18   #95384462v18   to the Lead Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such  Lender, the Overnight Rate or (ii) in the case of the Lead Borrower, the interest rate applicable to Loans comprising  such Borrowing at such time.  If such Lender pays such amount to the Administrative Agent, then such amount shall  constitute such Lender’s Loan included in such Borrowing and the Lead Borrower’s obligation to repay the  Administrative Agent such corresponding amount pursuant to this Section 2.07(b) shall cease.  If the Lead Borrower  pays such amount to the Administrative Agent, the amount so paid shall constitute a repayment of such Borrowing  by such amount.  Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment  or to prejudice any rights which the Administrative Agent or the Lead Borrower or any other Loan Party may have  against any Lender as a result of any default by such Lender hereunder.  Section 2.08 Type; Interest Elections.  (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing  Request and, in the case of a Eurocurrency Rate Borrowing, SOFR Borrowing or EURIBOR Rate Borrowing, shall  have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the Lead Borrower may elect to  convert any Borrowing to a Borrowing of a different Type or to continue such Borrowing and, in the case of a  Eurocurrency Rate Borrowing, SOFR Borrowing or EURIBOR Rate Borrowing, may elect Interest Periods therefor,  all as provided in this Section 2.08.  The Lead Borrower may elect different options with respect to different portions of the affected Borrowing, in  which case each such portion shall be allocated ratably among the Lenders based upon their Applicable Percentages  and the Loans comprising each such portion shall be considered a separate Borrowing.  (b) To make an election pursuant to this Section 2.08, the Lead Borrower shall notify the  Administrative Agent of such election either in writing (by hand delivery, fax or other electronic transmission  (including “.pdf” or “.tif”)) or by telephone by the time that a Borrowing Request would be required under  Section 2.03 if the Lead Borrower were requesting a Borrowing of the Type resulting from such election to be made  on the effective date of such election.  Each such telephonic Interest Election Request shall be irrevocable and shall  be confirmed promptly by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”) to the  Administrative Agent of a written Interest Election Request signed by a Responsible Officer of the Lead Borrower.  (c) Each telephonic and written Interest Election Request shall specify the following  information in compliance with Section 2.02:  (i) the Borrowing to which such Interest Election Request applies and, if different  options are being elected with respect to different portions thereof, the portions thereof to be  allocated to each resulting Borrowing (in which case the information to be specified pursuant to  clauses (iii) and (iv) below shall be specified for each resulting Borrowing);  (ii) the effective date of the election made pursuant to such Interest Election Request,  which shall be a Business Day;  (iii) whether the resulting Borrowing is to be an ABR Borrowing, a Eurocurrency Rate  Borrowing, SOFR Borrowing, a EURIBOR Rate Borrowing or a SONIA Rate Borrowing; and  (iv) if the resulting Borrowing is a Eurocurrency Rate Borrowing, SOFR Borrowing or  EURIBOR Rate Borrowing, the Interest Period to be applicable thereto after giving effect to such  election, which shall be a period contemplated by the definition of the term “Interest Period”.  If any such Interest Election Request requests a Eurocurrency Rate Borrowing or SOFR Borrowing but does not  specify an Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period of one  month’s duration.  





 






  -85-       #95384462v18   #95384462v18   (d) Promptly following receipt of an Interest Election Request, the Administrative Agent  shall advise each applicable Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.  (e) If the applicable Borrower fails to deliver a timely Interest Election Request with respect  to a Eurocurrency Rate Borrowing, SOFR Borrowing or EURIBOR Rate Borrowing prior to the end of the Interest  Period applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be  converted at the end of such Interest Period to a Eurocurrency Rate Borrowing, SOFR Borrowing or EURIBOR  Rate Borrowing with an Interest Period of one month.  Notwithstanding any contrary provision hereof, if an Event  of Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies the Lead  Borrower, then, so long as such Event of Default exists (i) no outstanding Borrowing may be converted to or  continued as a Eurocurrency Rate Borrowing, SOFR Borrowing or EURIBOR Rate Borrowing, as applicable, and  (ii) unless repaid, (x) each Eurocurrency Rate Borrowing, SOFR Borrowing and EURIBOR Borrowing shall be  converted to an ABR Borrowing at the end of the then-current Interest Period applicable thereto and (y) each  Eurocurrency Rate Borrowing denominated in any other currency shall be continued as a Eurocurrency Rate  Borrowing with an Interest Period of one month.  Section 2.09 Termination and Reduction of Commitments.  (a) Unless previously terminated, (i) the 2021 Term Commitments shall automatically  terminate upon the making of the 2021 Term Loans on the First Amendment Effective Date and (ii) the Revolving  Credit Commitments shall terminate on the Revolving Credit Maturity Date.  (b) Upon delivering the notice required by Section 2.09(d), the Lead Borrower may at any  time terminate the Initial Revolving Credit Commitments and/or the 2022 Revolving Credit Commitments upon  (i) the payment in full in Cash of all relevant outstanding Revolving Loans, together with accrued and unpaid  interest thereon, (ii) in the case of a termination of Initial Revolving Credit Commitments, the cancellation and  return of all outstanding Letters of Credit (or alternatively, with respect to each outstanding Letter of Credit, the  furnishing to the Administrative Agent of a Cash deposit (or, if reasonably satisfactory to the applicable Issuing  Bank, a backup standby letter of credit) equal to 100% of the LC Exposure (minus the amount then on deposit in the  LC Collateral Account) as of such date), (iii) in the case of a termination of Initial Revolving Credit Commitments,  the payment in full in Cash of all Ancillary Outstandings or, alternatively the furnishing to the relevant Ancillary  Lender of a Cash deposit equal to 100% of the Ancillary Outstandings as of such date, in each case, together with  accrued and unpaid interest, fees and reimbursement expenses in respect thereof and (iv) the payment in full of all  accrued and unpaid fees and all reimbursable expenses and other non-contingent Obligations with respect to the  applicable Revolving Facility then due, together with accrued and unpaid interest (if any) thereon.  (c) Upon delivering the notice required by Section 2.09(d), the Lead Borrower may from  time to time reduce the Initial Revolving Credit Commitments and/or the 2022 Revolving Credit Commitments;  provided that (i) each reduction of theany such Revolving Credit Commitments shall be in an amount that is an  integral multiple of the Dollar Equivalent of $1,000,000 and not less than the Dollar Equivalent of $1,000,000 and  (ii) the Lead Borrower shall not reduce (x) the Initial Revolving Credit Commitments if, after giving effect to any  concurrent prepayment of the Initial Revolving Loans in accordance with Section 2.10 or Section 2.11, the  Aggregate Initial Revolving Credit Exposure would exceed the Total Initial Revolving Credit Commitment or (y)  the 2022 Revolving Credit Commitments if, after giving effect to any concurrent prepayment of the 2022 Revolving  Loans in accordance with Section 2.10 or Section 2.11, the Aggregate 2022 Revolving Credit Exposure would  exceed the Total 2022 Revolving Credit Commitment.  (d) The Lead Borrower shall notify the Administrative Agent of any election to terminate or  reduce theany Revolving Credit Commitments under paragraph (b) or (c) of this Section 2.09 in writing at least three  Business Days prior to the effective date of such termination or reduction (or such later date to which the  Administrative Agent may agree), specifying such election and the effective date thereof.  Promptly following  receipt of any notice, the Administrative Agent shall advise the relevant Revolving Lenders of the contents thereof.   Each notice delivered by the Lead Borrower pursuant to this Section 2.09 shall be irrevocable; provided that a notice  of termination of thesuch Revolving Credit Commitments delivered by the Lead Borrower may state that such notice  is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Lead  





 






  -86-       #95384462v18   #95384462v18   Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not  satisfied.  Any termination or reduction of thesuch Revolving Credit Commitments pursuant to this Section 2.09  shall be permanent.  Upon any reduction of the Revolving Credit Commitments of any Class, the applicable  Revolving Credit Commitment of each Revolving Lender for such Class shall be reduced by such Revolving  Lender’s Applicable Percentage of such Class of such reduction amount.  Section 2.10 Repayment of Loans; Evidence of Debt.  (a) The Lead Borrower hereby unconditionally promises to repay Initial Term Loans to the  Administrative Agent for the account of each Term Lender (i) commencing June 30, 2021 on the last calendar day  of each March, June, September and December prior to the Initial Term Loan Maturity Date (each such date being  referred to as a “Loan Installment Date”), in each case, in an amount equal to 0.25% of the original principal  amount of the Initial Term Loans (as such payment installment amounts may be reduced from time to time as a  result of the application of prepayments in accordance with Section 2.11 and repurchases in accordance with Section  9.05(g) or increased as a result of any increase in the amount of such Initial Term Loans pursuant to Section  2.22(a)), and (ii) on the Initial Term Loan Maturity Date, in an amount equal to the remainder of the principal  amount of the Initial Term Loans, outstanding on such date, together in each case with accrued and unpaid interest  on the principal amount to be paid to but excluding the date of such payment.  (b) The Lead Borrower hereby unconditionally promises to pay to the Administrative Agent  for the account of each Revolving Lender the then unpaid principal amount of each Revolving Loan on the  Revolving Credit Maturity Date.  In addition, on the Revolving Credit Maturity Date, the Lead Borrower shall  (A) cancel and return all outstanding Letters of Credit (or alternatively, with respect to any outstanding Letter of  Credit, furnish to the Administrative Agent a Cash deposit (or if reasonably acceptable to the relevant Issuing Bank,  a backup standby letter of credit) equal to 100% of the LC Exposure (minus the Dollar Equivalent of the amount  then on deposit in the LC Collateral Account) as of such date) and (B) make payment in full in Cash of all accrued  and unpaid fees and all reimbursable expenses and other Obligations with respect to the Revolving Facility then due,  together with accrued and unpaid interest (if any) thereon.  (c) Each Lender shall maintain in accordance with its usual practice an account or accounts  evidencing the indebtedness of the Lead Borrower to such Lender resulting from each Loan made by such Lender,  including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.  (d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount  of each Loan made hereunder, the Class and Type thereof and the Interest Period (if any) applicable thereto, (ii) the  amount of any principal or interest due and payable or to become due and payable from the Lead Borrower to each  Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account  of the Lenders and each Lender’s share thereof.  (e) The entries made in the accounts maintained pursuant to paragraph (c) or (d) of this  Section 2.10 shall be prima facie evidence of the existence and amounts of the obligations recorded therein (absent  manifest error); provided that the failure of any Lender or the Administrative Agent to maintain such accounts or  any manifest error therein shall not in any manner affect the obligation of the Lead Borrower to repay the Loans in  accordance with the terms of this Agreement; provided, further, that in the event of any inconsistency between the  accounts maintained by the Administrative Agent pursuant to paragraph (d) of this Section 2.10 and any Lender’s  records, the accounts of the Administrative Agent shall govern.  (f) Any Lender may request that Loans made by it be evidenced by a Promissory Note.  In  such event, the Lead Borrower shall prepare, execute and deliver to such Lender a Promissory Note payable to such  Lender and its registered assigns; it being understood and agreed that such Lender (and/or its applicable assign) shall  be required to return such Promissory Note to the Lead Borrower in accordance with Section 9.05(b)(iii) and upon  the occurrence of the Termination Date (or as promptly thereafter as practicable).  Section 2.11 Prepayment of Loans.  





 






  -87-       #95384462v18   #95384462v18   (a) Optional Prepayments.  (i) Upon prior notice in accordance with paragraph (a)(iii) of this Section 2.11, the  Lead Borrower shall have the right at any time and from time to time to prepay any Borrowing of  Term Loans of any Class in whole or in part without premium or penalty (but subject to  Sections 2.12(f) and 2.16).  Each such prepayment shall be paid to the Lenders holding Term  Loans of such Class in accordance with their respective Applicable Percentages.  (ii) Upon prior notice in accordance with paragraph (a)(iii) of this Section 2.11, the  Lead Borrower shall have the right at any time and from time to time to prepay any Borrowing of  Revolving Loans, including any Additional Revolving Loans, in whole or in part without premium  or penalty (but subject to Section 2.16).  Prepayments made pursuant to this Section 2.11(a)(ii),  first, shall be applied to outstanding LC Disbursements (with respect to this clause first, unless  such prepayment is a prepayment of the 2022 Revolving Loans) and, second, shall be applied, in  the order specified by the Lead Borrower at its election, (x) ratably to the outstanding 2022  Revolving Loans or (y) ratably to the outstanding Revolving Loans (other than the 2022  Revolving Loans), including any Additional Revolving Loans.  Each such prepayment shall be  paid to the Revolving Lenders in accordance with their respective Applicable Percentages.  (iii) The Lead Borrower shall notify the Administrative Agent in writing or by  telephone (promptly confirmed in writing) of any prepayment under this Section 2.11(a) (A) in the  case of a prepayment of a Eurocurrency Rate Borrowing or SOFR Borrowing, not later than 1:00  p.m. three Business Days before the date of prepayment or (B) in the case of a prepayment of an  ABR Borrowing or a Canadian Base Rate Borrowing, not later than 1:00 p.m. one Business Day  before the date of prepayment (or, in the case of clauses (A) and (B), such later date to which the  Administrative Agent may agree).  Each such notice shall be in the form of Exhibit H hereto and  shall be irrevocable and shall specify the prepayment date and the principal amount of each  Borrowing or portion thereof to be prepaid; provided that a notice of prepayment delivered by the  Lead Borrower may state that such notice is conditioned upon the effectiveness of other  transactions, in which case such notice may be revoked by the Lead Borrower (by notice to the  Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.   Promptly following receipt of any such notice relating to any Borrowing, the Administrative  Agent shall advise the relevant Lenders of the contents thereof.  Each partial prepayment of any  Borrowing shall be in an amount at least equal to the amount that would be permitted in the case  of an advance of a Borrowing of the same Type as provided in Section 2.02(c).  Each prepayment  of Term Loans made pursuant to this Section 2.11(a) shall be applied against the remaining  scheduled installments of principal due in respect of the Term Loans of such Class in the manner  specified by the Lead Borrower or, if not so specified on or prior to the date of such optional  prepayment, in direct order of maturity.  Each prepayment of Loans shall be made in the currency  in which such Loans are denominated.  (b) Mandatory Prepayments.  (i) No later than the fifth Business Day after the date on which the financial  statements with respect to each Fiscal Year of the Lead Borrower are required to be delivered  pursuant to Section 5.01(b), commencing with the Fiscal Year ending September 30, 2022, the  Lead Borrower shall prepay the outstanding principal amount of Initial Term Loans in accordance  with clause (vi) of this Section 2.11(b) below in an aggregate principal amount equal to (A) the  ECF Percentage of Excess Cash Flow of the Lead Borrower and its Restricted Subsidiaries for the  Fiscal Year then ended, minus (B) at the option of the Lead Borrower, the aggregate principal  amount of (x) any Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant  to Section 2.11(a) prior to such date, (y) the amount of any reduction in the outstanding amount of  any Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this  Agreement (including in connection with any Dutch Auction), in each case under this clause (y)  prior to such date and based upon the actual amount of Cash paid in connection with the relevant  





 






  -88-       #95384462v18   #95384462v18   assignment and (z) the amount of any voluntary prepayments, voluntary repurchases or voluntary  redemptions of any Other Indebtedness that is secured by the Collateral on a pari passu basis with  the Obligations prior to such date, in each case, excluding any such optional prepayments made  during such Fiscal Year that reduced the amount required to be prepaid pursuant to this  Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans  and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in the  relevant commitment, and in the case of all such prepayments, to the extent that such prepayments  were not financed with the proceeds of long-term Indebtedness (other than revolving  Indebtedness) of the Lead Borrower or its Restricted Subsidiaries), minus (C) without duplication  of amounts deducted from Excess Cash Flow in respect of a prior period, all Cash payments in  respect of capital expenditures made during such period and, at the option of the Lead Borrower,  any Cash payments in respect of any such capital expenditures made after such period and prior to  the date of the applicable Excess Cash Flow payment (except, in each case, to the extent financed  with long-term Indebtedness (other than revolving Indebtedness)), minus (D) Cash payments made  during such period in respect of Permitted Acquisitions and other Investments permitted by  Section 6.06 or otherwise consented to by the Required Lenders (other than Investments in  (x) Cash and Cash Equivalents and (y) the Lead Borrower or any of its Restricted Subsidiaries),  or, at the option of the Lead Borrower, any Cash payments in respect of Permitted Acquisitions  and other Investments permitted by Section 6.06 or otherwise consented to by the Required  Lenders (other than Investments in (x) Cash and Cash Equivalents and (y) the Lead Borrower or  any of its Restricted Subsidiaries) made after such period and prior to the date of the applicable  Excess Cash Flow payment (except, in each case, to the extent financed with long-term  Indebtedness (other than revolving Indebtedness)) (such amount, that is required to be prepaid  pursuant to this Section 2.11(b)(i), after giving effect to such calculation in clauses (A) through  (D), the “Required ECF Amount”); provided that, (1) no prepayment under this  Section 2.11(b)(i) shall be required to the extent that the Required ECF Amount would not exceed   the greater of $35,000,000 and 5% of Consolidated Adjusted EBITDA of the last day of the most  recently ended Test Period (and only the amount in excess of such threshold shall be required to  be prepaid under this Section 2.11(b)(i)), (2) at the Lead Borrower’s option, the amount by which  the threshold specified in clause (1) exceeds the Required ECF Amount may be applied to any  subsequent Fiscal Year to reduce the Required ECF Amount for such fiscal year on a dollar-for- dollar basis; provided, further, that if at the time any such prepayment would be required, the Lead  Borrower (or any other Loan Party) is also required to, or is required to offer to, prepay or  repurchase any Indebtedness permitted hereunder to be secured on a pari passu basis with the  Obligations pursuant to the terms of the documentation governing such Indebtedness (such  Indebtedness required to be offered to be so repaid or repurchased, the “Other Applicable  Indebtedness”) with any portion of the amount required to be prepaid pursuant to this Section  2.11(b)(i), then the Lead Borrower may apply such portion of such prepayment amount on a pro  rata basis to the prepayment of the Initial Term Loans and the relevant Other Applicable  Indebtedness at such time) to the prepayment of the Initial Term Loans and the relevant Other  Applicable Indebtedness, (and such amounts so offered, in any case, shall no longer be required to  be applied to prepay the Initial Term Loans).  (ii) No later than the fifth Business Day following the receipt of Net Proceeds in  respect of any Prepayment Asset Sale by the Lead Borrower or the other Loan Parties, in each  case, in excess of the greater of $70,000,000 or 10% of Consolidated Adjusted EBITDA as of the  last day of the most recently ended Test Period, the Lead Borrower shall apply an amount equal  to 100% (the “Prepayment Percentage”) of the Net Proceeds received with respect thereto in  excess of such threshold (the “Subject Proceeds”) to prepay the outstanding principal amount of  Initial Term Loans in accordance with clause (vi) below; provided that if, prior to the date any  such prepayment is required to be made, the Lead Borrower decides to reinvest the Subject  Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Lead  Borrower or any of its subsidiaries (including capital expenditures and Permitted Acquisitions or  other Investments), then the Lead Borrower shall not be required to make a mandatory prepayment  under this clause (ii) in respect of the Subject Proceeds to the extent (A) the Subject Proceeds are  





 






  -89-       #95384462v18   #95384462v18   so reinvested within 18 months following receipt thereof, (B) the Subject Proceeds are used to  prepay Indebtedness incurred to fund amounts and/or replenish cash so reinvested in assets used or  useful in the business (other than Cash or Cash Equivalents) of the Lead Borrower or any of its  subsidiaries (including capital expenditures and Permitted Acquisitions or other Investments)  during the six month period prior to receipt of such Net Proceeds or (C) the Lead Borrower or any  of its subsidiaries has committed to so reinvest the Subject Proceeds during such 18-month period  and the Subject Proceeds are so reinvested within six months after the expiration of such 18-month  period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the  expiration of the applicable period, the Lead Borrower shall promptly prepay the outstanding  principal amount of Initial Term Loans with the Subject Proceeds not so reinvested as set forth  above (without regard to the immediately preceding proviso); provided, further, that if, at the time  that any such prepayment would be required hereunder, the Lead Borrower or any of its Restricted  Subsidiaries is required to, or required to offer to, repay or repurchase any Other Applicable  Indebtedness, then the relevant Person may apply the Subject Proceeds on a pro rata basis to the  prepayment of the Initial Term Loans and to the repurchase or repayment of such Other  Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount  of the Initial Term Loans, Additional Term Loans and Other Applicable Indebtedness (or accreted  amount if such Other Applicable Indebtedness is issued with original issue discount) at such time  (and such amounts so offered, in any case, shall no longer be required to be applied to prepay the  Initial Term Loans); provided, further, that if at any time during the 18 month reinvestment period  specified above (or 24 month reinvestment period, if applicable), (I) the First Lien Net Leverage  Ratio calculated on a Pro Forma Basis as of the last day of any Test Period ending during such  period (giving pro forma effect to the payment required hereby) is less than or equal to 2.75  to 1.00, but greater than 2.25 to 1.00, the Prepayment Percentage shall be reduced to 50%, and  only 50% of the Subject Proceeds that are not reinvested will be required to be prepaid pursuant to  this Section 2.11(b)(ii) and (II) if the First Lien Net Leverage Ratio calculated on a Pro Forma  Basis as of the last day of any Test Period ending during such period (giving pro forma effect to  the payment required hereby) is less than or equal to 2.25 to 1.00, the Prepayment Percentage shall  be reduced to 0%, and no Subject Proceeds will be required to be prepaid pursuant to this Section  2.11(b)(ii).   (iii) In the event that the Lead Borrower or any of its Restricted Subsidiaries receives  Net Proceeds from the issuance or incurrence of Indebtedness by the Lead Borrower or any of its  Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01,  except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to  refinance all or a portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term  Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c)),  the Lead Borrower shall, substantially simultaneously with (and in any event not later than the  next succeeding Business Day) the receipt of such Net Proceeds by the Lead Borrower or its  applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay  the outstanding principal amount of Term Loans in accordance with clause (vi) below.  (iv) Notwithstanding anything in this Section 2.11(b) to the contrary, (A) the Lead  Borrower shall not be required to prepay any amount that would otherwise be required to be paid  pursuant to Section 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow is  generated by any Foreign Subsidiary or the relevant Prepayment Asset Sale is consummated by  any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Lead Borrower of  any such amount would be prohibited under any Requirement of Law or conflict with the fiduciary  duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to  result in, a material risk of personal or criminal liability for any officer, director, employee,  manager, member of management or consultant of such Foreign Subsidiary (the Lead Borrower  hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially  reasonable actions required by applicable Requirements of Law to permit such repatriation); it  being understood that once the repatriation of the relevant affected Subject Proceeds or Excess  Cash Flow, as the case may be, is permitted under the applicable Requirement of Law and, to the  





 






  -90-       #95384462v18   #95384462v18   extent applicable, would no longer conflict with the fiduciary duties of such director, or result in,  or could reasonably be expected to result in, a material risk of personal or criminal liability for the  Persons described above, the relevant Foreign Subsidiary will promptly repatriate the relevant  Subject Proceeds or Excess Cash Flow, as the case may be, and the repatriated Subject Proceeds or  Excess Cash Flow, as the case may be, will be promptly (and in any event not later than two  Business Days after such repatriation) applied (net of additional Taxes payable or reserved against  as a result thereof) to the repayment of the Initial Term Loans pursuant to this Section 2.11(b) to  the extent required herein (without regard to this clause (iv)) and (B) if the Lead Borrower  determines in good faith that the repatriation to the Lead Borrower of any amounts required to  mandatorily prepay the Term Loans pursuant to Section 2.11(b)(i) or (ii) above would result in  material and adverse tax consequences, taking into account any foreign tax credit or benefit  actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as  reasonably determined by the Lead Borrower, the amount the Lead Borrower shall be required to  mandatorily prepay pursuant to Section 2.11(b)(i) or (ii) above, as applicable, shall be reduced by  the Restricted Amount until such time as it may repatriate to the Lead Borrower the Restricted  Amount without incurring such material and adverse tax liability; provided that, if within 365 days  of such determination, to the extent that the repatriation of any Subject Proceeds or Excess Cash  Flow from the relevant Foreign Subsidiary would no longer have an adverse tax consequence, an  amount equal to the Subject Proceeds or Excess Cash Flow, as applicable, not previously applied  pursuant to preceding clause (B), shall be promptly applied to the repayment of the Term Loans  pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv));  (v) Each Lender may elect, by notice to the Administrative Agent at or prior to the  time and in the manner specified by the Administrative Agent, prior to any prepayment of Term  Loans required to be made by the Lead Borrower pursuant to this Section 2.11(b), to decline all  (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, solely  to the extent not applied to any other Indebtedness of the Lead Borrower or its subsidiaries as a  mandatory prepayment of such Indebtedness, the “Declined Proceeds”), in which case such  Declined Proceeds may be retained by the Lead Borrower; provided that, for the avoidance of  doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent  that such prepayment is made with the Net Proceeds of Refinancing Indebtedness incurred to  refinance all or a portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term  Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c).   If any Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt  of its Applicable Percentage of any mandatory prepayment within the time frame specified by the  Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s  Applicable Percentage of the total amount of such mandatory prepayment of Term Loans.  (vi) Except as may otherwise be set forth in any amendment to this Agreement in  connection with any Additional Term Loan, (A) each prepayment of Term Loans pursuant to this  Section 2.11(b) shall be applied ratably to each Class of Term Loans (based upon the then  outstanding principal amounts of the respective Classes of Term Loans) (provided that any  prepayment of Term Loans constituting Refinancing Indebtedness incurred to refinance all or a  portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to  refinance Term Loans in accordance with the requirements of Section 9.02(c) shall be applied  solely to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each  Class of Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or (iii) shall be  applied against the remaining scheduled installments of principal due in respect of the Term Loans  as directed by the Lead Borrower (or, in the absence of direction from the Lead Borrower, to the  remaining scheduled amortization payments in respect of the Term Loans in direct order of  maturity), and (C) each such prepayment shall be paid to the Term Lenders in accordance with  their respective Applicable Percentages.  The amount of such mandatory prepayments shall be  applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of  whether such outstanding Loans are ABR Loans or Eurocurrency Rate Loans; provided that the  amount thereof shall be applied first to ABR Loans to the full extent thereof before application to  





 






  -91-       #95384462v18   #95384462v18   the Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to  be made by the Lead Borrower pursuant to Section 2.16.  Any prepayment of Initial Term Loans  made on or prior to the date that is six months after the First Amendment Effective Date pursuant  to Section 2.11(b)(iii) as part of a Repricing Transaction shall be accompanied by the fee set forth  in Section 2.12(f).  (vii) In the event that the Aggregate Dollar Revolving Credit Exposure exceeds the  Total Dollar Revolving Credit Commitment then in effect, the Lead Borrower shall, within five  Business Days of receipt of notice from the Administrative Agent, prepay the Dollar Revolving  Loans and/or reduce the Dollar LC Exposure in an aggregate amount sufficient to reduce such  Aggregate Dollar Revolving Credit Exposure as of the date of such payment to an amount not to  exceed the Total Dollar Revolving Credit Commitment then in effect by taking any of the  following actions as it shall determine at its sole discretion:  (A) prepayment of Dollar Revolving  Loans or (B) with respect to the excess Dollar LC Exposure, deposit of Cash in the LC Collateral  Account or “backstopping” or replacement of the relevant Dollar Letters of Credit, in each case, in  an amount equal to 100% of such excess Dollar LC Exposure (minus the amount then on deposit  in the LC Collateral Account).  In the event that the Aggregate Multicurrency Revolving Credit  Exposure exceeds the Total Multicurrency Revolving Credit Commitment then in effect, the Lead  Borrower shall, within five Business Days of receipt of notice from the Administrative Agent,  prepay the Multicurrency Revolving Loans and/or reduce the Multicurrency LC Exposure in an  aggregate amount sufficient to reduce such Aggregate Multicurrency Revolving Credit Exposure  as of the date of such payment to an amount not to exceed the Total Multicurrency Revolving  Credit Commitment then in effect by taking any of the following actions as it shall determine at its  sole discretion:  (A) prepayment of Multicurrency Revolving Loans or (B) with respect to the  excess Multicurrency LC Exposure, deposit of Cash in the Multicurrency LC Collateral Account  or “backstopping” or replacement of the relevant Multicurrency Letters of Credit, in each case, in  an amount equal to 100% of such excess Multicurrency LC Exposure (minus the amount then on  deposit in the LC Collateral Account).  (viii) At the time of each prepayment required under Section 2.11(b)(i), (ii) or (iii), the  Lead Borrower shall deliver to the Administrative Agent a certificate in the form of Exhibit H  hereto signed by a Responsible Officer of the Lead Borrower setting forth in reasonable detail the  calculation of the amount of such prepayment.  Each such certificate shall specify the Borrowings  being prepaid and the principal amount of each Borrowing (or portion thereof) to be prepaid.   Prepayments shall be accompanied by accrued interest as required by Section 2.13.  All  prepayments of Borrowings under this Section 2.11(b) shall be subject to Section 2.16 and, in the  case of prepayments under clause (iii) above as part of a Repricing Transaction, Section 2.12(f),  but shall otherwise be without premium or penalty.  Section 2.12 Fees.  (a) The Lead Borrower agrees to pay to the Administrative Agent for the account of each  Revolving Lender (other than any Defaulting Lender) a commitment fee, which shall accrue at a rate equal to the  applicable Commitment Fee Rate per annum on the average daily amount (x) of the Unused Dollar Revolving Credit  Commitment and Unused Multicurrency Revolving Credit Commitment of such Revolving Lender during the period  from and including the Closing Date to the date on which such Lender’s Revolving Credit Commitments terminate  and (y) of the Unused 2022 Revolving Credit Commitment of such Revolving Lender during the period from and  including the Third Amendment Effective Date to the date on which such Lender’s Revolving Credit Commitments  terminate.  Accrued commitment fees shall be payable in arrears on the last Business Day of each March, June,  September and December for the quarterly period then ended (commencing (x) in the case of the Initial Revolving  Facility, on September 30, 2020 and (y) in the case of the 2022 Revolving Facility, on March 31, 2022) and on the  date on which the Revolving Credit Commitments terminate.  (b) Subject to Section 2.21, the Lead Borrower agrees to pay (i) to the Administrative Agent  for the account of each Initial Revolving Lender a participation fee with respect to its participation in each Letter of  





 






  -92-       #95384462v18   #95384462v18   Credit, which shall accrue at the Applicable Rate used to determine the interest rate applicable to Eurocurrency  Revolving Loans denominated in U.S. Dollars or the Dollar Equivalent of the daily face amount of such Lender’s  LC Exposure in respect of such Letter of Credit (excluding any portion thereof attributable to unreimbursed LC  Disbursements), during the period from and including the Closing Date to the later of the date on which such Initial  Revolving Lender’s Initial Revolving Credit Commitment terminates and the date on which such Initial Revolving  Lender ceases to have any LC Exposure in respect of such Letter of Credit and (ii) to each Issuing Bank, for its own  account, a fronting fee, in respect of each Letter of Credit issued by such Issuing Bank for the period from the date  of issuance of such Letter of Credit to the expiration date of such Letter of Credit (or if terminated on an earlier date,  to the termination date of such Letter of Credit), computed at a rate equal to 0.125% per annum or such lower rate  agreed by such Issuing Bank and the Lead Borrower of the Dollar Equivalent of the daily face amount of such Letter  of Credit, as well as such Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or  extension of any Letter of Credit or processing of drawings thereunder.  Participation fees and fronting fees accrued  to and including the last Business Day of each March, June, September and December shall be payable in arrears for  the quarterly period then ended on the last Business Day of such calendar quarter; provided that all such fees shall  be payable on the date on which the Initial Revolving Credit Commitments terminate, and any such fees accruing  after the date on which the Initial Revolving Credit Commitments terminate shall be payable on demand.  Any other  fees payable to any Issuing Bank pursuant to this paragraph shall be payable within 30 days after receipt of a written  demand (accompanied by reasonable back-up documentation) therefor.  (c) The amount and timing of payments of fees in respect of any Ancillary Facility will be  agreed by the relevant Ancillary Lender and the Lead Borrower under such Ancillary Facility based on market rates  and terms.  (d) The Lead Borrower agrees to pay to the Administrative Agent, for its own account, the  fees in the amounts and at the times separately agreed upon by the Lead Borrower and the Administrative Agent in  writing.  (e) All fees payable hereunder shall be paid on the dates due, in U.S. Dollars and in  immediately available funds, to the Administrative Agent (or to the applicable Issuing Bank, in the case of fees  payable to it) for distribution, in the case of commitment fees and participation fees, to the relevant Revolving  Lenders.  Fees paid shall not be refundable under any circumstances.  Fees payable hereunder shall accrue through  and including the last day of the month immediately preceding the applicable fee payment date.  (f) In the event that, prior to the date that is six (6) months after the First Amendment  Effective Date, the Lead Borrower (x) prepays, repays, refinances, substitutes or replaces any Initial Term Loans in  connection with a Repricing Transaction (including, for the avoidance of doubt, any prepayment made pursuant to  Section 2.11(b)(iii) that constitutes a Repricing Transaction), or (y) effects any amendment, modification or waiver  of, or consent under, this Agreement resulting in a Repricing Transaction, the Lead Borrower shall pay to the  Administrative Agent, for the ratable account of each of the applicable Term Lenders, (I) in the case of clause (x), a  premium of 1.00% of the aggregate principal amount of the Initial Term Loans so prepaid, repaid, refinanced,  substituted or replaced and (II) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of  the Initial Term Loans that are the subject of such Repricing Transaction outstanding immediately prior to such  amendment.  If, prior to the date that is six (6) months after the First Amendment Effective Date, all or any portion  of the Initial Term Loans held by any Term Lender are prepaid, repaid, refinanced, substituted or replaced pursuant  to Section 2.19(b)(iv) as a result of, or in connection with, such Term Lender not agreeing or otherwise consenting  to any waiver, consent, modification or amendment referred to in clause (y) above (or otherwise in connection with  a Repricing Transaction), such prepayment, repayment, refinancing, substitution or replacement will be made  at 101% of the principal amount so prepaid, repaid, refinanced, substituted or replaced.  All such amounts shall be  due and payable on the date of effectiveness of such Repricing Transaction.  (g) Unless otherwise indicated herein, all computations of fees shall be made on the basis of  a 360-day year and shall be payable for the actual days elapsed (including the first day but excluding the last day).   Each determination by the Administrative Agent of a fee hereunder shall be conclusive and binding for all purposes,  absent manifest error.  





 






  -93-       #95384462v18   #95384462v18   Section 2.13 Interest.  (a) The Term Loans and Revolving Loans denominated in U.S. Dollars comprising each  ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate.  (b) The Term Loans and Revolving Loans denominated in U.S. Dollars comprising each  LIBO Rate Borrowing shall bear interest at the LIBO Rate for the Interest Period in effect for such Borrowing plus  the Applicable Rate.  (c) The 2022 Revolving Loans comprising each SOFR Borrowing shall bear interest at  Adjusted Term SOFR plus the Applicable Rate.  (d) (c) The Revolving Loans denominated in Euros shall bear interest at the EURIBOR Rate  for the Interest Period in effect for such Borrowing plus the Applicable Rate.  (e) (d) The Revolving Loans denominated in Canadian Dollars comprising each Canadian  Base Rate Borrowing shall bear interest at the Canadian Base Rate plus the Applicable Rate.  (f) (e) The Revolving Loans denominated in Canadian Dollars comprising Canadian BA  Rate Borrowing shall bear interest at the BA Rate plus the Applicable Rate.  (g) (f) The Revolving Loans denominated in Pounds Sterling shall bear interest at the  SONIA Rate plus the Applicable Rate.  (h) (g) Notwithstanding the foregoing and subject to Section 2.21, if any principal of or  interest on any Term Loan, Revolving Loan or Additional Loan, any LC Disbursement or any fee payable by the  Lead Borrower hereunder is not, in each case, paid or reimbursed when due, whether at stated maturity, upon  acceleration or otherwise, the relevant overdue amount shall bear interest, to the fullest extent permitted by law,  after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Initial Term  Loan, Revolving Loan, Additional Loan, 2.00% plus the Eurocurrency Rate or SOFR Rate, as applicable, otherwise  applicable to such Initial Term Loan, Revolving Loan or Additional Loan as provided in the preceding paragraphs of  this Section 2.13, Section 2.05(h) or in the amendment to this Agreement relating thereto or (ii) in the case of any  other amount, 2.00% plus the rate applicable to Revolving Loans denominated in U.S. Dollars that are ABR Loans  as provided in paragraph (a) of this Section 2.13; provided that no amount shall accrue pursuant to this  Section 2.13(fh) on any overdue amount, reimbursement obligation in respect of any LC Disbursement or other  amount payable to a Defaulting Lender so long as such Lender is a Defaulting Lender.  (i) (h) Accrued interest on each Initial Term Loan, Revolving Loan or Additional Loan shall  be payable in arrears on each Interest Payment Date for such Initial Term Loan, Revolving Loan or Additional Loan  and on the Maturity Date or upon the termination of the Revolving Credit Commitments or any Additional  Commitments, as applicable; provided that (i) interest accrued pursuant to paragraph (gh) of this Section 2.13 shall  be payable on demand, (ii) in the event of any repayment or prepayment of any Initial Term Loan, Revolving Loan  or Additional Loan (other than a prepayment of an ABR Revolving Loan prior to the termination of the relevant  revolving commitments), accrued interest on the principal amount repaid or prepaid shall be payable on the date of  such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Rate Loan, SOFR Loan  or EURIBOR Rate Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on such  Initial Term Loan, Revolving Loan or Additional Loan shall be payable on the effective date of such conversion.  (j) (i) All interest hereunder shall be computed on the basis of a year of 360 days, except that  interest computed for ABR Loans denominated in U.S. Dollars based on the Prime Rate and/or Canadian Base Rate  Loans based on the prime rate for Canadian Dollar Loans specified in paragraph (x) of the definition thereof and/or  SONIA Rate Loans denominated in Pounds Sterling shall be computed on the basis of a year of 365 days  (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the  first day but excluding the last day).  The applicable Alternate Base Rate, Canadian Base Rate, Eurocurrency Rate,  





 






  -94-       #95384462v18   #95384462v18   EURIBOR Rate or SONIA Rate shall be determined by the Administrative Agent, and such determination shall be  conclusive absent manifest error.  Interest shall accrue on each Loan for the day on which the Loan is made, and  shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided  that any Loan that is repaid on the same day on which it is made shall bear interest for one day; provided, further  that, in the case of any Alternate Base Rate Loan, Canadian Base Rate Loan or SONIA Rate Loan, interest shall  accrue through and including the last day of the month preceding the applicable Interest Payment Date.  (k) (j) For purposes of the Interest Act (Canada), (i) whenever any interest or fee under this  Agreement or in any other Loan Document and payable by the Lead Borrower with respect to Loans denominated in  Canadian Dollars is calculated using a rate based on a year of 360 days, 365 days or 366 days, as the case may be,  the rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (x) the  applicable rate based on a year of 360 days, 365 days or 366 days, as the case may be, (y) multiplied by the actual  number of days in the calendar year in which the period for which such interest or fee is payable (or compounded)  ends, and (z) divided by 360, 365 or 366, as the case may be, (ii) the principle of deemed reinvestment of interest  does not apply to any interest calculation under this Agreement, and (iii) the rates of interest stipulated in this  Agreement are intended to be nominal rates and not effective rates or yields.  (l) (k) The rate and time of payment of interest with respect to any Ancillary Facility shall be  determined by agreement between the relevant Ancillary Lender and the relevant Revolving Facility Borrower under  such Ancillary Facility based on normal market rates and terms.  (m) (l) Each Borrower acknowledges that there is a material distinction between the nominal  and effective rates of interest and that it is capable of making the calculations necessary to compare such rates and  that the calculations herein are to be made using the nominal rate method and not the basis of effective yearly rates of  or any basis that gives effect to the principle of deemed reinvestment of interest. Each Borrower confirms that it fully  understands and is able to calculate the rate of interest applicable to the Advances based on the methodology for  calculating annual rates provided for in this Agreement.  Each Borrower hereby irrevocably agrees not to plead or  assert, whether by way of defence or otherwise, in any proceeding relating to this Agreement or any other Loan  Document, that the interest payable under this Agreement and the calculation thereof has not been adequately disclosed  to each Borrower as required pursuant to Section 4 of the Interest Act (Canada). The Administrative Agent agrees that  if requested in writing by the Lead Borrower it shall calculate the nominal and effective per annum rate of interest on  any Advance outstanding at any time and provide such information to the Lead Borrower promptly following such  request; provided that any error in any such calculation, or any failure to provide such information on request, shall  not relieve any Borrower of any of its obligations under this Agreement or any other Loan Document, nor result in  any liability to the Administrative Agent.  (n) (m) Any provision of this Agreement that would oblige a Loan Party incorporated or  otherwise organized under the laws of Canada or any province or territory thereof to pay any fine, penalty or rate of  interest on any arrears of principal or interest secured by a mortgage on real property or hypothec on immovables that  has the effect of increasing the charge on arrears beyond the rate of interest payable on principal money not in arrears  shall not apply to such Loan Party, which shall be required to pay interest on money in arrears at the same rate of  interest payable on principal money not in arrears.  (o) (n) If any provision of this Agreement would oblige a Loan Party incorporated or otherwise  organized under the laws of Canada or any province or territory thereof to make any payment of interest or other  amount payable to any Secured Party in an amount or calculated at a rate which would be prohibited by any Applicable  Law or would result in a receipt by that Secured Party of “interest” at a “criminal rate” (as such terms are construed  under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to  have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would  not be so prohibited by applicable law or so result in a receipt by that Secured Party of “interest” at a “criminal rate”,  such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows:  (i) first, by reducing the amount or rate of interest required to be paid to the affected  Secured Party; and  





 






  -95-       #95384462v18   #95384462v18   (ii) thereafter, by reducing any fees, commissions, costs, expenses, premiums and other  amounts required to be paid to the affected Secured Party which would constitute interest for  purposes of section 347 of the Criminal Code (Canada).  (p) Term SOFR Conforming Changes.  In connection with the use or administration of SOFR  or Term SOFR under the 2022 Revolving Facility, the Administrative Agent, in consultation with the Lead  Borrower, will have the right to make Term SOFR Conforming Changes from time to time and, notwithstanding  anything to the contrary herein or in any other Loan Document, any amendments implementing such Term SOFR  Conforming Changes will become effective without any further action or consent of any other party to this  Agreement or any other Loan Document.  The Administrative Agent will promptly notify the Lead Borrower and  the Lenders of the effectiveness of any Term SOFR Conforming Changes in connection with the use or  administration of SOFR or Term SOFR, as applicable.  Section 2.14 Alternate Rate of Interest.    (a) If at least two Business Days prior to the commencement of any Interest Period for a  Eurocurrency Rate Borrowing or SOFR Borrowing (other than with respect to the BA Rate):  (i) the Administrative Agent determines (which determination shall be conclusive  absent manifest error) that adequate and reasonable means do not exist for ascertaining the LIBO  Rate or Adjusted Term SOFR for such Interest Period; or  (ii) the Administrative Agent is advised by the Required Lenders that the LIBO Rate  or Adjusted Term SOFR for such Interest Period will not adequately and fairly reflect the cost to  such Lenders of making or maintaining their Loans included in such Borrowing for such Interest  Period;  then the Administrative Agent shall promptly give notice thereof to the Lead Borrower and the Lenders by telephone  or facsimile or other electronic transmission as promptly as practicable thereafter and, until the Administrative  Agent notifies the Lead Borrower and the Lenders that the circumstances giving rise to such notice no longer exist,  which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion  of any Borrowing to, or continuation of any Borrowing as a Eurocurrency Rate Borrowing or SOFR Borrowing, as  applicable, shall be ineffective and such Borrowing shall (x) if denominated in U.S. Dollars or Canadian Dollars, be  converted to an ABR Borrowing on the last day of the Interest Period applicable thereto or (y) if denominated in any  other currency, be converted into a Daily Rate Borrowing on the last day of the Interest Period applicable thereto,  and (ii) if any Borrowing Request requests a Eurocurrency Rate Borrowing or SOFR Borrowing, such Borrowing  shall (x) if denominated in U.S. Dollars or Canadian Dollars, be made as an ABR Borrowing or a Canadian Base  Rate Borrowing, as applicable or (y) if denominated in any other currency, be made as a Daily Rate Borrowing.  (b) Inability to Determine Rates on Revolving Loans Denominated in Canadian Dollars,  Pounds Sterling and Euros.   (i) With respect to Revolving Loans denominated in Canadian Dollars, Euros or  Pounds Sterling, if the Administrative Agent determines (which determination shall be conclusive  absent manifest error), or the Lead Borrower or the Required Lenders notify the Administrative  Agent that the Lead Borrower or Required Lenders (as applicable) have determined that:  (1) adequate and reasonable means do not exist for ascertaining  the Relevant Rate for Canadian Dollars, Pounds Sterling or Euros, as applicable, because none of the tenors of such  Relevant Rate (including any forward-looking term rate thereof) is available or published on a current basis and such  circumstances are unlikely to be temporary;  (2) the Relevant Governmental Body has made a public statement  identifying a specific date after which all tenors of the Relevant Rate for Canadian Dollars, Pounds Sterling or  





 






  -96-       #95384462v18   #95384462v18   Euros, as applicable (including any forward-looking term rate thereof) shall or will no longer be representative or  made available, or used for determining the interest rate of loans denominated in Canadian Dollars, Pounds Sterling  or Euros, as applicable, or shall or will otherwise cease, provided that, in each case, at the time of such statement,  there is no successor administrator that is satisfactory to the Administrative Agent that will continue to provide such  representative tenor(s) of the Relevant Rate for Canadian Dollars, Pounds Sterling or Euros, as applicable (the latest  date on which all tenors of the Relevant Rate for Canadian Dollars, Pounds Sterling or Euros, as applicable  (including any forward-looking term rate thereof) are no longer representative or available permanently or  indefinitely, the “Scheduled Unavailability Date”);  (3) syndicated loans currently being executed and agented in the  U.S., are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace  the Relevant Rate for Canadian Dollars, Pounds Sterling or Euros, as applicable;  (4) or if the events or circumstances of the type described in  Section 2.14(b)(i)(1), (2) or (3) have occurred with respect to the Successor Rate then in effect, then, the  Administrative Agent and the Lead Borrower may amend this Agreement solely for the purpose of replacing the  Relevant Rate for Canadian Dollars, Pounds Sterling or Euros, as applicable or any then current Successor Rate for  Canadian Dollars, Pounds Sterling or Euros, as applicable in accordance with this Section 2.14 with an alternative  benchmark rate giving due consideration to any evolving or then existing convention for broadly syndicated credit  facilities agented in the U.S. and denominated in Canadian Dollars, Pounds Sterling or Euros, as applicable, for such  alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark  giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and  agented in the U.S. and denominated in Canadian Dollars, Pounds Sterling or Euros, as applicable, for such  benchmarks, which adjustment or method for calculating such adjustment shall be published on an information  service as reasonably agreed by the Administrative Agent and the Lead Borrower in accordance with  Section 2.14(b)(iv) below (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto,  a “Successor Rate”), and any such amendment shall become effective at 5:00 p.m. (New York City time) on the  fifth (5th) Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders  and the Lead Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the  Administrative Agent written notice that such Required Lenders object to such amendment.;   (c) The Administrative Agent will promptly (in one or more notices) notify each Lender of  the implementation of any Successor Rate agreed by the Administrative Agent and the Lead Borrower.  (d) Notwithstanding anything else herein, any definition of the Successor Rate (exclusive of  any margin) shall provide that in no event shall such Successor Rate be less than 0.75% for the purposes of this  Agreement.   (e) In connection with the implementation of a Successor Rate, the Administrative Agent and  the Lead Borrower 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 solely with the consent of  the Administrative Agent, in consultation with the Lead Borrower, and without any further action or consent of any  other party to this Agreement or any other Loan Document (or, if (x) the Administrative Agent decides in its  reasonable discretion that adoption of any portion of such market practice is not administratively feasible or (y) if  the Administrative Agent decides, and the Lead Borrower reasonably agrees, that no market practice for the  administration of such Successor Rate exists, in such other manner of administration as (i) in the case of clause (x)  above, the Administrative Agent reasonably proposes as administratively feasible and consistent with its  administration of similarly situated credit facilities and reasonably agreed by the Lead Borrower or (ii) in the case of  clause (y) above, the Administrative Agent and the Lead Borrower reasonably agree is reasonably necessary in  connection with the administration of this Agreement and the other Loan Documents); provided that, with respect to  any such amendment effected, the Administrative Agent shall post each such amendment implementing such  Benchmark Replacement Conforming Changes to the Lenders reasonably promptly after such amendment becomes  effective.  





 






  -97-       #95384462v18   #95384462v18   Section 2.15 Increased Costs.  (a) If any Change in Law:  (i) imposes, modifies or deems applicable any reserve, special deposit or similar  requirement against assets of, deposits with or for the account of, or credit extended by, any  Lender (except any such reserve requirement reflected in the Eurocurrency Rate) or Issuing Bank,  (ii) subjects any Lender or Issuing Bank to any Taxes (other than Indemnified Taxes,  Other Taxes and 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) imposes on any Lender or Issuing Bank or the London interbank market any other  condition affecting this Agreement or Eurocurrency Rate Loans, SOFR Loans, EURIBOR Rate  Revolving Loans or SONIA Rate Revolving Loans made by any Lender or any Letter of Credit or  participation therein,  and the result of any of the foregoing is to increase the cost to the relevant Lender of making or maintaining any  Eurocurrency Rate Loan, SOFR Loan, EURIBOR Rate Revolving Loans or SONIA Rate Revolving LoasLoans (or  of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of  participating in, issuing or maintaining any Letter of Credit or funding or maintaining any Ancillary Commitment or  to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of  principal, interest or otherwise) in respect of any Eurocurrency Rate Loan, SOFR Loan, EURIBOR Rate Revolving  Loan or SONIA Rate Revolving Loan or Letter of Credit in an amount deemed by such Lender or Issuing Bank to  be material, then, within 30 days after the Lead Borrower’s receipt of the certificate contemplated by paragraph (c)  of this Section 2.15, the Lead Borrower will pay to such Lender or Issuing Bank, as applicable, such additional  amount or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs  incurred or reduction suffered; provided that the Lead Borrower shall not be liable for such compensation if (x) the  relevant Change in Law occurs on a date prior to the date such Lender becomes a party hereto, (y) such Lender  invokes Section 2.20 or (z) in the case of requests for reimbursement under clause (ii) above resulting from a market  disruption, (A) the relevant circumstances are not generally affecting the banking market or (B) the applicable  request has not been made by Lenders constituting Required Lenders.  (b) If any Lender or Issuing Bank determines that any Change in Law regarding liquidity or  capital requirements has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s  capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this  Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit  issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such  Issuing Bank’s holding company could have achieved but for such Change in Law other than due to Taxes, which  shall be dealt with exclusively pursuant to Section 2.17 (taking into consideration such Lender’s or Issuing Bank’s  policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to liquidity and  capital adequacy), then within 30 days of receipt by the Lead Borrower of the certificate contemplated by  paragraph (c) of this Section 2.15 the Lead Borrower will pay to such Lender or such Issuing Bank, as applicable,  such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such  Issuing Bank’s holding company for any such reduction suffered.  (c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts  necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in  paragraph (a) or (b) of this Section 2.15 and setting forth in reasonable detail the manner in which such amount or  amounts were determined and certifying that such Lender is generally charging such amounts to similarly situated  borrowers shall be delivered to the Lead Borrower and shall be conclusive absent manifest error.  (d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation  pursuant to this Section 2.15 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such  compensation; provided that the Lead Borrower shall not be required to compensate a Lender or an Issuing Bank  





 






  -98-       #95384462v18   #95384462v18   pursuant to this Section 2.15 for any increased costs or reductions incurred more than 180 days prior to the date that  such Lender or Issuing Bank notifies the Lead Borrower of the Change in Law giving rise to such increased costs or  reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided, further, that  if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred  to above shall be extended to include the period of retroactive effect thereof.  Section 2.16 Break Funding Payments.  In the event of (a) the conversion or prepayment of any  principal of any Eurocurrency Rate Loan, SOFR Loan or EURIBOR Rate Revolving Loan other than on the last day  of an Interest Period applicable thereto (whether voluntary, mandatory, automatic, by reason of acceleration or  otherwise), (b) the failure to borrow or prepay any SONIA Rate Revolving Loan or borrow, convert, continue or  prepay any Eurocurrency Rate Loan, SOFR Loan or EURIBOR Rate Revolving Loan on the date or in the amount  specified in any notice delivered pursuant hereto, (c) the assignment of any Eurocurrency Rate Loan, SOFR Loan or  EURIBOR Rate Revolving Loan of any Lender other than on the last day of the Interest Period applicable thereto as  a result of a request by the Lead Borrower pursuant to Section 2.19 or (d) analogous loss, cost or expense arising  with respect to any Ancillary Facility on the basis of the nature of the credit extensions provided for thereunder,  then, in any such event, the Lead Borrower shall compensate each Lender for the loss, cost and expense incurred by  such Lender that is attributable to such event (other than loss of profit).  In the case of a Eurocurrency Rate Loan,  SOFR Loan or EURIBOR Rate Revolving Loan, the loss, cost or expense of any Lender shall be the amount  reasonably determined by such Lender to be the excess, if any, of (i) the amount of interest which would have  accrued on the principal amount of such Loan had such event not occurred, at the Eurocurrency Rate, Adjusted  Term SOFR or EURIBOR 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  which would accrue on such principal amount for such period at the interest rate which such Lender would bid were  it to bid, at the commencement of such period, for deposits in the applicable currency of a comparable amount and  period from other banks in the Eurodollar market; it being understood that such loss, cost or expense shall in any  case exclude any interest rate floor and all administrative, processing or similar fees.  In the case of a SONIA Rate  Revolving Loan, the loss, cost or expense of any Lender shall be the amount reasonably determined by such Lender.  A certificate of any Lender (i) setting forth any amount or amounts that such Lender is entitled to receive pursuant to  this Section 2.16, the basis therefor and, in reasonable detail, the manner in which such amount or amounts were  determined and (ii) certifying that such Lender is generally charging the relevant amounts to similarly situated  borrowers shall be delivered to the Lead Borrower and shall be conclusive absent manifest error.  The Lead  Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt  thereof.  Section 2.17 Taxes.  (a) Any and all payments by or on account of any obligation of any Loan Party under any  Loan Document shall be made free and clear of and without deduction for any Taxes, except as required by  applicable Requirements of Law.  If any applicable Requirement of Law requires the deduction or withholding of  any Tax from any such payment, then (i) if such Tax is an Indemnified Tax and/or Other Tax, the amount payable  by the applicable Loan Party shall be increased as necessary so that after all required deductions and withholdings  have been made (including deductions and withholdings applicable to additional sums payable under this  Section 2.17), each Lender and each Issuing Bank (as applicable), or, in the case of any payment made to the  Administrative Agent for its own account, the Administrative Agent, receives an amount equal to the sum it would  have received had no such deductions or withholdings been made, (ii) the applicable withholding agent shall make  such deductions and (iii) the applicable withholding agent shall timely pay the full amount deducted to the relevant  Governmental Authority in accordance with applicable Requirements of Law.  (b) In addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental  Authority in accordance with applicable Requirements of Law.  (c) Each Loan Party shall jointly and severally indemnify the Administrative Agent, each  Lender and each Issuing Bank within 30 days after written demand therefor, for the full amount of any Indemnified  Taxes or Other Taxes payable or paid by the Administrative Agent, such Lender or Issuing Bank, as applicable, on  





 






  -99-       #95384462v18   #95384462v18   or with respect to any payment by or any payment on account of any obligation of any Loan Party hereunder  (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this  Section 2.17) and any penalties (other than any penalties attributable to the gross negligence, bad faith or willful  misconduct of the Administrative Agent or such Lender or Issuing Bank), interest and, in each case, any reasonable  expenses arising therefrom or with respect thereto; provided that if such Loan Party reasonably believes that such  Taxes were not correctly or legally asserted, the Administrative Agent or such Lender or Issuing Bank, as  applicable, will use reasonable efforts to cooperate with such Loan Party to obtain a refund of such Taxes (which  shall be repaid to such Loan Party in accordance with Section 2.17(g)) so long as such efforts would not, in the sole  determination of the Administrative Agent or such Lender or Issuing Bank, result in any additional out-of-pocket  costs or expenses not reimbursed by such Loan Party or be otherwise materially disadvantageous to the  Administrative Agent or such Lender or Issuing Bank, as applicable.  In connection with any request for  reimbursement under this Section 2.17(c), the relevant Lender, Issuing Bank or the Administrative Agent, as  applicable, shall deliver a certificate to the Lead Borrower (i) setting forth, in reasonable detail, the basis and  calculation of the amount of the relevant payment or liability and (ii) certifying that it is generally charging the  relevant amounts to similarly situated borrowers, which certificate shall be conclusive absent manifest error.   Notwithstanding anything to the contrary contained in this Section 2.17(c), the Loan Parties shall not be required to  indemnify the Administrative Agent or any Lender pursuant to this Section 2.17 for any Indemnified Taxes or Other  Taxes incurred more than 180 days prior to the date that the Administrative Agent or such Lender makes such  written demand to the Loan Parties; provided, further, that if such Indemnified Taxes or Other Taxes are imposed  retroactively, the 180-day period referred to above shall be extended to include the period of retroactive effect  thereof.  (d) Each Lender and each Issuing Bank shall severally indemnify the Administrative Agent,  within 30 days after demand therefor, for (i) any Indemnified Taxes or Other Taxes imposed on or with respect to  any payment under any Loan Document that is attributable to such Lender or Issuing Bank (but only to the extent  that no Loan Party has already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes  and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s or  Issuing Bank’s failure to comply with the provisions of Section 9.05(c) relating to the maintenance of a Participant  Register and (iii) any Excluded Taxes attributable to such Lender or Issuing Bank, in each case, that are payable or  paid by the Administrative Agent in connection with any Loan Document and any reasonable expenses arising  therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the  relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any  Lender or Issuing Bank by the Administrative Agent shall be conclusive absent manifest error.  Each Lender and  Issuing Bank hereby authorize the Administrative Agent to set off and apply any and all amounts at any time owing  to such Lender or Issuing Bank under any Loan Document or otherwise payable by the Administrative Agent to any  Lender or Issuing Bank under any Loan Document or otherwise payable by the Administrative Agent to any Lender  or Issuing Bank from any other source against any amount due to the Administrative Agent under this clause (d).  (e) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any  Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative Agent the original or a  certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return  reporting such payment or other evidence of such payment that is reasonably satisfactory to the Administrative  Agent.  (f) Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction of any withholding  Tax with respect to any payments made under any Loan Document shall deliver to the Lead  Borrower and the Administrative Agent, at the time or times reasonably requested by the Lead  Borrower or the Administrative Agent, such properly completed and executed documentation as  the Lead Borrower or the Administrative Agent may reasonably request to permit such payments  to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if  reasonably requested by the Lead Borrower or the Administrative Agent, shall deliver such other  documentation prescribed by applicable Requirements of Law or reasonably requested by the Lead  Borrower or the Administrative Agent as will enable the Lead Borrower or the Administrative  





 






  -100-       #95384462v18   #95384462v18   Agent to determine whether or not such Lender is subject to backup withholding or information  reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences,  the completion, execution and submission of such documentation (other than such documentation  set forth in Section 2.17(f)(ii)(A), (B) and (D) below) shall not be required if in the Lender’s  reasonable judgment such completion, execution or submission would subject such Lender to any  material unreimbursed cost or expense or would materially prejudice the legal or commercial  position of such Lender.  (ii) Without limiting the generality of the foregoing:  (A) each Lender that is not a Foreign Lender shall deliver to the Lead  Borrower and the Administrative Agent on or prior to the date on which such Lender  becomes a Lender under this Agreement (and from time to time thereafter upon the  reasonable request of the Lead Borrower or the Administrative Agent), two executed  original copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal  backup withholding tax;  (B) each Foreign Lender shall deliver to the Lead Borrower and the  Administrative Agent (in such number of copies as shall be requested by the recipient) on  or prior to the date on which such Foreign Lender becomes a Lender under this  Agreement (and from time to time thereafter upon the reasonable request of the Lead  Borrower or the Administrative Agent), whichever of the following is applicable:  (1) in the case of any Foreign Lender claiming the benefits of an  income tax treaty to which the U.S. is a party (x) with respect to payments of  interest under any Loan Document, executed original copies of IRS  Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or  reduction of, U.S. federal withholding Tax pursuant to the “interest” article of  such tax treaty and (y) with respect to any other applicable payments under any  Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E 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) executed original copies of IRS Form W-8ECI;  (3) in the case of any Foreign Lender claiming the benefits of the  exemption for portfolio interest under Section 871(h) or 881(c) of the Code,  (x) a certificate substantially in the form of Exhibit L-1 to the effect that such  Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of  the Code, a “10 percent shareholder” of the Lead 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 original copies of IRS Form W-8BEN or IRS  Form W-8BEN-E; or  (4) to the extent any Foreign Lender is not the beneficial owner,  executed original copies of IRS Form W-8IMY, accompanied by IRS  Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax  Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3,  IRS Form W-9, and/or other certification documents from each beneficial  owner, as applicable; provided that if such Foreign Lender is a partnership and  one or more 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 L-4 on behalf of each such partner;  





 






  -101-       #95384462v18   #95384462v18   (C) each Foreign Lender shall deliver to the Lead Borrower and the  Administrative Agent (in such number of copies as shall be requested by the recipient) on  or prior to the date on which such Foreign Lender becomes a Lender under this  Agreement (and from time to time thereafter upon the reasonable request of the Lead  Borrower or the Administrative Agent), executed original copies of any other form  prescribed by applicable Requirements of Law as a basis for claiming exemption from or  a reduction in U.S. federal withholding Tax, duly completed, together with such  supplementary documentation as may be prescribed by applicable Requirements of Law  to permit the Lead Borrower or the Administrative Agent to determine the withholding or  deduction required to be made; and  (D) if a payment made to any Lender under any Loan Document would be  subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail  to comply with the applicable reporting requirements of FATCA (including those  contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall  deliver to the Lead Borrower and the Administrative Agent at the time or times  prescribed by applicable Requirements of Law and at such time or times reasonably  requested by the Lead Borrower or the Administrative Agent such documentation as is  prescribed by applicable Requirements of Law (including as prescribed by  Section 1471(b)(3)(C)(i) of the Code) and may be necessary for the Lead Borrower and  the Administrative Agent to comply with their obligations under FATCA, to determine  whether such Lender has complied with such Lender’s obligations under FATCA, or to  determine the amount, if any, to deduct and withhold from such payment.  Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate  in any respect, it shall update such form or certification or promptly notify the Lead Borrower and the  Administrative Agent in writing of its legal inability to do so.  Notwithstanding anything to the contrary in this  Section 2.17(f), no Lender shall be required to provide any documentation that such Lender is not legally eligible to  deliver.  (g) If the Administrative Agent or any Lender or Issuing Bank determines, in its sole  discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which  it has been indemnified by any Loan Party or with respect to which such Loan Party has paid additional amounts  pursuant to this Section 2.17, it shall pay over such refund to such Loan Party (but only to the extent of indemnity  payments made, or additional amounts paid, by such Loan Party under this Section 2.17 with respect to the  Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the  Administrative Agent, such Lender or Issuing Bank (including any Taxes imposed with respect to such refund), and  without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund);  provided that such Loan Party, upon the request of the Administrative Agent, such Lender or Issuing Bank, agrees to  repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant  Governmental Authority) to the Administrative Agent, such Lender or Issuing Bank in the event the Administrative  Agent, such Lender or Issuing Bank is required to repay such refund to such Governmental Authority.   Notwithstanding anything to the contrary in this paragraph (g), in no event shall the Administrative Agent, any  Issuing Bank or any Lender be required to pay any amount to a Loan Party pursuant to this paragraph (g) to the  extent that the payment thereof would place the Administrative Agent, such Issuing Bank or such Lender in a less  favorable net after-Tax position than the position that the Administrative Agent, such Issuing Bank or such Lender  would have been in if the Tax subject to indemnification had not been deducted, withheld or otherwise imposed and  the indemnification payments or additional amounts giving rise to such refund had never been paid.  This  Section 2.17 shall not be construed to require the Administrative Agent, any Lender or any Issuing Bank to make  available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the relevant  Loan Party or any other Person.  (h) Survival.  Each party’s obligations under this Section 2.17 shall survive the resignation or  replacement of the Administrative Agent or any assignment of rights by, or the replacement of, any Lender, the  





 






  -102-       #95384462v18   #95384462v18   termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan  Document.  (i) For the purposes of this Section 2.17, the term “Lender” shall include any Ancillary  Lender.  Section 2.18 Payments Generally; Allocation of Proceeds; Sharing of Payments.  (a) Unless otherwise specified, the Lead Borrower shall make each payment required to be  made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements or of amounts  payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressed hereunder or under such Loan  Document (or, if no time is expressly required, by 2:00 p.m.) on the date when due, in immediately available funds,  without set-off (except as otherwise provided in Section 2.17) or counterclaim.  Any amounts received after such  time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next  succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the  Administrative Agent to the applicable account designated to the Lead Borrower by the Administrative Agent,  except payments to be made directly to the applicable Issuing Bank as expressly provided herein and except that  payments pursuant to Sections 2.15, 2.16 or 2.17 and 9.03 shall be made directly to the Persons entitled thereto.  The  Administrative Agent shall distribute any such payments received by it for the account of any other Person to the  appropriate recipient promptly following receipt thereof.  Each Lender agrees that in computing such Lender’s  portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round such  Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount.  Except as otherwise  expressly provided herein and except with respect to principal of and interest on Loans denominated in an Agreed  Currency, all payments (including accrued interest) hereunder shall be made in U.S. Dollars.  Except to the extent  expressly provided for herein, all payments with respect to principal of and interest on Loans in an applicable  Agreed Currency shall be made in the applicable Agreed Currency.  Any payment required to be made by the  Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative  Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the  regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make  such payment.  (b) Subject in all respects to the provision of any applicable Intercreditor Agreement, all  proceeds of Collateral received by the Administrative Agent at any time when an Event of Default exists and all or  any portion of the Loans have been accelerated hereunder pursuant to Section 7.01 shall, upon election by the  Administrative Agent or at the direction of the Required Lenders, be applied first, to the payment of all costs and  expenses then due incurred by the Administrative Agent in connection with any collection, sale or realization on  Collateral or otherwise in connection with this Agreement, any other Loan Document or any of the Secured  Obligations, including all court costs and the fees and expenses of agents and legal counsel, the repayment of all  advances made by the Administrative Agent hereunder or under any other Loan Document on behalf of any Loan  Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or  under any other Loan Document, second, on a pro rata basis, to pay any fees, indemnities or expense  reimbursements then due to the Administrative Agent (other than those covered in clause first above) or any Issuing  Bank from the Lead Borrower constituting Secured Obligations, third, to payment in full of Unfunded  Advances/Participations (the amounts so applied to be distributed between or among, as applicable, the  Administrative Agent and the Issuing Banks pro rata in accordance with the amounts of Unfunded  Advances/Participations owed to them on the date of any such distribution), fourth, on a pro rata basis in  accordance with the amounts of the Secured Obligations (other than contingent indemnification obligations for  which no claim has yet been made) owed to the Secured Parties on the date of any such distribution, to the payment  in full of the Secured Obligations (including, with respect to LC Exposure, an amount to be paid to the  Administrative Agent equal to 100% of the Dollar Equivalent of the LC Exposure (minus the Dollar Equivalent of  the amount then on deposit in the LC Collateral Account and any amount applied pursuant to clause “second”  above) on such date, to be held in the LC Collateral Account as Cash collateral for such Obligations); provided that  if any Letter of Credit expires undrawn, then any Cash collateral held to secure the related LC Exposure shall be  applied in accordance with this Section 2.17(b), beginning with clause “first” above, fifth, as provided for under the  





 






  -103-       #95384462v18   #95384462v18   First Lien/Second Lien Intercreditor Agreement, and sixth, to, or at the direction of, the Lead Borrower or as a court  of competent jurisdiction may otherwise direct.  (c) If any Lender obtains payment (whether voluntary, involuntary, through the exercise of  any right of set-off or otherwise) in respect of any principal of or interest on any of its Loans of any Class or  participations in LC Disbursements held by it resulting in such Lender receiving payment of a greater proportion of  the aggregate amount of its Loans of such Class and participations in LC Disbursements and accrued interest thereon  than the proportion received by any other Lender with Loans of such Class and participations in LC Disbursements,  then the Lender receiving such greater proportion shall purchase (for Cash at face value) participations in the Loans  of such Class and sub-participations in LC Disbursements of other Lenders of such Class at such time outstanding to  the extent necessary so that the benefit of all such payments shall be shared by the Lenders of such Class ratably in  accordance with the aggregate amount of principal of and accrued interest on their respective Loans of such Class  and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any  portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price  restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not apply to  (x) any payment made by the Lead Borrower pursuant to and in accordance with the express terms of this  Agreement or (y) any payment obtained by any Lender as consideration for the assignment of or sale of a  participation in any of its Loans to any permitted assignee or participant, including any payment made or deemed  made in connection with Sections 2.22, 2.23 and 9.02(c).  The Lead Borrower consents to the foregoing and agrees,  to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the  foregoing arrangements may exercise against the Lead Borrower rights of set-off and counterclaim with respect to  such participation as fully as if such Lender were a direct creditor of the Lead Borrower in the amount of such  participation.  The Administrative Agent will keep records (which shall be conclusive and binding in the absence of  manifest error) of participations purchased under this Section 2.18(c) and will, in each case, notify the Lenders  following any such purchases or repayments.  Each Lender that purchases a participation pursuant to this  Section 2.18(c) shall from and after such purchase have the right to give all notices, requests, demands, directions  and other communications under this Agreement with respect to the portion of the Obligations purchased to the  same extent as though the purchasing Lender were the original owner of the Obligations purchased.   Notwithstanding the foregoing, with respect to any payment received by a Lender in its capacity as an Ancillary  Lender at any time prior to service of notice under Section 7.01 or, if applicable, such time as the remedies provided  thereunder automatically come into effect, if, after giving effect to the provisions of Section 7.01, an Ancillary  Lender is subject to sharing obligations under this Section 2.18, such obligations shall not apply to any payment  received by such Ancillary Lender to the extent that such payment is applied to reduce the Gross Outstandings under  the applicable Ancillary Facility to the net limit on which such Ancillary Facility is provided.  (d) Unless the Administrative Agent has received notice from the Lead Borrower prior to the  date on which any payment is due to the Administrative Agent for the account of any Lender or any Issuing Bank  hereunder that the Lead Borrower will not make such payment, the Administrative Agent may assume that the Lead  Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption,  distribute to the applicable Lender or Issuing Bank the amount due.  In such event, if the Lead Borrower has not in  fact made such payment, then each Lender or the applicable Issuing Bank severally agrees to repay to the  Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest  thereon, for each day from and including the date such amount is distributed to it to but excluding the date of  payment to the Administrative Agent, at the Overnight Rate.  (e) If any Lender fails to make any payment required to be made by it pursuant to  Section 2.07(b) or Section 2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any  contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of  such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully  paid.  Section 2.19 Mitigation Obligations; Replacement of Lenders.  (a) If any Lender requests compensation under Section 2.15 or such Lender determines it can  no longer make or maintain Eurocurrency Rate Loans, SOFR Loans, SONIA Rate Revolving Loans or EURIBOR  





 






  -104-       #95384462v18   #95384462v18   Rate Revolving Loans pursuant to Section 2.20, or the Lead Borrower is required to pay any additional amount to  any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such  Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder  or its participation in any Letter of Credit affected by such event, or to assign its rights and obligations hereunder to  another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or  assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as applicable, in the  future or mitigate the impact of Section 2.20, as the case may be, and (ii) would not subject such Lender to any  material unreimbursed out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender in  any material respect.  The Lead Borrower hereby agrees to pay all reasonable costs and expenses incurred by any  Lender in connection with any such designation or assignment.  (b) If (i) any Lender requests compensation under Section 2.15 or such Lender determines it  can no longer make or maintain Eurocurrency Rate Loans, SOFR Loans, SONIA Rate Revolving Loans or  EURIBOR Rate Revolving Loans pursuant to Section 2.20, (ii) if the Lead Borrower is required to pay any  additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to  Section 2.17, (iii) if any Lender is a Defaulting Lender, (iv) if in connection with any proposed amendment, waiver  or consent requiring the consent of “each Lender”, “each Revolving Lender” or “each Lender directly affected  thereby” (or any other Class or group of Lenders other than the Required Lenders or Required Revolving Lenders)  with respect to which Required Lender or Required Revolving Lender consent (or the consent of Lenders holding  loans or commitments of such Class or lesser group representing more than 50% of the sum of the total loans and  unused commitments of such Class or lesser group at such time) has been obtained or (v) in connection with any  Extension Offer set forth in Section 2.23 below, as applicable, any Lender is a non-consenting Lender, then the Lead  Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,  (x) terminate the applicable Commitments and/or Additional Commitments of such Lender, and repay all  Obligations of the Lead Borrower owing to such Lender relating to the applicable Loans and participations held by  such Lender as of such termination date (provided that if, after giving effect such termination and repayment, the  aggregate amount of the Revolving Credit Exposure exceeds the aggregate amount of the Revolving Credit  Commitments then in effect, then the Lead Borrower shall, not later than the next Business Day, prepay one or more  Revolving Borrowings (and, if no Revolving Borrowings are outstanding, deposit Cash collateral in the LC  Collateral Account) in an amount necessary to eliminate such excess) or (y) replace such Lender by requiring such  Lender to assign and delegate (and such Lender shall be obligated to assign and delegate), without recourse (in  accordance with and subject to the restrictions contained in Section 9.05), all of its interests, rights and obligations  under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be  another Lender, if any Lender accepts such assignment); provided that (A) such Lender shall have received payment  of an amount equal to the outstanding principal amount of its Loans and, if applicable, participations in LC  Disbursements, in each case of such Class of Loans, Commitments and/or Additional Commitments, accrued  interest thereon, accrued fees and all other amounts payable to it under any Loan Document with respect to such  Class of Loans, Commitments and/or Additional Commitments, (B) in the case of any assignment resulting from a  claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such  assignment will result in a reduction in such compensation or payments and (C) such assignment does not conflict  with applicable law.  No Lender (other than a Defaulting Lender) shall be required to make any such assignment and  delegation, and the Lead Borrower may not repay the Obligations of such Lender or terminate its Commitments or  Additional Commitments, if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances  entitling the Lead Borrower to require such assignment and delegation cease to apply.  Each Lender agrees that if it  is replaced pursuant to this Section 2.19, it shall execute and deliver to the Administrative Agent an Assignment and  Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent any Promissory Note  (if the assigning Lender’s Loans are evidenced by one or more Promissory Notes) subject to such Assignment and  Assumption (provided that the failure of any Lender replaced pursuant to this Section 2.19 to execute an Assignment  and Assumption or deliver any such Promissory Note shall not render such sale and purchase (and the corresponding  assignment) invalid), such assignment shall be recorded in the Register, any such Promissory Note shall be deemed  cancelled.  Each Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled  with an interest) as such Lender’s attorney-in-fact, with full authority in the place and stead of such Lender and in  the name of such Lender, from time to time in the Administrative Agent’s discretion, with prior written notice to  such Lender, to take any action and to execute any such Assignment and Assumption or other instrument that the  Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (b).  To the extent  





 






  -105-       #95384462v18   #95384462v18   that any Lender is replaced pursuant to Section 2.19(b)(iv) in connection with a Repricing Transaction requiring  payment of a fee pursuant to Section 2.12(f), the Lead Borrower shall pay to each Lender being replaced as a result  of such Repricing Transaction the fee set forth in Section 2.12(f).  Section 2.20 Illegality.  (a) If any Lender reasonably determines that any Change in Law has made it unlawful, or  that any Governmental Authority has asserted after the Closing Date that it is unlawful, for such Lender or its  applicable lending office to make, maintain or fund Loans whose interest is determined by reference to any  Eurocurrency Rate, the SONIA Rate or, the EURIBOR Rate, SOFR or Term SOFR or to determine or charge  interest rates based upon any Eurocurrency Rate, the SONIA Rate, or the EURIBOR Rate, SOFR or Term SOFR, or  any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or  to take deposits of U.S. Dollars or any Agreed Currency in the applicable interbank market, then, on notice thereof  by such Lender to the Lead Borrower through the Administrative Agent, (i) any obligation of such Lender to make  or continue LIBO Rate Loans or SOFR Loans in U.S. Dollars or make or continue BA Rate Loans in Canadian  Dollars or to convert ABR Loans to LIBO Rate Loans or SOFR Loans or to convert Canadian Base Rate Loans to  BA Rate Loans shall be suspended, (ii) any obligation of such Lender to make or continue SONIA Rate Revolving  Loans shall be suspended, (iii) any obligation of such Lender to make or continue EURIBOR Rate Revolving Loans  shall be suspended and (iv) if such notice asserts the illegality of such Lender making or maintaining ABR Loans or  Canadian Base Rate Loans the interest rate on which is determined by reference to the Published LIBO Rate or  SOFR component of the Alternate Base Rate or the BA Rate component of the Canadian Base Rate, respectively,  the interest rate on which ABR Loans or Canadian Base Rate Loans of such Lender, shall, if necessary to avoid such  illegality, be determined by the Administrative Agent without reference to the Published LIBO Rate or Term SOFR  component of the Alternate Base Rate or the BA Rate component of the Canadian Base Rate, respectively, in each  case until such Lender notifies the Administrative Agent and the Lead Borrower that the circumstances giving rise to  such determination no longer exist (which notice such Lender agrees to give promptly).  (b) Upon receipt of such notice, (i) the Lead Borrower shall, upon demand from such Lender  (with a copy to the Administrative Agent), prepay or convert all of such Lender’s LIBO Rate Loans or SOFR Loans  denominated in U.S. Dollars and/or BA Rate Loans to ABR Loans or Canadian Base Rate Loans respectively either  on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency  Rate Loans or SOFR Loans, as applicable to such day, or immediately, if such Lender may not lawfully continue to  maintain such Eurocurrency Rate Loans or SOFR Loans (in which case the Lead Borrower shall not be required to  make payments pursuant to Section 2.16 in connection with such payment) and (ii) if such notice asserts the  illegality of such Lender determining or charging interest rates based upon the Published LIBO Rate, Term SOFR,  the BA Rate, the SONIA Rate or the EURIBOR Rate, the Administrative Agent shall during the period of such  suspension compute the Alternate Base Rate or the Canadian Base Rate applicable to such Lender without reference  to the Published LIBO Rate component, Term SOFR component or BA Rate component thereof until the  Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or  charge interest rates based upon the Published LIBO Rate, Term SOFR, the BA Rate, the SONIA Rate or the  EURIBOR Rate.  Upon any such prepayment or conversion, the Lead Borrower shall also pay accrued interest on  the amount so prepaid or converted, together with, solely in the case of SOFR Loans, any additional amounts  required pursuant to Section 2.15.  Each Lender agrees to designate a different lending office if such designation  will avoid the need for such notice and will not, in the determination of such Lender, otherwise be materially  disadvantageous to such Lender.   (c) If it becomes unlawful under any Sanctions Laws and Regulations applicable to any  Lender for that Lender to perform any of its obligations to the German Borrower as contemplated by this Agreement  or to fund, issue or maintain its participation in any Loan to the German Borrower, (i) that Lender, shall promptly  notify the Administrative Agent upon becoming aware of that event, (ii) the affected Commitments of that Lender  will be immediately suspended, (iii) the Administrative Agent shall notify the Lead Borrower who may replace such  Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 9.05(b) (with  the assignment fee to be paid by the Borrowers in such instance unless waived by the Administrative Agent) all of  its affected rights and obligations under this Agreement to one or more Eligible Assignees; provided that neither the  Administrative Agent nor any Lender shall have any obligation to the Borrowers to find a replacement Lender or  





 






  -106-       #95384462v18   #95384462v18   other such Person, on the last day of the Interest Period for each affected Loan occurring after receipt by the Lead  Borrower of notice pursuant to clause (iii) or, if earlier, the date specified by the Lender in the notice delivered to the  Administrative Agent (being no earlier than the last day of any applicable grace period permitted by law).  (d) If it becomes unlawful under any Sanctions Laws and Regulations for an Issuing Bank to  issue or leave outstanding any Letter of Credit then, (i) that Issuing Bank shall promptly notify the Administrative  Agent upon becoming aware of that event and (ii) upon the Administrative Agent notifying the Lead Borrower, the  Lead Borrower shall procure that each Loan Party shall use its best endeavors to procure the release of each Letter  of Credit issued by that Issuing Bank and outstanding at such time.  Section 2.21 Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if  any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a  Defaulting Lender:  (a) Fees shall cease to accrue on the unfunded portion of any Commitment of such  Defaulting Lender pursuant to Section 2.12(a) and, subject to clause (d)(iv) below, on the participation of such  Defaulting Lender in Letters of Credit pursuant to Section 2.12(b) and pursuant to any other provisions of this  Agreement or other Loan Document.  (b) The Commitments and the Revolving Credit Exposure of such Defaulting Lender shall  not be included in determining whether all Lenders, each affected Lender, the Required Lenders, the Required  Revolving Lenders or such other number of Lenders as may be required hereby or under any other Loan Document  have taken or may take any action hereunder (including any consent to any waiver, amendment or modification  pursuant to Section 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders  or each affected Lender which affects such Defaulting Lender disproportionately and adversely relative to other  affected Lenders shall require the consent of such Defaulting Lender.  (c) Any payment of principal, interest, fees or other amounts received by the Administrative  Agent for the account of any Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to  Section 2.11, Section 2.15, Section 2.16, Section 2.17, Section 2.18, Article 7, Section 9.05 or otherwise, and  including any amounts made available to the Administrative Agent by such Defaulting Lender pursuant to  Section 9.09), shall be applied at such time or times as may be determined by the Administrative Agent and, where  relevant, the Lead Borrower as follows:  first, to the payment of any amounts owing by such Defaulting Lender to  the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such  Defaulting Lender to any applicable Issuing Bank hereunder; third, if so reasonably determined by the  Administrative Agent or reasonably requested by the applicable Issuing Bank, to be held as Cash collateral for  future funding obligations of such Defaulting Lender in respect of any participation in any Letter of Credit;  fourth, so long as no Default or Event of Default exists as the Lead Borrower may request, to the funding of any  Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this  Agreement; fifth, as the Administrative Agent or the Lead Borrower may elect, to be held in a deposit account and  released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; sixth, to the  payment of any amounts owing to the non-Defaulting Lenders or Issuing Banks as a result of any judgment of a  court of competent jurisdiction obtained by any non-Defaulting Lender or any Issuing Bank against such Defaulting  Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, to the  payment of any amounts owing to the Lead Borrower as a result of any judgment of a court of competent  jurisdiction obtained by the Lead Borrower against such Defaulting Lender as a result of such Defaulting Lender’s  breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a  court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loan  or LC Exposure in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such  Loan or LC Exposure was made or created, as applicable, at a time when the conditions set forth in Section 4.02  were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Exposure owed to, all  non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Exposure  owed to, such Defaulting Lender.  Any payments, prepayments or other amounts paid or payable to any Defaulting  Lender that are applied (or held) to pay amounts owed by any Defaulting Lender or to post Cash collateral pursuant  





 






  -107-       #95384462v18   #95384462v18   to this Section 2.21(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender  irrevocably consents hereto.  (d) If any LC Exposure exists at the time any Lender becomes a Defaulting Lender then:  (i) all or any part of the LC Exposure of such Defaulting Lender shall be reallocated  among the Initial Revolving Lenders of each applicable Class that are non-Defaulting Lenders in  accordance with their respective Dollar Revolving Applicable Percentages and/or Multicurrency  Revolving Applicable Percentages, as applicable, but only to the extent that (w) the conditions set  forth in Section 4.02 are satisfied at the time of such reallocation,  (x) the sum of all  non-Defaulting Lenders’ Initial Revolving Credit Exposures plus all non-Defaulting Lenders’  Ancillary Commitments does not exceed the total of all non-Defaulting Lenders’ Initial Revolving  Credit Commitments and (y) the sum of each non-Defaulting Lender’s Initial Revolving Credit  Exposure plus such non-Defaulting Lender’s Ancillary Commitments does not exceed the total of  such non-Defaulting Lender’s Initial Revolving Credit Commitments;  (ii) if the reallocation described in clause (i) above cannot, or can only partially, be  effected, the Lead Borrower shall, without prejudice to any other right or remedy available to it  hereunder or under law, within two Business Days following notice by the Administrative Agent,  Cash collateralize 100% of such Defaulting Lender’s LC Exposure and any obligations of such  Defaulting Lender to fund participations (after giving effect to any partial reallocation pursuant to  paragraph (i) above and any Cash collateral provided by such Defaulting Lender or pursuant to  Section 2.21(c) above) or make other arrangements reasonably satisfactory to the Administrative  Agent and to the applicable Issuing Bank with respect to such LC Exposure and obligations to  fund participations.  Cash collateral (or the appropriate portion thereof) provided to reduce LC  Exposure or other obligations shall be released promptly following (A) the elimination of the  applicable LC Exposure or other obligations giving rise thereto (including by the termination of  the Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following  compliance with Section 2.19)) or (B) the Administrative Agent’s good faith determination that  there exists excess Cash collateral (including as a result of any subsequent reallocation of LC  Exposure among non-Defaulting Lenders described in clause (i) above);  (iii) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this  Section 2.21(d), then the fees payable to the Initial Revolving Lenders pursuant to Sections 2.12(a)  and (b), as the case may be, shall be adjusted to give effect to such reallocation; and  (iv) if any Defaulting Lender’s LC Exposure is not Cash collateralized, prepaid or  reallocated pursuant to this Section 2.21(d), then, without prejudice to any rights or remedies of  the applicable Issuing Bank or any Initial Revolving Lender hereunder, all letter of credit fees  payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be  payable to the applicable Issuing Bank until such Defaulting Lender’s LC Exposure is Cash  collateralized or reallocated.  (e) So long as any Initial Revolving Lender is a Defaulting Lender, no Issuing Bank shall be  required to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied that  the related exposure will be 100% covered by the Initial Revolving Credit Commitments of the non-Defaulting  Lenders, Cash collateral provided pursuant to Section 2.21(c) and/or Cash collateral provided by the Lead Borrower  in accordance with Section 2.21(d), and participating interests in any such or newly issued, extended or created  Letter of Credit shall be allocated among Initial Revolving Lenders that are non-Defaulting Lenders in a manner  consistent with Section 2.21(d)(i) (it being understood that Defaulting Lenders shall not participate therein).  (f) In the event that the Administrative Agent and the Lead Borrower agree that any  Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the  LC Exposure of the Initial Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Initial  Revolving Credit Commitment, and on such date such Initial Revolving Lender shall purchase at par such of the  





 






  -108-       #95384462v18   #95384462v18   Initial Revolving Loans of the other Initial Revolving Lenders or participations in Initial Revolving Loans as the  Administrative Agent shall determine as are necessary in order for such Initial Revolving Lender to hold such Initial  Revolving Loans or participations in accordance with its Dollar Revolving Applicable Percentage and/or  Multicurrency Revolving Applicable Percentage.  Notwithstanding the fact that any Defaulting Lender has  adequately remedied all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made  retroactively with respect to fees accrued or payments made by or on behalf of the Lead Borrower while such  Lender was a Defaulting Lender and (y) 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 such Lender’s having been a Defaulting Lender.  Section 2.22 Incremental Credit Extensions.  (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request  to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to  each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of  the Initial Term Loans or any Additional Term Loans by requesting new term loan commitments to be added to such  Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an  Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of revolving  commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Commitment  (any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term  Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with  any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount, when aggregated with the  aggregate principal amount of all Incremental Equivalent Debt issued or incurred pursuant to Section 6.01(z), not to  exceed the Incremental Cap, which Incremental Facilities may be denominated in U.S. Dollars or Agreed Currencies  (with the interest rate calculations in respect of Agreed Currencies not already provided for in this Agreement to be  defined in a manner mutually satisfactory to the Lead Borrower and the Administrative Agent); provided that:  (i) no Incremental Commitment may be less than $10,000,000,  (ii) except as separately agreed from time to time between the Lead Borrower and any  Lender, no Lender shall be obligated to provide any Incremental Commitment, and the  determination to provide such commitments shall be within the sole and absolute discretion of  such Lender,  (iii) no Incremental Facility or Incremental Loan (or the creation, provision or  implementation thereof) shall require the approval of any existing Lender other than in its  capacity, if any, as a Lender providing all or part of any Incremental Commitment or Incremental  Loan,  (iv) (A) except as otherwise provided herein, the terms of each Incremental Revolving  Facility (other than any terms which are applicable only after the then-existing maturity date with  respect to the Revolving Facility or any Additional Revolving Facility, as applicable, and other  than as permitted under clause (v) below), will be substantially identical to those applicable to the  Revolving Facility or otherwise reasonably satisfactory to the Lead Borrower and the  Administrative Agent and (B) no Incremental Revolving Facility will mature earlier than the  then-applicable Latest Revolving Loan Maturity Date or require any scheduled amortization or  mandatory commitment reduction prior to such Maturity Date,  (v) the interest rate applicable to any Incremental Facility or Incremental Loans will  be determined by the Lead Borrower and the lenders providing such Incremental Facility or  Incremental Loans; provided that, except with respect to any Incremental Term Loans (I) that are  used to finance a Permitted Acquisition or other permitted Investment, (II) that mature more than  12 months after the Initial Term Loan Maturity Date and/or (III) that are incurred on and after the  12 month anniversary of the First Amendment Effective Date, in the case of any Incremental Term  Facility or Incremental Term Loans (other than a customary bridge facility) which are broadly  





 






  -109-       #95384462v18   #95384462v18   syndicated, funded in U.S. Dollars and are pari passu with the Initial Term Loans in right of  payment and with respect to security and that are incurred under clause (e) of the Incremental Cap  (other than through reallocation), such all-in-yield will not be more than 0.50% higher than the  corresponding all-in-yield applicable to the Initial Term Loans unless the interest rate margin with  respect to the Initial Term Loans is adjusted so that the all-in-yield is equal to the all-in-yield with  respect to the relevant Incremental Term Facility or Incremental Term Loans, minus 0.50%;  provided, further, that in determining the applicable interest rate under this clause (v):   (w) original issue discount or upfront fees paid by the Lead Borrower in connection with the  Initial Term Loans or any Incremental Term Facility (based on a four-year average life to  maturity), shall be included, (x) any amendments to the Applicable Rate in respect of the Initial  Term Loans that became effective subsequent to the First Amendment Effective Date but prior to  the time of the addition of the relevant Incremental Term Facility or Incremental Term Loans shall  be included, (y) arrangement, commitment, structuring and underwriting fees, consent fees and  any amendment fees (regardless of whether such fees are paid to or shared in whole or in part with  any lender) paid or payable by the Lead Borrower to the Arrangers (or their Affiliates) in their  respective capacities as such in connection with the Initial Term Loans or any Incremental Term  Facility in the same currency or to one or more arrangers (or their affiliates) in their capacities as  such applicable to the relevant Incremental Term Facility or Incremental Term Loans and any  other fees not paid by the Lead Borrower to all relevant lenders generally shall be excluded and  (z) if the relevant Incremental Term Facility or Incremental Term Loans in the same currency  include any interest rate floor that is greater than that applicable to the existing Initial Term Loans  in the same currency, and such floor is applicable to such existing Initial Term Loans on the date  of determination, the excess amount shall be equated to interest margin for determining the  applicable interest rate, but only to the extent an increase in the interest rate floor in the existing  Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in  such case, at the election of the Lead Borrower, the interest rate floor (but not the interest rate  margin) applicable to the existing Initial Term Loans may be increased to the extent of such  differential between interest rate floors to adjust the all-in-yield of the Initial Term Loans to  maintain the relevant differential,  (vi) the final maturity date with respect to any Incremental Term Loans shall be no  earlier than the Latest Maturity Date at the time of the incurrence thereof,  (vii) the amortization requirements for such Incremental Term Loans may differ so  long as the Weighted Average Life to Maturity of any Incremental Term Facility shall be no  shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche(s) of  Term Loans (without giving effect to any prepayments thereof),  (viii) (A) any Incremental Term Facility shall rank pari passu with any then-existing  tranche of Revolving Loans in right of payment and shall rank pari passu with any then-existing  tranche of Revolving Loans with respect to security and (B) no Incremental Facility may be  (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the  Collateral (other than, in the case of any Incremental Facility incurred by an Additional Borrower  as a Non-U.S. Facility, a Non-U.S. Facility which may be guaranteed by Persons that are not Loan  Parties on the date when such Non-U.S. Facility is established and secured by any collateral in a  non-U.S. jurisdiction provided that such Additional Borrower, the additional Persons that provide  guarantees and collateral and the Administrative Agent on behalf of the Lenders (including the  Lenders that provide such Incremental Facility) enter into an agreement that contains customary  collateral allocation mechanism sharing provisions between such Non-U.S. Facility and the  U.S. Credit Facilities),  (ix) any prepayment (other than any scheduled amortization payment) of Incremental  Term Loans that are pari passu with any previously incurred and then-existing Term Loans in  right of payment and security shall be made on a pro rata basis with such previously incurred and  existing Term Loans, except that the Lead Borrower and the lenders providing the relevant  





 






  -110-       #95384462v18   #95384462v18   Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive,  as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata  basis),  (x) [reserved],   (xi) except as otherwise agreed by the lenders providing the relevant Incremental  Facility in connection with any Limited Condition Acquisition (which shall be subject to  Section 2.22(i)), no Event of Default shall exist immediately prior to or after giving effect to such  incremental facility,  (xii) except as otherwise agreed by the lenders providing the relevant Incremental  Facility in connection with any Limited Condition Acquisition (which shall be subject to  Section 2.22(i)), all representations and warranties set forth in Article 3 and in each other Loan  Document shall be true and correct in all material respects (or, if qualified by materiality, in all  respects) on and as of the applicable closing date in respect of such Incremental Facility with the  same effect as though made on and as of such date, except to the extent such representations and  warrants expressly relate to an earlier day, in which case they shall be true and correct in all  material respects (or, if qualified by materiality, in all respects) as of such earlier date.,  (xiii) the terms of any Incremental Term Facility shall be as agreed between the Lead  Borrower and the Lenders providing such Incremental Term Loans;,  (xiv) the proceeds of any Incremental Facility may be used for working capital and  other general corporate purposes and any other use not prohibited by this Agreement;,  (xv) on the date of the making of any Incremental Term Loans that will be added to  any Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08  or 2.13, such Incremental Term Loans shall be added to (and constitute a part of) each borrowing  of outstanding Term Loans, as applicable, of the same type with the same Interest Period of the  respective Class on a pro rata basis (based on the relative sizes of the various outstanding  Borrowings), so that each Term Lender providing such Incremental Term Loans will participate  proportionately in each then outstanding borrowing of such Term Loans, as applicable, of the  same type with the same Interest Period of the respective Class;, and  (xvi) unless the Administrative Agent agrees otherwise, at no time shall there be more  than three separate Maturity Dates in effect with respect to the Revolving Facility and any existing  Additional Revolving Facility at any time.  (b) Incremental Commitments may be provided by any existing Lender, or by any other  lender (other than any Disqualified Institution) (any such other lender being called an “Additional Lender”);  provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility and any Issuing  Bank) shall have consented (such consent not to be unreasonably withheld) to the relevant Additional Lender’s  provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment  of Loans to such Additional Lender; provided further that any Additional Lender that is an Affiliated Lender shall  be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments  and related Obligations had been obtained by such Lender by way of assignment.  (c) Each Lender or Additional Lender providing a portion of any Incremental Commitment  shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including an  amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative  Agent to evidence and effectuate such Incremental Commitment.  On the effective date of such Incremental  Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.  





 






  -111-       #95384462v18   #95384462v18   (d) As a condition precedent to the effectiveness of any Incremental Facility or the making of  any Incremental Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary  written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall  reasonably require, (ii) the Administrative Agent shall have received, from each Additional Lender, an  administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the  “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional  Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such  Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the  Lead Borrower signed by a Responsible Officer thereof:  (A) certifying and attaching a copy of the resolutions adopted by the  governing body of the Lead Borrower approving or consenting to such Incremental  Facility or Incremental Loans, and  (B) to the extent applicable, certifying that the condition set forth in  clause (a)(xi) above has been satisfied.  (e) Upon the implementation of any Incremental Revolving Facility pursuant to this  Section 2.22:  (i) if such Incremental Revolving Facility is implemented by increasing the amount  of then-existing Total Revolving Credit Commitments (rather than by implementing a new tranche  of Revolving Loans), (i) each Revolving Lender immediately prior to such increase will  automatically and without further act be deemed to have assigned to each relevant Incremental  Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will  automatically and without further act be deemed to have assumed a portion of such Revolving  Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to  each deemed assignment and assumption of participations (and after taking into account the  Ancillary Commitments of each Multicurrency Revolving Lender), all of the Revolving Lenders’  (including each Incremental Revolving Facility Lender) participations hereunder in Letters of  Credit and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving  Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders  providing the relevant Incremental Revolving Facility), and such other Revolving Lenders  (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall  purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving  Lenders of such Class participate in each outstanding borrowing of Revolving Loans and  participate hereunder in Letters of Credit pro rata on the basis of their respective Revolving Credit  Commitments of such Class (after giving effect to any increase in the Revolving Credit  Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum  borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this  Agreement shall not apply to the transactions effected pursuant to this clause (i);   (ii) if such Incremental Revolving Facility is implemented pursuant to a request to add  one or more new tranches of revolving commitments of the same Class as the Revolving  Facilities, (1) the borrowing and repayment (except for (A) payments of interest and fees at  different rates on the existing Revolving Facilities and such Incremental Revolving Facility,  (B) repayments required upon the Maturity Date of the then-existing Revolving Facility and such  Incremental Revolving Facility and (C) repayments made in connection with any permanent  repayment and termination of commitments (subject to clause (3) below)) of Incremental  Revolving Loans after the effective date of such Incremental Revolving Commitments shall be  made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding  Incremental Revolving Facility, (2) all letters of credit made or issued, as applicable, under such  Incremental Revolving Facility shall be participated on a pro rata basis by all Revolving Lenders  within such Class and (3) the permanent repayment of Loans with respect to, and termination of  commitments under, such Incremental Revolving Facility shall be made on a pro rata basis with  





 






  -112-       #95384462v18   #95384462v18   the then-existing Revolving Facility and any other then outstanding Incremental Revolving  Facility, except that the Lead Borrower shall be permitted to permanently repay and terminate  commitments under such Incremental Revolving Facility on a greater than pro rata basis as  compared with any other revolving facility with a later Maturity Date than such revolving facility;  and  (iii) if such Incremental Revolving Facility is implemented pursuant to a request to add  one or more new tranches of revolving commitments of a different Class as the Revolving  Facilities, (1) the borrowing and repayment of Incremental Revolving Loans after the effective  date of such Incremental Revolving Commitments may be made on a pro rata basis, lesser than  pro rata basis or greater than pro rata basis with the then-existing Revolving Facility and any  other then outstanding Incremental Revolving Facility in accordance with the terms of such  Incremental Revolving Facility, (2) all letters of credit made or issued, as applicable, under such  Incremental Revolving Facility may be participated on a pro rata basis, lesser than pro rata basis  or greater than pro rata basis by all Revolving Lenders within such Class in accordance with the  terms of such Incremental Revolving Facility and (3) the permanent repayment of Loans with  respect to, and termination of commitments under, such Incremental Revolving Facility may be  made on a pro rata basis, lesser than pro rata basis or greater than pro rata basis with the  then-existing Revolving Facility and any other then outstanding Incremental Revolving Facility in  accordance with the terms of such Incremental Revolving Facility.  (f) Effective on the date of effectiveness of each Incremental Revolving Facility, the  maximum amount of LC Exposure, Dollar LC Exposure and Multicurrency LC Exposure permitted hereunder shall  increase by an amount, if any, agreed upon by Administrative Agent, the Issuing Banks and the Lead Borrower.  (g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into such  amendments to this Agreement and the other Loan Documents with the Lead Borrower as may be necessary in order  to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended pursuant to this  Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the  Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or  sub-tranches, in each case on terms consistent with this Section 2.22.  (h) To the extent the provisions of clause (a)(xiii) above require that Lenders making new  Incremental Term Loans add such Incremental Term Loans to the then outstanding borrowings of Eurocurrency  Rate Loans of the respective Class of Term Loans, as applicable, it is acknowledged that the effect thereof may  result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during  an Interest Period then applicable to outstanding Eurocurrency Rate Loans of the respective Class and which will  end on the last day of such Interest Period).  (i) Limited Condition Acquisitions.  Notwithstanding the foregoing provisions of this  Section 2.22 or in any other provision of any Loan Document:  (i) if the proceeds of any Incremental Facility are intended to be applied to finance a  Limited Condition Acquisition, the conditions precedent to Lead Borrower’s right to request such  Incremental Facility for a Limited Condition Acquisition shall be limited to the following:  (a) on  the date of the signing of the definitive acquisition agreement for such Limited Condition  Acquisition, (x) no Event of Default shall have occurred and be continuing (y) each of the  representations and warranties contained in the Loan Documents shall be true and correct in all  material respects (except (I) with respect to representations and warranties expressly made as of an  earlier date, in which case such representations and warranties were true and correct in all material  respects as of such earlier date and (II) that if any such representation or warranty contains any  materiality qualifier, such representation or warranty shall be true and correct in all respects); and  (b) at the date of closing of such Limited Condition Acquisition and the funding of the applicable  Incremental Facility, (A) no Event of Default under Section 7.01(a), (f) or (g) shall have occurred  and be continuing, (B) the only representations and warranties the accuracy of which shall be a  





 






  -113-       #95384462v18   #95384462v18   condition to funding such advance shall be the customary specified representations and the  customary specified acquisition agreement representations agreed between the Lead Borrower and  the Lenders providing such Incremental Facility; and  (ii) in the case of the incurrence of any indebtedness or liens or the making of any  investments, restricted payments, prepayments of subordinated or junior debt, asset sales or  fundamental changes or the designation of any restricted subsidiaries or unrestricted subsidiaries  in connection with a Limited Condition Acquisition, at the Lead Borrower’s option, the relevant  ratios and baskets shall be determined, and any default or event of default blocker shall be tested,  as of the date the definitive acquisition agreements for such Limited Condition Acquisition are  entered into and, subject to the second proviso contained in this clause (ii), calculated as if the  acquisition and other pro forma events in connection therewith were consummated on such date;  provided that if the Lead Borrower has made such an election, in connection with the calculation  of any ratio or basket with respect to the incurrence of any debt or liens, or the making of any  investments, restricted payments, prepayments of subordinated, junior or unsecured debt, asset  sales, fundamental changes or the designation of a restricted subsidiary or unrestricted subsidiary r  following such election and prior to the earlier of the date on which such acquisition is  consummated or the definitive agreement for such acquisition is terminated, any such ratio shall,  subject to the proviso below, be calculated on a pro forma basis assuming such acquisition and  other pro forma events in connection therewith (including any incurrence of indebtedness) have  been consummated; provided that the consolidated net income (and any other financial defined  term derived therefrom) shall not include any consolidated net income of or attributable to the  target company or assets associated with any such Limited Condition Acquisition unless and until  the closing of such Limited Condition Acquisition shall have actually occurred.  (j) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary.  Section 2.23 Extensions of Loans and Revolving Commitments.  (a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more  offers (each, an “Extension Offer”) made from time to time by the Lead Borrower to all Lenders holding Loans of  any Class with a like Maturity Date and in the same currency or commitments with a like Maturity Date, in each  case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Loans in the same  currency with a like Maturity Date or commitments with a like Maturity Date) and on the same terms to each such  Lender, the Lead Borrower is hereby permitted from time to time to consummate transactions with any individual  Lender who accepts the terms contained in any such Extension Offer to extend the Maturity Date of such Lender’s  Loans and/or commitments and otherwise modify the terms of such Loans and/or commitments pursuant to the  terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such  Loans and/or commitments (and related outstandings) and/or modifying the amortization schedule in respect of such  Loans) (each, an “Extension”, and each group of Loans or commitments, as applicable, in each case as so extended,  as well as the original Loans and the original commitments (in each case not so extended), being a “tranche”; any  Extended Term Loans shall constitute a separate tranche of Loans from the tranche of Loans from which they were  converted and any Extended Revolving Credit Commitments shall constitute a separate tranche of revolving  commitments from the tranche of revolving commitments from which they were converted), so long as the  following terms are satisfied:  (i) except as to (x) interest rates, fees, any other pricing terms and final maturity  (which shall, subject to immediately succeeding clause (iii)(y), be determined by the Lead  Borrower and any Lender who agrees to an Extension and set forth in the relevant Extension  Offer) and (y) any covenants or other provisions applicable only to periods after the Latest  Revolving Loan Maturity Date (in each case, as of the date of such Extension), the commitment of  any Revolving Lender that agrees to an Extension (an “Extended Revolving Credit  Commitment”; and the Loans thereunder, “Extended Revolving Loans”), and the related  outstandings, shall be a revolving commitment (or related outstandings, as the case may be) with  the same terms (or terms not less favorable to existing Revolving Lenders) as the original  





 






  -114-       #95384462v18   #95384462v18   revolving commitments (and related outstandings) provided hereunder or such other terms as shall  be reasonably satisfactory to the Administrative Agent; it being agreed that the applicable  Borrower shall have the right to unilaterally provide the extending Revolving Lenders with  additional rights and benefits (such rights and benefits “Additional Rights to Extending  Revolving Lenders”) and the “not less favorable” requirement of this clause (i) and compliance  therewith shall be determined after giving effect to such Additional Rights to Extending Revolving  Lenders; provided that (x) to the extent any non-extended portion of the Revolving Facility or any  Additional Revolving Facility then exists, (1) the borrowing and repayment (except for  (A) payments of interest and fees at different rates on such revolving facilities (and related  outstandings), (B) repayments required upon the Maturity Date of such revolving facilities and  (C) repayments made in connection with any permanent repayment and termination of  commitments (subject to clause (3) below)) of Extended Revolving Loans after the effective date  of such Extended Revolving Credit Commitments shall be made on a pro rata basis with such  portion of the Revolving Facility or the relevant Additional Revolving Facility, as applicable,  (2) all letters of credit made or issued, as applicable, under any Extended Revolving Credit  Commitment shall be participated on a pro rata basis by all Revolving Lenders and (3) the  permanent repayment of Loans with respect to, and termination of commitments under, any such  Extended Revolving Credit Commitment after the effective date of such Extended Revolving  Credit Commitments shall be made on a pro rata basis with such portion of the Revolving Facility  and/or any Additional Revolving Facility, except that the Lead Borrower shall be permitted to  permanently repay and terminate commitments of any such revolving facility on a greater than  pro rata basis as compared with any other revolving facility with a later Maturity Date than such  revolving facility and (y) unless the Administrative Agent agrees otherwise, at no time shall there  be more than three separate Classes of revolving commitments hereunder (including Revolving  Credit Commitments, Incremental Revolving Commitments, Extended Revolving Credit  Commitments and Replacement Revolving Facilities);  (ii) except as to (x) interest rates, fees, any other pricing terms, amortization, final  maturity date, premiums, required prepayment dates and participation in prepayments (which  shall, subject to immediately succeeding clauses (iii)(x), (v) and (vi), be determined by the Lead  Borrower and any Lender who agrees to an Extension and set forth in the relevant Extension  Offer) and (y) any covenants or other provisions applicable only to periods after the Latest Term  Loan Maturity Date (in each case, as of the date of such Extension), the Term Loans of any Lender  extended pursuant to any Extension (any such extended term Loans, the “Extended Term  Loans”) shall have the terms that are not more favorable to the lenders providing such Extended  Term Loans (taken as a whole, in their capacity as such, as reasonably determined by the Lead  Borrower) as the tranche of Term Loans subject to the relevant Extension Offer, or shall be on  market terms or such other terms as shall be reasonably satisfactory to the Lead Borrower and the  Administrative Agent; provided, however, that with respect to representations and warranties,  affirmative and negative covenants (including financial covenants) and events of default that are  applicable to any such tranche of Extended Term Loans, such provisions may be more favorable to  the lenders of the applicable tranche of Extended Term Loans than those originally applicable to  the tranche of Term Loans subject to the relevant Extension Offer, so long as (and only so long as)  such provisions also expressly apply to (and for the benefit of) the tranche of Term Loans subject  to the relevant Extension Offer and each other Class of Term Loans hereunder; it being agreed that  the applicable Borrower shall have the right to unilaterally provide the existing Term Lenders with  additional rights and benefits;  (iii) (x) the final maturity date of any Extended Term Loans shall be no earlier than the  then applicable Latest Term Loan Maturity Date at the time of extension and (y) no Extended  Revolving Credit Commitments or Extended Revolving Loans shall have a final maturity date  earlier than (or require commitment reductions prior to) the then applicable Latest Revolving Loan  Maturity Date;  





 






  -115-       #95384462v18   #95384462v18   (iv) the Weighted Average Life to Maturity of any Extended Term Loans shall be no  shorter than the remaining Weighted Average Life to Maturity of the Term Loans or any other  Extended Term Loans extended thereby;  (v) any Extended Term Loans (x) may participate on a pro rata basis or a less than  pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments  (but, for purposes of clarity, not scheduled amortization payments) in respect of the Initial Term  Loans (and any Additional Term Loans then subject to ratable repayment requirements) and (y)  may participate on a pro rata basis, less than pro rata basis or greater than a pro rata basis in any  voluntary repayments or prepayments in respect of the Initial Term Loans, in each case as  specified in the respective Extension Offer;  (vi) if the aggregate principal amount of Loans or commitments, as the case may be, in  respect of which Lenders shall have accepted the relevant Extension Offer exceeds the maximum  aggregate principal amount of Loans or commitments, as the case may be, offered to be extended  by the Lead Borrower pursuant to such Extension Offer, then the Loans or commitments, as the  case may be, of such Lenders shall be extended ratably up to such maximum amount based on the  respective principal amounts (but not to exceed actual holdings of record) with respect to which  such Lenders have accepted such Extension Offer;  (vii) each Extension shall be in a minimum amount of the Dollar Equivalent of  $20,000,000;  (viii) any applicable Minimum Extension Condition shall be satisfied or waived by the  Lead Borrower; and  (ix) all documentation in respect of such Extension shall be consistent with the  foregoing.  (b) With respect to any Extension consummated pursuant to this Section 2.23, (i) no such  Extension shall constitute a voluntary or mandatory prepayment for purposes of Section 2.11, (ii) the scheduled  amortization payments (in so far as such schedule affects payments due to Lenders participating in the relevant  Class) set forth in Section 2.10 shall be adjusted to give effect to such Extension of the relevant Class and  (iii) except as set forth in clause (a)(vii) above, no Extension Offer is required to be in any minimum amount or any  minimum increment; provided that the Lead Borrower may, at its election, specify as a condition (a “Minimum  Extension Condition”) to consummating such Extension that a minimum amount (to be determined and specified in  the relevant Extension Offer in the Lead Borrower’s sole discretion and which may be waived by the Lead  Borrower) of Loans or commitments (as applicable) of any or all applicable tranches be tendered.  The  Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.23  (including, for the avoidance of doubt, any payment of any interest, fees or premium in respect of any tranche of  Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the  relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including  Section 2.10, 2.11 or 2.18) or any other Loan Document that may otherwise prohibit any Extension or any other  transaction contemplated by this Section 2.23.  (c) No consent of any Lender or the Administrative Agent shall be required to effectuate any  Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its  Loans and/or commitments under any Class (or a portion thereof) and (B) with respect to any Extension of the Initial  Revolving Credit Commitments, the consent of each Issuing Bank to the extent the commitment to provide Letters  of Credit is to be extended.  All Extended Term Loans and Extended Revolving Credit Commitments and all  obligations in respect thereof shall constitute Secured Obligations under this Agreement and the other Loan  Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Secured  Obligations under this Agreement and the other Loan Documents.  The Lenders hereby irrevocably authorize the  Administrative Agent to enter into such amendments to this Agreement and the other Loan Documents with the  Lead Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or  





 






  -116-       #95384462v18   #95384462v18   commitments so extended and such technical amendments as may be necessary or appropriate in the reasonable  opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new  tranches or sub-tranches, in each case on terms consistent with this Section 2.23.  (d) In connection with any Extension, the Lead Borrower shall provide the Administrative  Agent at least ten Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior  written notice thereof, and shall agree to such procedures (including regarding timing, rounding and other  adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such  Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting  reasonably to accomplish the purposes of this Section 2.23.  Section 2.24 Lead Borrower as Borrower Representative.  Each Borrower (other than the Lead  Borrower) hereby designates the Lead Borrower as its representative and agent for all purposes under the Loan  Documents, including designation of interest rates, delivery or receipt of communications, preparation and delivery  of financial reports, receipt and payment of Obligations, requests for waivers, amendments or other  accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all  other dealings with the Administrative Agent or any Lender.  The Lead Borrower hereby accepts such appointment.   The Administrative Agent and the Lenders shall be entitled to rely upon, and shall be fully protected in relying upon,  any notice or communication delivered by the Lead Borrower on behalf of any Borrower.  The Administrative  Agent and the Lenders may give any notice or communication with a Borrower hereunder to the Lead Borrower on  behalf of such Borrower.  Each of the Administrative Agent and the Lenders shall have the right, in its discretion, to  deal exclusively with the Lead Borrower for any or all purposes under the Loan Documents.  Each Borrower agrees  that any notice, election, communication, representation, agreement or undertaking made on its behalf by the Lead  Borrower shall be binding upon and enforceable against it.  Section 2.25 Currency Equivalents.  (a) The Administrative Agent shall determine the Dollar Equivalent of each Revolving Loan  denominated in an Agreed Currency, each LC Obligation in respect of Letters of Credit denominated in an Agreed  Currency and each Ancillary Commitment denominated in an Agreed Currency (i) as of the first day of each Interest  Period applicable to a Revolving Loan or on the date of such initial extension in respect of an LC Obligation and  (ii) as of the end of each fiscal quarter of the Lead Borrower, and shall promptly notify the Lead Borrower and the  Lenders of each Dollar Equivalent so determined by it.  Each such determination shall be based on the Exchange  Rate (x) on the date of the related Borrowing Request for the purposes of the initial such determination for any  Revolving Loan or Letter of Credit (y) on the fourth Business Day prior to the date as of which such Dollar  Equivalent is to be determined, for purposes of any subsequent determination in respect of a Revolving Loan or  Letter of Credit and (z) in respect of any Ancillary Commitment, on the fourth Business Day prior to the relevant  Ancillary Commencement Date or, if later, the date on which the Administrative Agent received the notice of such  Ancillary Commitment pursuant to Section 2.26(a)(ii).  (b) If after giving effect to any such determination of a Dollar Equivalent, the Total  Revolving Credit Outstandings exceed the sum of the (i) the aggregate amount of Revolving Credit Commitments  then in effect plus (ii) the aggregate amount of Ancillary Commitments then in effect by 5.0% or more, the  Borrower shall prepay on such date of determination the applicable outstanding Dollar Equivalent of the Revolving  Loans denominated in Agreed Currencies or take other action as the Administrative Agent, in its discretion, may  direct (including Cash collateralization of the applicable LC Obligations and/or Ancillary Outstandings (without  duplication of any requirements under the applicable Ancillary Facility) in amounts from time to time equal to such  excess) to the extent necessary to eliminate any such excess.  Section 2.26 Ancillary Facilities.  (a) Availability of Ancillary Facilities.  (i) Any Multicurrency Revolving Lender may, upon the agreement of any Revolving  Facility Borrower and such Revolving Lender, provide, directly or indirectly through one or more  





 






  -117-       #95384462v18   #95384462v18   of its Affiliates (other than any Disqualified Institution), to such Revolving Facility Borrower or  any Affiliate Ancillary Borrower one or more Ancillary Facilities on a bilateral basis in place of  all or a portion of such Multicurrency Revolving Lender’s Unused Multicurrency Revolving  Credit Commitment (which shall (subject to Section 2.26(c)(ii)) be reduced by the amount of the  Ancillary Commitment under that Ancillary Facility).  (ii) No Revolving Facility Borrower may implement any Ancillary Facility unless, not  less than five Business Days prior to the Ancillary Commencement Date with respect thereto, the  Administrative Agent has received written notice from such Revolving Facility Borrower that  such Ancillary Facility has been established and specifying:  (1) the Ancillary Commencement Date for such Ancillary Facility  and the scheduled expiration date thereof;  (2) the type of such Ancillary Facility;  (3) the Ancillary Commitment (including the maximum amount  of such Ancillary Facility) and, if such Ancillary Facility is Multi-account Overdraft its  Designated Gross Amount and “Designated Net Amount”;  (4) the proposed currency or currencies of such Ancillary Facility  (if not denominated in U.S. Dollars); and  (5) the identity of the relevant Ancillary Lender(s) (including  whether such Ancillary Lender is a Multicurrency Revolving Lender or an Affiliate of a  Multicurrency Revolving Lender).  (iii) The applicable Revolving Facility Borrower (or the Lead Borrower on its behalf)  shall provide such other customary information as the Administrative Agent may reasonably  request in connection with any Ancillary Facility.  (iv) The Administrative Agent shall promptly notify the Multicurrency Revolving  Lender proposing to provide such Ancillary Facility and the other Lenders of the establishment of  any Ancillary Facility and, subject to the satisfaction of the requirements set forth in  Section 2.26(b) below, (A) the relevant Multicurrency Revolving Lender will constitute an  Ancillary Lender and (B) such Ancillary Facility will be deemed to be made available hereunder,  in each case as of the Ancillary Commencement Date.  (v) Notwithstanding anything to the contrary herein or in any other Loan Document  (including Section 9.02 hereof), no amendment or waiver of any term of any Ancillary Facility  shall require the consent of any Lender other than the relevant Ancillary Lender except to the  extent that such amendment or waiver otherwise gives rise to a matter that would require an  amendment of or waiver under this Agreement (including, for the avoidance of doubt, under this  Section 2.26), in which case the provisions of Section 9.02 shall apply thereto.  (b) Terms of Ancillary Facilities.  (i) Except as provided below in this Section 2.26, the  terms of any Ancillary Facility will be agreed by the relevant Ancillary Lender and the relevant Revolving Facility  Borrower; provided that such terms (A) may only allow the relevant Revolving Facility Borrower or an Affiliate  Ancillary Borrower identified by such Revolving Facility Borrower to use the Ancillary Facility, (B) may not permit  the amount of Ancillary Outstandings to exceed the Available Ancillary Commitment with respect to such Ancillary  Facility, (C) may not allow the Ancillary Commitment of any Ancillary Lender to exceed the Unused Multicurrency  Revolving Credit Commitment of such Ancillary Lender (before taking into account the effect of such Ancillary  Facility on such Unused Multicurrency Revolving Credit Commitment), (D) shall require that the Ancillary  Commitment in respect of such Ancillary Facility will be reduced to zero, and that all Ancillary Outstandings will be  





 






  -118-       #95384462v18   #95384462v18   repaid (or Cash collateralized or back-stopped by a letter of credit or otherwise in a manner reasonably satisfactory  to the relevant Ancillary Lender, in each case, in an amount equal to 100% of such Ancillary Outstandings) on or  prior to the applicable Maturity Date for such Multicurrency Revolving Lender’s tranche of Multicurrency  Revolving Credit Commitments (or such date as the Multicurrency Revolving Credit Commitment of the relevant  Ancillary Lender (or its Affiliates) is reduced to zero) and (E) shall otherwise be based upon normal commercial  terms as determined by the board of the relevant Revolving Facility Borrower (or of the Lead Borrower) and such  Ancillary Lender, at the time such Ancillary Facility is entered into (except as varied by this Agreement).  (ii) If there is an inconsistency between any term of any Ancillary Facility and any  term of this Agreement, this Agreement shall prevail, except for (A) those terms relating to the  calculation of fees, interest, or commission relating to any Ancillary Facility, (B) any Ancillary  Facility comprising more than one account, where the terms of the relevant Ancillary Documents  shall prevail to the extent required to permit the netting of balances in respect of the relevant  accounts and (C) where the relevant term of this Agreement would be contrary to, or inconsistent  with, the law governing the relevant Ancillary Document, in which case the relevant term of this  Agreement shall be superseded by the terms of the relevant Ancillary Document to the extent  necessary to eliminate the subject conflict or inconsistency; provided, however, that  notwithstanding anything to the contrary herein, (x) no Ancillary Document shall contain any  representation or warranty, covenant or event of default that is not set forth in this Agreement (and  any such representation or warranty, covenant or event of default not set forth in this Agreement  shall be rendered null and void) and (y) all representations and warranties, covenants, events of  default, indemnification and similar obligations set forth in any Ancillary Document shall contain  standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with  those set forth in this Agreement (and, to the extent inconsistent therewith, the relevant Ancillary  Documents shall be deemed to automatically incorporate the applicable standards, qualifications,  thresholds and exceptions set forth herein without action by any Person).  (iii) Notwithstanding anything to the contrary herein, in any other Loan Document or  in any Ancillary Document, no breach of any representation, warranty, undertaking or other term  of (or default or event of default under) any Ancillary Document shall be deemed to constitute, or  result in, a breach of any representation, warranty, undertaking or other term of, or Default or  Event of Default under, this Agreement or any other Loan Document.  (c) Repayment of Ancillary Facilities.  (i) Each Ancillary Commitment shall terminate on the applicable Maturity Date for  such Multicurrency Revolving Lender’s tranche of Multicurrency Revolving Credit Commitments  or such earlier date on which its expiry date occurs or in which it is cancelled, in each case, in  accordance with the terms of this Agreement.  (ii) Upon the expiration of any Ancillary Facility in accordance with its terms, the  Ancillary Commitment of the relevant Ancillary Lender shall be reduced to zero (and the Unused  Multicurrency Revolving Credit Commitment of such Ancillary Lender shall be increased  accordingly).  Upon the making of one or more Multicurrency Revolving Loans as provided below  in an amount sufficient to repay the Ancillary Outstandings under any Ancillary Facility, such  Ancillary Facility shall be cancelled upon receipt by the relevant Ancillary Lender of the proceeds  thereof.  (iii) No Ancillary Lender may demand repayment, prepayment or Cash  collateralization of any amounts made available or liabilities incurred by it under any Ancillary  Facility (except where the relevant Ancillary Facility is provided on a net limit basis to the extent  required to reduce any gross outstandings to the net limit) unless (A) the applicable Maturity Date  for such Multicurrency Revolving Lender’s tranche of Multicurrency Revolving Credit  Commitments has occurred, (B) the Multicurrency Revolving Loans have been declared  immediately due and payable and all Multicurrency Revolving Credit Commitments terminated in  





 






  -119-       #95384462v18   #95384462v18   accordance with Section 7.01, (C) the expiration date of the relevant Ancillary Facility occurs,  (D) it becomes unlawful in any applicable jurisdiction for the relevant Ancillary Lender to perform  its obligations under this Agreement or to fund, issue or maintain its participation in the relevant  Ancillary Facility or (E) the Ancillary Outstandings (if any) under the relevant Ancillary Facility  may be refinanced in an equivalent amount by a Multicurrency Revolving Loan and the relevant  Ancillary Lender provides sufficient notice to permit the refinancing of such Ancillary  Outstandings with a Multicurrency Revolving Loan.  (iv) Notwithstanding anything to the contrary herein, for the purposes of determining  whether or not the Ancillary Outstandings under any Ancillary Facility referenced in  clause (c)(iii)(E) above may be refinanced by a Multicurrency Revolving Loan, (A) the  Multicurrency Revolving Credit Commitment of the relevant Ancillary Lender will be increased  by the amount of its Ancillary Commitment in respect of such Ancillary Facility and (B) unless  the circumstances described in clauses (c)(iii)(A) or (B) then exist, each Multicurrency Revolving  Lender shall be obligated to make a Multicurrency Revolving Loan to the applicable Revolving  Facility Borrower for the purpose of refinancing the relevant Ancillary Outstandings on a pro rata  basis in accordance with its Multicurrency Revolving Applicable Percentage whether or not a  Default or Event of Default exists or any other applicable condition precedent is not satisfied and  irrespective of whether any Borrower has delivered a Borrowing Request.  (v) With respect to any Ancillary Facility that comprises an overdraft facility in which  a Designated Net Amount has been established, for the purposes of calculating compliance with  the Designated Net Amount, the Ancillary Lender providing such Ancillary Facility shall only be  obligated to take into account the credit balances which it is permitted to take into account by then  applicable law and regulations relating to its reporting of exposures to applicable regulatory  authorities as netted for capital adequacy purposes.  (d) Ancillary Outstandings.  The applicable Revolving Facility Borrower and each Ancillary  Lender agree with and for the benefit of each Multicurrency Revolving Lender that (i) the Ancillary Outstandings  under any Ancillary Facility provided by such Ancillary Lender shall not exceed the Ancillary Commitment  applicable to such Ancillary Facility and (ii) in relation to a Multi-account Overdraft, (x) the Ancillary Outstandings  under such Ancillary Facility shall not exceed the Designated Net Amount in respect of such Multi-account  Overdraft and (y) the Gross Outstandings shall not exceed the Designated Gross Amount applicable to such  Multi-account Overdraft.  (e) Adjustment for Ancillary Facilities upon Acceleration.  (i) If a notice is served under Section 7.01 (other than a notice declaring all  Obligations to be due and payable), each Multicurrency Revolving Lender (including each  Ancillary Lender) shall promptly adjust (by making or receiving (as the case may be)  corresponding transfers of rights and obligations under the Loan Documents relating to  Multicurrency Revolving Credit Exposure) their claims in respect of amounts outstanding to them  under the Multicurrency Revolving Facility and each Ancillary Facility to the extent necessary to  ensure that after such transfers, the Multicurrency Revolving Outstandings of each Multicurrency  Revolving Lender bear the same proportion to the Total Multicurrency Revolving Outstandings as  such Multicurrency Revolving Lender’s Multicurrency Revolving Applicable Percentage, each as  at the date the notice is served under Section 7.01.  (ii) If an amount outstanding under an Ancillary Facility is a contingent liability and  that contingent liability becomes an actual liability or is reduced to zero after the original  adjustment is made under paragraph (i) above, then each Multicurrency Revolving Lender  (including each Ancillary Lender) will make a further adjustment (by making or receiving (as the  case may be) corresponding transfers of rights and obligations under the Loan Documents relating  to Multicurrency Revolving Outstandings to the extent necessary) to put themselves in the position  





 






  -120-       #95384462v18   #95384462v18   they would have been in had the original adjustment been determined by reference to the actual  liability or, as the case may be, zero liability and not the contingent liability.  (iii) Any transfer of rights and obligations relating to Multicurrency Revolving  Outstandings made pursuant to this Section 2.26(e) shall be made for a purchase price in Cash,  payable at the time of transfer in the applicable currency of such Multicurrency Revolving  Outstanding, in an amount equal to such Multicurrency Revolving Outstandings.  (iv) All calculations to be made pursuant to this Section 2.26(e) shall be made by the  Administrative Agent based upon information provided to it by the Multicurrency Revolving  Lenders (including Ancillary Lenders) and the Exchange Rate.  (f) Pro Rata Adjustments of Participations in Revolving Letters of Credit upon  Establishment or Termination of Ancillary Facilities.  (i) Upon the implementation, increase, reduction, cancellation or termination of any  Ancillary Facility pursuant to this Section 2.26:  (A) the Multicurrency Revolving Lenders (including the Multicurrency  Revolving Lender providing, reducing, canceling or terminating such Ancillary Facility)  shall assign Multicurrency Revolving Loans to certain other Multicurrency Revolving  Lenders, and such other Multicurrency Revolving Lenders (and the Multicurrency  Revolving Lender providing, reducing, canceling or terminating such Ancillary Facility)  shall purchase such Multicurrency Revolving Loans, in each case to the extent necessary  so that all of the Multicurrency Revolving Lenders participate in each outstanding  Borrowing of Multicurrency Revolving Loans pro rata on the basis of their respective  Multicurrency Revolving Credit Commitments (after giving effect to any increase or  decrease in the Multicurrency Revolving Credit Commitments pursuant to Section 2.26);  it being understood and agreed that the minimum borrowing, pro rata borrowing and pro  rata payment requirements contained elsewhere in this Agreement shall not apply to the  transactions effected pursuant to the immediately preceding sentence; and  (B) each Multicurrency Revolving Lender (including the Multicurrency  Revolving Lender providing, reducing, canceling or terminating such Ancillary Facility)  will automatically and without further act be deemed to have assigned to each other  Multicurrency Revolving Lender and each other Multicurrency Revolving Lender  (including the Multicurrency Revolving Lender providing, reducing, canceling or  terminating such Ancillary Facility) will automatically and without further act be deemed  to have assumed a portion of such Multicurrency Revolving Lender’s participations  hereunder in outstanding Letters of Credit such that, after giving effect to each deemed  assignment and assumption of participations, all of the Multicurrency Revolving  Lenders’ participations hereunder in Letters of Credit shall be held on a pro rata basis on  the basis of their respective Multicurrency Revolving Credit Commitments (after giving  effect to any increase or decrease in the Multicurrency Revolving Credit Commitments  pursuant to Section 2.26).  (g) Information.  The applicable Revolving Facility Borrower and each Ancillary Lender  shall, promptly upon the request of the Administrative Agent, provide the Administrative Agent with any  information relating to the operation of such Ancillary Facility (including the amount of Ancillary Outstandings) as  the Administrative Agent may from time to time reasonably request (which information shall be subject to  compliance with Section 9.13).  (h) Affiliates of Multicurrency Revolving Lenders as Ancillary Lenders.  





 






  -121-       #95384462v18   #95384462v18   (i) Subject to the terms of this Agreement, an Affiliate of any Multicurrency  Revolving Lender may become an Ancillary Lender (other than a Disqualified Institution), in  which case such Multicurrency such Revolving Lender and such Affiliate shall be treated as a  single Multicurrency Revolving Lender whose Multicurrency Revolving Credit Commitment is as  set forth in Schedule 1.01(a) or in the Assignment and Assumption pursuant to which such  Multicurrency Revolving Lender assumed its Multicurrency Revolving Credit Commitment, as the  same may be modified in accordance with the terms of the definition of “Multicurrency Revolving  Credit Commitment”; it being understood that the relevant Multicurrency Revolving Lender’s  Multicurrency Revolving Credit Commitment will be reduced to the extent of the Ancillary  Commitment of such Affiliate.  (ii) To the extent that this Agreement or any other Loan Document imposes any  obligation on any Ancillary Lender and such Ancillary Lender is an Affiliate of a Multicurrency  Revolving Lender and not a party thereto, the relevant Multicurrency Revolving Lender shall  ensure that such obligation is performed by such Affiliate in compliance with the terms hereof or  such other Loan Document.  (iii) Each Ancillary Lender, in its capacity as such, hereby appoints the Administrative  Agent as its agent for purposes of the Loan Documents.  (i) Subsidiaries of the Lead Borrower as Ancillary Borrowers.  (i) Subject to the terms of this Agreement, any Restricted Subsidiary of the Lead  Borrower may, with the approval of the relevant Ancillary Lender, become an Affiliate Ancillary  Borrower with respect to an Ancillary Facility.  (ii) The Lead Borrower shall specify any of its Restricted Subsidiaries in any notice  delivered by the Lead Borrower to the Administrative Agent pursuant to Section 2.26(a).  (iii) Where this Agreement or any other Loan Document imposes an obligation on a  borrower under an Ancillary Facility and the relevant borrower is a Restricted Subsidiary of the  Lead Borrower which is not a party to such document, the Lead Borrower shall ensure that the  obligation is performed by its Restricted Subsidiary.  (iv) Any reference in this Agreement or any other Loan Document to the Lead  Borrower being under no obligations (whether actual or contingent) as a Borrower under such  Loan Document shall be construed to include a reference to any Restricted Subsidiary of the Lead  Borrower being under no obligations under any Loan Document or Ancillary Document.  (j) Each Ancillary Lender, in its capacity as such, hereby appoints the Administrative Agent  and the Collateral Agent as its agents for purposes of the Loan Documents.  (k) The rate and time of payment and interest, commission, fees and any other remuneration  in respect of each Ancillary Facility shall be determined by agreement between the relevant Ancillary Lender and  the applicable Revolving Facility Borrower of that Ancillary Facility based upon normal market rates and terms.  (l) For the avoidance of doubt, no 2022 Revolving Lender, in its capacity as such, shall  implement or acquire a participation in any Ancillary Facility.  Section 2.27 Benchmark Replacement.  (a) (a) Notwithstanding anything to the contrary herein or in any other Loan Document,   





 






  -122-       #95384462v18   #95384462v18   (i)with respect to the LIBO Rate, upon the occurrence of a Benchmark Transition Event or  an Early Opt-in Election, as applicable, the Administrative Agent and the Lead Borrower may  amend this Agreement to replace the LIBO Rate with a Benchmark Replacement. Any such  amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on  the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment  to all Lenders and the Lead Borrower so long as the Administrative Agent has not received, by  such time, written notice of objection to such amendment from Lenders comprising the Required  Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on  the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent  written notice that such Required Lenders accept such amendment. No replacement of the LIBO  Rate with a Benchmark Replacement pursuant to this Section 2.27 will occur prior to the  applicable Benchmark Transition Start Date; and  .    (ii)with respect to Term SOFR, if a Benchmark Transition Event and its related Benchmark  Replacement Date have occurred prior any setting of Term SOFR, then (x) if a Benchmark  Replacement is determined in accordance with clause (b)(i) of the definition of “Benchmark  Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace  Term SOFR for all purposes hereunder and under any Loan Document in respect of Term SOFR  setting and subsequent Term SOFR 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 (b)(ii) of the definition of “Benchmark  Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace  Term SOFR for all purposes hereunder and under any Loan Document in respect of any Term  SOFR setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the  date notice of such Benchmark Replacement is provided to the Lenders without any amendment  to, or further action or consent of any other party to, this Agreement or any other Loan Document  so long as the Agent has not received, by such time, written notice of objection to such Benchmark  Replacement from Lenders comprising the Required Lenders.  (b) (b) Benchmark Replacement Conforming Changes.  In connection with the or  implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark  Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any  other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will  become effective without any further action or consent of any other party to this Agreement.  (c) (c) Notices; Standards for Decisions and Determinations.  The   (i)With respect to the LIBO Rate, the Administrative Agent will promptly notify the Lead  Borrower and the Lenders of (i) 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, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any  Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any  Benchmark Unavailability Period.  Any determination, decision or election that may be made by  the Administrative Agent or Lenders pursuant to this Section 2.27, 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, 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 hereto, except, in each case, as expressly required pursuant to this  Section 2.27.  (ii)With respect to Term SOFR, the Administrative Agent will promptly notify the Lead  Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the  effectiveness of any Benchmark Replacement Conforming Changes in connection with the use,  





 






  -123-       #95384462v18   #95384462v18   administration, adoption or implementation of a Benchmark Replacement.  The Administrative  Agent will promptly notify the Lead Borrower of the removal or reinstatement of any tenor of  Term SOFR pursuant to Section 2.27(d). Any determination, decision or election that may be  made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to  this Section 2.27, including any determination with respect to a tenor, rate or adjustment or of the  occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain  from taking any action or any selection, will be conclusive and binding absent manifest error and  may be made in its or their sole discretion and without consent from any other party to this  Agreement or any other Loan Document, except, in each case, as expressly required pursuant to  this Section 2.27.  (d) Unavailability of Tenor of Term SOFR.  Notwithstanding anything to the contrary herein  or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark  Replacement), (i) if the applicable then-current Benchmark is Term SOFR and either (A) any tenor for Term SOFR  is not displayed on a screen or other information service that publishes such rate from time to time as selected by the  Administrative Agent in its reasonable discretion or (B) the Term SOFR Administrator or the regulatory supervisor  for the Term SOFR Administrator has provided a public statement or publication of information announcing that  any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the  International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks (the “IOSCO  Principles”), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or  analogous definition) for any Term SOFR settings at or after such time to remove such unavailable, non- representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above  either (A) is subsequently displayed on a screen or information service for Term SOFR (including a Benchmark  Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or  in compliance with or aligned with the IOSCO Principles for Term SOFR (including a Benchmark Replacement),  then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous  definition) for all Term SOFR settings at or after such time to reinstate such previously removed tenor.  (e) (d) Benchmark Unavailability Period.  Upon the Lead Borrower’s receipt of notice  of the commencement of a Benchmark Unavailability Period,    (i)with respect to the LIBO Rate, (x) any request for a borrowing of a LIBO Rate Loan or  the conversion to or continuation of LIBO Rate Loan, in each case, to be made, converted or  continued as applicable, during any Benchmark Unavailability Period shall be deemed revoked  and (y) the Lead Borrower shall repay any outstanding LIBO Rate Loan on the last day of the  Interest Period relating thereto to the extent such date occurs during any Benchmark  Unavailability Period. ; and  (ii)with respect to Term SOFR, the Lead Borrower may revoke any request for a SOFR  Loan of, conversion to or continuation of SOFR Loans to be made, converted or continued during  any Benchmark Unavailability Period and, failing that, the Lead Borrower will be deemed to have  converted any such request into a request for a Borrowing of or conversion to ABR Loans. During  any Benchmark Unavailability Period or at any time that a tenor for Term SOFR is not an  Available Tenor, the component of Alternate Base Rate based upon Term SOFR or such tenor for  Term SOFR, as applicable, will not be used in any determination of Alternate Base Rate.   ARTICLE 3    REPRESENTATIONS AND WARRANTIES  On the Closing Date, and thereafter on the dates and to the extent required pursuant to  Section 4.02, each of (i) Holdings, solely with respect to Sections 3.01, 3.02, 3.03, 3.07, 3.08, 3.09, 3.13, 3.14, 3.16  and 3.17 and (ii) the Lead Borrower hereby represent and warrant to the Lenders that:  





 






  -124-       #95384462v18   #95384462v18   Section 3.01 Organization; Powers.  Each of the Loan Parties and each of their Restricted Subsidiaries  (a) is (i) duly organized and validly existing and (ii) in good standing (to the extent such concept exists in the  relevant jurisdiction) under the laws of its jurisdiction of organization, (b) has all requisite organizational power and  authority to own its property and assets and to carry on its business as now conducted and (c) is qualified to do  business in, and is in good standing (to the extent such concept exists in the relevant jurisdiction) in, every  jurisdiction where its ownership, lease or operation of properties or conduct of its business requires such  qualification; except, in each case referred to in this Section 3.01 (other than clause (a)(i) with respect to each  Borrower and clause (b) with respect to the Loan Parties) where the failure to do so, individually or in the aggregate,  would not reasonably be expected to result in a Material Adverse Effect.  Section 3.02 Authorization; Enforceability.  The execution, delivery and performance of each of the  Loan Documents are within each applicable Loan Party’s corporate or other organizational power and have been  duly authorized by all necessary corporate or other organizational action of such Loan Party.  Each Loan Document  to which any Loan Party is a party has been duly executed and delivered by such Loan Party and is a legal, valid and  binding obligation of such Loan Party, enforceable in accordance with its terms, subject to the Legal Reservations.  Section 3.03 Governmental Approvals; No Conflicts.  The execution and delivery of the Loan  Documents by each Loan Party party thereto and the performance by such Loan Party thereof (a) do not require any  consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except  (i) such as have been obtained or made and are in full force and effect, (ii) in connection with the Perfection  Requirements and (iii) such consents, approvals, registrations, filings, or other actions the failure to obtain or make  which would not be reasonably expected to have a Material Adverse Effect, (b) will not violate any (i) of such Loan  Party’s Organizational Documents or (ii) Requirements of Law applicable to such Loan Party which violation, in the  case of this clause (b)(ii), could reasonably be expected to have a Material Adverse Effect and (c) will not violate or  result in a default under any material Contractual Obligation to which such Loan Party is a party which violation, in  the case of this clause (c), could reasonably be expected to result in a Material Adverse Effect.  Section 3.04 Financial Condition; No Material Adverse Effect.  (a) The financial statements most recently provided pursuant to Section 5.01(a) or (b), as  applicable, present fairly, in all material respects, the financial position and results of operations and cash flows of  the Lead Borrower on a consolidated basis as of such dates and for such periods in accordance with GAAP, subject,  in the case of financial statements provided pursuant to Section 5.01(a), to the absence of footnotes and normal  year-end adjustments.  (b) Since the Closing Date, there have been no events, developments or circumstances that  have had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  Section 3.05 Properties; Intellectual Property.  (a) As of the Closing Date, Schedule 3.05 sets forth the address of each Material Real Estate  Asset (or each set of such assets that collectively comprise one operating property) that is owned in fee simple by  any Loan Party.  (b) The Borrowers and each of their Restricted Subsidiaries have good and valid fee simple  title to or rights to purchase, or valid leasehold interests in, or easements or other limited property interests in, all of  their respective Real Estate Assets and have good title to their personal property and assets, in each case, except  (i) for defects in title that do not materially interfere with their ability to conduct their business as currently  conducted or to utilize such properties and assets for their intended purposes or (ii) where the failure to have such  title would not reasonably be expected to have a Material Adverse Effect.  All such properties and assets are free and  clear of Liens, other than Permitted Liens.  (c) The Borrowers and their Restricted Subsidiaries own or otherwise have a license or right  to use all rights in Patents, Trademarks, Copyrights and other rights in works of authorship (including all copyrights  embodied in software), domain names, trade secrets and all other intellectual property rights (“IP Rights”) used to  





 






  -125-       #95384462v18   #95384462v18   conduct the businesses of the Borrowers and their Restricted Subsidiaries as presently conducted without, to the  knowledge of the Borrowers, any infringement or misappropriation of the IP Rights of third parties, except to the  extent such failure to own or license or have rights to use would not, or where such infringement or  misappropriation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse  Effect.  Section 3.06 Litigation and Environmental Matters.  (a) There are no actions, suits or proceedings by or before any arbitrator or Governmental  Authority pending against or, to the knowledge of the Borrowers, threatened in writing against or affecting the Loan  Parties or any of their Restricted Subsidiaries which would reasonably be expected, individually or in the aggregate,  to result in a Material Adverse Effect.  (b) Except for any matters that, individually or in the aggregate, would not reasonably be  expected to result in a Material Adverse Effect, (i) no Loan Party nor any of its Restricted Subsidiaries is subject to  or has received notice of any Environmental Claim or any Environmental Liability and (ii) no Loan Party nor any of  its Restricted Subsidiaries has failed to comply with any Environmental Law or to obtain, maintain or comply with  any permit, license or other approval required under any Environmental Law.  (c) Neither any Loan Party nor any of its Restricted Subsidiaries has treated, stored,  transported or Released any Hazardous Materials on, at or from any currently or formerly operated real estate or  facility in a manner that would reasonably be expected to have a Material Adverse Effect.  Section 3.07 Compliance with Laws.  Each of Holdings, each Borrower and each of the Borrowers’  Restricted Subsidiary is in compliance with all Requirements of Law applicable to it or its property, except, in each  case where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a  Material Adverse Effect.  Section 3.08 Investment Company Status.  No Loan Party is an “investment company” as defined in,  or is required to be registered under, the Investment Company Act of 1940.  Section 3.09 Taxes.  Each of Holdings, the Borrowers and each of their Restricted Subsidiaries has  timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be  paid all Taxes required to have been paid by it that are due and payable, including in its capacity as a withholding  agent, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which such  Borrower or such Restricted Subsidiary, as applicable, has set aside on its books adequate reserves in accordance  with GAAP or (b) to the extent that the failure to do so, individually or in the aggregate, would not reasonably be  expected to result in a Material Adverse Effect.  Section 3.10 ERISA.  (a) Each Pension Plan is in compliance in form and operation with its terms and with ERISA  and the Code and all other applicable laws and regulations, except where any failure to comply would not  reasonably be expected to result in a Material Adverse Effect.  (b) No ERISA Event has occurred and is continuing or is reasonably expected to occur that,  when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would  reasonably be expected to result in a Material Adverse Effect.  Section 3.11 Disclosure.  (a) As of the Closing Date, all written information (other than the Projections, other  forward-looking information and information of a general economic or industry-specific nature) concerning the  Lead Borrower and its Restricted Subsidiaries and the Transactions and that was included in the Information  





 






  -126-       #95384462v18   #95384462v18   Memorandum or otherwise prepared by or on behalf of the Lead Borrower or its subsidiaries or their respective  representatives and made available to any Lender or the Administrative Agent in connection with the Transactions  on or before the Closing Date, when taken as a whole, did not, when furnished, contain any untrue statement of a  material fact or omit to state a material fact necessary in order to make the statements contained therein not  materially misleading in light of the circumstances under which such statements are made (after giving effect to all  supplements and updates thereto from time to time).  (b) The Projections have been prepared in good faith based upon assumptions believed by  the Lead Borrower to be reasonable at the time furnished (it being recognized that such Projections are not to be  viewed as facts and are subject to significant uncertainties and contingencies many of which are beyond the Lead  Borrower’s control, that no assurance can be given that any particular financial projections (including the  Projections) will be realized, that actual results may differ from projected results and that such differences may be  material).  Section 3.12 Solvency.  As of the Closing Date, immediately after the consummation of the  Transactions to occur on the Closing Date and the incurrence of indebtedness and obligations on the Closing Date in  connection with this Agreement and the other Transactions, (i) the sum of the debt (including contingent liabilities)  of the Lead Borrower and its Restricted Subsidiaries, taken as a whole, does not exceed the fair value of the assets of  the Lead Borrower and its Restricted Subsidiaries, taken as a whole; (ii) the present fair saleable value of the assets  of the Lead Borrower and its Restricted Subsidiaries, taken as a whole, is not less than the amount that will be  required to pay the probable liabilities (including contingent liabilities) of the Lead Borrower and its Restricted  Subsidiaries, taken as a whole, on their debts as they become absolute and matured; (iii) the capital of the Lead  Borrower and its Restricted Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of  the Lead Borrower and its Restricted Subsidiaries, taken as a whole, contemplated as of the Closing Date; and  (iv) the Lead Borrower and its Restricted Subsidiaries, taken as a whole, do not intend to incur, or believe that they  will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts as  they mature in the ordinary course of business.  For the purposes hereof, the amount of any contingent liability at  any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time,  represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of  whether such contingent liability meets the criteria for accrual under Statement of Financial Accounting Standards  No. 5).  Section 3.13 Capitalization and Subsidiaries.  Schedule 3.13 sets forth, in each case as of the Closing  Date, (a) a correct and complete list of the name of each subsidiary of Holdings and the ownership interest therein  held by Holdings or its applicable subsidiary, and (b) the type of entity of Holdings and each of its subsidiaries.  Section 3.14 Security Interest in Collateral.  Subject to the terms of the last paragraph of Section 4.01,  the Legal Reservations, the Perfection Requirements, the provisions of this Agreement and the other relevant Loan  Documents, the Collateral Documents create legal, valid and enforceable Liens on all of the Collateral in favor of  the Administrative Agent, for the benefit of itself and the other Secured Parties, and upon the satisfaction of the  Perfection Requirements, such Liens constitute perfected Liens (with the priority that such Liens are expressed to  have under the relevant Collateral Documents) on the Collateral (to the extent such Liens are required to be  perfected under the terms of the Loan Documents) securing the Secured Obligations, in each case as and to the  extent set forth therein.  Section 3.15 Labor Disputes.  Except as individually or in the aggregate would not reasonably be  expected to have a Material Adverse Effect:  (a) there are no strikes, lockouts or slowdowns against the Lead  Borrower or any of its Restricted Subsidiaries pending or, to the knowledge of the Lead Borrower or any of its  Restricted Subsidiaries, threatened and (b) the hours worked by and payments made to employees of the Lead  Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other  applicable Federal, state, local or foreign law dealing with such matters.  Section 3.16 Federal Reserve Regulations.  





 






  -127-       #95384462v18   #95384462v18   (a) On the Closing Date, not more than 25% of the value of the assets of Holdings, the Lead  Borrower and its Restricted Subsidiaries taken as a whole is represented by Margin Stock.  (b) None of Holdings, the Borrowers nor any of their Restricted Subsidiaries is engaged  principally, or as one of its important activities, in the business of extending credit for the purpose of buying or  carrying Margin Stock.  (c) No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly  or indirectly, and whether immediately, incidentally or ultimately, for any purpose that results in a violation of the  provisions of Regulation T, U or X.  Section 3.17 Economic and Trade Sanctions and Anti-Corruption Laws.  (a) (i) None of Holdings and none of the Borrowers nor any of their Restricted Subsidiaries  nor, to the knowledge of any Borrower, any director, officer, agent, employee or Affiliate of any of the foregoing is  (A) a person on the list of “Specially Designated Nationals and Blocked Persons” or (B) currently subject to any  U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or  the U.S. State Department or sanctions administered by the United Nations, European Union, the Federal Republic  of German or Her Majesty’s Treasury of the United Kingdom; and (ii) no Borrower will directly or, to its  knowledge, indirectly, use the proceeds of the Loans or Letters of Credit or otherwise make available such proceeds  to any Person, for the purpose of financing the activities of any Person currently subject to any U.S. sanctions  administered by OFAC or by the U.S. Department of State or sanctions administered by the United Nations,  European Union, the Federal Republic of German or Her Majesty’s Treasury of the United Kingdom, except to the  extent licensed or otherwise not prohibited by OFAC or by the U.S. Department of State or by the United Nations,  European Union, the Federal Republic of German or Her Majesty’s Treasury of the United Kingdom.  (b) To the extent applicable, each Loan Party is in compliance in all material respects with  (i) each of the foreign assets control regulations of the U.S. Treasury Department (31 CFR, Subtitle B, Chapter V),  and any other enabling legislation or executive order relating thereto, (ii) the USA PATRIOT Act and (iii) the  Sanctions Laws and Regulations.  (c) No part of the proceeds of any Loan or any Letter of Credit will be used, directly or, to  the knowledge of the Borrowers, indirectly, for any payments to any governmental official or employee, political  party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order  to improperly obtain, retain or direct business or obtain any improper advantage, in violation of the U.S. Foreign  Corrupt Practices Act of 1977 (the “FCPA”), the U.K. Bribery Act of 2010, as amended, or any other applicable  anti-bribery or anti-corruption law.  (d) The representations and warranties in this Section 3.17 are made only to the extent that  they do not result in a violation of or conflict with Section 7 of the German Foreign Trade and Payments  Regulation (Außenwirtschaftsverordnung) or Art. 5(1) of Council Regulation (EC) 2271/96; provided that, to the  extent that any person cannot make any of the representations or warranties contained in this paragraph, such person  shall be in compliance, in all material respects, with the equivalent requirements of law, if any, that are applicable to  or binding upon such person or any of its property or to which such person or any of its property is subject in its  local jurisdiction.  Section 3.18 Senior Indebtedness.  The Obligations constitute “Senior Indebtedness” (or any  comparable term) under and as defined in the documentation governing any Junior Indebtedness.  Section 3.19 Use of Proceeds.  The Borrowers will use the proceeds of the Loans in accordance with  Section 5.11.  Section 3.20 Insurance.  As of the Closing Date, the Lead Borrower and its Restricted Subsidiaries  have insurance required by Section 5.05 of this Agreement and such insurance is in full force and effect.  





 






  -128-       #95384462v18   #95384462v18   Section 3.21 Central Administration; COMI.  After the Closing Date and if applicable and unless  otherwise consented to by the Administrative Agent, the German Borrower and the U.K. Borrower each has its  central administration (administration centrale) and, for the purposes of the European Insolvency Regulation, the  center of its main interests (centre des intérêts principaux) at the place of its registered office (siège statutaire) in  Germany or, as the case may be, England and Wales, and, has no establishment (as defined in the European  Insolvency Regulation) outside Germany or, as the case may be, England and Wales.  ARTICLE 4    CONDITIONS  Section 4.01 Closing Date.  The obligations of (i) any Lender to make Loans and (ii) any Issuing Bank  to issue Letters of Credit shall not become effective until the date on which each of the following conditions is  satisfied (or waived in accordance with Section 9.02):  (a) Credit Agreement and Loan Documents.  The Administrative Agent (or its counsel) shall  have received from each Loan Party, the Administrative Agent, the Collateral Agent and the Lenders party thereto a  counterpart of (A) this Agreement, (B) any Promissory Note requested by a Lender at least three Business Days  prior to the Closing Date signed on behalf of such party and (C) a Borrowing Request as required by Section 2.03.  (b) Legal Opinions.  The Administrative Agent shall have received a customary written  opinion of Paul Weiss Rifkind Wharton & Garrison LLP, in its capacity as New York special counsel for Holdings,  the Borrowers and the Subsidiary Guarantors, dated the Closing Date and addressed to the Administrative Agent, the  Lenders and each Issuing Bank.  (c) [Reserved].  (d) Closing Certificates; Certified Charters; Good Standing Certificates.  The Administrative  Agent shall have received (i) a certificate of each Loan Party, dated the Closing Date and executed by a secretary,  assistant secretary or other senior officer (as the case may be) thereof, which shall (A) certify that attached thereto is  a true and complete copy of the resolutions or written consents of its shareholders, board of directors, board of  managers, members or other governing body authorizing the execution, delivery and performance of the Loan  Documents to which it is a party and, in the case of the Lead Borrower, the borrowings hereunder, and that such  resolutions or written consents have not been modified, rescinded or amended and are in full force and effect,  (B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of  such Loan Party authorized to sign the Loan Documents to which it is a party on the Closing Date and (C) certify  (x) that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or  memorandum of association or other equivalent thereof) of such Loan Party certified by the relevant authority of the  jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management,  partnership or similar agreement and (y) that such documents or agreements have not been amended (except as  otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) and  (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from its jurisdiction of  organization.  (e) Fees.  Prior to or substantially concurrently with the Closing Date, the Administrative  Agent shall have received (i) all fees required to be paid by the Lead Borrower on the Closing Date pursuant to the  Engagement Letter and (ii) all expenses required to be paid by the Lead Borrower for which invoices have been  presented at least three Business Days prior to the Closing Date or such later date to which the Lead Borrower may  agree (including the reasonable fees and expenses of legal counsel), in each case on or before the Closing Date,  which amounts may be offset against the proceeds of the Loans.  (f) Refinancing.  Prior to or substantially concurrently with the initial funding of the Loans  hereunder, all obligations of the Lead Borrower and its Restricted Subsidiaries under the Existing Credit Agreement  will be repaid in accordance with the terms of the applicable agreement (the actions described in this Section 4.01(f),  the “Refinancing”).  





 






  -129-       #95384462v18   #95384462v18   (g) Solvency.  The Administrative Agent shall have received a certificate dated as of the  Closing Date in substantially the form of Exhibit M from the chief financial officer (or other officer with reasonably  equivalent responsibilities) of the Lead Borrower certifying as to the matters set forth therein.  (h) Perfection Certificate.  The Administrative Agent shall have received a completed  Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Lead Borrower, together  with all attachments contemplated thereby.  (i) Pledged Stock; Stock Powers; Pledged Notes.  The Administrative Agent (or its bailee)  shall have received (i) the certificates representing the Capital Stock required to be pledged pursuant to the Security  Agreement, together with an undated stock or similar power for each such certificate executed in blank by a duly  authorized officer of the pledgor thereof, and (ii) each Material Debt Instrument (if any) endorsed (without recourse)  in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.  (j) Filings Registrations and Recordings.  Each document (including any UCC (or similar)  financing statement) required by any Collateral Document or under law to be filed, registered or recorded in order to  create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral  required to be delivered pursuant to such Collateral Document, prior and superior in right to any other Person (other  than with respect to Permitted Liens), shall be in proper form for filing, registration or recordation.  (k) USA PATRIOT Act.  No later than three Business Days in advance of the Closing Date,  the Administrative Agent shall have received all documentation and other information requested by any Lender in  writing with respect to any Loan Party at least ten days in advance of the Closing Date, which documentation or  other information is required by regulatory authorities under applicable “know your customer” and anti-money  laundering rules and regulations, including the USA PATRIOT Act and a certification regarding beneficial  ownership required by 31 C.F.R. § 1010.230.  (l) Officer’s Certificate.  The Administrative Agent shall have received a certificate signed  by a Responsible Officer or director of the Lead Borrower certifying as of the Closing Date as to the matters set  forth in Sections 4.02(b) and 4.02(c).  For purposes of determining whether the conditions specified in this Section 4.01 have been  satisfied on the Closing Date, by funding the Loans hereunder, the Administrative Agent and each Lender that has  executed this Agreement (or an Assignment and Assumption on the Closing Date) shall be deemed to have  consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be  consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case  may be.  Section 4.02 Each Credit Extension.  The obligation of each Lender to make a Credit Extension  (which, for the avoidance of doubt, shall not include any Incremental Loans advanced in connection with an  acquisition to the extent not otherwise required by the Lenders of such Incremental Loans) is subject to the  satisfaction of the following conditions:  (a) (i) In the case of a Borrowing, the Administrative Agent shall have received a Borrowing  Request as required by Section 2.03 or (ii) in the case of the issuance of a Letter of Credit, the applicable Issuing  Bank and the Administrative Agent shall have received a notice requesting the issuance of such Letter of Credit as  required by Section 2.05(b).  (b) The representations and warranties of the Loan Parties set forth in this Agreement and the  other Loan Documents shall be true and correct in all material respects (or, if qualified by materiality, in all respects)  on and as of the date of any such Credit Extension with the same effect as though such representations and  warranties had been made on and as of the date of such Credit Extension; provided that to the extent that any  representation and warranty specifically refers to a given date or period, it shall be true and correct in all material  respects (or, if qualified by materiality, in all respects) as of such date or for such period.  





 






  -130-       #95384462v18   #95384462v18   (c) At the time of and immediately after giving effect to the applicable Credit Extension, no  Event of Default or Default exists.  Each Credit Extension after the Closing Date shall be deemed to constitute a representation and warranty  by the applicable Borrower on the date thereof as to the matters specified in paragraphs (b) and (c) of this  Section 4.02.  ARTICLE 5    AFFIRMATIVE COVENANTS  From the Closing Date until the date that all the Revolving Credit Commitments and any  Additional Commitments have expired or terminated and the principal of and interest on each Loan and all fees,  expenses and other amounts payable under any Loan Document (other than contingent indemnification obligations  for which no claim or demand has been made) have been paid in full in Cash and all Letters of Credit have expired  or have been terminated (or have been collateralized or back-stopped by a letter of credit or otherwise in a manner  reasonably satisfactory to the Administrative Agent and the Issuing Banks) and all LC Disbursements have been  reimbursed (such date, the “Termination Date”), (i) in the case of Holdings, solely with respect to Sections 5.02,  5.03 and 5.08 and (ii) the Borrowers hereby covenant and agree with the Lenders that:  Section 5.01 Financial Statements and Other Reports.  The Lead Borrower will deliver to the  Administrative Agent for delivery to each Lender:  (a) Quarterly Financial Statements.  Within the later of (i) 45 days after the end of each of  the first three Fiscal Quarters of each fiscal year and (ii) the date the following statements would have been required  to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available under  Rule 12b-25 of the Securities Exchange Act of 1934 for the filing of such statements, the consolidated balance sheet  of the Lead Borrower as at the end of such Fiscal Quarter and the related consolidated statements of income and  cash flows of the Lead Borrower for such Fiscal Quarter and for the period from the beginning of the then current  Fiscal Year to the end of such Fiscal Quarter, and setting forth, in reasonable detail, in comparative form the  corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail, together  with a Responsible Officer Certification with respect thereto and a Narrative Report with respect thereto (it being  understood that the delivery by the Lead Borrower of quarterly reports on Form 10-Q of the Lead Borrower or any  Parent Company of the Lead Borrower shall satisfy the requirements of this Section 5.01(a) to the extent such  quarterly reports include the information specified herein);  (b) Annual Financial Statements.  Within the later of (i) 90 days after the end of each Fiscal  Year and (ii) the date the statements would have been required to be filed under the rules and regulations of the  SEC, giving effect to any automatic extension available under Rule 12b-25 of the Securities Exchange Act of 1934  for the filing of such statements, (i) the consolidated balance sheet of the Lead Borrower as at the end of such Fiscal  Year and the related consolidated statements of income, stockholders’ equity and cash flows of the Lead Borrower  for such Fiscal Year and setting forth, in reasonable detail, in comparative form the corresponding figures for the  previous Fiscal Year and (ii) with respect to such consolidated financial statements, (A) a report thereon of an  independent certified public accountant of recognized national standing (which report shall be unqualified as to  scope of audit and as to “going concern” other than solely with respect to, or resulting solely from the maturity of  any Credit Facility occurring within one year from the time of such report), and shall state that such consolidated  financial statements fairly present, in all material respects, the consolidated financial position of the Lead Borrower  as at the dates indicated and its income and cash flows for the periods indicated in conformity with GAAP and (B) a  Narrative Report with respect to such Fiscal Year (it being understood that the delivery by the Lead Borrower of  annual reports on Form 10-K of the Lead Borrower or any Parent Company of the Lead Borrower shall satisfy the  requirements of this Section 5.01(b) to the extent such annual reports include the information specified herein);  (c) Compliance Certificate.  Together with each delivery of financial statements of the Lead  Borrower pursuant to Sections 5.01(a) and 5.01(b), (i) a duly executed and completed Compliance Certificate,  (A) certifying that no Default or Event of Default exists (or if a Default or Event of Default exists, describing in  





 






  -131-       #95384462v18   #95384462v18   reasonable detail such Default or Event of Default and the steps being taken to cure, remedy or waive the same),  (B) in the case of financial statements delivered pursuant to Section 5.01(b), solely to the extent the ECF Percentage  is greater than 0%, setting forth reasonably detailed calculations of Excess Cash Flow of the Lead Borrower and its  Restricted Subsidiaries for each Fiscal Year beginning, if applicable, with the financial statements for the Fiscal  Year ending September 30, 2022 and (C) setting forth in reasonable detail calculations necessary for determining  compliance with Section 6.15(a), and (ii) (A) a summary of the pro forma adjustments necessary to eliminate the  accounts of Unrestricted Subsidiaries (if any) from such financial statements and (B) a list identifying each  subsidiary of the Borrowers as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of  such Compliance Certificate or confirming that there is no change in such information since the later of the Closing  Date and the date of the last such list;  (d) [Reserved];  (e) Notice of Default.  Promptly upon any Responsible Officer of the Lead Borrower  obtaining knowledge of (i) any Default or Event of Default or (ii) the occurrence of any event or change that has  caused or evidences or would reasonably be expected to cause or evidence, either individually or in the aggregate, a  Material Adverse Effect, a reasonably- detailed notice specifying the nature and period of existence of such  condition, event or change and what action the applicable Borrower has taken, is taking and proposes to take with  respect thereto;  (f) Notice of Litigation.  Promptly upon any Responsible Officer of the Lead Borrower  obtaining knowledge of (i) the institution of, or threat of, any Adverse Proceeding not previously disclosed in  writing by the Borrowers, Holdings or its Parent Company to the Administrative Agent, or (ii) any material  development in any Adverse Proceeding that, in the case of either of clause (i) or (ii), could reasonably be expected  to have a Material Adverse Effect, written notice thereof from the Lead Borrower;  (g) ERISA.  Promptly upon any Responsible Officer of the Lead Borrower becoming aware  of the occurrence of any ERISA Event that would reasonably be expected to have a Material Adverse Effect, a  written notice specifying the nature thereof;  (h) [Reserved];  (i) Information Regarding Collateral.  Prompt (and in any event, within 45 days of the  relevant change or such longer period as consented by the Administrative Agent in its sole discretion) written notice  of any change (i) in any Loan Party’s legal name, (ii) in any Loan Party’s type of organization, (iii) in any Loan  Party’s jurisdiction of organization or (iv) in any Loan Party’s organizational identification number, in each case to  the extent such information is necessary to enable the Administrative Agent to perfect or maintain the perfection and  priority of its security interest in the Collateral of the relevant Loan Party, together with a certified copy of the  applicable Organizational Document reflecting the relevant change;  (j) Annual Collateral Verification.  Together with the delivery of each Compliance  Certificate provided with the financial statements required to be delivered pursuant to Section 5.01(b), a Perfection  Certificate Supplement.  (k) Certain Reports.  Promptly upon their becoming available and without duplication of any  obligations with respect to any such information that is otherwise required to be delivered under the provisions of  any Loan Document, copies of, or links to copies of, all regular and periodic reports and all registration statements  (other than on Form S-8 or a similar form) and prospectuses, if any, filed by the Lead Borrower, Holdings or its  applicable Parent Company with any securities exchange or with the SEC or any analogous governmental or private  regulatory authority with jurisdiction over matters relating to securities; and  (l) Other Information.  Such other certificates, reports and information (financial or  otherwise) as the Administrative Agent may reasonably request from time to time in connection with the financial  condition or business of the Borrowers and their Restricted Subsidiaries.  





 






  -132-       #95384462v18   #95384462v18   Documents required to be delivered pursuant to this Section 5.01 may be delivered electronically  and if so delivered, shall be deemed to have been delivered on the date (i) on which such documents are delivered by  the Lead Borrower to the Administrative Agent for posting on behalf of the Lead Borrower on Intralinks, SyndTrak  or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a  commercial, third-party website or whether sponsored by the Administrative Agent); (ii) on which executed  certificates or other documents are faxed to the Administrative Agent (or electronically mailed to an address  provided by the Administrative Agent); or (iii) in respect of the items required to be delivered pursuant to  Section 5.01(k) in respect of information filed by the Lead Borrower or its direct or indirect Parent Company with  any securities exchange or with the SEC or any analogous governmental or private regulatory authority with  jurisdiction over matters relating to securities (other than Form 10-Q reports and Form 10-K reports described in  Sections 5.01(a) and (b), respectively), on which such items have been made available on the SEC website or the  website of the relevant analogous governmental or private regulatory authority or securities exchange.  Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may  be satisfied with respect to any financial statements of the Lead Borrower, at the option of the Lead Borrower, by  furnishing (A) the applicable financial statements of any Parent Company of the Lead Borrower or (B) any other  Parent Company’s, as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC or any securities exchange,  in each case, within the time periods specified in such paragraphs; provided that, with respect to each of clauses (A)  and (B), (i) to the extent such financial statements relate to any Parent Company, such financial statements shall be  accompanied by consolidating information that summarizes in reasonable detail any material differences between  the information relating to such Parent Company, on the one hand, and the information relating to Lead Borrower on  a standalone basis, on the other hand (it being understood that consolidating information consistent with the  presentation in Note 19 to Holdings’ financial statements included in its S-4 (registration statement 333-192634)  shall be deemed to satisfy the foregoing requirement for consolidating information) and (ii) to the extent such  statements are in lieu of statements required to be provided under Section 5.01(b), such statements shall be  accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized  standing, which report and opinion shall satisfy the applicable requirements set forth in Section 5.01(b).  The Lead Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers  will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of  the Lead Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Syndtrak  or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may  have personnel who do not wish to receive material non-public information with respect to the Lead Borrower or its  Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other  market-related activities with respect to such Persons’ securities. The Lead Borrower hereby agrees that it will use  commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the  Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC”  which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by  marking Borrower Materials “PUBLIC,” the Lead Borrower shall be deemed to have authorized the Administrative  Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any  material non-public information (although it may be sensitive and proprietary) with respect to the Lead Borrower or  its Affiliates or any of their respective securities for purposes of United States federal and state securities laws  (provided, however, that to the extent such Borrower Materials constitute Confidential Information, they shall be  treated as set forth in Section 9.13); (y) all Borrower Materials marked “PUBLIC” are permitted to be made  available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent  and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable  only for posting on a portion of the Platform not designated “Public Side Information”.  Section 5.02 Existence.  Except as otherwise permitted under Section 6.07, Holdings and the  Borrowers will, and Borrowers will cause each of their Restricted Subsidiaries to, at all times preserve and keep in  full force and effect its existence and all rights, franchises, licenses and permits material to its business except, other  than with respect to the preservation of the existence of the Borrowers, to the extent that the failure to do so could  not reasonably be expected to result in a Material Adverse Effect; provided that neither Holdings nor the Borrowers  nor any of the Borrowers’ Restricted Subsidiaries shall be required to preserve any such existence (other than with  respect to the preservation of existence of the Borrowers), right, franchise, license or permit if a Responsible Officer  





 






  -133-       #95384462v18   #95384462v18   of such Person or such Person’s board of directors (or similar governing body) determines that the preservation  thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not  disadvantageous in any material respect to such Person or to the Lenders.  Section 5.03 Payment of Taxes.  Holdings and the Borrowers will, and will cause each of their  Restricted Subsidiaries to, pay all Taxes imposed upon it or any of its properties or assets or in respect of any of its  income or businesses or franchises before any penalty or fine accrues thereon; provided that no such Tax need be  paid if (a) it is being contested in good faith by appropriate proceedings promptly instituted and diligently  conducted, so long as (i) adequate reserves or other appropriate provisions, as are required in conformity with  GAAP, have been made therefor, and (ii) in the case of a Tax which has or may become a Lien against any of the  Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy  such Tax or (b) failure to pay or discharge the same could not reasonably be expected to result in a Material Adverse  Effect.  Section 5.04 Maintenance of Properties.  The Borrowers will, and will cause each of their Restricted  Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and  tear and casualty and condemnation excepted, all property reasonably necessary to the normal conduct of business of  the Borrowers and their Restricted Subsidiaries and from time to time will make or cause to be made all needed and  appropriate repairs, renewals and replacements thereof except as expressly permitted by this Agreement or where  the failure to maintain such properties or make such repairs, renewals or replacements could not reasonably be  expected to have a Material Adverse Effect.  Section 5.05 Insurance.  Except where the failure to do so would not reasonably be expected to have a  Material Adverse Effect, the Borrowers will maintain or cause to be maintained, with financially sound and  reputable insurers, such insurance coverage with respect to liabilities, losses or damage in respect of the assets,  properties and businesses of the Borrowers and their Restricted Subsidiaries as may customarily be carried or  maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each  case in such amounts (giving effect to self-insurance), with such deductibles, covering such risks and otherwise on  such terms and conditions as shall be customary for such Persons, including flood insurance with respect to each  Flood Hazard Property, in each case in compliance with the Flood Insurance Laws (where applicable).  Each such  policy of insurance covering any Collateral shall (i) name the Administrative Agent on behalf of the Lenders as an  additional insured thereunder as its interests may appear and (ii) to the extent available from the relevant insurance  carrier, in the case of each casualty insurance policy (excluding any business interruption insurance policy), contain  a loss payable clause or endorsement that names the Administrative Agent, on behalf of the Lenders as the loss  payee thereunder and, to the extent available, provide for at least 30 days’ prior written notice to the Administrative  Agent of any modification or cancellation of such policy (or 10 days’ prior written notice in the case of the failure to  pay any premiums thereunder).  Section 5.06 Inspections.  The Borrowers will, and will cause each of their Restricted Subsidiaries to,  permit any authorized representative designated by the Administrative Agent to visit and inspect any of the  properties of the Borrowers and any of their Restricted Subsidiaries at which the principal financial records and  executive officers of the applicable Person are located, to inspect, copy and take extracts from its and their  respective financial and accounting records, and to discuss its and their respective affairs, finances and accounts  with its and their Responsible Officers and independent public accountants (provided that each of the Borrowers (or  any of their subsidiaries) may, if it so chooses, be present at or participate in any such discussion), all upon  reasonable notice and at reasonable times during normal business hours; provided that, excluding such visits and  inspections during the continuation of an Event of Default, (x) only the Administrative Agent on behalf of the  Lenders may exercise the rights of the Administrative Agent and the Lenders under this Section 5.06, (y) the  Administrative Agent shall not exercise such rights more often than one time during any calendar year and (z) only  one such time per calendar year shall be at the expense of the Borrowers; provided, further, that when an Event of  Default exists, the Administrative Agent (or any of its representatives or independent contractors) may do any of the  foregoing at the expense of the Borrowers at any time during normal business hours and upon reasonable advance  notice; provided, further that, notwithstanding anything to the contrary herein, neither the Borrowers nor any  Restricted Subsidiary shall be required to disclose, permit the inspection, examination or making of copies of or  taking abstracts from, or discuss any document, information, or other matter (i) that constitutes non-financial trade  





 






  -134-       #95384462v18   #95384462v18   secrets or non-financial proprietary information of the Borrowers and their subsidiaries and/or any of its customers  and/or suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their  respective representatives or contractors) is prohibited by applicable law or (iii) that is subject to attorney-client or  similar privilege or constitutes attorney work product.  Section 5.07 Maintenance of Book and Records.  The Borrowers will, and will cause their Restricted  Subsidiaries to maintain all financial records in accordance with GAAP.  Section 5.08 Compliance with Laws.  Holdings and the Borrowers will, and will cause each of their  Restricted Subsidiaries to, comply with the requirements of (i) the Sanctions Laws and Regulations, the FCPA, the  U.K. Bribery Act of 2010, as amended, and any other applicable anti-bribery or anti-corruption law and (ii) all  applicable laws, rules, regulations and orders of any Governmental Authority (including ERISA, all Environmental  Laws and the USA PATRIOT Act), except, in the case of clause (ii), to the extent the failure to so comply could not  reasonably be expected to have a Material Adverse Effect.  The covenants in this paragraph are made only to the  extent that they do not result in a violation of or conflict with Section 7 of the German Foreign Trade and Payments  Regulation (Außenwirtschaftsverordnung) or Art. 5(1) of Council Regulation (EC) 2271/96; provided that, to the  extent that any person cannot make any of the covenants contained in this paragraph, such person shall be in  compliance, in all material respects, with the equivalent requirements of law, if any, that are applicable to or binding  upon such person or any of its property or to which such person or any of its property is subject in its local  jurisdiction.  Section 5.09 Environmental.  (a) Hazardous Materials Activities, Etc.  The Borrowers will, and will cause each of their  Restricted Subsidiaries to promptly take, any and all actions necessary to (i) cure any violation of applicable  Environmental Laws by the Borrowers or their Restricted Subsidiaries, and address with any corrective or remedial  action required by Environmental Law any Release or threatened Release of Hazardous Materials at or from any  Facility, in each case, that would reasonably be expected to have a Material Adverse Effect and (ii) make an  appropriate response to any Environmental Claim against the Borrowers or any of their Restricted Subsidiaries and  discharge any obligations it may have to any Person thereunder, in each case, where failure to do so would  reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  Section 5.10 Designation of Subsidiaries.  The Lead Borrower may at any time after the Closing Date  designate (or redesignate) any subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a  Restricted Subsidiary; provided that (i) immediately before and after such designation, no Default or Event of  Default exists (including after giving effect to the reclassification of Investments in, Indebtedness of and Liens on  the assets of, the applicable Restricted Subsidiary or Unrestricted Subsidiary), (ii) no Borrower may be designated as  an Unrestricted Subsidiary, (iii) as of the date of the designation thereof, no Unrestricted Subsidiary shall own any  Capital Stock in any Restricted Subsidiary of any Borrower or hold any Indebtedness of or any Lien on any property  of any Borrower or their Restricted Subsidiaries, (iv) no subsidiary may be designated as an Unrestricted Subsidiary  hereunder if it is a Restricted Subsidiary that Guarantees any Incremental Facilities, Incremental Equivalent Debt,  Indebtedness permitted under Section 6.01(w), any senior Indebtedness or Junior Lien Indebtedness and (v) no  subsidiary may be designated as an Unrestricted Subsidiary if it owns material intellectual property at the time of  designation.  The designation of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the  Borrowers therein at the date of designation in an amount equal to the portion of the fair market value of the net  assets of such Restricted Subsidiary attributable to the applicable Borrower’s equity interest therein as reasonably  estimated by the applicable Borrower (and such designation shall only be permitted to the extent such Investment is  permitted under Section 6.06).  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall  constitute the incurrence or making, as applicable, at the time of designation of any then-existing Investment,  Indebtedness or Lien of such Restricted Subsidiary, as applicable; provided that upon a re-designation of any  Unrestricted Subsidiary as a Restricted Subsidiary, the applicable Borrower shall be deemed to continue to have an  Investment in the resulting Restricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s “Investment”  in such Restricted Subsidiary at the time of such re-designation, less (b) the portion of the fair market value of the  net assets of such Restricted Subsidiary attributable to the Borrower’s equity therein at the time of such  





 






  -135-       #95384462v18   #95384462v18   re-designation.  As of the Closing Date, the subsidiaries listed on Schedule 5.10 have been designated as  Unrestricted Subsidiaries.  Section 5.11 Use of Proceeds.  The Borrowers shall use the proceeds of (x) the Initial Revolving Loans  and any Ancillary Facility, to finance the working capital needs and other general corporate purposes of the  Borrowers and their subsidiaries (including for capital expenditures, acquisitions, working capital and/or purchase  price adjustments, the payment of any transaction costs, fees and expenses (in each case, including the Transaction  Costs), other Investments, Restricted Payments and any other purpose not prohibited by the terms of the Loan  Documents) and, (y) the 2021 Term Loans to redeem all or a portion of the outstanding 5.750% senior notes due  2025 under the Indenture, dated as of May 20, 2015 and the 6.125% senior notes due 2024 under the Indenture,  dated as of December 4, 2014, and to pay transaction fees and expenses in connection with the foregoing and (z) the  2022 Revolving Loans to finance the working capital needs and other general corporate purposes of the Borrowers  and their subsidiaries (including for capital expenditures, acquisitions, working capital and/or purchase price  adjustments, the payment of any transaction costs, fees and expenses, other Investments, Restricted Payments and  any other purpose not prohibited by the terms of the Loan Documents).  No part of the proceeds of any Loan will be  used, whether directly or indirectly, for any purpose that would entail a violation of Regulation T, U or X.    Section 5.12 Covenant to Guarantee Obligations and Give Security.  (a) Upon (i) the formation or acquisition after the Closing Date of any Restricted Subsidiary  that is a Domestic Subsidiary that is not an Immaterial Subsidiary, (ii) the designation of any Unrestricted  Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary, (iii) any Restricted Subsidiary that is a  Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary that is an Immaterial  Subsidiary ceasing to be an Excluded Subsidiary, (x) if the event giving rise to the obligation under this  Section 5.12(a) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which  financial statements are required to be delivered pursuant to Section 5.01(a) for the Fiscal Quarter in which the  relevant formation, acquisition, designation or cessation occurred or (y) if the event giving rise to the obligation  under this Section 5.12(a) occurs during the fourth Fiscal Quarter of any Fiscal Year, on or before the date that  is 60 days after the end of such Fiscal Quarter (or, in the cases of clauses (x) and (y), such longer period as the  Administrative Agent may reasonably agree), each Borrower shall (A) cause such Restricted Subsidiary (other than  any Excluded Subsidiary) to comply with the requirements set forth in clause (a) of the definition of “Collateral and  Guarantee Requirement” and (B) upon the reasonable request of the Administrative Agent, cause the relevant  Restricted Subsidiary to deliver to the Administrative Agent a signed copy of a customary opinion of counsel for  such Restricted Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties.  (b) Within 90 days after the acquisition by any Loan Party of any Material Real Estate Asset  other than any Excluded Asset (or such longer period as the Administrative Agent may reasonably agree), each  Borrower shall cause such Loan Party to comply with the requirements set forth in clause (b) of the definition of  “Collateral and Guarantee Requirement”, it being understood and agreed that, with respect to any Material Real  Estate Asset owned by any Restricted Subsidiary at the time such Restricted Subsidiary is required to become a  Loan Party under Section 5.12(a), such Material Real Estate Asset shall be deemed to have been acquired by such  Restricted Subsidiary on the first day of the time period within which such Restricted Subsidiary is required to  become a Loan Party under Section 5.12(a).  Notwithstanding anything to the contrary herein or in any other Loan Document, (i) the  Administrative Agent may grant extensions of time for the creation and perfection of security interests in, or  obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the  provision of any Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted  Subsidiaries formed or acquired, after the Closing Date) where it reasonably determines, in consultation with the  Lead Borrower, that such action cannot be accomplished without undue effort or expense by the time or times at  which it would otherwise be required to be accomplished by this Agreement or the Collateral Documents, and each  Lender hereby consents to any such extension of time, (ii) any Lien required to be granted from time to time  pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and  limitations set forth in the Collateral Documents, (iii) perfection by control shall not be required with respect to  assets requiring perfection through control agreements or other control arrangements, including deposit accounts,  





 






  -136-       #95384462v18   #95384462v18   securities accounts and commodities accounts (other than control of pledged Capital Stock and/or Material Debt  Instruments), (iv) no Loan Party shall be required to seek any landlord lien waiver, bailee letter, estoppel,  warehouseman waiver or other collateral access or similar letter or agreement, and notices shall not be required to be  sent to account debtors or other contractual third parties; (v) no Loan Party that is a Domestic Subsidiary will be  required to (1) take any action outside of the U.S. to perfect any security interest in any asset located outside of the  U.S. or (2) execute any foreign law security agreement, pledge agreement, mortgage, deed or charge (except, where  the Lead Borrower and the Administrative Agent otherwise agree, in respect of security over the equity interests that  a Grantor (as defined in the Security Agreement) holds in a subsidiary incorporated in a different jurisdiction);  (vi) in no event will the Collateral include any Excluded Assets, (vii) no action shall be required to perfect any Lien  with respect to (x) any motor vehicles and other assets subject to certificates of title or ownership, including, without  limitation, aircraft, airframes, aircraft engines or helicopters, or any equipment or other assets constituting a part  thereof, in each case to the extent subject to Federal Aviation Act registration requirements (or equivalent applicable  foreign law), and rolling stock and/or (y) Letters of Credit and Letter-of-Credit Rights not in excess of $15,0000,000  to the extent that a security interest therein cannot be perfected by filing a Form UCC-1 (or similar) financing  statement and (viii) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of  any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (including any mortgage,  stamp, intangibles or other tax or expenses relating to such Lien) is excessive in relation to the benefit to the Lenders  of the security afforded thereby as reasonably determined by the Lead Borrower and the Administrative Agent.  (c) Notwithstanding any of the foregoing, for the avoidance of doubt, in no event shall an  Excluded Subsidiary guarantee the Loan of a U.S. Borrower.  Section 5.13 Maintenance of Ratings.  The Lead Borrower will use commercially reasonable efforts to  maintain public corporate credit facility ratings for the Credit Facilities from each of S&P and Moody’s and a public  corporate family rating from Moody’s and a public corporate rating from S&P, in each case in respect of the Lead  Borrower; provided that in no event shall the Lead Borrower be required to maintain any specific rating with any  such agency.  Section 5.14 [Reserved].  Section 5.15 Further Assurances.  Promptly upon request of the Administrative Agent and subject to  the limitations described in Section 5.12:  (a) The Borrowers will, and will cause each other Loan Party to, execute any and all further  documents, financing statements, agreements, instruments, certificates, notices and acknowledgments and take all  such further actions (including the filing and recordation of financing statements, Mortgages and/or amendments  thereto and other documents), that may be required under any applicable law and which the Administrative Agent  may request to ensure the creation, perfection and priority of the Liens created or intended to be created under the  Collateral Documents, all at the expense of the relevant Loan Parties.  (b) The Borrowers will, and will cause each other Loan Party to, (i) correct any material  defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral  Document or other document or instrument relating to any Collateral and (ii) do, execute, acknowledge, deliver,  record, re-record, file, re-file, register and re- register any and all such further acts (including notices to third  parties), deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request  from time to time in order to carry out more effectively the purposes of the Collateral Documents.  Section 5.16 Closing Date Post-Closing Deliverables.  The Lead Borrower will, and will cause each  Subsidiary Guarantor to, comply with the requirements set forth on Schedule 5.16.  ARTICLE 6    NEGATIVE COVENANTS  





 






  -137-       #95384462v18   #95384462v18   From the Closing Date and until the Termination Date has occurred, (i) in the case of Holdings,  solely with respect to Section 6.14 and (ii) the Borrowers covenant and agree with the Lenders that:  Section 6.01 Indebtedness.  The Borrowers shall not, nor shall they permit any of their Restricted  Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any  Indebtedness, except:  (a) the Secured Obligations (including any Additional Term Loans and Additional Revolving  Loans);  (b) Indebtedness of the Borrowers to Holdings and/or any Restricted Subsidiary and/or of  any Restricted Subsidiary to Holdings and/or the Borrowers or any other Restricted Subsidiary; provided that in the  case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, such  Indebtedness shall be permitted as an Investment by Section 6.06; provided, further, that any Indebtedness of any  Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations  of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;  (c) any Indebtedness of Restricted Subsidiaries that are not Loan Parties owing to a Loan  Party on the Closing Date;  (d) Indebtedness arising from any agreement providing for indemnification, adjustment of  purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any  Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or  any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties, letters of credit, bank  guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrowers or  any such Restricted Subsidiary pursuant to any such agreement;  (e) Indebtedness of the Borrowers and/or any Restricted Subsidiary (i) pursuant to tenders,  statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal,  performance, completion and/or return of money bonds or other similar obligations incurred in the ordinary course  of business, in connection with the enforcement of rights or claims of the Borrowers or the Subsidiaries, or in  connection with judgments that have not resulted in an Event of Default under Section 7.01(h); and (ii) in respect of  letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the  foregoing items;  (f) Indebtedness of the Borrowers and/or any Restricted Subsidiary in respect of commercial  credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft  protections, check drawing services, automated payment services (including depository, overdraft, controlled  disbursement, ACH transactions, return items and interstate depository network services), employee credit card  programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise  in connection with cash management and Deposit Accounts, including Banking Services Obligations and dealer  incentive, supplier finance or similar programs;  (g) (i) guaranties by the Borrowers and/or any Restricted Subsidiary of the obligations of  suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary  course of business in respect of obligations of the Borrowers and/or any Restricted Subsidiary to pay the deferred  purchase price of goods or services or progress payments in connection with such goods and services and  (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments  supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;  (h) (i) Guarantees by the Borrowers and/or any Restricted Subsidiary of Indebtedness or  other obligations of the Borrowers, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness  otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this  Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party,  





 






  -138-       #95384462v18   #95384462v18   the related Investment is permitted under Section 6.06 and/or (ii) Guarantees resulting from endorsement of  negotiable instruments in the ordinary course of business;  (i) Indebtedness of the Borrowers and/or any Restricted Subsidiary existing, or pursuant to  commitments existing, on the Closing Date and described on Schedule 6.01;  (j) (i) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the  aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $125,000,000 and 20%  of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period and/or (ii) Indebtedness  of any Person that becomes a Restricted Subsidiary after the Closing Date; provided that (A) such Indebtedness  exists at the time such Persons becomes a Subsidiary and is not created in contemplation of or in connection with  such Person becoming a Restricted Subsidiary, (B) neither the Lead Borrower nor any of its respective Restricted  Subsidiaries (other than such Person) shall have any liability or other obligation with respect to such Indebtedness  and (C) immediately after such Person becomes a Restricted Subsidiary, no Default or Event of Default shall have  occurred and be continuing;  (k) Indebtedness of the Borrowers and/or any Restricted Subsidiary consisting of obligations  owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;  (l) Indebtedness of the Borrowers and/or any Restricted Subsidiary consisting of (i) the  financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the  ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer  financing arrangements in the ordinary course of business;  (m) Indebtedness of the Borrowers and/or any Restricted Subsidiary (including Capital  Leases, mortgage financings or purchase money obligations), incurred after the Closing Date for the purpose of  financing or reimbursing all or any part of the purchase price or cost of the acquisition, development, construction,  purchase, lease, repair, replacement, installation, addition or improvement of property (real or personal), plant,  equipment or other fixed or capital assets that are used or useful by such Person, whether through the direct purchase  of assets or the purchase of equity interests of any Person owning such assets (in each case, incurred within 365 days  of such acquisition, development, construction, purchase, lease, repair, addition or improvement) in an aggregate  outstanding principal amount not to exceed the greater of $175,000,000 and 30% of Consolidated Adjusted EBITDA  as of the last day of the most recently ended Test Period;  (n) Indebtedness incurred by Foreign Subsidiaries that are Restricted Subsidiaries in an  aggregate principal amount not exceeding $600,000,000 minus (A) the amount of Indebtedness incurred by  Restricted Subsidiaries that are not Loan Parties in reliance on Section 6.01(q), minus (B) the amount of  Indebtedness incurred by Restricted Subsidiaries that are not Loan Parties in reliance on Section 6.01(w) and minus  (C) the amount of Indebtedness incurred by Non-U.S. Borrowers in reliance on Section 6.01(z);  (o) Indebtedness consisting of promissory notes issued by the Borrowers or any Restricted  Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member  of management, manager, advisor or consultant of any Parent Company, the Borrowers or any subsidiary (or their  respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent  Company, the Borrowers or any subsidiary or any of their respective Affiliates permitted by Section 6.04(a);  (p) the Borrowers and their Restricted Subsidiaries may become and remain liable for any  Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (c), (i), (j), (m), (n),  (q), (r), (t), (u), (w), (y) and (z) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in  respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof;  provided that (i) the principal amount of such Indebtedness does not exceed the principal amount of the  Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest and  premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees,  commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in  connection with the relevant refinancing, refunding or replacement, (B) an amount equal to any existing  





 






  -139-       #95384462v18   #95384462v18   commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this  Section 6.01 (provided that (1) any additional Indebtedness referenced in this clause (C) satisfies the other  applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C)  constituting a utilization of the relevant basket or exception under Section 6.01 pursuant to which such additional  amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies  the applicable requirements of Section 6.02 and constitutes a utilization of the relevant basket or exception),  (ii) other than in the case of Refinancing Indebtedness with respect to clause (i), (m), (t) or (u), (A) such  Indebtedness has a final maturity on or later than (and, in the case of revolving Indebtedness, does not require  mandatory commitment reductions, if any, prior to) the final maturity of the Indebtedness being refinanced,  refunded or replaced (with customary exceptions for bridge financings) and (B) other than with respect to revolving  Indebtedness, a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity  of the Indebtedness being refinanced, refunded or replaced (with customary exceptions for bridge financings),  (iii) the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount  (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable,  subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted  under clause (a) above, security), are, taken as a whole (as reasonably determined by the Lead Borrower), not  materially less favorable to the Borrowers and their Restricted Subsidiaries (excluding any covenants or any other  provisions applicable only to periods after the Latest Maturity Date as of such date or any covenants or provisions  which are then-current market terms for the applicable type of Indebtedness); it being agreed that the applicable  Borrower shall have the right to unilaterally provide the existing Lenders with additional rights and benefits (such  rights and benefits “Additional Rights”) and the “not materially less favorable” requirement of this clause (iii) and  compliance therewith shall be determined after giving effect to such Additional Rights, (iv) in the case of  Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (t), (u), (w) (solely as it  relates to clause (1) of the proviso thereto) and (y) of this Section 6.01, the incurrence thereof shall be without  duplication of any amounts outstanding in reliance on the relevant clause, (v) except in the case of Refinancing  Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 (it being understood  that Holdings may not be the primary obligor of the applicable Refinancing Indebtedness if Holdings was not the  primary obligor on the relevant refinanced Indebtedness), (A) such Indebtedness is secured only by Permitted Liens  securing the Indebtedness being refinanced, refunded or replaced at the time of such refinancing, refunding or  replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness),  (B) such Indebtedness is incurred by the obligors in respect of the Indebtedness being refinanced, refunded or  replaced, except to the extent otherwise permitted pursuant to Section 6.01 and (C) if the Indebtedness being  refinanced, refunded or replaced was originally contractually subordinated to the Obligations in right of payment (or  the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral  securing the Secured Obligations), such Indebtedness is contractually subordinated to the Obligations in right of  payment (or the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the  Secured Obligations) on terms not materially less favorable (as reasonably determined by the Lead Borrower), taken  as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being refinanced,  refunded or replaced, taken as a whole, (vi) except in the case of Refinancing Indebtedness with respect to clause (a)  of this Section 6.01, as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of  Default exists, (vii) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under  clause (a) of this Section 6.01, (A) such Refinancing Indebtedness is pari passu or junior in right of payment and  secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is  unsecured; provided that any such Refinancing Indebtedness that is pari passu or junior with respect to the  Collateral shall be subject to a Permitted Pari Passu Intercreditor Agreement or a Permitted Junior Intercreditor  Agreement, as applicable and in the case of any such Indebtedness in the form of secured notes that are pari passu  with the remaining Obligations under this Agreement incurred or guaranteed by a Loan Party organized outside of  the United States, subject to equalization agreements to be agreed by the Lead Borrower and the Administrative  Agent; provided, further, that, in the case of any such Refinancing Indebtedness that is unsecured and incurred or  guaranteed by a Loan Party organized outside of the United States, subject to customary market intercreditor  agreements to be agreed by the Lead Borrower and the Administrative Agent, (B) if the Indebtedness being  refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the  Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other  than a Loan Party, (D) such Refinancing Indebtedness shall be incurred under (and pursuant to) documentation other  than this Agreement to the extent that such Indebtedness (x) is secured by the Collateral on a pari passu basis in the  





 






  -140-       #95384462v18   #95384462v18   form of secured notes or (y) is secured by the Collateral on a junior basis or is unsecured, (E) [reserved], (F) the  Indebtedness being refinanced, refunded or replaced shall be repaid, defeased or satisfied and discharged, and all  accrued interest, fees and premiums (if any) in connection therewith, shall be paid substantially concurrently with  the issuance of such Refinancing Indebtedness and (G) such Refinancing Indebtedness shall be incurred by the same  Borrower that incurred the Indebtedness being refinanced, refunded or replaced; provided that, solely to the extent  that the Indebtedness being refinanced was incurred by a Non-U.S. Borrower, such Refinancing Indebtedness may  be incurred by any Borrower and (viii) neither the Borrowers nor any of their Restricted Subsidiaries may refinance  any Indebtedness incurred by an Unrestricted Subsidiary pursuant to this clause;  (q) Indebtedness (other than loans secured by a Lien on the Collateral on a pari passu basis)  incurred by the Lead Borrower or any Restricted Subsidiary to finance acquisitions permitted hereunder after the  Closing Date or Indebtedness assumed by the Lead Borrower and/or wholly-owned Domestic Subsidiary that is a  Restricted Subsidiary in connection with an acquisition permitted hereunder after the Closing Date; provided that  (i) before and after giving effect to such acquisition on a Pro Forma Basis, no Event of Default exists, (ii) after  giving effect to such acquisition on a Pro Forma Basis, (A) if such Indebtedness is secured by a Lien on the  Collateral that is pari passu with the Lien securing the Credit Facilities, the First Lien Net Leverage Ratio would not  exceed 3.25:1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period, (B) if  such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien securing the Credit Facilities, the  Secured Net Leverage Ratio would not exceed 4.00:1.00 calculated on a Pro Forma Basis as of the last day of the  most recently ended Test Period or (C) if such Indebtedness is unsecured, the Fixed Charge Coverage Ratio would  not be less than 2.00:1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period,  (iii) any such Indebtedness under clause (ii)(A) hereof (which shall be limited to secured notes) shall be subject to a  Permitted Pari Passu Intercreditor Agreement (and if incurred or guaranteed by a Foreign Subsidiary, subject to  equalization agreements to be agreed by the Lead Borrower and the Administrative Agent), (iv) any such  Indebtedness under clause (ii)(B) hereof shall be subject to a Permitted Junior Intercreditor Agreement, (v) any such  Indebtedness that is subordinated to the Obligations in right of payment shall be subject to intercreditor  arrangements that are reasonably satisfactory to the Administrative Agent, (vi) such Indebtedness does not mature or  require any scheduled amortization or scheduled payment of principal or require any mandatory redemption,  repurchase, repayment or sinking fund obligation (other than (A) payments as part of an “applicable high yield  discount obligation” catch-up payment, (B) customary offers to repurchase in connection with any change of  control, Disposition or casualty event and (C) customary acceleration rights after an event of default), in each case,  prior to the date which is 91 days after the Latest Maturity Date as of the date of incurrence thereof and (vii) the  aggregate outstanding principal amount of such Indebtedness of Restricted Subsidiaries that are not Loan Parties  shall not exceed $600 million minus (A) the amount of Indebtedness incurred by Foreign Subsidiaries in reliance on  Section 6.01(n), minus (B) the amount of Indebtedness incurred by Restricted Subsidiaries that are not Loan Parties  in reliance on Section 6.01(w) and minus (C) the amount of Indebtedness incurred by Non-U.S. Borrowers in  reliance on Section 6.01(z);  (r) Indebtedness of the Borrowers and/or any Restricted Subsidiary in an aggregate  outstanding principal amount not to exceed 100% of the amount of Net Proceeds received by the Lead Borrower (an  “Excluded Debt Contribution”) from (i) the issuance or sale of Qualified Capital Stock or (ii) any Cash  contribution to its common equity with the Net Proceeds from the issuance and sale by any Parent Company of its  Qualified Capital Stock or a contribution to the common equity of any Parent Company, in each case, (A) other than  any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Lead Borrower or any of  their Restricted Subsidiaries, (B) to the extent the relevant Net Proceeds have not otherwise been applied to make  Investments, Restricted Payments or Restricted Debt Payments hereunder and (C) other than Cure Amounts;  (s) Indebtedness of the Borrowers and/or any Restricted Subsidiary under any Derivative  Transaction not entered into for speculative purposes;  (t) Indebtedness in respect of Permitted Receivables Financings in an aggregate outstanding  principal amount not to exceed the greater of $350,000,000 and 60% of Consolidated Adjusted EBITDA;  





 






  -141-       #95384462v18   #95384462v18   (u) Indebtedness of the Borrowers and/or any Restricted Subsidiary in an aggregate  outstanding principal amount not to exceed the greater of $250,000,000 and 40% of Consolidated Adjusted EBITDA  as of the last day of the most recently ended Test Period;  (v) to the extent constituting Indebtedness, any payable owing to a Borrower or a Restricted  Subsidiary by a Subsidiary permitted under Section 6.06(i)(ii);  (w) additional Indebtedness (other than Loans secured by a Lien on the Collateral on a pari  passu basis) of a Borrower so long as, on a Pro Forma Basis as of the last day of the most recently ended Test  Period, (i) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien securing the  Credit Facilities, the First Lien Net Leverage Ratio would not exceed 3.25:1.00, (ii) if such Indebtedness is secured  by a Lien on the Collateral that is junior to the Lien securing the Credit Facilities, the Secured Net Leverage Ratio  would not exceed 4.00:1.00 or (iii) if such Indebtedness is unsecured, the Fixed Charge Coverage Ratio would be no  less than 2.00:1.00; provided that (1) the aggregate outstanding principal amount of such Indebtedness of Restricted  Subsidiaries that are not Loan Parties shall not exceed $600,000,000 minus (A) the amount of Indebtedness incurred  by Foreign Subsidiaries in reliance on Section 6.01(n), minus (B) the amount of Indebtedness incurred by Restricted  Subsidiaries that are not Loan Parties in reliance on Section 6.01(q) and minus (C) the amount of Indebtedness  incurred by Non-U.S. Borrowers in reliance on Section 6.01(z); (2) any such Indebtedness under clause (i) hereof  (which shall be limited to secured notes only) shall be subject to a Permitted Pari Passu Intercreditor Agreement  (and if incurred or guaranteed by a Foreign Subsidiary, subject to equalization agreements to be agreed by the Lead  Borrower and the Administrative Agent), (3) any such Indebtedness under clause (ii) hereof shall be subject to a  Permitted Junior Intercreditor Agreement, (4) any such Indebtedness that is subordinated to the Obligations in right  of payment shall be subject to intercreditor arrangements that are reasonably satisfactory to the Administrative  Agent, (5) the final maturity date with respect to any such Indebtedness shall be no earlier than the Latest Maturity  Date at the time of the incurrence thereof and shall not be subject to any mandatory redemption, repurchase,  repayment or sinking fund obligation (other than (A) payments as part of an “applicable high yield discount  obligation” catch-up payment, (B) customary offers to repurchase in connection with any change of control,  Disposition or casualty event, (C) customary acceleration rights after an event of default and (D) with customary  exceptions for bridge financings) and (6) the Weighted Average Life to Maturity of any such Indebtedness shall be  no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche(s) of Term Loans  (without giving effect to any prepayments thereof), with customary exceptions for bridge financings;  (x) Indebtedness consisting of Replacement Term Loans or any Replacement Revolving  Facility, in each case to the extent permitted under Section 9.02(c);   (y) Indebtedness of the Borrowers and/or any Restricted Subsidiary incurred in connection  with any sale and lease- back transaction to the extent permitted under Section 6.07(z);  (z) secured or unsecured notes and/or loans (and/or commitments in respect thereof) (other  than loans secured by a Lien on the Collateral on a pari passu basis) issued or incurred by the Borrowers in lieu of  Incremental Loans (such notes or loans, “Incremental Equivalent Debt”); provided that (i) the aggregate  outstanding principal amount (or committed amount, if applicable) of all Incremental Equivalent Debt, together with  the aggregate outstanding principal amount (or committed amount, if applicable) of all Incremental Loans and  Incremental Commitments provided pursuant to Section 2.22, shall not exceed the Incremental Cap; provided that if  such Incremental Equivalent Debt is incurred under clause (e) of the Incremental Cap definition and is (1) secured  by a Lien on the Collateral on a pari passu basis, the First Lien Net Leverage Ratio would not exceed 3.25:1.00  calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period, (2) secured by a Lien on  the Collateral that is junior to the Lien securing the Credit Facilities, the Secured Net Leverage Ratio would not  exceed 4.00:1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period and/or  (3) unsecured, the Fixed Charge Coverage Ratio would be no less than 2.00:1.00 calculated on a Pro Forma Basis as  of the last day of the most recently ended Test Period, (ii) any Incremental Equivalent Debt shall be subject to  clauses (vi), (vii), (ix) and (x) (except, in the case of clause (x), as otherwise agreed by the Persons providing such  Incremental Equivalent Debt) of the proviso to Section 2.22(a), (iii) any Incremental Equivalent Debt that is secured  shall be secured only by the Collateral and on a pari passu basis in the case of secured notes only or junior basis in  the case of secured notes and/or loans with the Collateral securing the Secured Obligations, (iv) the aggregate  





 






  -142-       #95384462v18   #95384462v18   principal amount of Incremental Equivalent Debt that may be incurred by a Non-U.S. Borrower shall not exceed  $600 million minus (A) the amount of Indebtedness incurred by Foreign Subsidiaries in reliance on Section 6.01(n),  minus (B) the amount of Indebtedness incurred by Restricted Subsidiaries that are not Loan Parties in reliance on  Section 6.01(q) and (C) minus the amount of Indebtedness incurred by Restricted Subsidiaries that are not Loan  Parties in reliance on Section 6.01(w), (v) any Incremental Equivalent Debt that ranks pari passu in right of security  (which shall be limited to secured notes only) shall be subject to a Permitted Pari Passu Intercreditor Agreement  (and, if incurred or guaranteed by a Foreign Subsidiary, subject to equalization agreements to be agreed by the Lead  Borrower and the Administrative Agent); (vi) any Incremental Equivalent Debt that is secured by a lien that ranks  junior in right of security shall be subject to a Permitted Junior Intercreditor Agreement; (vii) any Incremental  Equivalent Debt that is subordinated in right of payment shall be subject to intercreditor arrangements reasonably  satisfactory to the Administrative Agent, (viii) no Incremental Equivalent Debt may be guaranteed by any Person  that is not a Loan Party (but need not be guaranteed by all such Persons) or secured by any assets other than the  Collateral and (ix) any Incremental Equivalent Debt shall have terms and conditions (excluding pricing, interest rate  margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions) that are not materially less  favorable (when taken as a whole) to the Borrowers and their Restricted Subsidiaries than the terms and conditions  of this Agreement (when taken as a whole) (except for covenants or other provisions applicable only to periods after  the Latest Maturity Date at the time of such refinancing) (it being understood that, to the extent that any financial  maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the  Administrative Agent or any of the Lenders if such financial maintenance covenant is either (i) also added for the  benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or  (ii) only applicable after the Latest Maturity Date of the Loans at the time of such incurrence); it being agreed that  the applicable Borrower shall have the right to unilaterally provide to existing Lenders such additional rights and  benefits (such rights and benefits “Additional Rights to Incremental Equivalent Debt Lenders”) and the “not  materially less favorable” requirement of this clause (ix) and compliance therewith shall be determined after giving  effect to such Additional Rights to Incremental Equivalent Debt Lenders;  (aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties,  banker’s acceptance, surety bonds, performance bonds, warehouse receipts, or similar instruments with respect to  such Indebtedness) incurred by the Borrowers and/or any Restricted Subsidiary in respect of workers compensation  claims, unemployment insurance (including premiums related thereto), other types of social security, pension  obligations, vacation pay, health, disability, other employee benefits, property, casualty or liability insurance, or  self-insurance;  (bb) Indebtedness of the Borrowers and/or any Restricted Subsidiary representing (i) deferred  compensation or equity based compensation to current or former directors, officers, advisors, employees, members  of management, managers, and consultants of any Parent Company, the Borrowers and/or any Restricted Subsidiary  or any of their respective Affiliates in the ordinary course of business and (ii) deferred compensation or other similar  arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted  hereby;  (cc) Indebtedness of the Borrowers and/or any Restricted Subsidiary in respect of any letter of  credit or bank guarantee issued in favor of any Issuing Bank to support any Defaulting Lender’s participation in  Letters of Credit issued hereunder;  (dd) Indebtedness of the Borrowers or any Restricted Subsidiary supported by any Letter of  Credit;  (ee) unfunded pension fund and other employee benefit plan obligations and liabilities  incurred by the Borrowers and/or any Restricted Subsidiary in the ordinary course of business to the extent that the  unfunded amounts would not otherwise cause an Event of Default under Section 7.01(i);  (ff) without duplication of any other Indebtedness, all premiums (if any), interest (including  post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees,  expenses and charges with respect to Indebtedness of the Borrowers and/or any Restricted Subsidiary hereunder;  





 






  -143-       #95384462v18   #95384462v18   (gg) [Reserved]; and  (hh) customer deposits and advance payments received in the ordinary course of business  from customers for goods and services purchased in the ordinary course of business.  Section 6.02 Liens.  The Borrowers shall not, nor shall they permit any of their Restricted Subsidiaries  to, create, incur, assume or permit or suffer to exist any Lien on or with respect to any property of any kind owned  by it, whether now owned or hereafter acquired, or any income or profits therefrom, except:  (a) Liens securing the Secured Obligations created pursuant to the Loan Documents;  (b) Liens for Taxes which are (i) for amounts not yet overdue by more than 30 days or  (ii) being contested in accordance with Section 5.03(a);  (c) statutory Liens (and rights of set-off) of landlords, laborers, employees, banks, carriers,  warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens arising by operation of law in the  ordinary course of business, (i) for amounts not yet overdue by more than 30 days or (ii) for amounts that are  overdue by more than 30 days and that are being contested in good faith by appropriate proceedings, so long as  adequate reserves or other appropriate provisions required by GAAP shall have been made for any such contested  amounts;  (d) Liens incurred (i) in the ordinary course of business in connection with workers’  compensation, unemployment insurance and other types of social security laws and regulations, (ii) in the ordinary  course of business to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal  bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar  obligations (exclusive of obligations for the payment of borrowed money), (iii) pursuant to pledges and deposits of  Cash or Cash Equivalents in the ordinary course of business securing (x) any liability for, premiums, reimbursement  or indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to  Holdings and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement,  (iv) pledges that may be required under applicable foreign laws relating to claims by terminated employees and  other employee claims; and (v) to secure obligations in respect of letters of credit, bank guaranties, surety bonds,  performance bonds or similar instruments posted with respect to the items described in clauses (i) through  (iv) above;  (e) Liens consisting of survey exceptions, covenants, conditions, restrictions, easements,  reservations, rights-of-way, encroachments, and other encumbrances and defects or irregularities in title, in each  case which do not, in the aggregate, materially interfere with the ordinary conduct of the business of the Borrowers  and/or their Restricted Subsidiaries, taken as a whole, or the use of the affected property for its intended purpose;  (f) Liens consisting of any (i) interest or title of a lessor or sub-lessor under any lease of real  estate permitted hereunder or any other party with an interest in real estate of which the interest of the Borrowers  and/or their Restricted Subsidiaries therein is derivative, (ii) landlord lien permitted by the terms of any lease,  (iii) restriction or encumbrance to which the interest or title of such lessor, sub-lessor or other party may be subject  or (iv) subordination of the interest of the lessee, sub-lessee or other party to any restriction or encumbrance referred  to in the preceding clause (iii);  (g) Liens consisting of (i) agreements to sell any property in a Disposition permitted under  Section 6.07 and (ii) earnest money deposits made by the Borrowers and/or any of their Restricted Subsidiaries in  connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder;  (h) purported Liens evidenced by the filing of precautionary UCC financing statements  relating solely to operating leases or consignment or bailee arrangements entered into in the ordinary course of  business;  





 






  -144-       #95384462v18   #95384462v18   (i) Liens in favor of customs and revenue authorities arising as a matter of law to secure  payment of customs duties in connection with the importation of goods;  (j) Liens in connection with any zoning, building or similar law or right reserved to or vested  in any Governmental Authority to control or regulate the use of any or dimensions of real property or the structure  thereon;  (k) Liens securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to  the permitted refinancing of Indebtedness permitted pursuant to Sections 6.01(a), (c), (i), (j), (m), (q), (t), (u),  (w) and (z)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness  that is being refinanced and (ii) if the Indebtedness being refinanced was subject to intercreditor arrangements, then  any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements not materially less  favorable to the Secured Parties, taken as a whole, than the intercreditor arrangements governing the Indebtedness  that is refinanced or the intercreditor arrangements governing the relevant refinancing Indebtedness shall be  otherwise reasonably acceptable to the Administrative Agent;  (l) Liens described on Schedule 6.02 and any modification, replacement, refinancing,  renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than  (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by  Indebtedness permitted under Section 6.01 and (B) proceeds and products thereof, accessions thereto and  improvements thereon (it being understood that individual financings of the type permitted under Section 6.01(m)  provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its  affiliates) and (ii) such modification, replacement, refinancing, renewal or extension of the obligations secured or  benefited by such Liens, if constituting Indebtedness, is permitted by Section 6.01;  (m) Liens arising out of any sale and lease-back transaction to the extent permitted under  Section 6.07(z);  (n) Liens securing Indebtedness permitted pursuant to Section 6.01(m); provided that any  such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products  thereof, accessions thereto and improvements thereon (it being understood that individual financings of the type  permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings of such type  provided by such lender or its affiliates);  (o) Liens securing Indebtedness incurred pursuant to Section 6.01(q); provided that, with  respect to any such Liens on the Collateral, such Liens shall be pari passu, or junior to, the Liens securing the  Secured Obligations pursuant to a Permitted Pari Passu Intercreditor Agreement or Permitted Junior Intercreditor  Agreement, as applicable; provided, further, that with respect to Liens securing Indebtedness of Persons that  become, or Indebtedness assumed by, a Restricted Subsidiary, no such Lien (x) extends to or covers any other assets  (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or (y) was  created in contemplation of the applicable acquisition of assets or Capital Stock;  (p) Liens (i) that are statutory or common law or contractual rights of set-off or similar rights  and remedies as to deposit or commodity trading or brokerage accounts or other funds maintained with a creditor  depository institution (including, without limitation, any Lien arising by entering into standard banking  arrangements (AGB­Banken oder AGB­Sparkassen) in Germany), or netting arrangements relating to (A) the  establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness,  (B) pooled deposit or sweep accounts of the Borrowers and/or any Restricted Subsidiary to permit satisfaction of  overdraft or similar obligations incurred in the ordinary course of business of the Borrower sandBorrowers and/or  any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of the Borrowers  and/or any Restricted Subsidiary in the ordinary course of business and (D) commodity trading or other brokerage  accounts incurred in the ordinary course of business and (ii) encumbering reasonable customary initial deposits and  margin deposits;  





 






  -145-       #95384462v18   #95384462v18   (q) Liens on assets and Capital Stock of Restricted Subsidiaries that are not Loan Parties  (including Capital Stock owned by such Persons) securing Indebtedness of Restricted Subsidiaries that are not Loan  Parties permitted pursuant to Section 6.01;  (r) Liens securing obligations (other than obligations representing Indebtedness for  borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of  business of the Borrowers and/or their Restricted Subsidiaries;  (s) Liens disclosed in any Mortgage Policy delivered pursuant to Section 5.12 with respect to  any Material Real Estate Asset and any replacement, extension or renewal of any such Lien; provided that (i) no  such replacement, extension or renewal Lien shall cover any property other than the property that was subject to  such Lien prior to such replacement, extension or renewal (and additions thereto, improvements thereon and the  proceeds thereof) and (ii) such Liens do not, in the aggregate, materially interfere with the ordinary conduct of the  business of the Borrowers and/or their Restricted Subsidiaries, taken as a whole, or the use of the affected property  for its intended purpose;  (t) Liens securing Indebtedness incurred pursuant to Section 6.01(j) and/or Section 6.01(z);  provided that with respect to any Liens that secure Indebtedness incurred by a non-Loan Party pursuant to  Section 6.01(j)(i), (i) such Liens do not extend to, or encumber, assets that constitute Collateral and (ii) such Liens  extending to the assets of any non-Loan Party secure only Indebtedness incurred by such non-Loan Party pursuant to  Section 6.01(j)(i); provided, further, that, with respect to Liens securing Indebtedness incurred pursuant to  Section 6.01(j)(ii), (i) such Lien is not created in contemplation of or in connection with such acquisition or such  Person becoming a Restricted Subsidiary, (ii) such Lien does not apply to any other property or assets of the Lead  Borrower or any of its Restricted Subsidiaries and (iii) such Lien secures only those obligations which it secures on  the date of such acquisition or the date such Person becomes a Restricted Subsidiary, as the case may be;  (u) other Liens on assets securing Indebtedness or other obligations in an aggregate principal  amount at any time outstanding not to exceed the greater of $200,000,000 and 20% of Consolidated Adjusted  EBITDA as of the last day of the most recently ended Test Period;  (v) Liens on assets securing judgments, awards, attachments and/or decrees and notices of  lis pendens and associated rights relating to litigation being contested in good faith not constituting an Event of  Default under Section 7.01(h);  (w) (i) leases, licenses, subleases or sublicenses granted to others in the ordinary course of  business (including any license or sublicense of IP Rights) which do not (x) interfere in any material respect with the  business of the Borrowers and their Restricted Subsidiaries (other than any Immaterial Subsidiary) or (y) secure any  Indebtedness for borrowed money and (ii) the rights reserved or vested in any Person by the terms of any lease,  license, franchise, grant or permit held by the Lead Borrower or any of its respective Restricted Subsidiaries, or by  law to terminate any such lease, license, franchise, grant or permit or to require annual or periodic payments as a  condition to the continuance thereof;  (x) Liens on Cash Equivalents or Securities that are the subject of repurchase agreements  constituting Investments permitted under Section 6.06 arising out of such repurchase transaction;  (y) Liens securing obligations in respect letters of credit, bank guaranties, surety bonds,  performance bonds or similar instruments permitted under Section 6.01(d), (e), (g), (aa) and (cc);  (z) Liens arising (i) out of conditional sale, title retention (including extended retention of  title), consignment or similar arrangements for the sale of any assets or property in the ordinary course of business  and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar law of any  jurisdiction);  





 






  -146-       #95384462v18   #95384462v18   (aa) Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of  any Restricted Subsidiary that is not a Loan Party, in the case of each of clauses (i) and (ii), securing intercompany  Indebtedness permitted under Section 6.01;  (bb) Liens on insurance policies and the proceeds thereof securing the financing of the  premiums with respect thereto;  (cc) Liens on specific items of inventory or other goods and the proceeds thereof securing the  relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for  the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;  (dd) Liens securing (i) obligations under Hedge Agreements in connection with any  Derivative Transaction of the type described in Section 6.01(s) and/or (ii) obligations of the type described in  Section 6.01(f);  (ee) (i) Liens on Capital Stock of joint ventures or Unrestricted Subsidiaries securing capital  contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar  rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;  (ff) Liens on Cash or Cash Equivalents arising in connection with the defeasance, discharge  or redemption of Indebtedness;  (gg) Liens evidenced by the filing of UCC financing statements relating to factoring or similar  arrangements entered into in the ordinary course of business;  (hh) Liens on assets of Foreign Subsidiaries; provided that (i) such Liens do not extend to, or  encumber, assets that constitute Collateral, and (ii) such Liens extending to the assets of any such Foreign  Subsidiary secure only Indebtedness incurred by such Foreign Subsidiary pursuant to Section 6.01(n);  (ii) Liens securing Indebtedness incurred in reliance on Section 6.01(w) so long as the  condition described in clause (i) or clause (ii) of Section 6.01(w), as applicable, has been satisfied;  (jj) in respect of any property located in Canada, reservations contained in the original grant  from the Crown;  (kk) any Lien required to be granted under mandatory German law (§§ 22, 204 of the German  Transformation Act (Umwandlungsgesetz)) in favor of creditors as a consequence of amalgamation, demerger,  merger, consolidation, corporate reconstruction or conversion of legal form permitted under this Agreement; and  (ll) Liens on receivables and related assets incurred in connection with Permitted Receivables  Financings permitted in reliance on Section 6.01(t).  Section 6.03 No Further Negative Pledges.  The Borrowers shall not, nor shall they permit any of their  Restricted Subsidiaries to, enter into any agreement prohibiting the creation or assumption of any Lien upon any of  its properties, whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the  Obligations, except with respect to:  (a) specific property to be sold pursuant to any Disposition permitted by Section 6.07;  (b) restrictions contained in any agreement with respect to Indebtedness permitted by  Section 6.01 that is secured by a Permitted Lien, but only if such restrictions apply only to the Person or Persons  obligated under such Indebtedness and its or their Restricted Subsidiaries or the property or assets securing such  Indebtedness;  





 






  -147-       #95384462v18   #95384462v18   (c) restrictions contained in the documentation governing Indebtedness permitted by  (i) clauses (c), (d), (j), (m), (n), (q), (t), (u), (w), (x), (y) and/or (z) of Section 6.01 (and clause (p) of Section 6.01 to  the extent relating to any refinancing, refunding or replacement of Indebtedness incurred in reliance on clauses (c),  (d), (j), (m), (n), (q), (t), (u), (w), (x), (y) and/or (z) of Section 6.01) and (ii) this Agreement if such restrictions or  conditions apply only to the property or assets securing such Indebtedness;  (d) restrictions by reason of customary provisions restricting assignments, subletting or other  transfers (including the granting of any Lien) contained in leases, subleases, licenses, sublicenses and other  agreements entered into in the ordinary course of business (provided that such restrictions are limited to the relevant  leases, subleases, licenses, sublicenses or other agreements and/or the property or assets secured by such Liens or  the property or assets subject to such leases, subleases, licenses, sublicenses or other agreements, as the case may  be);  (e) Permitted Liens and restrictions in the agreements relating thereto that limit the right of  the Borrowers or any of their Restricted Subsidiaries to Dispose of, or encumber the assets subject to such Liens;  (f) provisions limiting the Disposition or distribution of assets or property in joint venture  agreements, sale- leaseback agreements, stock sale agreements and other similar agreements, which limitation is  applicable only to the assets that are the subject of such agreements (or the Persons the Capital Stock of which is the  subject of such agreement);  (g) any encumbrance or restriction assumed in connection with an acquisition of the property  or Capital Stock of any Person, so long as such encumbrance or restriction relates solely to the property so acquired  (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created in connection with or  in anticipation of such acquisition;  (h) restrictions imposed by customary provisions in partnership agreements, limited liability  company organizational governance documents, joint venture agreements and other similar agreements that restrict  the transfer of the assets of, or ownership interests in, the relevant partnership, limited liability company, joint  venture or any similar Person;  (i) restrictions on Cash or other deposits imposed by Persons under contracts entered into in  the ordinary course of business or for whose benefit such Cash or other deposits exist;  (j) restrictions set forth in documents which exist on the Closing Date;  (k) restrictions set forth in any Loan Document, any Hedge Agreement and/or any agreement  relating to any Banking Services Obligation;  (l) restrictions contained in documents governing Indebtedness permitted hereunder of any  Restricted Subsidiary that is not a Loan Party;  (m) software and other licenses of IP Rights pursuant to which the Lead Borrower or any  Restricted Subsidiary is the licensee of the relevant software or IP Rights, as the case may be (in which case, any  prohibition or limitation shall relate only to the assets that are the subject of the applicable license); and  (n) other restrictions or encumbrances imposed by any amendment, modification,  restatement, renewal, increase, supplement, refunding, replacement or refinancing of the contracts, instruments or  obligations referred to in clauses (a) through (l) above; provided that no such amendment, modification, restatement,  renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Lead  Borrower, more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than those in  effect prior to the relevant amendment, modification, restatement, renewal, increase, supplement, refunding,  replacement or refinancing.  





 






  -148-       #95384462v18   #95384462v18   Section 6.04 Restricted Payments; Certain Payments of Indebtedness.  (a) The Lead Borrower shall not pay or make, directly or indirectly, any Restricted Payment,  except that:  (i) the Lead Borrower may make Restricted Payments to the extent necessary to  permit any Parent Company:  (A) to pay general administrative costs and expenses (including corporate  overhead, legal or similar expenses and customary salary, fees, bonus and other benefits  payable to directors, officers, employees, members of management, managers and/or  consultants of any Parent Company) and franchise fees and Taxes and similar fees, Taxes  and expenses required to enable such Parent Company to maintain its organizational  existence or qualification to do business, in each case, which are reasonable and  customary and incurred in the ordinary course of business, plus any reasonable and  customary indemnification claims made by directors, officers, members of management,  managers, employees or consultants of any Parent Company, in each case, to the extent  attributable to the ownership or operations of any Parent Company and its subsidiaries  (but excluding the portion of such amount that is attributable to the ownership or  operations of any subsidiary of any Parent Company other than the Borrowers and their  subsidiaries);  (B) to discharge the consolidated, combined, unitary or similar Tax  liabilities of such Parent Company and its subsidiaries when and as due, to the extent  such liabilities are attributable to the operations of any Parent Company (but excluding,  for the avoidance of doubt, the portion of any such Tax liabilities, if any, that is  attributable to the operations of any subsidiary of any Parent Company other than the  Lead Borrower and/or its subsidiaries), the Lead Borrower and its subsidiaries; provided  that the amount paid by the Lead Borrower pursuant to this paragraph (B) shall not  exceed the amount of Tax liabilities that would be due if the Lead Borrower and each  Restricted Subsidiary were separate corporations filing income and similar Tax returns on  a consolidated, combined, unitary or similar basis with the Lead Borrower as the  common parent of such affiliated group (calculated at the highest combined applicable  federal, state, local and foreign Tax rate); provided further that Restricted Payments  under this Section 6.04(a)(i)(B) that are attributable to any Unrestricted Subsidiary or any  joint venture shall be permitted only to the extent that either (x) such Unrestricted  Subsidiary has made one or more Cash distributions, advances or loans to the Lead  Borrower or any of its Restricted Subsidiaries for such purpose in an amount up to the  amount of such Unrestricted Subsidiary’s or joint venture’s, as applicable, proportionate  share of such Tax liabilities or (y) the amount of any such Restricted Payment made by  the Lead Borrower on behalf of such Unrestricted Subsidiary or joint venture is treated as  an Investment subject to Section 6.06 hereof;  (C) to pay audit and other accounting and reporting expenses of such Parent  Company to the extent attributable to any Parent Company (but excluding, for the  avoidance of doubt, the portion of any such expenses, if any, attributable to the  ownership or operations of any subsidiary of any Parent Company other than the  Borrowers and/or their subsidiaries), the Borrowers and their subsidiaries;  (D) for the payment of insurance premiums and deductibles to the extent  attributable to any Parent Company (but excluding, for the avoidance of doubt, the  portion of any such premiums, if any, attributable to the ownership or operations of any  subsidiary of any Parent Company other than the Borrowers and/or their subsidiaries), the  Borrowers and their subsidiaries;  





 






  -149-       #95384462v18   #95384462v18   (E) pay (x) fees and expenses related to debt or equity offerings,  investments or acquisitions permitted or not restricted by this Agreement (whether or not  consummated) relating to the Borrowers and their Restricted Subsidiaries and (y) Public  Company Costs;  (F) to finance any Investment permitted under Section 6.06 (provided that  (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially  concurrently with the closing of such Investment and (y) the relevant Parent Company  shall, promptly following the closing thereof, cause (I) all property acquired to be  contributed to the Borrowers or one or more of their Restricted Subsidiaries, or (II) the  merger, consolidation or amalgamation of the Person formed or acquired into the  Borrowers or one or more of their Restricted Subsidiaries, in order to consummate such  Investment in compliance with the applicable requirements of Section 6.06 as if  undertaken as a direct Investment by the Borrowers or the relevant Restricted  Subsidiary); and  (G) to pay customary salary, bonus, severance and other benefits payable to  current or former directors, officers, members of management, managers, employees or  consultants of any Parent Company (or any Immediate Family Member of any of the  foregoing) to the extent such salary, bonuses and other benefits are attributable and  reasonably allocated to the operations of the Borrowers and/or their subsidiaries, in each  case, so long as such Parent Company applies the amount of any such Restricted Payment  for such purpose;  provided that with respect to Restricted Payments under clauses (A), (B), (C), (D) and (G) above,  such Restricted Payments that are attributable to any Unrestricted Subsidiary shall be permitted  only to the extent that either (x) such Unrestricted Subsidiary has made one or more Cash  distributions, advances or loans to the Borrowers or any of their Restricted Subsidiaries for such  purpose in an amount up to the amount of such Unrestricted Subsidiary’s proportionate share of  such Restricted Payment or (y) the amount of any such Restricted Payment made by the applicable  Borrower on behalf of such Unrestricted Subsidiary is treated as an Investment subject to  Section 6.06 hereof;  (ii) the Lead Borrower may pay (or make Restricted Payments to allow any Parent  Company to pay) for the repurchase, redemption, retirement or other acquisition or retirement for  value of Capital Stock of any Parent Company, any subsidiary or any of their respective Affiliates  held by any future, present or former employee, director, member of management, officer,  manager, advisor or consultant (or any Affiliate or Immediate Family Member thereof) of any  Parent Company, the Borrowers, any subsidiary or any of their respective Affiliates:  (A) in accordance with the terms of promissory notes issued pursuant to  Section 6.01(o), so long as the aggregate amount of all Cash payments made in respect of  such promissory notes, together with the aggregate amount of Restricted Payments made  pursuant to sub-clause (D) of this clause (ii) below, does not exceed $5,000,000 in any  Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to the next  subsequent Fiscal Year (provided that no more than $10 million may be carried forward  in any Fiscal Year);  (B) with the proceeds of any sale or issuance of the Capital Stock of the  Borrowers or any Parent Company (to the extent such proceeds are contributed in respect  of Qualified Capital Stock to the Borrowers or any Restricted Subsidiary);  (C) with the net proceeds of any key-man life insurance policies; or  





 






  -150-       #95384462v18   #95384462v18   (D) with Cash and Cash Equivalents in an amount not to exceed, together  with the aggregate amount of all Cash payments made pursuant to sub-clause (A) of this  clause (ii) in respect of promissory notes issued pursuant to Section 6.01(o), $5,000,000  in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to the  next subsequent Fiscal Year (provided that no more than $10 million may be carried  forward in any Fiscal Year);  (iii) the Lead Borrower may make additional Restricted Payments in an amount not to  exceed (A) the portion, if any, of the Available Amount on such date that the Lead Borrower  elects to apply to this clause (iii)(A); provided that (A) no Default or Event of Default has  occurred and is continuing or would result therefrom and (B) the Fixed Charge Coverage Ratio,  calculated on a Pro Forma Basis, would not be less than 2.00:1.00 as of the last day of the Test  Period most recently ended prior to such Restricted Payment for which the financial statements  required by Section 5.01(a) or 5.01(b), as the case may be, have been delivered plus (B) the  portion, if any, of the Available Excluded Contribution Amount on such date that the Lead  Borrower elects to apply to this clause (iii)(B);  (iv) the Lead Borrower may make Restricted Payments (i) to any Parent Company to  enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in  connection with the exercise of warrants, options or other securities convertible into or  exchangeable for Capital Stock of such Parent Company and (ii) consisting of (A) payments made  or expected to be made in respect of withholding or similar Taxes payable by any future, present  or former officers, directors, employees, members of management, managers or consultants of the  Borrowers, any Restricted Subsidiary or any Parent Company or any of their respective Immediate  Family Members and/or (B) repurchases of Capital Stock in consideration of the payments  described in sub-clause (A) above, including demand repurchases in connection with the exercise  of stock options;  (v) the Lead Borrower may repurchase (or make Restricted Payments to any Parent  Company to enable it to repurchase) Capital Stock upon the exercise of warrants, options or other  securities convertible into or exchangeable for Capital Stock if such Capital Stock represents all or  a portion of the exercise price of such warrants, options or other securities convertible into or  exchangeable for Capital Stock as part of a “cashless” exercise;  (vi) the Lead Borrower may make Restricted Payments, the proceeds of which are  applied on the Closing Date, solely to effect the consummation of the Transactions;  (vii) the Lead Borrower may make Restricted Payments to Holdings (and Holdings  may in turn make such Restricted Payments to Super Holdco) from time to time in an amount  sufficient to enable Super Holdco to fund each scheduled payment of the Regular Cash Dividend;  provided that (A) no Default or Event of Default exists or would result therefrom and (B) the  Fixed Charge Coverage Ratio, calculated on a Pro Forma Basis, would not be less than 2.00:1.00  as of the last day of the Test Period most recently ended prior to such Restricted Payment for  which the financial statements required by Section 5.01(a) or 5.01(b), as the case may be, have  been delivered;  (viii) the Lead Borrower may make Restricted Payments to (i) redeem, repurchase,  retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the Borrowers  and/or any Restricted Subsidiary, (B) Capital Stock of any Parent Company, in the case of each of  subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale  (other than to the Lead Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of  the Borrowers or any Parent Company to the extent any such proceeds are contributed to the  capital of the Borrowers and/or any Restricted Subsidiary in respect of Qualified Capital Stock  (“Refunding Capital Stock”), and/or (C) Capital Stock of any Parent Company owned by any  present or former employees, directors, members of management, officers, managers or  





 






  -151-       #95384462v18   #95384462v18   consultants or independent contractors (or their respective Immediate Family Members) of any  Parent Company in an amount equal to any tax liability paid on behalf of such employee, director,  member of management, officer, manager or consultant or independent contractor (or their  respective Immediate Family Members) arising from the vesting of such Capital Stock and  (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the  substantially concurrent sale (other than to the applicable Lead Borrower or a Restricted  Subsidiary) of any Refunding Capital Stock;  (ix) to the extent constituting a Restricted Payment, the Lead Borrower may  consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)),  Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Section 6.09(d));  (x) the Lead Borrower may make additional Restricted Payments in an aggregate  amount not to exceed the greater of $75,000,000 and 10% of Consolidated Adjusted EBITDA as  of the last day of the most recently ended Test Period minus (A) the amount of Restricted Debt  Payments made by the Borrowers or any Restricted Subsidiary in reliance on Section 6.04(b)(iv),  minus (B) the outstanding amount of Investments made by a Borrower or any Restricted  Subsidiary in reliance on Section 6.06(q)(ii);  (xi) the Lead Borrower may pay any dividend or consummate any redemption  within 60 days after the date of the declaration thereof or the provision of a redemption notice with  respect thereto, as the case may be, if at the date of such declaration or notice, the dividend or  redemption notice would have complied with the provisions hereof;  (xii) the Lead Borrower may purchase, redeem or otherwise acquire its common  Capital Stock with the proceeds received from the substantially concurrent issuance of new  common Capital Stock of the Borrowers; and  (xiii) the Lead Borrower may make additional Restricted Payments so long as (A) no  Default or Event of Default exists or would result therefrom and (B) the Total Net Leverage Ratio  would not exceed 4.00:1.00. calculated on a Pro Forma Basis as of the last day of the most  recently ended Test Period.  (b) The Borrowers shall not, nor shall they permit any Restricted Subsidiary to, make any  payment (whether in Cash, securities or other property) on or in respect of principal of or interest on (x) any Junior  Lien Indebtedness or (y) any Junior Indebtedness (such Indebtedness under clauses (x) and (y), the “Restricted  Debt”), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,  acquisition, cancellation or termination of any Restricted Debt prior to its scheduled maturity (collectively,  “Restricted Debt Payments”), except:  (i) any purchase, defeasance, redemption, repurchase, repayment or other acquisition  or retirement of any Restricted Debt made by exchange for, or out of the proceeds of, Refinancing  Indebtedness permitted by Section 6.01;  (ii) payments as part of an “applicable high yield discount obligation” catch-up  payment;  (iii) payments of regularly scheduled interest as and when due in respect of any  Restricted Debt, except for any payments with respect to any Subordinated Indebtedness that are  prohibited by the subordination provisions thereof;  (iv) so long as, at the time of delivery of irrevocable notice with respect thereto, no  Event of Default exists or would result therefrom, additional Restricted Debt Payments in an  aggregate amount not to exceed the greater of $75,000,000 and 10% of Consolidated Adjusted  





 






  -152-       #95384462v18   #95384462v18   EBITDA as of the last day of the most recently ended Test Period, minus (A) the outstanding  amount of Investments made in reliance on Section 6.06(q)(ii), minus (B) the amount of Restricted  Payments made in reliance on Section 6.04(a)(x);  (v) (A) Restricted Debt Payments in exchange for, or with proceeds of any issuance  of, Qualified Capital Stock of the Borrowers and/or any Restricted Subsidiary and/or any capital  contribution in respect of Qualified Capital Stock of the Borrowers or any Restricted Subsidiary,  (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Restricted  Debt into Qualified Capital Stock of the Borrowers and/or any Restricted Subsidiary and (C) to the  extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any  Restricted Debt that is permitted under Section 6.01;  (vi) Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if  any, of the Available Amount on such date that the Borrowers elect to apply to this clause (vi)(A);  provided, that (A) no Default or Event of Default has occurred and is continuing or would result  therefrom and (B) the Fixed Charge Coverage Ratio, calculated on a Pro Forma Basis, would not  be less than 2.00:1.00 as of the last day of the Test Period most recently ended prior to such  Restricted Debt Payment for which the financial statements required by Section 5.01(a) or 5.01(b),  as the case may be, have been delivered plus (B) the portion, if any, of the Available Excluded  Contribution Amount on such date that the Borrowers elect to apply to this clause (vi)(B); and  (vii) additional Restricted Debt Payments; provided that (A) no Default or Event of  Default exists or would result therefrom and (B) the Total Net Leverage Ratio would not  exceed 3.00 to 1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended  Test Period.  Section 6.05 Restrictions on Subsidiary Distributions.  Except as provided herein or in any other Loan  Document, any document with respect to any Incremental Equivalent Debt and/or in agreements with respect to  refinancings, renewals or replacements of such Indebtedness that are permitted by Section 6.01, the Borrowers shall  not, nor shall they permit any of their Restricted Subsidiaries to, enter into or cause to exist any agreement  restricting the ability of (i) any subsidiary of the Borrowers to pay dividends or other distributions to the Borrowers  or any Loan Party or (ii) any Restricted Subsidiary to make Cash loans or advances to the Borrowers or any Loan  Party, except:  (a) in any agreement evidencing (i) Indebtedness of a Restricted Subsidiary that is not a Loan  Party permitted by Section 6.01, (ii) Indebtedness permitted by Section 6.01 that is secured by a Permitted Lien if  the relevant restriction applies only to the Person obligated under such Indebtedness and their Restricted  Subsidiaries or the property or assets intended to secure such Indebtedness and (iii) Indebtedness permitted pursuant  to clauses (j), (m), (n), (p) (as it relates to Indebtedness in respect of clauses (j), (m), (n), (q), (u), (w), (x) and/or  (z) of Section 6.01), (q), (u), (w), (x) and/or (z) of Section 6.01;  (b) by reason of customary provisions restricting assignments, subletting or other transfers  contained in leases, subleases, licenses, sublicenses, joint venture agreements and similar agreements entered into in  the ordinary course of business;  (c) that are or were created by virtue of any Lien granted upon, transfer of, agreement to  transfer or grant of, any option or right with respect to any property, assets or Capital Stock not otherwise prohibited  under this Agreement;  (d) assumed in connection with any acquisition of property or the Capital Stock of any  Person, so long as the relevant encumbrance or restriction relates solely to the Person and its subsidiaries (including  the Capital Stock of the relevant Person or Persons) and/or property so acquired and was not created in connection  with or in anticipation of such acquisition;  





 






  -153-       #95384462v18   #95384462v18   (e) in any agreement for any Disposition of any Restricted Subsidiary (or all or substantially  all of the property and/or assets thereof) that restricts the payment of dividends or other distributions or the making  of Cash loans or advances by such Restricted Subsidiary pending such Disposition;  (f) in provisions in agreements or instruments which prohibit the payment of dividends or  the making of other distributions with respect to any class of Capital Stock of a Person other than on a pro rata  basis;  (g) imposed by customary provisions in partnership agreements, limited liability company  organizational governance documents, joint venture agreements and other similar agreements;  (h) on Cash, other deposits or net worth or similar restrictions imposed by any Person under  any contract entered into in the ordinary course of business or for whose benefit such Cash, other deposits or net  worth or similar restrictions exist;  (i) set forth in documents which exist on the Closing Date and not created in contemplation  thereof;  (j) those arising pursuant to an agreement or instrument relating to any Indebtedness  permitted to be incurred after the Closing Date if the relevant restrictions, taken as a whole, are not materially less  favorable to the Lenders than the restrictions contained in this Agreement, taken as a whole (as determined in good  faith by a Borrower);  (k) those arising under or as a result of applicable law, rule, regulation or order or the terms  of any license, authorization, concession or permit;  (l) those arising in any Hedge Agreement and/or any agreement relating to any Banking  Services Obligation; and/or  (m) those imposed by any amendment, modification, restatement, renewal, increase,  supplement, refunding, replacement or refinancing of any contract, instrument or obligation referred to in clauses (a)  through (l) above; provided that no such amendment, modification, restatement, renewal, increase, supplement,  refunding, replacement or refinancing is, in the good faith judgment of the Lead Borrower, more restrictive with  respect to such restrictions, taken as a whole, than those in existence prior to such amendment, modification,  restatement, renewal, increase, supplement, refunding, replacement or refinancing.  Section 6.06 Investments.  The Borrowers shall not, nor shall they permit any of their Restricted  Subsidiaries to, make or own any Investment in any other Person except:  (a) Cash or Investments that were Cash Equivalents at the time made;  (b) (i) Investments existing on the Closing Date in any subsidiary, (ii) Investments made  after the Closing Date among the Borrowers and/or one or more Restricted Subsidiaries that are Loan Parties,  (iii) (x) Investments made after the Closing Date by any Loan Party in any Restricted Subsidiary that is not a Loan  Party in an aggregate outstanding amount not to exceed the sum of (1) the Available Amount (provided, that no  Default or Event of Default has occurred and is continuing or would result therefrom) plus (2) the greater of  $175,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period  and/or (y) Investments to permit reorganization transactions for efficiency or operational improvements (I) so long  as no Default or Event of Default shall have occurred and be continuing after giving effect to such reorganization, to  the extent such reorganization only involves Foreign Subsidiaries that represent less than 5% of each of  Consolidated Total Assets and consolidated revenues of the Lead Borrower and its Restricted Subsidiaries or (II) so  long as such reorganization is not materially adverse to the Lenders as certified by a chief financial officer, treasurer  or equivalent officer of the Lead Borrower (which certification shall include such information reasonable requested  by the Administrative Agent regarding such reorganization), as consented to in advance by the Administrative Agent  





 






  -154-       #95384462v18   #95384462v18   (any such transaction, a “Permitted Reorganization”), (iv) Investments made by any Loan Party and/or any  Restricted Subsidiary that is not a Loan Party in the form of any contribution or Disposition of the Capital Stock of  any Person that is not a Loan Party; provided that, prior to such contribution or Disposition or series of transactions  resulting in such contribution or Disposition, such Capital Stock was not owned directly by a Loan Party and  (v) Investments made by any Restricted Subsidiary that is not a Loan Party in any Loan Party or in any other  Restricted Subsidiary that is not a Loan Party ;  (c) Investments (i) constituting deposits, prepayments and/or other credits to suppliers, (ii) in  the form of advances made to distributors, suppliers, licensors and licensees, in each case, in the ordinary course of  business or, in the case of clause (ii), to the extent necessary to maintain the ordinary course of supplies to the  Borrowers or any Restricted Subsidiary and/or (iii) constituting bank deposits made in the ordinary course of  business;  (d) Investments in Unrestricted Subsidiaries; provided that immediately after giving effect to  any such Investment, the amount invested in the applicable Unrestricted Subsidiary pursuant to this clause (d), when  aggregated with the amounts then invested in all other Unrestricted Subsidiaries pursuant to this clause (d), shall not  exceed the greater of $75,000,000 and 11% of Consolidated Adjusted EBITDA as of the last day of the most  recently ended Test Period at any one time outstanding;  (e) Permitted Acquisitions;  (f) Investments (i) existing on, or contractually committed to or contemplated as of, the  Closing Date and described on Schedule 6.06 and/or (ii) any modification, replacement, renewal or extension of any  Investment described in clause (i) above so long as no such modification, renewal or extension thereof increases the  amount of such Investment except by the terms thereof or as otherwise permitted by this Section 6.06);  (g) Investments received in lieu of Cash in connection with any Disposition permitted by  Section 6.07;  (h) loans or advances to present or former employees, directors, members of management,  officers, managers or consultants or independent contractors (or their respective Immediate Family Members) of any  Parent Company, the Borrowers and their subsidiaries to the extent permitted by Requirements of Law, in  connection with such Person’s purchase of Capital Stock of any Parent Company, either (i) in an aggregate principal  amount not to exceed $10,000,000 at any one time outstanding or (ii) so long as the proceeds of such loan or  advance are substantially contemporaneously contributed to the Borrowers for the purchase of such Capital Stock;  (i) (i) Investments consisting of extensions of credit in the nature of accounts receivable or  notes receivable arising from the grant of trade credit in the ordinary course of business and (ii) to the extent  constituting Investments, any receivable that is distributed by a Subsidiary to its equity holders in lieu of a Cash  dividend that is otherwise permitted by Section 6.05;  (j) Investments consisting of Indebtedness permitted under Section 6.01 (other than  Indebtedness permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under  Section 6.04 (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers,  consolidations, amalgamations, liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07  (other than Section 6.07(a) (if made in reliance on subclause (ii)(y) of the proviso thereto), Section 6.07(b) (if made  in reliance on clause (ii) therein), Section 6.07(c)(ii) (if made in reliance on clause (B) therein) and Section 6.07(g));  (k) Investments in the ordinary course of business consisting of endorsements for collection  or deposit and customary trade arrangements with customers;  (l) (i) Investments (including debt obligations and Capital Stock) received (A) in connection  with the bankruptcy or reorganization of any Person, (B) in settlement of delinquent obligations of, or other disputes  with, customers, suppliers and other account debtors arising in the ordinary course of business, (C) upon foreclosure  





 






  -155-       #95384462v18   #95384462v18   with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (D) as  a result of the settlement, compromise, resolution of litigation, arbitration or other disputes and/or (ii) Investments  consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of  trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof  from financially troubled account debtors and other credits to suppliers made in the ordinary course of business;  (m) loans and advances of payroll payments or other compensation to present or former  employees, directors, members of management, officers, managers or consultants of any Parent Company (to the  extent such payments or other compensation relate to services provided to such Parent Company (but excluding, for  the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations of any  subsidiary of any Parent Company other than the Borrowers and/or their subsidiaries)), the Borrowers and/or any  subsidiary in the ordinary course of business;  (n) Investments to the extent that payment therefor is made solely with Capital Stock of any  Parent Company or Capital Stock (other than Disqualified Capital Stock) of the Borrowers or any Restricted  Subsidiary, in each case, to the extent not resulting in a Change of Control;  (o) (i) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any  Person acquired by, or merged into or consolidated or amalgamated with, the Borrowers or any Restricted  Subsidiary after the Closing Date, in each case as part of an Investment otherwise permitted by this Section 6.06 to  the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger,  amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation  or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under  clause (i) of this Section 6.06(o) so long as no such modification, replacement, renewal or extension thereof  increases the amount of such Investment except as otherwise permitted by this Section 6.06;  (p) Investments made in connection with the Transactions;  (q) Investments made after the Closing Date by the Borrowers and/or any of their Restricted  Subsidiaries in an aggregate amount at any time outstanding not to exceed:  (i) the greater of $150,000,000 and 30% of Consolidated Adjusted EBITDA as of the  last day of the most recently ended Test Period, plus  (ii) the greater of $75,000,000 and 10% of Consolidated Adjusted EBITDA as of the  last day of the most recently ended Test Period, minus (A) the amount of Restricted Debt  Payments made by any Borrower or a Restricted Subsidiary in reliance on Section 6.04(b)(iv)(A)  and minus (B) the amount of Restricted Payments made by the Borrowers or any Restricted  Subsidiary in reliance on Section 6.04(a)(x), plus  (iii) in the event that (A) the Borrowers or any of their Restricted Subsidiaries makes  any Investment after the Closing Date in any Person that is not a Restricted Subsidiary otherwise  permitted hereunder and (B) such Person subsequently becomes a Restricted Subsidiary, an  amount equal to the lesser of (x) 100.0% of the fair market value of such Investment as of the date  on which such Person becomes a Restricted Subsidiary and (y) the original amount of such  Investment;  (r) Investments made after the Closing Date by the Borrowers and/or any of their Restricted  Subsidiaries in an aggregate outstanding amount not to exceed (i) the portion, if any, of the Available Amount on  such date that such Borrower elects to apply to this clause (r)(i) plus (ii) the portion, if any, of the Available  Excluded Contribution Amount on such date that such Borrower elects to apply to this clause (r)(ii); provided, that  (A) no Default or Event of Default has occurred and is continuing or would result therefrom and (B) the Fixed  Charge Coverage Ratio, calculated on a Pro Forma Basis, would not be less than 2.00:1.00 as of the last day of the  Test Period most recently ended prior to such Investment for which the financial statements required by  Section 5.01(a) or 5.01(b), as the case may be, have been delivered;  





 






  -156-       #95384462v18   #95384462v18   (s) (i) Guarantees of leases (other than Capital Leases) or of other obligations not  constituting Indebtedness and (ii) Guarantees of the lease obligations of suppliers, customers, franchisees and  licensees of the Borrowers and/or their Restricted Subsidiaries, in each case, in the ordinary course of business;  (t) Investments in any Parent Company in amounts and for purposes for which Restricted  Payments to such Parent Company are permitted under Section 6.04(a); provided that any Investment made as  provided above in lieu of any such Restricted Payment shall reduce availability under the applicable Restricted  Payment basket under Section 6.04(a);  (u) Investments made by any Restricted Subsidiary that is not a Loan Party with the proceeds  received by such Restricted Subsidiary from an Investment made by any Loan Party in such Restricted Subsidiary  pursuant to this Section 6.06 (other than Investments made pursuant to clause (ii) of Section 6.06(e) or  Section 6.06(x));  (v) [reserved];  (w) Investments under any Derivative Transaction of the type permitted under  Section 6.01(s);  (x) Investments made in connection with the creation, formation and/or acquisition of any  joint venture, or in any Restricted Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any  joint venture, in an aggregate outstanding amount not to exceed the greater of $75,000,000 and 10% of Consolidated  Adjusted EBITDA as of the last day of the most recently ended Test Period for which financial statements have been  delivered pursuant to Section 5.01(a) or (b), as applicable;  (y) Investments made in any joint venture existing on the Closing Date as required by, or  made pursuant to, buy/sell arrangements between the joint venture parties set forth in joint venture agreements and  similar binding arrangements in effect on the Closing Date (other than any modification, replacement, renewal or  extension of such Investments so long as no such modification, renewal or extension thereof increases the amount of  any such Investment except by the terms thereof or as otherwise permitted by this Section 6.06);  (z) unfunded pension fund and other employee benefit plan obligations and liabilities to the  extent that they are permitted to remain unfunded under applicable law;  (aa) Investments in the Borrowers, any Restricted Subsidiary and/or any joint venture in  connection with intercompany cash management arrangements and related activities in the ordinary course of  business;  (bb) Investments consisting of the licensing or contribution of IP Rights pursuant to joint  marketing arrangements with other Persons;  (cc) purchases of contract rights or licenses or leases of IP Rights, in each case in the ordinary  course of business, to the extent such purchases and acquisitions constitute Investments;  (dd) Investments in Receivables Subsidiaries in the form of receivables and related assets  required in connection with a Permitted Receivables Financing (including the contribution or lending of Cash and  Cash Equivalents to Subsidiaries to finance the purchase of such assets from Holdings, a Borrower or other  Restricted Subsidiaries or to otherwise fund required customary reserves);  (ee) additional Investments so long as the Total Net Leverage Ratio does not exceed 4.00:1.00  calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period; and  (ff) any contribution by any Loan Party that is a Domestic Subsidiary of the equity or assets  of a first tier Foreign Subsidiary to any other first tier Foreign Subsidiary.  





 






  -157-       #95384462v18   #95384462v18   In no event shall (a) the Borrowers or any Restricted Subsidiary be permitted to make or own any  Investment in its equityholders constituting material intellectual property if such material intellectual property is,  following such Investment, licensed by the Lead Borrower and/or any Restricted Subsidiary from the recipient of  such material intellectual property for use by the Lead Borrower or such Restricted Subsidiary in the ordinary course  of business (other than pursuant to a bona fide “transition service” or similar arrangement or in the same manner as  other customers, suppliers or commercial partners of the relevant transferee generally), and (b) any Loan Party make  or own any Investment constituting (i) any material intellectual property in any Unrestricted Subsidiary or (ii) any  Trademarks in any Restricted Subsidiary that is not a Loan Party; provided that, the restriction in this clause (b)(ii)  shall not prohibit the Investment constituting Trademarks in an aggregate principal amount, together with all  dispositions pursuant to clause (b)(ii) of the last paragraph of Section 6.07 and releases pursuant to clause (b)(3) of  the nineteenth paragraph of Article 8, not to exceed $250,000,000.  Section 6.07 Fundamental Changes; Disposition of Assets.  The Borrowers shall not, nor shall it  permit any of their Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation,  or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or make any Disposition, in a  single transaction or in a series of related transactions, except:  (a) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the  Lead Borrower or any other Restricted Subsidiary; provided that (i) in the case of any such merger, consolidation or  amalgamation with or into the Lead Borrower, (A) the Lead Borrower shall be the continuing or surviving Person or  (B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Lead Borrower  (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing  under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly  assume the Obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent and  (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such  merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to  its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the  foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be  substituted for, the Lead Borrower under this Agreement and the other Loan Documents, (ii) in the case of any such  merger, consolidation or amalgamation involving any Subsidiary Guarantor, either (x) (i) such Subsidiary Guarantor  shall be the continuing or surviving Person or (ii) the continuing or surviving Person shall (A) expressly assume the  guarantee obligations of the Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent  and (B) be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia or  (y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06 and (iii) in the case  of any such merger, consolidation or amalgamation by a Restricted Subsidiary that is not a Loan Party into any other  Restricted Subsidiary that is a Loan Party, any related intercompany Indebtedness assumed by such Restricted  Subsidiary that is a Loan Party shall be expressly subordinated to the Obligations of such Loan Party on terms that  are reasonably acceptable to the Administrative Agent;  (b) Dispositions (including of Capital Stock) among the Lead Borrower and/or any  Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan  Party to any Person that is not a Loan Party shall be for fair market value (as reasonably determined by such Person)  with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of  such Disposition or treated as an Investment and otherwise made in compliance with Section 6.06 (other than in  reliance on clause (j) thereof); provided, further, that any Indebtedness of any Loan Party owed to any Restricted  Subsidiary that is not a Loan Party as a result of such Disposition must be expressly subordinated to the Obligations  of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;  (c) (i) the liquidation or dissolution of any Restricted Subsidiary provided that such  liquidation or dissolution, as applicable, would not reasonably be expected to have a Material Adverse Effect and is  not materially disadvantageous to the Lenders; provided that in the case of any liquidation or dissolution of any  Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such  distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j)  thereof); (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect  (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c))  





 






  -158-       #95384462v18   #95384462v18   or (B) any Investment permitted under Section 6.06; and (iii) any Borrower or any Restricted Subsidiary may be  converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of  the Loan Guaranty or Collateral, if any;  (d) (x) Dispositions of inventory, current assets, or equipment in the ordinary course of  business (including on an intercompany basis), (y) the leasing or subleasing of real property in the ordinary course  of business and (z) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof  (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted  Receivables Financing;  (e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the  reasonable judgment of any Borrower, is (A) no longer useful in its business (or in the business of any Restricted  Subsidiary of any Borrower) or (B) otherwise economically impracticable to maintain;  (f) Dispositions of Cash Equivalents or other assets that were Cash Equivalents when the  relevant original Investment was made;  (g) Dispositions, mergers, amalgamations, consolidations or conveyances that constitute  Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), Permitted Liens and Restricted  Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));  (h) Dispositions for fair market value; provided that with respect to any such Disposition  with a purchase price in excess of the greater of $35,000,000 and 4% of Consolidated Adjusted EBITDA as of the  last day of the most recently ended Test Period, as applicable, at least 75% of the consideration for such Disposition  shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement,  (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are  subordinated to the Obligations or that are owed to the Borrowers or any Restricted Subsidiary) of the Borrowers or  any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position  (or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrowers and/or  their applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, (x) the amount  of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such  Disposition, (y) any Securities received by the Borrowers or any Restricted Subsidiary from such transferee that are  converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received)  within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration  received in respect of such Disposition having an aggregate fair market value, taken together with all other  Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in  excess of the greater of $20,000,000 and 2% of Consolidated Adjusted EBITDA as of the last day of the most  recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (i) immediately prior to  and after giving effect to such Disposition, as determined on the date on which the agreement governing such  Disposition is executed, no Event of Default shall exist and (ii) the Net Proceeds of such Disposition shall be applied  and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);  (i) to the extent that (i) the relevant property is exchanged for credit against the purchase  price of similar replacement property or (ii) the proceeds of the relevant Disposition are reasonably promptly applied  to the purchase price of such replacement property;  (j) Dispositions of Investments in joint ventures to the extent required by, or made pursuant  to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements  and/or similar binding arrangements;  (k) Dispositions of accounts receivable in the ordinary course of business (including any  discount and/or forgiveness thereof and any factoring, early pay or similar supply chain financing arrangement) or in  connection with the collection or compromise thereof;  





 






  -159-       #95384462v18   #95384462v18   (l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including  the provision of software under any open source license) in the ordinary course of business, which do not materially  interfere with the business of the Lead Borrower and its Restricted Subsidiaries;  (m) (i) any termination of any lease in the ordinary course of business, (ii) any expiration of  any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or  the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course  of business;  (n) Dispositions of property subject to foreclosure, casualty, eminent domain or  condemnation proceedings (including in lieu thereof or any similar proceeding);  (o) Dispositions or consignments of equipment, inventory or other assets (including  leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;  (p) [Reserved];  (q) Dispositions of non-core assets acquired in connection with any acquisition permitted  hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of  the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for  the continued operation of the Borrowers or any of their Restricted Subsidiaries or any of their respective  businesses; provided that no Event of Default exists on the date on which the definitive agreement governing the  relevant Disposition is executed;  (r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any  comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is  made for fair value (as reasonably determined by the applicable Borrower) for like property or assets; provided that  upon the consummation of any such exchange or swap by any Loan Party, to the extent the property received does  not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien  held on the Real Estate Assets so exchanged or swapped;  (s) any Permitted Reorganization;  (t) (i) licensing and cross-licensing arrangements involving any technology, intellectual  property or IP Rights of the Borrowers or any Restricted Subsidiary in the ordinary course of business and  (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for  issuances or registrations, of IP Rights, which, in the reasonable good faith determination of the applicable  Borrower, are not material to the conduct of the business of the applicable Borrower or its Restricted Subsidiaries, or  are no longer economical to maintain in light of its use;  (u) terminations or unwinds of Derivative Transactions;  (v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of,  Unrestricted Subsidiaries;  (w) Dispositions of Real Estate Assets and related assets in the ordinary course of business in  connection with relocation activities for directors, officers, employees, members of management, managers or  consultants of any Parent Company, the Borrowers and/or any Restricted Subsidiary and/or dispositions of property  formerly leased by the Lead Borrower or its Restricted Subsidiaries and acquired by the Lead Borrower and sold as  an alternative to terminating the lease on such property;  (x) Dispositions made to comply with any order of any agency of the U.S. Federal  government, any state, authority or other regulatory body or any applicable Requirement of Law;  





 






  -160-       #95384462v18   #95384462v18   (y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to  reincorporate or reorganize any Domestic Subsidiary in another jurisdiction in the U.S.;  (z) the transfer or Disposition of property pursuant to sale and leaseback transactions;  provided that (A) at the time thereof and immediately after giving effect thereto no Event of Default or Default shall  have occurred and be continuing or would result therefrom, (B) the aggregate fair market value of all property  disposed of in reliance on this clause shall not exceed the greater of $100,000,000 and 16% of Consolidated  Adjusted EBITDA as of the last day of the most recently ended Test Period and (C) such transaction is for fair  market value and for consideration at least 75% of which is Cash or Cash Equivalents;  (aa) any sale of motor vehicles and information technology equipment purchased at the end of  an operating lease and resold thereafter;  (bb) other Dispositions involving assets having a fair market value (as reasonably determined  by the Lead Borrower at the time of the relevant Disposition) in the aggregate since the Closing Date of not more  than the greater of $50,000,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently  ended Test Period; and  (cc) Dispositions contemplated on the Closing Date and described on Schedule 6.07.  To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than  a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens  shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the  Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect  the foregoing in accordance with Article 8.  In no event shall (a) the Borrowers or any Restricted Subsidiary be permitted to transfer or dispose of  material intellectual property to its equityholders if such material intellectual property is, following such  distribution, licensed by the Lead Borrower and/or any Restricted Subsidiary from the recipient of such material  intellectual property for use by the Lead Borrower or such Restricted Subsidiary in the ordinary course of business  (other than pursuant to a bona fide “transition service” or similar arrangement or in the same manner as other  customers, suppliers or commercial partners of the relevant transferee generally), and (b) any Loan Party transfer,  assign or exclusively license (i) any material intellectual property to any Unrestricted Subsidiary or (ii) any  Trademarks to any Restricted Subsidiary that is not a Loan Party; provided that, the restriction in this clause (b)(ii)  shall not prohibit the transfer of Trademarks in an aggregate principal amount, together with all investments  pursuant to clause (b)(ii) of the last paragraph of Section 6.06 and releases pursuant to clause (b)(3) of the nineteenth  paragraph of Article 8, not to exceed $250,000,000.  Section 6.08 [Reserved].    Section 6.09 Transactions with Affiliates.  The Borrowers shall not, nor shall they permit any of their  Restricted Subsidiaries to, enter into any transaction (including the purchase, sale, lease or exchange of any property  or the rendering of any service) involving payment in excess of $5,000,000 with any of their respective Affiliates on  terms that are less favorable to the applicable Borrower or such Restricted Subsidiary, as the case may be (as  reasonably determined by the applicable Borrower), than those that might be obtained at the time in a comparable  arm’s-length transaction from a Person who is not an Affiliate; provided that the foregoing restriction shall not apply  to:  (a) any transaction between or among the Borrowers and/or one or more Restricted  Subsidiaries (or any entity that becomes a Restricted Subsidiary as a result of such transaction) to the extent  permitted or not restricted by this Agreement;  (b) any issuance, sale or grant of securities or other payments, awards or grants in Cash,  securities or otherwise pursuant to, or the funding of employment arrangements, stock options and stock ownership  





 






  -161-       #95384462v18   #95384462v18   plans approved by the board of directors (or equivalent governing body) of any Parent Company or of the Borrowers  or any Restricted Subsidiary;  (c) (i) any collective bargaining, employment or severance agreement or compensatory  (including profit sharing) arrangement entered into by the Borrowers or any of their Restricted Subsidiaries with  their respective current or former officers, directors, members of management, managers, employees, consultants or  independent contractors or those of any Parent Company, (ii) any subscription agreement or similar agreement  pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with current or former  officers, directors, members of management, managers, employees, consultants or independent contractors and  (iii) transactions pursuant to any employee compensation, benefit plan, stock option plan or arrangement, any health,  disability or similar insurance plan which covers current or former officers, directors, members of management,  managers, employees, consultants or independent contractors or any employment contract or arrangement;  (d) (i) transactions permitted by Sections 6.01(d), (o), (bb) and (ee), 6.04 and 6.06(h), (m),  (o), (q), (t), (v), (x), (y), (z), (aa) and (cc) and (ii) issuances of Capital Stock and Indebtedness not restricted by this  Agreement;  (e) (i) transactions in existence on the Closing Date and/or the transactions contemplated by  this Agreement, and any amendment, modification or extension thereof to the extent such amendment, modification  or extension, taken as a whole, is not (x) materially adverse to the Lenders or (y) more disadvantageous to the  Lenders than the relevant transaction in existence on the Closing Date and/or (ii) the transactions set forth on  Schedule 6.09;  (f) [reserved];  (g) the Transactions, including the payment of Transaction Costs;  (h) customary compensation to Affiliates in connection with financial advisory, financing,  underwriting or placement services or in respect of other investment banking activities and other transaction fees,  which payments are approved by the majority of the members of the board of directors (or similar governing body)  or a majority of the disinterested members of the board of directors (or similar governing body) of the applicable  Borrower in good faith;  (i) Guarantees permitted by Section 6.01 or Section 6.06;  (j) loans and other transactions among the Loan Parties to the extent permitted under this  Article 6;  (k) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities  provided on behalf of, members of the board of directors (or similar governing body), officers, employees, members  of management, managers, consultants and independent contractors of the Borrowers and/or any of their Restricted  Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity on  behalf of any Parent Company, to the extent attributable to the operations of the Borrowers or their Restricted  Subsidiaries;  (l) transactions with customers, clients, suppliers, joint ventures, purchasers or sellers of  goods or services or providers of employees or other labor entered into in the ordinary course of business, which are  (i) fair to the Borrowers and/or their applicable Restricted Subsidiary in the good faith determination of the board of  directors (or similar governing body) of the applicable Borrower or the senior management thereof or (ii) on terms at  least as favorable as might reasonably be obtained from a Person other than an Affiliate;  (m) the payment of reasonable out-of-pocket costs and expenses related to registration rights  and customary indemnities provided to shareholders under any shareholder agreement;  





 






  -162-       #95384462v18   #95384462v18   (n) (i) any purchase by Holdings of the Capital Stock of (or contribution to the equity capital  of) the Borrowers and (ii) any intercompany loans made by Holdings to the Borrowers or any Restricted Subsidiary;  and  (o) any transaction in respect of which a Borrower delivers to the Administrative Agent a  letter addressed to the board of directors (or equivalent governing body) of such Borrower from an accounting,  appraisal or investment banking firm of nationally recognized standing stating that such transaction is on terms that  are no less favorable to such Borrower or the applicable Restricted Subsidiary than might be obtained at the time in  a comparable arm’s length transaction from a Person who is not an Affiliate;  Section 6.10 Conduct of Business.  From and after the Closing Date, the Lead Borrower shall not, nor  shall it permit any of its Restricted Subsidiaries to, engage in any material line of business other than (a) the  businesses engaged or proposed to be engaged in by the Lead Borrower or any Restricted Subsidiary on the Closing  Date and similar, complementary, ancillary, incidental or reasonably related businesses or reasonable extensions  thereof and (b) such other lines of business to which the Administrative Agent may consent.  Section 6.11 Amendments or Waivers of Organizational Documents.  The Borrowers shall not, nor  shall they permit any Subsidiary Guarantor to, amend or modify their respective Organizational Documents, in each  case in a manner that is materially adverse to the Lenders (in their capacities as such), without obtaining the prior  written consent of the Administrative Agent; provided that, for purposes of clarity, it is understood and agreed that  the Borrowers and/or any Subsidiary Guarantor may effect a change to its organizational form and/or consummate  any other transaction that is permitted under Section 6.07.  Section 6.12 Amendments of or Waivers with Respect to Certain Agreements.  The Borrowers shall  not, nor shall they permit any of their Restricted Subsidiaries to, amend or otherwise modify the terms of any  Restricted Debt (or the documentation governing the foregoing) if the effect of such amendment or modification,  together with all other amendments or modifications made, is materially adverse to the interests of the Lenders (in  their capacities as such); provided that, for purposes of clarity, it is understood and agreed that the foregoing  limitation shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing,  amendment, supplement, modification, extension, renewal, restatement or refunding of any Junior Indebtedness, in  each case, that is permitted under this Agreement in respect thereof.  Section 6.13 Fiscal Year.  The Lead Borrower shall not change its Fiscal Year-end to a date other than  September 30; provided that the Lead Borrower may, upon written notice to the Administrative Agent, change the  Fiscal Year-end of the Lead Borrower to another date, in which case the Lead Borrower and the Administrative  Agent will, and are hereby authorized to, make any adjustments to this Agreement that are necessary to reflect such  change in Fiscal Year.  Section 6.14 Permitted Activities of Holdings.  Holdings shall not:  (a) incur any Indebtedness for borrowed money other than (i) Indebtedness under the Loan  Documents, or otherwise in connection with the Transactions, (ii) Indebtedness of the type permitted under  Section 6.01(o) and (iii) Guarantees of Indebtedness or other obligations of the Borrowers and/or any Restricted  Subsidiary that are otherwise permitted hereunder;  (b) create or suffer to exist any Lien on any property or asset now owned or hereafter  acquired by it other than (i) the Liens created or permitted under the Collateral Documents, in each case, to which it  is a party, (ii) any other Lien created in connection with the Transactions, (iii) Permitted Liens on the Collateral that  are secured on a pari passu or junior basis with the Secured Obligations, so long as such Permitted Liens secure  Guarantees permitted under clause (a)(ii) above and the underlying Indebtedness subject to such Guarantee is  permitted to be secured on the same basis pursuant to Section 6.02 and (iv) Liens of the type permitted under  Section 6.02 (other than in respect of debt for borrowed money);  (c) engage in any business activity or own any material assets other than (i) holding the  Capital Stock of the Lead Borrower, and, indirectly, any other subsidiary of the Lead Borrower, (ii) performing its  





 






  -163-       #95384462v18   #95384462v18   obligations under the Loan Documents and other Indebtedness, Liens (including the granting of Liens) and  Guarantees permitted hereunder; (iii) issuing its own Capital Stock (including, for the avoidance of doubt, the  making of any dividend or distribution on account of, or any redemption, retirement, sinking fund or similar  payment, purchase or other acquisition for value of, any shares of any class of Capital Stock); (iv) filing Tax reports  and paying Taxes and other customary obligations in the ordinary course (and contesting any Taxes); (v) preparing  reports to Governmental Authorities and to its shareholders; (vi) holding director and shareholder meetings,  preparing organizational records and other organizational activities required to maintain its separate organizational  structure or to comply with applicable Requirements of Law; ; (vii) [reserved]); (viii) holding (A) Cash, Cash  Equivalents and other assets received in connection with permitted distributions or dividends received from, or  permitted Investments or permitted Dispositions made by, any of its subsidiaries or permitted contributions to the  capital of, or proceeds from the issuance of Capital Stock of, Holdings pending the application thereof or payment of  dividends and (B) the proceeds of Indebtedness permitted by Section 6.01; (x) providing indemnification for its  officers, directors, members of management, employees and advisors or consultants; (xi) participating in tax,  accounting and other administrative matters as a member of a consolidated group in which both Holdings and the  Lead Borrower are members, including compliance with applicable laws and legal, tax and accounting matters  related thereto and activities relating to its employees; (xii) making payments of the type permitted under  Section 6.09(f) and the performance of its obligations under any document, agreement and/or Investment  contemplated by the Transactions, the transactions contemplated by this Agreement, or otherwise not prohibited  under this Agreement; (xiii) complying with applicable Requirements of Law (including with respect to the  maintenance of its existence); (xiv) making and holding intercompany loans to the Borrowers and/or the Restricted  Subsidiaries of the Borrowers, as applicable; (xv) making and holding Investments of the type permitted under  Section 6.06(h); and (xvi) activities incidental to any of the foregoing; or  (d) consolidate or amalgamate with, or merge with or into, or convey, sell or otherwise  transfer all or substantially all of its assets to, any Person; provided that, so long as no Default or Event of Default  exists or would result therefrom, (A) Holdings may consolidate or amalgamate with, or merge with or into, any other  Person (other than the Borrowers and any of their subsidiaries) so long as (i) Holdings is the continuing or surviving  Person or (ii) if the Person formed by or surviving any such consolidation, amalgamation or merger is not Holdings,  (x) the successor Person expressly assumes all obligations of Holdings under this Agreement and the other Loan  Documents to which Holdings is a party pursuant to a supplement hereto and/or thereto in a form reasonably  satisfactory to the Administrative Agent and (y) the Lead Borrower delivers a certificate of a Responsible Officer  with respect to the satisfaction of the conditions set forth in clause (x) of this clause (A) and (B) Holdings may  convey, sell or otherwise transfer all or substantially all of its assets to any other Person (other than the Borrowers  and any of their subsidiaries) so long as (x) no Change of Control results therefrom, (y) the Person acquiring such  assets expressly assumes all of the obligations of Holdings under this Agreement and the other Loan Documents to  which Holdings is a party pursuant to a supplement hereto and/or thereto in a form reasonably satisfactory to the  Administrative Agent and (z) the Lead Borrower delivers a certificate of a Responsible Officer with respect to the  satisfaction of the conditions under clause (x) set forth in this clause (B); provided, further, that if the conditions set  forth in the preceding proviso are satisfied, the successor to Holdings will succeed to, and be substituted for,  Holdings under this Agreement.  Section 6.15 Financial Covenant.  (a) Total Net Leverage Ratio.  With respect to the Revolving Facility only, on the last day of  any Test Period (it being understood and agreed that this Section 6.15 shall not apply until the last day of the first  Fiscal Quarter ending after the Closing Date), the Lead Borrower shall not permit the Total Net Leverage Ratio to be  greater than 6.00:1.00.   (b) Financial Cure.  Notwithstanding anything to the contrary in this Agreement (including  Article 7), upon the occurrence of an Event of Default as a result of the Lead Borrower’s failure to comply with  Section 6.15(a) above for any Fiscal Quarter, the Lead Borrower shall have the right (the “Cure Right”) (at any  time during such Fiscal Quarter or thereafter until the date that is 10 Business Days after the date on which financial  statements for such Fiscal Quarter are required to be delivered pursuant to Section 5.01(a) or (b), as applicable) to  issue Qualified Capital Stock or other equity (such other equity to be on terms reasonably acceptable to the  Administrative Agent) for Cash or otherwise receive Cash contributions in respect of Qualified Capital Stock (the  





 






  -164-       #95384462v18   #95384462v18   “Cure Amount”), and thereupon the Lead Borrower’s compliance with Section 6.15(a) shall be recalculated giving  effect to a pro forma increase in the amount of Consolidated Adjusted EBITDA by an amount equal to the Cure  Amount (notwithstanding the absence of a related addback in the definition of “Consolidated Adjusted EBITDA”)  solely for the purpose of determining compliance with Section 6.15(a) as of the end of such Fiscal Quarter and for  applicable subsequent periods that include such Fiscal Quarter.  If, after giving effect to the foregoing recalculation  (but not, for the avoidance of doubt, taking into account any immediate repayment of Indebtedness in connection  therewith), the requirements of Section 6.15(a) would be satisfied, then the requirements of Section 6.15(a) shall be  deemed satisfied as of the end of the relevant Fiscal Quarter with the same effect as though there had been no failure  to comply therewith at such date, and the applicable breach or default of Section 6.15(a) that had occurred (or would  have occurred) shall be deemed cured for the purposes of this Agreement.  Notwithstanding anything herein to the  contrary, (i) in each four consecutive Fiscal Quarter period there shall be at least two Fiscal Quarters (which may,  but are not required to be, consecutive) in which the Cure Right is not exercised, (ii) during the term of this  Agreement, the Cure Right shall not be exercised more than five times, (iii) the Cure Amount shall be no greater  than the amount required for the purpose of complying with Section 6.15(a), (iv) upon the Administrative Agent’s  receipt of a written notice from the Lead Borrower that the Lead Borrower intends to exercise the Cure Right (a  “Notice of Intent to Cure”), until the 10th Business Day following the date on which financial statements for the  Fiscal Quarter to which such Notice of Intent to Cure relates are required to be delivered pursuant to Section 5.01(a)  or (b), as applicable, neither the Administrative Agent (nor any sub-agent therefor) nor any Lender shall exercise  any right to accelerate the Loans or terminate the Revolving Credit Commitments or any Additional Commitments,  and none of the Administrative Agent (nor any sub-agent therefor) nor any Lender or Secured Party shall exercise  any right to foreclose on or take possession of the Collateral or any other right or remedy under the Loan Documents  solely on the basis of the relevant Event of Default under Section 6.15(a), (v) during any Test Period in which any  Cure Amount is included in the calculation of Consolidated Adjusted EBITDA as a result of any exercise of the  Cure Right, such Cure Amount shall be (A) counted solely as an increase to Consolidated Adjusted EBITDA (and  not as a reduction of Indebtedness) for the purpose of determining compliance with Section 6.15(a) and  (B) disregarded for all other purposes, including the purpose of determining whether any financial ratio-based  condition has been satisfied, the Applicable Rate or the Commitment Fee Rate or the availability of any carve-out  set forth in Article 6 of this Agreement and (vi) no Revolving Lender or Issuing Bank shall be required to make any  Revolving Loan or issue any Letter of Credit from and after such time as the Administrative Agent has received the  Notice of Intent to Cure unless and until the Cure Amount is actually received.  Section 6.16 Center of Main Interests.  With respect to each Pre-Approved Borrower or Other  Non-U.S. Revolving Borrower that is subject to the European Insolvency Regulation, not, without the prior written  consent of the Administrative Agent, change its centre of main interest (as that term is used in Article 3(1) of the  European Insolvency Regulation) unless it is changing to a centre of main interest located in the same country as the  original centre of main interest.  ARTICLE 7    EVENTS OF DEFAULT  Section 7.01 Events of Default.  If any of the following events (each, an “Event of Default”) shall  occur:   (a) Failure To Make Payments When Due.  Failure by the Borrowers to pay (i) any  installment of principal of any Loan when due, whether at stated maturity, by acceleration, by notice of voluntary  prepayment, by mandatory prepayment or otherwise; or (ii) any interest on any Loan or any fee or any other amount  due hereunder within five Business Days after the date due; or  (b) Default in Other Agreements.  (i) Failure by any Loan Party or any of its Restricted  Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect of one or more  items of Indebtedness (other than Indebtedness referred to in clause (a) above) with an aggregate outstanding  principal amount exceeding the Threshold Amount, in each case beyond the grace period, if any, provided therefor;  or (ii) breach or default by any Loan Party or any of its Restricted Subsidiaries with respect to any other term of  (A) one or more items of Indebtedness with an aggregate outstanding principal amount exceeding the Threshold  





 






  -165-       #95384462v18   #95384462v18   Amount or (B) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness  (other than, for the avoidance of doubt, with respect to Indebtedness consisting of Hedging Obligations, termination  events or equivalent events pursuant to the terms of the relevant Hedge Agreement which are not the result of any  default thereunder by any Loan Party or any Restricted Subsidiary), in each case beyond the grace period, if any,  provided therefor, if the effect of such breach or default 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) to cause, such Indebtedness to become or be  declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any underlying  obligation, as the case may be; provided that clause (ii) of this paragraph (b) shall not apply to secured Indebtedness  that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale  or transfer is permitted hereunder; provided, further, that any failure described under clause (i) or (ii) above is  unremedied and is not waived by the holders of such Indebtedness prior to any termination of the Commitments or  acceleration of the Loans pursuant to Article 7; or  (c) Breach of Certain Covenants.  Failure of any Loan Party, as required by the relevant  provision, to perform or comply with any term or condition contained in Section 5.02 (as it applies to the  preservation of the existence of the Borrowers), or Article 6; provided that, notwithstanding this clause (c), no  breach or default by any Loan Party under Section 6.15(a) will constitute a Default or Event of Default with respect  to any Term Loans unless and until the Required Revolving Lenders have accelerated the Revolving Loans and any  Additional Revolving Loans, terminated the commitments under the Revolving Facility and demanded repayment  of, or otherwise accelerated, the Indebtedness or other obligations under the Revolving Facility; it being understood  and agreed that any breach of Section 6.15(a) is subject to cure as provided therein; or  (d) Breach of Representations, Etc.  Any representation, warranty or certification made or  deemed made by any Loan Party in any Loan Document or in any certificate required to be delivered in connection  herewith or therewith (including, for the avoidance of doubt, any Perfection Certificate and any Perfection  Certificate Supplement) being untrue in any material respect as of the date made or deemed made; or  (e) Other Defaults Under Loan Documents.  Default by any Loan Party in the performance  of or compliance with any term contained herein or any of the other Loan Documents, other than any such term  referred to in any other Section of this Article 7, which default has not been remedied or waived within 30 days after  receipt by the Borrower of written notice thereof from the Administrative Agent; or  (f) Involuntary Bankruptcy; Appointment of Receiver, Etc.  (i) The entry by a court of  competent jurisdiction of a decree or order for relief in respect of Holdings, the Borrowers or any of their Restricted  Subsidiaries (other than any Immaterial Subsidiary) in an involuntary case under any Debtor Relief Law now or  hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any  applicable federal, state or local law; or (ii) the commencement of an involuntary case against Holdings, the  Borrowers or any of their Restricted Subsidiaries (other than any Immaterial Subsidiary) under any Debtor Relief  Law; the entry by a court having jurisdiction in the premises of a decree or order for the appointment of a receiver,  receiver and manager, (preliminary) insolvency receiver, liquidator, sequestrator, trustee, custodian or other officer  having similar powers over Holdings, the Borrowers or any of their Restricted Subsidiaries (other than any  Immaterial Subsidiary), or over all or a substantial part of its property; or the involuntary appointment of an interim  receiver, trustee or other custodian of Holdings, the Borrowers or any of their Restricted Subsidiaries (other than any  Immaterial Subsidiary) for all or a substantial part of its property, which remains undismissed, unvacated,  unbounded or unstayed pending appeal for 60 consecutive days; or  (g) Voluntary Bankruptcy; Appointment of Receiver, Etc.  (i) The entry against Holdings,  the Borrowers or any of their Restricted Subsidiaries (other than any Immaterial Subsidiary) of an order for relief,  the commencement by Holdings, the Borrowers or any of their Restricted Subsidiaries (other than any Immaterial  Subsidiary) of a voluntary case under any Debtor Relief Law, or the consent by Holdings, the Borrowers or any of  their Restricted Subsidiaries (other than any Immaterial Subsidiary) to the entry of an order for relief in an  involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the  consent by the Borrowers or any of their Restricted Subsidiaries (other than any Immaterial Subsidiary) to the  appointment of or taking possession by a receiver, receiver and manager, trustee or other custodian for all or a  substantial part of its property; (ii) the making by Holdings, the Borrowers or any of their Restricted Subsidiaries  





 






  -166-       #95384462v18   #95384462v18   (other than any Immaterial Subsidiary) of a general assignment for the benefit of creditors; or (iii) the admission by  Holdings, the Borrowers or any of their Restricted Subsidiaries (other than any Immaterial Subsidiary) in writing of  their inability to pay their respective debts as such debts become due; or  (h) Judgments and Attachments.  The entry or filing of one or more final money judgments,  writs or warrants of attachment or similar process against Holdings, the Borrowers or any of their Restricted  Subsidiaries or any of their respective assets involving in the aggregate at any time an amount in excess of the  Threshold Amount (in either case to the extent not adequately covered by self-insurance (if applicable) or by  insurance as to which the relevant third party insurance company has been notified and not denied coverage), which  judgment, writ, warrant or similar process remains unpaid, undischarged, unvacated, unbonded or unstayed pending  appeal for a period of 60 days; or  (i) Employee Benefit Plans.  The occurrence of one or more ERISA Events, which  individually or in the aggregate result in liability of Holdings, the Borrowers or any of their Restricted Subsidiaries  in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect; or  (j) Change of Control.  The occurrence of a Change of Control; or  (k) Guaranties, Collateral Documents and Other Loan Documents.  At any time after the  execution and delivery thereof (i) any material Loan Guaranty for any reason ceasing to be in full force and effect  (other than in accordance with its terms or as a result of the occurrence of the Termination Date) or being declared to  be null and void or the repudiation in writing by any Loan Party of its obligations thereunder (other than as a result  of the discharge of such Loan Party in accordance with the terms thereof), (ii) this Agreement, any intercreditor  agreement or any material Collateral Document ceasing to be in full force and effect (other than by reason of a  release of Collateral in accordance with the terms hereof or thereof, the occurrence of the Termination Date or any  other termination of such Collateral Document in accordance with the terms thereof) or being declared null and void  or (iii) the contesting by any Loan Party of the validity or enforceability of any material provision of any Loan  Document (or any Lien purported to be created by the Collateral Documents or Loan Guaranty) in writing or denial  by any Loan Party in writing that it has any further liability (other than by reason of the occurrence of the  Termination Date), including with respect to future advances by the Lenders, under any Loan Document to which it  is a party; or  (l) Subordination.  The Obligations ceasing or the assertion in writing by any Loan Party  that the Obligations cease to constitute senior indebtedness under the subordination provisions of any document or  instrument evidencing any permitted Subordinated Indebtedness in excess of the Threshold Amount or any such  subordination provision being invalidated or otherwise ceasing, for any reason, to be valid, binding and enforceable  obligations of the parties thereto;  then, and in every such event (other than (x) an event with respect to the Borrowers described in clause (f) or (g) of  this Article or (y) any Event of Default arising under Section 6.15(a)) and at any time thereafter during the  continuance of such event, the Administrative Agent may with the consent of, and shall at the request of, the  Required Lenders (or, as applicable, the Required Revolving Lenders), by notice to the Borrowers, take any of the  following actions, at the same or different times:  (i) terminate the Revolving Credit Commitments, any Ancillary  Commitments or any Additional Commitments, and thereupon such Commitments, Ancillary Commitments and/or  Additional Commitments shall terminate immediately, (ii) declare the Loans and obligations under any Ancillary  Facility then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to  be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans and  obligations under any Ancillary Facility so declared to be due and payable, together with accrued interest thereon  and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately,  without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers  and (iii) require that the Borrowers deposit in the LC Collateral Account an additional amount in Cash as reasonably  requested by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC  Exposure (minus the amount then on deposit in the LC Collateral Account) and, if requested by the relevant  Ancillary Lender(s), any Ancillary Outstandings; provided that (A) upon the occurrence of an event with respect to  the Borrowers described in clause (f) or (g) of this Article under the Bankruptcy Code, any such Commitments,  





 






  -167-       #95384462v18   #95384462v18   Ancillary Commitments and/or Additional Commitments shall automatically terminate and the principal of the  Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers  accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other  notice of any kind, all of which are hereby waived by the Borrowers, and the obligation of the Borrowers to Cash  collateralize the outstanding Letters of Credit or Ancillary Outstandings as aforesaid shall automatically become  effective, in each case without further action of the Administrative Agent or any Lender and (B) during the  continuance of any Event of Default arising under Section 6.15(a), (X) upon the request of the Required Revolving  Lenders (but not the Required Lenders, any other Lender or group of Lenders), the Administrative Agent shall, by  notice to the Borrowers, (1) terminate the Revolving Credit Commitments, and thereupon such Revolving Credit  Commitments shall terminate immediately, (2) declare the Revolving Loans then outstanding to be due and payable  in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to  be due and payable), and thereupon the principal of the Revolving Loans so declared to be due and payable, together  with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become  due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are  hereby waived by the Borrowers and (3) require that any Borrower deposit in the LC Collateral Account an  additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 100% of the relevant face  amount) of the then outstanding LC Exposure (minus the amount then on deposit in the LC Collateral Account) and  (Y) on or after the date on which the rights under clause (X) above are exercised, the Administrative Agent may  with the consent of, and shall at the request of, the Required Lenders, by notice to the Borrowers, declare the Loans  then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due  and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared  to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers  accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice  of any kind, all of which are hereby waived by the Borrowers.  Upon the occurrence and during the continuance of  an Event of Default, the Administrative Agent may, with the consent of and shall, at the request of, the Required  Lenders, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at  law or equity, including all remedies provided under the UCC.  ARTICLE 8    THE ADMINISTRATIVE AGENT  Each of the Lenders and the Issuing Banks hereby irrevocably appoints RBC (or any successor  appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions on  its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the  Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably  incidental thereto.  Any Person serving as Administrative Agent hereunder shall have the same rights and powers in  its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative  Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise  requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent  hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as  the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any  Loan Party or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent  hereunder.  The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates  may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject  to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative  Agent shall not be under any obligation to provide such information to them.  The Administrative Agent shall not have any duties or obligations except those expressly set forth  in the Loan Documents.  Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be  subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the  use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not  intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any  





 






  -168-       #95384462v18   #95384462v18   applicable law; it being understood that such term is used merely as a matter of market custom, and is intended to  create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative  Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except  discretionary rights and powers that are expressly contemplated by the Loan Documents and which the  Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving  Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances  as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in  its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any  Loan Document or applicable laws, and (c) except as expressly set forth in the Loan Documents, the Administrative  Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating  to the Lead Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving  as Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall not be liable to the  Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the  Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be  necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant  circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as  determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set  forth herein.  The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default  unless and until written notice thereof is given to the Administrative Agent by the Borrowers or any Lender, and the  Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,  warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate,  report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or  observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence  of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan  Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the  Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in  Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be  delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate  thereof.  If any Lender acquires knowledge of a Default or Event of Default, it shall promptly notify the  Administrative Agent and the other Lenders thereof in writing.  Each Lender agrees that, except with the written  consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan  Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have  under applicable law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the  Bankruptcy Code or other similar Dispositions of Collateral.  Notwithstanding the foregoing, however, a Lender  may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is  applicable that would, absent such action, bar enforcement of the Obligations held by such Lender, including the  filing of a proof of claim in a case under the Bankruptcy Code.  Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents,  the Borrowers, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right  individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood and agreed  that all powers, rights and remedies hereunder may be exercised solely by, the Administrative Agent, on behalf of  the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Loan  Documents may be exercised solely by, the Administrative Agent, and (ii) in the event of a foreclosure by the  Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other  Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for  and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making settlement or  payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of  the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent  at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of any or all of  such Collateral at any such Disposition.  





 






  -169-       #95384462v18   #95384462v18   No holder of any Secured Hedging Obligation, Banking Services Obligation or Ancillary  Obligation in its respective capacity as such shall have any rights in connection with the management or release of  any Collateral or of the obligations of any Loan Party under this Agreement.  Each of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with  respect to any Secured Hedging Obligation, by entering into documentation in connection with any Banking  Services Obligation and/or by entering into any Ancillary Documents in connection with any Ancillary Obligation,  each of the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on  behalf of all Secured Parties to take any of the following actions upon the instruction of the Required Lenders:  (a) consent to the Disposition of all or any portion of the Collateral free and clear of the  Liens securing the Secured Obligations in connection with any Disposition pursuant to the applicable provisions of  the Bankruptcy Code, including Section 363 thereof;  (b) credit bid all or any portion of the Secured Obligations, or purchase all or any portion of  the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any  Disposition of all or any portion of the Collateral pursuant to the applicable provisions of the Bankruptcy Code,  including under Section 363 thereof;  (c) credit bid all or any portion of the Secured Obligations, or purchase all or any portion of  the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any  Disposition of all or any portion of the Collateral pursuant to the applicable provisions of the UCC, including  pursuant to Sections 9-610 or 9-620 of the UCC;  (d) credit bid all or any portion of the Secured Obligations, or purchase all or any portion of  the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any  foreclosure or other Disposition conducted in accordance with applicable law following the occurrence of an Event  of Default, including by power of sale, judicial action or otherwise; and/or  (e) estimate the amount of any contingent or unliquidated Secured Obligations of such  Lender or other Secured Party;  it being understood that no Lender shall be required to fund any amount in connection with any purchase of all or  any portion of the Collateral by the Administrative Agent pursuant to the foregoing clause (b), (c) or (d) without its  prior written consent.  Each Secured Party agrees that the Administrative Agent is under no obligation to credit bid any  part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral; provided that, in  connection with any credit bid or purchase described under clause (b), (c) or (d) of the preceding paragraph, the  Secured Obligations owed to all of the Secured Parties (other than with respect to contingent or unliquidated  liabilities as set forth in the next succeeding paragraph) may be, and shall be, credit bid by the Administrative Agent  on a ratable basis.  With respect to each contingent or unliquidated claim that is a Secured Obligation, the  Administrative Agent is hereby authorized, but is not required, to estimate the amount thereof for purposes of any  credit bid or purchase described in the second preceding paragraph so long as the estimation of the amount or  liquidation of such claim would not unduly delay the ability of the Administrative Agent to credit bid the Secured  Obligations or purchase the Collateral in the relevant Disposition.  In the event that the Administrative Agent, in its  sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim  cannot be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid  or purchase in accordance with the second preceding paragraph, then any contingent or unliquidated claims not so  estimated shall be disregarded, shall not be credit bid, and shall not be entitled to any interest in the portion or the  entirety of the Collateral purchased by means of such credit bid.  





 






  -170-       #95384462v18   #95384462v18   Each Secured Party whose Secured Obligations are credit bid under clause (b), (c) or (d) of the  third preceding paragraph shall be entitled to receive interests in the Collateral or any other asset acquired in  connection with such credit bid (or in the Capital Stock of the acquisition vehicle or vehicles that are used to  consummate such acquisition) on a ratable basis in accordance with the percentage obtained by dividing (x) the  amount of the Secured Obligations of such Secured Party that were credit bid in such credit bid or other Disposition,  by (y) the aggregate amount of all Secured Obligations that were credit bid in such credit bid or other Disposition.  In addition, in case of the pendency of any proceeding under any Debtor Relief Law or any other  judicial proceeding relative to any Loan Party, each Secured Party agrees that the Administrative Agent (irrespective  of whether the principal of any Loan or LC Exposure is then due and payable as herein expressed or by declaration  or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers)  shall 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 or LC Exposure and all other Obligations that are owing and  unpaid and to file such other documents as may be necessary or advisable in order to have the  claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for  the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing  Banks and the Administrative Agent and their respective agents and counsel and all other amounts  to the extent due to the Lenders and the Administrative Agent under Sections 2.12 and 9.03)  allowed in such judicial proceeding; and  (ii) to collect and receive any monies or other property payable or deliverable on any  such claims and to distribute the same.  Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any  such judicial proceeding is hereby authorized by each Lender and each Issuing Bank to make such payments to the  Administrative Agent and, in the event that the Administrative Agent consents to the making of such payments  directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable  compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and  any other amount due to the Administrative Agent under Sections 2.12 and 9.03.  Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or  consent to or accept or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement,  adjustment or composition affecting the Obligations or the rights of any Lender or any Issuing Bank or to authorize  the Administrative Agent to vote in respect of the claim of any Lender or any Issuing Bank in any such proceeding.  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for  relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including  any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to  have been signed, sent or otherwise authenticated by the proper Person.  The 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  shall 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 Letter of Credit, that by its terms must be fulfilled to the satisfaction of a  Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to  such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank  prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult  with legal counsel (who may be counsel for the Lead Borrower), independent accountants and other experts selected  by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such  counsel, accountants or experts.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers  by or through any one or more sub-agents appointed by it.  The Administrative Agent and any such sub-agent may  perform any and all of their respective duties and exercise their respective rights and powers through their respective  Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related  





 






  -171-       #95384462v18   #95384462v18   Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities in  connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative  Agent.  The Administrative Agent may resign at any time by giving ten days’ written notice to the  Lenders, the Issuing Banks and the Borrowers.  If the Administrative Agent becomes subject to an insolvency  proceeding, either the Required Lenders or the Lead Borrower may, upon ten days’ notice, remove the  Administrative Agent.  Upon receipt of any such notice of resignation or delivery of any such notice of removal, the  Required Lenders shall have the right, with the consent of the Lead Borrower (not to be unreasonably withheld or  delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with  offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the  existence and continuation of an Event of Default under Section 7.01(a) or, with respect to Holdings or the Lead  Borrower, Section 7.01(f) or (g), no consent of the Lead Borrower shall be required.  If no successor shall have been  appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent  gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a  retirement, the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and the  Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth above (including, for  the avoidance of doubt, consent of the Lead Borrower) or (b) in the case of a removal, the Lead Borrower may, after  consulting with the Required Lenders, appoint a successor Administrative Agent meeting the qualifications set forth  above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Lead Borrower, the  Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a  removal, the Lead Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment,  then, in each case, such resignation or removal shall nonetheless become effective in accordance with and on  the 30th day following delivery of such notice and (i) the retiring or removed Administrative Agent shall be  discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of  any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for  perfection purposes, the retiring Administrative Agent shall continue to hold such collateral security until such time  as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations  required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each  Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrowers to enable the  Borrowers to take such actions), until such time as the Required Lenders or the Lead Borrower, as applicable,  appoint a successor Administrative Agent, as provided for above in this Article 8.  Upon the acceptance of its  appointment as Administrative Agent hereunder as a successor Administrative Agent, such successor Administrative  Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or  removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative  Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations  hereunder (other than its obligations under Section 9.13).  The fees payable by the Borrowers to a successor  Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the  Borrowers and such successor Administrative Agent.  After the Administrative Agent’s resignation or removal  hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or  removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any action taken or  omitted to be taken by any of them while the relevant Person was acting as Administrative Agent (including for this  purpose holding any collateral security following the retirement or removal of the Administrative Agent).   Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be  appointed as a successor Administrative Agent.  Each of each Lender, each Ancillary Lender and each Issuing Bank acknowledges that it has,  independently and without reliance upon the Administrative Agent or any other Lender or any of their Related  Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and  decision to enter into this Agreement.  Each of each Lender, each Ancillary Lender and each Issuing Bank also  acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or  any of their respective Related Parties and based on such documents and information as it shall from time to time  deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this  Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.   Except for notices, reports and other documents expressly required to be furnished to the Lenders, the Ancillary  





 






  -172-       #95384462v18   #95384462v18   Lenders and the Issuing Banks by the Administrative Agent herein, the Administrative Agent shall not have any  duty or responsibility to provide any Lender, any Ancillary Lender or any Issuing Bank with any credit or other  information concerning the business, prospects, operations, property, financial and other condition or  creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession  of the Administrative Agent or any of its Related Parties.  Notwithstanding anything to the contrary herein, the Arrangers shall not have any right, power,  obligation, liability, responsibility or duty under this Agreement, except in their respective capacities as the  Administrative Agent, an Issuing Bank or a Lender hereunder, as applicable.  Each Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the  Administrative Agent shall,  (a) release any Lien on any property granted to or held by Administrative Agent  under any Loan Document (i) upon the occurrence of the Termination Date, (ii) that is sold or to  be sold or transferred as part of or in connection with any Disposition permitted under the Loan  Documents to a Person that is not a Loan Party, (iii) that does not constitute (or ceases to  constitute) Collateral, (iv) if the property subject to such Lien is owned by a Subsidiary Guarantor,  upon the release of such Subsidiary Guarantor from its Loan Guaranty otherwise in accordance  with the Loan Documents, (v) as required under clause (d) below or (vi) if approved, authorized or  ratified in writing by the Required Lenders in accordance with Section 9.02;  (b) subject to Section 9.22, release any Subsidiary Guarantor from its obligations  under the Loan Guaranty if such Person ceases to be a Restricted Subsidiary (or becomes an  Excluded Subsidiary as a result of a single transaction or series of related transactions permitted  hereunder; provided that the release of any Subsidiary Guarantor from its obligations under the  Loan Guaranty if such Subsidiary Guarantor becomes an Excluded Subsidiary of the type  described in clause (a) of the definition thereof shall only be permitted if at the time such  Guarantor becomes an Excluded Subsidiary of such type (1) no Event of Default exists, (2) after  giving pro forma effect to such release and the consummation of the transaction that causes such  Person to be an Excluded Subsidiary of such type, the Lead Borrower is deemed to have made a  new Investment in such Person for purposes of Section 6.06 (as if such Person were then newly  acquired) in an amount equal to the portion of the fair market value of the net assets of such  Person attributable to the Lead Borrower’s equity interest therein as reasonably estimated by the  Lead Borrower and such Investment is permitted pursuant to Section 6.06 (other than  Section 6.06(f)) at such time, (3) such Person does not own Trademarks in an aggregate principal  amount in excess of $250,000,000 minus the amount of any Trademarks Invested or Disposed in  reliance on clause (b)(ii) of the last paragraph of Section 6.06 or clause (b)(ii) of the last paragraph  of Section 6.07 and (4) a Responsible Officer of the Lead Borrower certifies to the Administrative  Agent compliance with preceding clauses (1), (2) and (3));  (c) subordinate any Lien on any property granted to or held by the Administrative  Agent under any Loan Document to the holder of any Lien on such property that is permitted by  Sections 6.02(d), 6.02(e), 6.02(g), 6.02(m), 6.02(n), 6.02(o) (other than any Lien on the Capital  Stock of any Subsidiary Guarantor), 6.02(q), 6.02(r), 6.02(x), 6.02(y), 6.02(z)(i), 6.02(bb),  6.02(cc), 6.02(ee), 6.02(ff) and 6.02(ll) (and any Refinancing Indebtedness in respect of any  thereof to the extent such Refinancing Indebtedness is permitted to be secured under  Section 6.02(k)); provided that the subordination of any Lien on any property granted to or held by  the Administrative Agent shall only be required to the extent that the Lien of the Administrative  Agent with respect to such property is required to be subordinated to the relevant Permitted Lien  in accordance with applicable law or the documentation governing the Indebtedness that is secured  by such Permitted Lien; and  (d) enter into subordination, intercreditor and/or similar agreements with respect to  Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by  





 






  -173-       #95384462v18   #95384462v18   Liens, and with respect to which Indebtedness, this Agreement contemplates an intercreditor,  subordination or collateral trust agreement.  Upon the request of the Administrative Agent at any time, the Required Lenders will confirm in  writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of  property, or to release any Loan Party from its obligations under the Guarantee or its Lien on any Collateral pursuant  to this Article 8.  In each case as specified in this Article 8, the Administrative Agent will (and each Lender, and  Issuing Bank hereby authorizes the Administrative Agent to), at the Lead Borrower’s expense, execute and deliver  to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of  such item of Collateral from the assignment and security interest granted under the Collateral Documents or to  subordinate its interest therein, or to release such Loan Party from its obligations under the Loan Guaranty, in each  case in accordance with the terms of the Loan Documents and this Article 8; provided that upon the request of the  Administrative Agent, the Lead Borrower shall deliver a certificate of a Responsible Officer certifying that the  relevant transaction has been consummated in compliance with the terms of this Agreement.  The Administrative Agent is authorized to enter any intercreditor agreement (including any  Permitted Pari Passu Intercreditor Agreement, any First Lien/Second Lien Intercreditor Agreement or any Permitted  Junior Intercreditor Agreement) contemplated hereby with respect to Indebtedness that is (i) required or permitted to  be subordinated hereunder and/or (ii) secured by Liens and which Indebtedness contemplates an intercreditor,  subordination or collateral trust agreement (any such other intercreditor agreement, an “Additional Agreement”),  and the parties hereto acknowledge that any such Additional Agreement is binding upon them.  Each Lender and  Issuing Bank (a) hereby consents to the subordination of the Liens on the Collateral securing the Obligations on the  terms set forth in the First Lien/Second Lien Intercreditor Agreement (b) hereby agrees that it will be bound by, and  will not take any action contrary to the First Lien/Second Lien Intercreditor Agreement or any Additional  Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into any Additional Agreement  and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof.  The foregoing  provisions are intended as an inducement to the Secured Parties to extend credit to the Borrowers, and the Secured  Parties are intended third-party beneficiaries of such provisions and the provisions of the First Lien/Second Lien  Intercreditor Agreement and any Additional Agreement.  To the extent that the Administrative Agent (or any Affiliate thereof) or any Issuing Bank is not  reimbursed and indemnified by the Lead Borrower, the Lenders will reimburse and indemnify the Administrative  Agent (and any Affiliate thereof) or such Issuing Bank in proportion to their respective Applicable Percentages (or,  as applicable, Dollar Revolving Applicable Percentages or Multicurrency Revolving Applicable Percentages)  (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses,  damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which  may be imposed on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) or such  Issuing Bank in performing its duties hereunder or under any other Loan Document or in any way relating to or  arising out of this Agreement or any other Loan Document; provided that no Lender shall be liable for any portion  of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or  disbursements resulting from the Administrative Agent’s (or such affiliate’s) or such Issuing Bank’s gross  negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable  decision).  ARTICLE 9    MISCELLANEOUS  Section 9.01 Notices.  (a) Except in the case of notices and other communications expressly permitted to be given  by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be  in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent  by facsimile or email, as follows:  





 






  -174-       #95384462v18   #95384462v18   (i) if to any Loan Party, to such Loan Party in the care of the Lead Borrower at:    Spectrum Brands, Inc.  3001 Deming Way  Middleton, WI 53562-1431  Telephone:  608-275 3340  Facsimile:  608-288-4485  Attention:  Jeremy Smeltser  Email:  Jeremy.smeltser@spectrumbrands.com  with copy to (which shall not constitute notice to any Loan Party):  Paul Weiss Rifkind Wharton & Garrison LLP  1285 Avenue of the Americas  New York, NY 10019  Telephone:  (212) 373-3309  Facsimile:  (212) 492-0309  Attention:  Raphael M. Russo  Email:  rrusso@paulweiss.com  (ii) if to the Administrative Agent, at:  Royal Bank of Canada  Agency Services Group  20 King155 Wellington Street West, 4th8th Floor  Toronto, Ontario   M5H 1C4M5V 3K7  Attention: Manager, Agency Services  Facsimile: (416) 842-4023  Email: rbcmagnt@rbccm.com   with a copy to (which shall not constitute notice to the Administrative Agent):  Davis Polk & Wardwell LLP  450 Lexington Avenue Fried, Frank, Harris, Shriver & Jacobson LLP  One New York Plaza  New York, New York 1001710004  Attention: Jeong LeeDaniel Bursky   Telephone: (212) 450-4954859 8428    Email: jeong.lee@davispolkDaniel.Bursky@friedfrank.com     (iii) if to any Lender, to it at its address or facsimile number set forth in its  Administrative Questionnaire.  All such notices and other communications (A) sent by hand or overnight courier service, or mailed by certified or  registered mail, shall be deemed to have been given when delivered in person or by courier service and signed for  against receipt thereof or three Business Days after dispatch if sent by certified or registered mail, in each case,  delivered, sent or mailed (properly addressed) to the relevant party as provided in this Section 9.01 or in accordance  with the latest unrevoked direction from such party given in accordance with this Section 9.01 or (B) sent by  facsimile shall be deemed to have been given when sent and when receipt has been confirmed by telephone;  provided that received notices and other communications sent by telecopier shall be deemed to have been given  when sent (except that, if not given during normal business hours for the recipient, such notices or other  communications shall be deemed to have been given at the opening of business on the next Business Day for the  recipient).  Notices and other communications delivered through electronic communications to the extent provided  in clause (b) below shall be effective as provided in such clause (b).  





 






  -175-       #95384462v18   #95384462v18   (b) Notices and other communications to the Lenders hereunder may be delivered or  furnished by electronic communications (including e-mail and Internet or Intranet websites) pursuant to procedures  set forth herein or otherwise approved by the Administrative Agent.  The Administrative Agent or the Lead  Borrower (on behalf of any Loan Party) may, in its discretion, agree to accept notices and other communications to  it hereunder by electronic communications pursuant to procedures set forth herein or otherwise approved by it;  provided that approval of such procedures may be limited to particular notices or communications.  All such notices  and other communications (i) sent to an e-mail address shall be deemed received upon the sender’s receipt of an  acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available,  return e-mail or other written acknowledgement); provided that if not given during the normal business hours of the  recipient, such notice or communication shall be deemed to have been given at the opening of business on the next  Business Day for the recipient, and (ii) posted to an Internet or Intranet website shall be deemed received upon the  deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (b)(i) of  notification that such notice or communication is available and identifying the website address therefor.  (c) Any party hereto may change its address or facsimile number or other notice information  hereunder by notice to the other parties hereto.  Section 9.02 Waivers; Amendments.  (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in  exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor  shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to  enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or  power.  The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and  under any other Loan Document are cumulative and are not exclusive of any rights or remedies that they would  otherwise have.  No waiver of any provision of any Loan Document or consent to any departure by any Loan Party  therefrom shall in any event be effective unless the same is permitted by paragraph (b) of this Section 9.02, and then  such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  Without  limiting the generality of the foregoing, to the extent permitted by law, the making of a Loan or the issuance of any  Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the  Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event  of Default at the time.  (b) Subject to clauses (A), (B), (C) and (D) of this Section 9.02(b) and Sections 9.02(c) and  (d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived,  amended or modified, except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing  entered into by the Lead Borrower and the Required Lenders (or the Administrative Agent with the consent of the  Required Lenders) or (ii) in the case of any other Loan Document (other than any waiver, amendment or  modification to effectuate any modification thereto expressly contemplated by the terms of such other Loan  Documents), pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each  Loan Party that is party thereto, with the consent of the Required Lenders; provided that, notwithstanding the  foregoing:  (A) except with the consent of each Lender directly and adversely affected thereby  (but without the consent of the Required Lenders other than with respect to (i) an increase in the  aggregate amount of Commitments or (ii) provision of additional Collateral to support any  increase in the aggregate amount of Commitments), no such waiver, amendment or modification  shall:  (1) increase the Commitment or Additional Commitment of such Lender  (other than with respect to any Incremental Revolving Facility pursuant to Section 2.22 in  respect of which such Lender has agreed to be an Additional Lender); it being understood  that no amendment, modification or waiver of, or consent to departure from, any  condition precedent, representation, warranty, covenant, Default, Event of Default,  mandatory prepayment or mandatory reduction of the Commitments or Additional  





 






  -176-       #95384462v18   #95384462v18   Commitments shall constitute an increase of any Commitment or Additional  Commitment of such Lender;  (2) reduce or forgive the principal amount of any Loan on any amount due  on any Loan Installment Date;  (3) (x) extend the scheduled final maturity of any Loan or (y) postpone any  Loan Installment Date, any Interest Payment Date or the date of any scheduled payment  of any fee payable hereunder (in each case, other than any extension for administrative  reasons agreed by the Administrative Agent);  (4) reduce the rate of interest (other than to waive any Default or Event of  Default or obligation of the Lead Borrower or Borrowers (if applicable) to pay interest at  the default rate of interest under Section 2.13(f), which shall only require the consent of  the Required Lenders) or the amount of any fee owed to such Lender; it being understood  that no change in the definition of “First Lien Net Leverage Ratio” or any other ratio used  in the calculation of the Applicable Rate or the Commitment Fee Rate, or in the  calculation of any other interest or fee due hereunder (including any component  definition thereof) shall constitute a reduction in any rate of interest or fee hereunder;  (5) extend the expiry date of such Lender’s Commitment or Additional  Commitment; it being understood that no amendment, modification or waiver of, or  consent to departure from, any condition precedent, representation, warranty, covenant,  Default, Event of Default, mandatory prepayment or mandatory reduction of the  Commitments or Additional Commitments shall constitute an extension of any  Commitment or Additional Commitment of any Lender; and  (6) waive, amend or modify the provisions of Section 2.18(b) or 2.18(c) of  this Agreement in a manner that would by its terms alter the pro rata sharing of payments  required thereby (except in connection with any transaction permitted under  Sections 2.22, 2.23, 9.02(c) and/or 9.05(g) or as otherwise provided in this Section 9.02);  and  (B) no such waiver, amendment or modification shall:  (1) change (x) any of the provisions of Section 9.02(a) or Section 9.02(b)  or the definition of “Required Lenders” to reduce any voting percentage required to  waive, amend or modify any right thereunder or make any determination or grant any  consent thereunder, without the prior written consent of each Lender or (y) the definition  of “Required Revolving Lenders” without the prior written consent of each Revolving  Lender (it being understood that the consent of the Required Lenders shall not be  required in connection with any change to the definition of “Required Revolving  Lenders”); provided that Section 9.02(a) and/or Section 9.02(b) may be amended to the  extent necessary to permit the introduction of structural and tax considerations and  collateral and guarantee arrangements (including collateral allocation mechanism  arrangements) in connection with the execution of a Borrower Joinder Agreement; or  (2) release all or substantially all of the Collateral from the Lien granted  pursuant to the Loan Documents (except as otherwise permitted herein or in the other  Loan Documents, including pursuant to Article 8 or Section 9.22), without the prior  written consent of each Lender; or  (3) release all or substantially all of the value of the Guarantees under the  Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents,  





 






  -177-       #95384462v18   #95384462v18   including pursuant to Section 9.22 hereof), without the prior written consent of each  Lender;  (4) change any provisions of any Loan Document (i) in a manner that by its  terms adversely affects the rights in respect of payments (including prepayments) due to  Lenders holding Loans of any Class differently than those holding Loans of any other  Class or (ii) in a manner that results in any adverse change to any payment waterfall  provisions set forth in any Loan Document or any adverse change to the Guarantees or  the Collateral, in each case without the written consent of (x) in the case of  paragraph (4)(i), Lenders holding a majority of the outstanding Loans and unused  Commitments in respect of the affected Class and (y) in the case of paragraph(4)(ii), the  Required Lenders;  (5) change the currency in which any Loan is denominated without the  written consent of each Lender holding such Loans; or  (6) amend the definition of “Agreed Currencies” with respect to a specific  Agreed Currency without the written consent of each Lender that is obligated to make  Credit Extensions to any Borrower in such Agreed Currency (it being agreed that only the  consent of the Lead Borrower, the Administrative Agent and each Lender obligated to  make such Agreed Currency will be required to effect any changes thereto and any  changes necessary for the implementation of an additional Agreed Currency);  (C) solely with the consent of the Required Revolving Lenders (but without the  consent of the Required Lenders or any other Lender), (1) any such agreement may (x) waive,  amend or modify Section 6.15 (or the definition of “Total Leverage Ratio” or any component  definition thereof, in each case, as any such definition is used solely for purposes of Section 6.15)  (other than, in the case of Section 6.15(a), for purposes of determining compliance with such  Section as a condition to taking any action under this Agreement) (other than as permitted under  clause (y)) and/or (y) waive, amend or modify any condition precedent set forth in Section 4.02 as  it pertains to any Revolving Loan and/or Additional Revolving Loan and/or (2) waive, amend or  modify any other provision of this Agreement that by its terms affects the rights and duties of the  Revolving Lenders (but not the Term Lenders) including the Ancillary Facilities and related  definitions; and  (D) solely with the consent of the relevant Issuing Bank, the Administrative Agent  and the Required Revolving Lenders (but without the consent of the Required Lenders or any  other Lender), any such agreement may waive, amend or modify the definition “Dollar Letter of  Credit Sublimit” or “Multicurrency Letter of Credit Sublimit”,;  provided, further, that no agreement shall amend, modify or otherwise affect the rights or duties of  the Administrative Agent or any Issuing Bank hereunder without the prior written consent of the  Administrative Agent or such Issuing Bank, as the case may be.  The Administrative Agent may  also amend the Commitment Schedule to reflect assignments entered into pursuant to  Section 9.05, Commitment reductions or terminations pursuant to Section 2.09, incurrences of  Additional Commitments or Additional Loans pursuant to Section 2.22, 2.23 or 9.02(c) and  reductions or terminations of any such Additional Commitments or Additional Loans.   Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to  approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment  and any Additional Commitment of any Defaulting Lender may not be increased without the  consent of such Defaulting Lender (it being understood that any Commitment, Additional  Commitment or Loan held or deemed held by any Defaulting Lender shall be excluded from any  vote hereunder that requires the consent of any Lender, except as expressly provided in  Section 2.21(b)).  Notwithstanding the foregoing, this Agreement may be amended (or amended  and restated) with the written consent of the Required Lenders, the Administrative Agent and the  





 






  -178-       #95384462v18   #95384462v18   Lead Borrower or the Borrowers (if applicable) (i) to add one or more additional credit facilities to  this Agreement and to permit any extension of credit from time to time outstanding thereunder and  the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this  Agreement and the other Loan Documents and (ii) to include appropriately the Lenders holding  such credit facilities in any determination of the Required Lenders on substantially the same basis  as the Lenders prior to such inclusion.  (c) Notwithstanding the foregoing, this Agreement may be amended:  (i) with the written consent of the Lead Borrower and the Lenders providing the  relevant Replacement Term Loans to permit the refinancing or replacement of all or any portion of  the outstanding Initial Term Loans or any then-existing Additional Term Loans under the  applicable Class (any such loans being refinanced or replaced, the “Replaced Term Loans”) with  one or more replacement term loans hereunder (“Replacement Term Loans”) pursuant to a  Refinancing Amendment; provided that:  (A) the aggregate principal amount of any Replacement Term Loans shall  not exceed the aggregate principal amount of the Replaced Term Loans (plus (1) any  additional amounts permitted to be incurred under Section 6.01(a), (q), (u), (w) and/or  (z) and, to the extent any such additional amounts are secured, the related Liens are  permitted under Section 6.02(k) (with respect to Liens securing Indebtedness permitted  by Section 6.01(a), (q), (u), (w) or (z)) and plus (2) the amount of accrued interest and  premium (including tender premium) thereon and underwriting discounts, fees (including  upfront fees and original issue discount), commissions and expenses associated  therewith),  (B) any Replacement Term Loans must have a final maturity date that is  equal to or later than the final maturity date of, and have a Weighted Average Life to  Maturity equal to or greater than the Weighted Average Life to Maturity of, the Replaced  Term Loans at the time of the relevant refinancing,  (C) any Replacement Term Loans may be pari passu or junior in right of  payment and pari passu or junior with respect to the Collateral with the remaining  portion, if any, of the Replaced Term Loans (provided that if pari passu or junior as to  payment or Collateral, such Replacement Term Loans shall be subject to a Permitted Pari  Passu Intercreditor Agreement or Permitted Junior Intercreditor Agreement, as  applicable, and may be, at the option of the Administrative Agent and the Lead Borrower,  documented in a separate agreement or agreements), or be unsecured; provided that such  Replacement Term Loans shall be incurred by the same Borrower that incurred the  Replaced Term Loans being refinanced or replaced and, solely to the extent that the  Replaced Term Loan being refinanced was incurred by a Non-U.S. Borrower, such  Replaced Term Loan may be incurred by any Borrower,  (D) if any Replacement Term Loans are secured, such Replacement Term  Loans may not be secured by any assets other than the Collateral,  (E) if any Replacement Term Loans are guaranteed, such Replacement  Term Loans may not be guaranteed by any Person other than one or more Loan Parties,  (F) any Replacement Term Loans that are pari passu in right of payment  and pari passu in right of security (I) may participate on a pro rata basis or a less than  pro rata basis (but not greater than a pro rata basis) (or, if junior in right of payment or  security, shall be on a junior basis with respect thereto) in any mandatory repayment or  prepayment in respect of the Initial Term Loans (and any Additional Term Loans then  subject to ratable repayment requirements) and (II) may participate on a pro rata basis,  





 






  -179-       #95384462v18   #95384462v18   less than pro rata basis or greater than a pro rata basis in any voluntary repayment or  prepayment in respect of any Term Loans, in each case as agreed by the Lead Borrower  and the Lenders providing the relevant Replacement Term Loans,  (G) any Replacement Term Loans shall have pricing (including interest,  fees and premiums, and as to which the proviso in Section 2.22(a)(v) shall not apply) and,  subject to preceding clause (F), optional prepayment and redemption terms as the Lead  Borrower and the lenders providing such Replacement Term Loans may agree,  (H) no Default under Section 7.01(a), 7.01(f) or 7.01(g) or Event of Default  shall exist immediately prior to or after giving effect to the effectiveness of the relevant  Replacement Term Loans, and  (I) either (i) the other terms and conditions of any Replacement Term  Loans (excluding pricing, interest, fees, rate floors, premiums, optional prepayment or  redemption terms, security and maturity, subject to preceding clauses (B) through  (G)) shall be substantially identical to, or (taken as a whole) no more favorable (as  reasonably determined by the Lead Borrower) to the lenders providing such Replacement  Term Loans than those applicable to the Replaced Term Loans (other than covenants or  other provisions applicable only to periods after the Latest Maturity Date (in each case, as  of the date of incurrence of such Replacement Term Loans)) or (ii) such Replacement  Term Loans shall be provided on then-current market terms for the applicable type of  Indebtedness, and  (ii) with the written consent of the Lead Borrower and the Lenders providing the  relevant Replacement Revolving Facility to permit the refinancing or replacement of all or any  portion of the Revolving Credit Commitment or any Additional Revolving Commitment under the  applicable Class (any such Revolving Credit Commitment or Additional Revolving Commitment  being refinanced or replaced, a “Replaced Revolving Facility”) with a replacement revolving  facility hereunder (a “Replacement Revolving Facility”) pursuant to a Refinancing Amendment;  provided that:  (A) the aggregate principal amount of any Replacement Revolving Facility  shall not exceed the aggregate principal amount of the Replaced Revolving Facility (plus  (x) any additional amounts permitted to be incurred under Section 6.01(a), (q), (u),  (w) and/or (z) and, to the extent any such additional amounts are secured, the related  Liens are permitted under Section 6.02(k) (with respect to Liens securing Indebtedness  permitted by Section 6.01(a), (q), (u), (w) or (z)) and/or (ii) and plus (y) the amount of  accrued interest and premium thereon, any committed but undrawn amounts and  underwriting discounts, fees (including upfront fees and original issue discount),  commissions and expenses associated therewith),  (B) no Replacement Revolving Facility may have a final maturity date (or  require commitment reductions) prior to the final maturity date of the relevant Replaced  Revolving Facility at the time of such refinancing,  (C) any Replacement Revolving Facility may be pari passu or junior in  right of payment and pari passu or junior with respect to the Collateral with the  remaining portion of the Revolving Credit Commitments or Additional Revolving  Commitments (shall be subject to a Permitted Pari Passu Intercreditor Agreement or  Permitted Junior Intercreditor Agreement, as applicable, and may be, at the option of the  Administrative Agent and the Lead Borrower, documented in a separate agreement or  agreements), or be unsecured,  





 






  -180-       #95384462v18   #95384462v18   (D) if any Replacement Revolving Facility is secured, it may not be secured  by any assets other than the Collateral,  (E) if any Replacement Revolving Facility is guaranteed, it may not be  guaranteed by any Person other than one or more Loan Parties,  (F) any Replacement Revolving Facility that is pari passu in right of  payment and pari passu in right of security may participate on a pro rata basis or a less  than pro rata basis (but not greater than a pro rata basis) (or, if junior in right of payment  or security, shall be on a junior basis with respect thereto) in any voluntary or mandatory  repayment or prepayment in respect of the Replaced Revolving Facility (and any  Additional Revolving Loans then subject to ratable repayment requirements), in each  case as agreed by the Lead Borrower and the Lenders providing the relevant Replacement  Revolving Facility,  (G) any Replacement Revolving Facility shall be subject to the “ratability”  provisions applicable to Extended Revolving Credit Commitments and Extended  Revolving Loans set forth in the proviso to clause (ii) of Section 2.23(a), mutatis  mutandis, to the same extent as if fully set forth in this Section 9.02(c)(ii),  (H) any Replacement Revolving Facility shall have pricing (including  interest, fees and premiums, and as to which the proviso in Section 2.22(a)(v)) shall not  apply) and, subject to preceding clause (F), optional prepayment and redemption terms as  the Lead Borrower and the lenders providing such Replacement Revolving Facility may  agree,  (I) no Default under Section 7.01(a), 7.01(f) or 7.01(g) or Event of Default  shall exist immediately prior to or after giving effect to the effectiveness of the relevant  Replacement Revolving Facility,  (J) either (i) the other terms and conditions of any Replacement Revolving  Facility (excluding pricing, interest, fees, rate floors, premiums, optional prepayment or  redemption terms, security and maturity, subject to preceding clauses (B) through  (G)) shall be substantially identical to, or (taken as a whole) no more favorable (as  reasonably determined by the Lead Borrower) to the lenders providing such Replacement  Revolving Facility than those applicable to the Replaced Revolving Facility (other than  covenants or other provisions applicable only to periods after the Latest Maturity Date (in  each case, as of the date of incurrence of the relevant Replacement Revolving Facility))  or (ii) such Replacement Revolving Facility shall be provided on then-current market  terms for the applicable type of Indebtedness, and  (K) the commitments in respect of the Replaced Revolving Facility shall be  terminated, and all loans outstanding thereunder and all fees in connection therewith shall  be paid in full, in each case on the date such Replacement Revolving Facility is  implemented.  Each party hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this  Agreement shall be amended by the Lead Borrower or the Borrowers (if applicable), the Administrative Agent and  the lenders providing the relevant Replacement Term Loans or the Replacement Revolving Facility, as applicable, to  the extent (but only to the extent) necessary to reflect the existence and terms of such Replacement Term Loans or  Replacement Revolving Facility, as applicable, incurred or implemented pursuant thereto (including any amendment  necessary to treat the loans and commitments subject thereto as a separate “tranche” and “Class” of Loans and/or  commitments hereunder).  It is understood that any Lender approached to provide all or a portion of any  Replacement Term Loans or any Replacement Revolving Facility may elect or decline, in its sole discretion, to  provide such Replacement Term Loans or Replacement Revolving Facility.  





 






  -181-       #95384462v18   #95384462v18   Any Refinancing Amendment may provide for the issuance of Ancillary Facilities for the account  of a Revolving Facility Borrower in respect of a tranche of Revolving Credit Commitments on terms substantially  equivalent to the terms of the applicable Ancillary Facilities under the Revolving Credit Commitments.  (d) Notwithstanding anything to the contrary contained in this Section 9.02 or any other  provision of this Agreement or any provision of any other Loan Document, (i) the Lead Borrower and the  Administrative Agent may, without the input or consent of any Lender, amend, supplement and/or waive any  guaranty, collateral security agreement, pledge agreement and/or related document (if any) executed in connection  with this Agreement to (w) to add Additional Borrowers as permitted hereunder, (x) comply with Requirements of  Law or the advice of counsel or (y) cause any such guaranty, collateral security agreement, pledge agreement or  other document to be consistent with this Agreement and/or the relevant other Loan Documents, (ii) the Lead  Borrower and the Administrative Agent may, without the input or consent of any other Lender (other than the  relevant Lenders (including Additional Lenders) providing Loans under such Sections), effect amendments to this  Agreement and the other Loan Documents as may be necessary in the reasonable opinion of the Lead Borrower and  the Administrative Agent to effect the provisions of Section 2.22, 2.23, 5.12, 6.13 or 9.02(c), or any other provision  specifying that any waiver, amendment or modification may be made with the consent or approval of the  Administrative Agent, (iii) if the Administrative Agent and the Lead Borrower have jointly identified any ambiguity,  mistake, defect, inconsistency, obvious error or any error or omission of a technical nature or any necessary or  desirable technical change, in each case, in any provision of any Loan Document, then the Administrative Agent and  the Lead Borrower shall be permitted to amend such provision solely to address such matter as reasonably  determined by them acting jointly if such amendment is not objected to in writing by the Required Lenders or the  Required Revolving Lenders (as applicable) to the Administrative Agent within five (5) Business Days following  receipt of notice thereof and (iv) the Lead Borrower and the Administrative Agent may, without the input or consent  of any Lender, supplement and/or waive any provision of Section 2.26 in a manner that is not adverse in any  material respect to any Revolving Lender or any Ancillary Lender.  Section 9.03 Expenses; Indemnity.  (a) The Lead Borrower shall pay (i) all reasonable and documented out-of-pocket expenses  incurred by each Arranger, each Issuing Bank, the Administrative Agent and their respective Affiliates (but limited,  in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements and other  charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in  each relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution  (including via the Internet or through a service such as Intralinks or SyndTrak) of the Credit Facilities, the  preparation, execution, delivery and administration of the Loan Documents and any related documentation,  including in connection with any amendment, modification or waiver of any provision of any Loan Document  (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of  any such amendment, modification or waiver was requested by the Lead Borrower and except as otherwise provided  in a separate writing between the Lead Borrower, the relevant Arranger, the relevant Issuing Bank and/or the  Administrative Agent) and (ii) all reasonable and documented out-of-pocket expenses incurred by the  Administrative Agent, the Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but  limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements  and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local  counsel in each relevant jurisdiction to all such Persons, taken as a whole and solely in the case of an actual or  perceived conflict of interest, (x) one additional counsel to all Persons, taken as a whole, and (y) one additional local  counsel in each appropriate jurisdiction to all Persons, taken as a whole) in connection with the enforcement,  collection or protection of their respective rights in connection with the Loan Documents, including their respective  rights under this Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder.  (b) The Lead Borrower shall indemnify each Arranger, the Administrative Agent, each  Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being  called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and  liabilities (but limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees,  disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if necessary, one local  counsel in each appropriate jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or  





 






  -182-       #95384462v18   #95384462v18   perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one  additional local counsel in each appropriate jurisdiction to all affected Indemnitees, taken as a whole), incurred by or  asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the Transactions or the  execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby and/or the  enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder  or the consummation of the Transactions or any other transactions contemplated hereby or thereby, (ii) the use of the  proceeds of the Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials  on, at, under or from any property currently or formerly owned or operated by the Lead Borrower, any of its  Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Lead Borrower, any of  its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation,  investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and  regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third  party or by the Lead Borrower, any other Loan Party or any of their respective Affiliates); provided that such  indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability  (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any  settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct  of such Indemnitee or, to the extent such judgment finds (or such settlement agreement acknowledges) that any such  loss, claim, damage, or liability has resulted from such Person’s (or such Person’s affiliates, successors, assigns or  Related Parties) material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or  proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or  proceeding that is brought by or against the Administrative Agent or any Arranger or Issuing Bank, acting in its  capacity as such) that does not involve any act or omission of the Holdings, the Borrowers or any of their  subsidiaries.  Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Lead Borrower  pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee  is not entitled to payment thereof in accordance with the terms hereof.  This Section 9.03(b) shall not apply to Taxes  other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim.   Notwithstanding anything to the contrary contained herein or in any other Loan Document, in no event shall any  Loan Party that is not Holdings, the Lead Borrower or any Domestic Subsidiary have any payment, reimbursement  or guarantee obligations for the Lead Borrower or any Domestic Subsidiary for the payment requirements under this  Section 9.03.  (c) The Lead Borrower shall not be liable for any settlement of any proceeding effected  without its consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if any  proceeding is settled with the Lead Borrower’s written consent, or if the Lead Borrower is offered the ability to  assume the defense of the action that was the subject matter of such settlement and elected not to assume such  defense, or if there is a final judgment against any Indemnitee in any such proceeding, the Lead Borrower agrees to  indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above.  The Lead Borrower  shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably  withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which  indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an  unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding  and (ii) such settlement does not include any statement as to any admission of fault or culpability.  Section 9.04 Waiver of Claim.  To the extent permitted by applicable law, no party to this Agreement  shall assert, and each hereby waives, any claim against any other party hereto or any Related Party thereof, 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 or any agreement or instrument contemplated  hereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof, except, in the case of  any claim by any Indemnitee against the Lead Borrower, to the extent such damages would otherwise be subject to  indemnification pursuant to the terms of Section 9.03.  Section 9.05 Successors and Assigns.  (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the  parties hereto and their respective successors and permitted assigns; provided that (i) except as provided under  





 






  -183-       #95384462v18   #95384462v18   Section 6.07, the Borrowers may not assign or otherwise transfer any of their rights or obligations hereunder without  the prior written consent of each Lender (and any attempted assignment or transfer by any Borrower without such  consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder  except in accordance with the terms of this Section 9.05 (any attempted assignment or transfer not complying with  the terms of this Section 9.05 shall be null and void).  Nothing in this Agreement, expressed or implied, shall be  construed to confer upon any Person (other than the parties hereto, their respective successors and permitted assigns,  Participants (to the extent provided in paragraph (c) of this Section 9.05) and, to the extent expressly contemplated  hereby, the Related Parties of each of the Arrangers, the Administrative Agent, the Issuing Banks and the Lenders)  any legal or equitable right, remedy or claim under or by reason of this Agreement.  (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign  to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or  a portion of any Loan or Additional Commitment added pursuant to Section 2.22, 2.23 or 9.02(c) at the time owing  to it) with the prior written consent (not to be unreasonably withheld or delayed) of:  (A) the Lead Borrower; provided that the Lead Borrower shall be deemed  to have consented to any such assignment unless it has objected thereto by written notice  to the Administrative Agent within 10 Business Days after receiving written notice  thereof (such notice to be provided irrespective of whether an Event of Default under  Section 7.01(a) or 7.01(f) or (g) has occurred and is continuing); provided, further, that  no consent of the Lead Borrower shall be required (x) for any assignment of  (1) Revolving Loans, Additional Revolving Loans, Revolving Credit Commitments or  Additional Revolving Commitments to another Revolving Lender, an Affiliate of any  Revolving Lender or an Approved Fund of any Revolving Lender or (2) Initial Term  Loans, Additional Term Loans, Initial Term Loan Commitments or Additional Term  Commitments to another Lender, an Affiliate of any Lender or an Approved Fund, or  (y) if an Event of Default under Section 7.01(a) or Section 7.01(f) or (g) (solely with  respect to the Lead Borrower) exists; provided, further, that no consent of the Lead  Borrower shall be required with respect to the assignments (but not other future  assignments) made by RBC in connection with the initial syndication of the Initial Term  Loans so long as such assignments are made within ninety (90) days of the First  Amendment Effective Date (or such later date as reasonably agreed by the Lead  Borrower) (1) to the Persons (or their respective Affiliates and Approved Funds) and  (2) in the amounts, in each case of clauses (1) and (2), identified in writing to the Lead  Borrower prior to the First Amendment Effective Date;  (B) the Administrative Agent; provided that no consent of the  Administrative Agent shall be required for any assignment to another Lender, any  Affiliate of a Lender or any Approved Fund; and  (C) in the case of the Initial Revolving Facility or any Additional  Revolving Facility (other than the 2022 Revolving Facility), each Issuing Bank.  (ii) Assignments shall be subject to the following additional conditions:  (A) except in the case of any assignment to another Lender, any Affiliate of  any Lender or any Approved Fund or any assignment of the entire remaining amount of  the relevant assigning Lender’s Loans or commitments of any Class, the principal amount  of Loans or commitments of the assigning Lender subject to the relevant assignment  (determined as of the date on which the Assignment and Assumption with respect to such  assignment is delivered to the Administrative Agent and determined on an aggregate  basis in the event of concurrent assignments to Related Funds or by Related Funds) shall  not be less than (x) $1,000,000, in the case of Initial Term Loans, Additional Term  Loans, Initial Term Loan Commitments and Additional Term Commitments and  (y) $5,000,000 in the case of Revolving Loans, Additional Revolving Loans, Revolving  





 






  -184-       #95384462v18   #95384462v18   Credit Commitments or Additional Revolving Commitments unless the Lead Borrower  and the Administrative Agent otherwise consent;  (B) any partial assignment shall be made as an assignment of a  proportionate part of all the relevant assigning Lender’s rights and obligations under this  Agreement;  (C) the parties to each assignment shall execute and deliver to the  Administrative Agent an Assignment and Assumption via an electronic settlement system  acceptable to the Administrative Agent (or, if previously agreed with the Administrative  Agent, manually), and shall pay to the Administrative Agent a processing and recordation  fee of $3,500 (which fee may be waived or reduced in the sole discretion of the  Administrative Agent); and  (D) the relevant Eligible Assignee, if it is not a Lender, shall deliver on or  prior to the effective date of such assignment, to the Administrative Agent (1) an  Administrative Questionnaire and (2) any IRS form required under Section 2.17.  (iii) Subject to the acceptance and recording thereof pursuant to paragraph (b)(iv) of  this Section 9.05, from and after the effective date specified in any Assignment and Assumption,  the Eligible Assignee thereunder shall be a party hereto and, to the extent of the interest assigned  pursuant to such Assignment and Assumption, have the rights and obligations of a Lender under  this Agreement (including with respect to any Ancillary Facility), and the assigning Lender  thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be  released from its obligations under this Agreement (and, in the case of an Assignment and  Assumption covering all of the assigning Lender’s rights and obligations under this Agreement,  such Lender shall cease to be a party hereto but shall continue to be (A) entitled to the benefits of  Sections 2.15, 2.16, 2.17 and 9.03 with respect to facts and circumstances occurring on or prior to  the effective date of such assignment and (B) subject to its obligations thereunder and under  Section 9.13).  If any assignment by any Lender holding any Promissory Note is made after the  issuance of such Promissory Note, the assigning Lender shall, upon the effectiveness of such  assignment or as promptly thereafter as practicable, surrender such Promissory Note to the  Administrative Agent for cancellation, and, following such cancellation, if requested by either the  assignee or the assigning Lender, the Lead Borrower shall issue and deliver a new Promissory  Note to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the  new commitments and/or outstanding Loans of the assignee and/or the assigning Lender.  (iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the  Lead Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption  delivered to it and a register for the recordation of the names and addresses of the Lenders and  their respective successors and assigns, and the commitment of, and principal amount of and  interest on the Loans and LC Disbursements owing to, each Lender or Issuing Bank pursuant to  the terms hereof from time to time (the “Register”).  Failure to make any such recordation, or any  error in such recordation, shall not affect the Lead Borrower’s obligations in respect of such Loans  and LC Disbursements.  The entries in the Register shall be conclusive, absent manifest error, and  the Lead Borrower, the Administrative Agent, the Issuing Banks and the Lenders may treat each  Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder  for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be  available for inspection by the Lead Borrower, each Issuing Bank and each Lender (but only as to  its own holdings), at any reasonable time and from time to time upon reasonable prior notice.  (v) Upon its receipt of a duly completed Assignment and Assumption executed by an  assigning Lender and an Eligible Assignee, the Eligible Assignee’s completed Administrative  Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the assignee  is already a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of  





 






  -185-       #95384462v18   #95384462v18   this Section 9.05, if applicable, and any written consent to the relevant assignment required by  paragraph (b) of this Section 9.05, the Administrative Agent shall promptly accept such  Assignment and Assumption and record the information contained therein in the Register.  No  assignment shall be effective for purposes of this Agreement unless it has been recorded in the  Register as provided in this paragraph.  (vi) By executing and delivering an Assignment and Assumption, the assigning  Lender and the Eligible Assignee thereunder shall be deemed to confirm and agree with each other  and the other parties hereto as follows:  (A) such assigning Lender warrants that it is the legal and  beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that  the amount of its commitments, and the outstanding balances of its Loans, in each case without  giving effect to any assignment thereof which has not become effective, are as set forth in such  Assignment and Assumption, (B) except as set forth in clause (A) above, such assigning Lender  makes no representation or warranty and assumes no responsibility with respect to any statement,  warranty or representation made in or in connection with this Agreement, or the execution,  legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other  Loan Document or any other instrument or document furnished pursuant hereto, or the financial  condition of the Lead Borrower or any Restricted Subsidiary or the performance or observance by  the Lead Borrower or any Restricted Subsidiary of any of its obligations under this Agreement,  any other Loan Document or any other instrument or document furnished pursuant hereto;  (C) such assignee represents and warrants that it is an Eligible Assignee, legally authorized to  enter into such Assignment and Assumption; (D) such assignee confirms that it has received a  copy of this Agreement together with copies of the most recent financial statements delivered  pursuant to Section 5.01 and such other documents and information as it has deemed appropriate  to make its own credit analysis and decision to enter into such Assignment and Assumption;  (E) such assignee will independently and without reliance upon the Administrative Agent, the  assigning Lender or any other Lender and based on such documents and information as it deems  appropriate at the time, continue to make its own credit decisions in taking or not taking action  under this Agreement; (F) such assignee appoints and authorizes the Administrative Agent to take  such action as agent on its behalf and to exercise such powers under this Agreement as are  delegated to the Administrative Agent, by the terms hereof, together with such powers as are  reasonably incidental thereto; and (G) such assignee agrees that it will perform in accordance with  their terms all the obligations which by the terms of this Agreement are required to be performed  by it as a Lender.  (c) (i) Any Lender may, without the consent of the Lead Borrower, the Administrative  Agent, any Issuing Bank or any other Lender, sell participations to any bank or other entity (other than to any  Disqualified Institution, any natural Person or, the Lead Borrower or any of its Affiliates) (a “Participant”) in all or  a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its  commitments and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall  remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of  such obligations and (C) the Lead Borrower, the Administrative Agent, the Issuing Banks and the other Lenders  shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations  under this Agreement.  Any agreement or instrument pursuant to which any Lender sells such a participation shall  provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,  modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide  that such Lender will not, without the consent of the relevant Participant, agree to any amendment, modification or  waiver described in (x) clause (A) of the first proviso to Section 9.02(b) that directly and adversely affects the Loans  or commitments in which such Participant has an interest and (y) clause (B)(1), (2) or (3) of the first proviso to  Section 9.02(b).  Subject to paragraph (c)(ii) of this Section 9.05, the Lead Borrower agrees that each Participant  shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had  acquired its interest by assignment pursuant to paragraph (b) of this Section 9.05 (it being understood that the  documentation required under Section 2.17(f) shall be delivered to the participating Lender, and if additional  amounts are required to be paid pursuant to Section 2.17(a) or Section 2.17(c), to the Lead Borrower upon  reasonable written request by the Lead Borrower).  To the extent permitted by law, each Participant also shall be  





 






  -186-       #95384462v18   #95384462v18   entitled to the benefits of Section 9.09 as though it were a Lender; provided that such Participant agrees to be subject  to Section 2.18(c) as though it were a Lender.  (ii) No Participant shall be entitled to receive any greater payment under Section 2.15,  2.16 or 2.17 than the participating Lender would have been entitled to receive with respect to the  participation sold to such Participant, unless the sale of the participation to such Participant is  made with the Lead Borrower’s prior written consent expressly acknowledging that such  Participant’s entitlement to benefits under Sections 2.15, 2.16 and 2.17 is not limited to what the  participating Lender would have been entitled to receive absent the participation.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent  of the Lead Borrower, maintain a register on which it enters the name and address of each Participant and their  respective successors and assigns, and the principal amounts and stated interest of each Participant’s interest in the  Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall  have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant  or any information relating to any Participant’s interest in any Commitment, Loan, Letter of Credit or any other  obligation 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 Treasury Regulations.  The entries in the Participant Register shall be conclusive absent  manifest error, and each Lender shall treat each Person whose name is recorded in the Participant Register as the  owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the  avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility  for maintaining a Participant Register.  (d) Any Lender may at any time pledge or assign a security interest in all or any portion of its  rights under this Agreement (other than to any Disqualified Institution or any natural person) to secure obligations of  such Lender, including without limitation any pledge or assignment to secure obligations to any Federal Reserve  Bank or other central bank having jurisdiction over such Lender, and this Section 9.05 shall not apply to any such  pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall  release any Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender  as a party hereto.  (e) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting  Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time  by the Granting Lender to the Administrative Agent and the Lead Borrower, the option to provide to the Lead  Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Lead  Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to  make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of  such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof.  The making of  any Loan by an SPC hereunder shall utilize the Commitment or Additional Commitment of the Granting Lender to  the same extent, and as if, such Loan were made by such Granting Lender.  Each party hereto hereby agrees that  (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or  otherwise increase or change the obligations of the Lead Borrower or the Borrowers (if applicable) under this  Agreement (including its obligations under Section 2.15, 2.16 or 2.17) and no SPC shall be entitled to any greater  amount under Section 2.13, 2.14 or 2.15 or any other provision of this Agreement or any other Loan Document that  the Granting Lender would have been entitled to receive, (ii) no SPC shall be liable for any indemnity or similar  payment obligation under this Agreement (all liability for which shall remain with the Granting Lender) and (iii) the  Granting Lender shall for all purposes including approval of any amendment, waiver or other modification of any  provision of the Loan Documents, remain the Lender of record hereunder.  In furtherance of the foregoing, each  party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date  that is one year and one day after the payment in full of all outstanding commercial paper or other senior  indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any  bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the U.S. or any  State thereof; provided that (i) such SPC’s Granting Lender is in compliance in all material respects with its  obligations to the Lead Borrower or the Borrowers (if applicable) hereunder and (ii) each Lender designating any  





 






  -187-       #95384462v18   #95384462v18   SPC hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or  expense arising out of its inability to institute such a proceeding against such SPC during such period of forbearance.   In addition, notwithstanding anything to the contrary contained in this Section 9.05, any SPC may (i) with notice to,  but without the prior written consent of, the Lead Borrower or the Administrative Agent and without paying any  processing fee therefor, assign all or a portion of its interests in any Loan to the Granting Lender and (ii) disclose on  a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer  or provider of any surety, guaranty or credit or liquidity enhancement to such SPC.  (f) (i) No assignment or participation shall be made to any Person that was a Disqualified  Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell  and assign all or a portion of its rights and obligations under this Agreement to such Person (unless the Lead  Borrower has consented to such assignment in writing in its sole and absolute discretion, in which case such Person  will not be considered a Disqualified Institution for the purpose of such assignment or participation).  For the  avoidance of doubt, with respect to any assignee 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”), (x) such assignee shall not retroactively be disqualified from  becoming a Lender and (y) the execution by the Borrower of an Assignment and Assumption with respect to such  assignee will not by itself result in such assignee no longer being considered a Disqualified Institution.  Any  assignment in violation of this clause (h)(i) shall not be void, but the other provisions of this clause (h) shall apply.  (ii) If any assignment or participation is made to any Disqualified Institution without  the Borrower’s prior written consent in violation of clause (i) above, or if any Person becomes a  Disqualified Institution after the applicable Trade Date, the Lead Borrower may, at its sole  expense and effort, upon notice to the applicable Disqualified Institution or and the Administrative  Agent, (A) terminate any Revolving Credit Commitment of such Disqualified Institution and  repay all obligations of the Borrower owing to such Disqualified Institution in connection with  such Revolving Credit Commitment, (B) in the case of outstanding Term Loans held by  Disqualified Institutions, purchase or prepay such Term Loan by paying the lowest of (x) the  principal amount thereof, (y) the amount that such Disqualified Institution paid to acquire such  Term Loans, and (z) the market price of such Term Loans, in each case plus accrued interest,  accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or  (C) require such Disqualified Institution to assign, without recourse (in accordance with and  subject to the restrictions contained in this Section 9.05), all of its interest, rights and obligations  under this Agreement to one or more Eligible Assignees at the lowest of (x) the principal amount  thereof, (y) the amount that such Disqualified Institution paid to acquire such interests, rights and  obligations and (z) the market price of such Term Loans, in each case plus accrued interest,  accrued fees and all other amounts (other than principal amounts) payable to it hereunder.  (iii) Notwithstanding anything to the contrary contained in this Agreement,  Disqualified Institutions (A) will not (x) have the right to receive information, reports or other  materials provided to Lenders by the Lead Borrower, the Administrative Agent or any other  Lender, (y) attend or participate in meetings attended by the Lenders and the Administrative  Agent, or (z) access any electronic site established for the Lenders or confidential communications  from counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for  purposes of any consent to any amendment, waiver or modification of, or any action under, and  for the purpose of any direction to the Administrative Agent or any Lender to undertake any action  (or refrain from taking any action) under this Agreement or any other Loan Document, each  Disqualified Institution will be deemed to have consented in the same proportion as the Lenders  that are not Disqualified Institutions consented to such matter, and (y) for purposes of voting on  any plan, each Disqualified Institution party hereto hereby agrees (1) not to vote on such plan,  (2) if such Disqualified Institution does vote on such 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 plan in accordance with Section 1126(c) of the Bankruptcy Code (or any  





 






  -188-       #95384462v18   #95384462v18   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).  (iv) The Administrative Agent shall have the right, and the Lead Borrower hereby  expressly authorizes the Administrative Agent, to (A) post the list of Disqualified Institutions  provided by the Lead Borrower and any updates thereto from time to time (collectively, the “DQ  List”) on Intralinks, SyndTrak or another relevant website, if any, including that portion of  Intralinks, SyndTrak or another relevant website, if any, that is designated for “public side”  Lenders and/or (B) provide the DQ List to each Lender requesting the same.  (v) The Administrative Agent shall not be responsible or have any liability for, or  have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof  relating to Disqualified Institutions.  Without limiting the generality of the foregoing, the  Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any  Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have  any liability with respect to or arising out of any assignment or participation of Loans, or  disclosure of confidential information, to any Disqualified Institution.  (g) Notwithstanding anything to the contrary contained herein, any Lender may, at any time,  assign all or a portion of its rights and obligations under this Agreement in respect of its Term Loans to an Affiliated  Lender on a non-pro rata basis (A) through Dutch Auctions open to all Lenders holding the relevant Initial Term  Loans or such Additional Term Loans, as applicable, on a pro rata basis or (B) through any purchase through an  assignment (including in the open market or on a privately negotiated basis), in each case with respect to clauses (A)  and (B), without the consent of the Administrative Agent; provided that:  (i) any Term Loans acquired by Super Holdco, Holdings, the Lead Borrower or any  of their respective subsidiaries shall be if applicable, contributed to the Lead Borrower or its  subsidiaries, and retired and cancelled immediately upon the acquisition thereof; provided that  upon any such retirement and cancellation, the aggregate outstanding principal amount of the  Term Loans, as applicable, shall be deemed reduced by the full par value of the aggregate  principal amount of the Term Loans so retired and cancelled, and each principal repayment  installment with respect to the Term Loans pursuant to Section 2.10(a) shall be reduced in direct  order of maturity by the full par value of the aggregate principal amount of Term Loans so  cancelled;  (ii) [reserved];  (iii) the relevant Affiliated Lender and assigning Lender shall have executed an  Affiliated Lender Assignment and Assumption;  (iv) [reserved];  (v) in connection with any assignment effected pursuant to a Dutch Auction and/or  purchase conducted by Holdings, the Lead Borrower or any of its Restricted Subsidiaries, (A) the  relevant Person may not use the proceeds of any Revolving Loans or Additional Revolving Loans  to fund such assignment and (B) no Event of Default exists at the time of acceptance of bids for  the Dutch Auction or the confirmation of such purchase, as applicable; and  (vi) by its acquisition of Term Loans, each relevant Affiliated Lender shall be deemed  to have acknowledged and agreed that such Affiliated Lender, solely in its capacity as an  Affiliated Lender, will not be entitled to (i) attend (including by telephone) or participate in any  meeting or discussion (or portion thereof) among the Administrative Agent or any Lender or  among Lenders to which the Loan Parties or their representatives are not invited or (ii) receive any  information or material prepared by the Administrative Agent or any Lender or any  





 






  -189-       #95384462v18   #95384462v18   communication by or among the Administrative Agent and one or more Lenders, except to the  extent such information or materials have been made available by the Administrative Agent or any  Lender to any Loan Party or its representatives; and  (vii) the Affiliated Lender shall either (i) make a customary representation to the seller  at the time of the assignment that it does not possess material non-public information (or, if  Holdings or the Lead Borrower is not at the time a public-reporting company, material information  of a type that would not be reasonably expected to be publicly available if the Lead Borrower were  a public reporting company) with respect to Holdings, the Lead Borrower and/or any subsidiary  thereof and/or their respective securities that has not been disclosed to the seller or the Lenders  generally (other than Lenders that have elected not to receive such information) in connection with  any assignment permitted by this Section 9.05(g) or (ii) the related assignment agreement shall  contain a customary “big boy” representation (but no requirement to make a representation as to  the absence of any material non-public information).  Section 9.06 Survival.  All covenants, agreements, representations and warranties made by the Loan  Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant  to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties  hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and  issuance of any Letter of Credit regardless of any investigation made by any such other party or on its behalf and  notwithstanding that the Administrative Agent may have had notice or knowledge of any Default or Event of  Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in  full force and effect until the Termination Date.  The provisions of Sections 2.15, 2.16, 2.17, 9.03 and 9.13 and  Article 8 shall survive and remain in full force and effect regardless of the consummation of the transactions  contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the  Revolving Credit Commitment or any Additional Commitment, the occurrence of the Termination Date or the  termination of this Agreement or any provision hereof but in each case, subject to the limitations set forth in this  Agreement.  Section 9.07 Counterparts; Integration; Effectiveness.  This Agreement may be executed in  counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but  all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and  any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire  agreement among the parties relating to the subject matter hereof and supersede any and all previous agreements and  understandings, oral or written, relating to the subject matter hereof.  This Agreement shall become effective when it  has been executed by Holdings, the Lead Borrower and the Administrative Agent and when the Administrative  Agent has received counterparts hereof which, when taken together, bear the signatures of each of the other parties  hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective  successors and permitted assigns.  Delivery by fax or other electronic transmission of an executed counterpart of a  signature page to this Agreement and each other Loan Document shall be effective as delivery of an original  executed counterpart of this Agreement and such other Loan Document and the words “execution,” “execute”,  “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this  Agreement or any other Loan Document shall be deemed to include electronic signatures, the electronic matching of  assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the  keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a  manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the extent and  as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce  Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the  Uniform Electronic Transactions Act.  The Administrative Agent may, in its discretion, require that any such  documents and signatures executed electronically or delivered by fax or other electronic transmission be confirmed  by a manually-signed original thereof; provided that the failure to request or deliver the same shall not limit the  effectiveness of any document or signature executed electronically or delivered by fax or other electronic  transmission.   





 






  -190-       #95384462v18   #95384462v18   Section 9.08 Severability.  To the extent permitted by law, any provision of any Loan Document held  to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of  such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the  remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not  invalidate such provision in any other jurisdiction.  Section 9.09 Right of Setoff.  At any time when an Event of Default exists, upon the written consent of  the Administrative Agent, the Administrative Agent, each Issuing Bank, each Lender and each of their respective  Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and  apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other  obligations (in any currency) at any time owing by the Administrative Agent, such Issuing Bank or such Lender or  Affiliate (including by branches and agencies of the Administrative Agent, such Issuing Bank or such Lender,  wherever located) to or for the credit or the account of the Lead Borrower or any Loan Party against any of and all  the Secured Obligations held by the Administrative Agent, such Issuing Bank or such Lender or Affiliate,  irrespective of whether or not the Administrative Agent, such Issuing Bank or such Lender or Affiliate shall have  made any demand under the Loan Documents and although such obligations may be contingent or unmatured or are  owed to a branch or office of such Lender or Issuing Bank different than the branch or office holding such deposit or  obligation on such Indebtedness.  Any applicable Lender, Issuing Bank or Affiliate shall promptly notify the Lead  Borrower and the Administrative Agent of such set-off or application; provided that any failure to give or any delay  in giving such notice shall not affect the validity of any such set-off or application under this Section 9.09.  The  rights of each Lender, each Issuing Bank, the Administrative Agent and each Affiliate under this Section 9.09 are in  addition to other rights and remedies (including other rights of setoff) which such Lender, such Issuing Bank, the  Administrative Agent or such Affiliate may have.  Section 9.10 Governing Law; Jurisdiction; Consent to Service of Process.  (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS  EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) AND ANY CLAIM, CONTROVERSY OR  DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS  (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS), WHETHER IN TORT,  CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED  AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.  (b) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY  SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY  U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE  CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT, ACTION OR  PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND AGREES THAT ALL  CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED  BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT  PERMITTED BY LAW, FEDERAL COURT.  EACH PARTY HERETO AGREES THAT SERVICE OF ANY  PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH  PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT,  ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT.  EACH PARTY HERETO AGREES THAT A  FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER  JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.   EACH PARTY HERETO AGREES THAT THE ADMINISTRATIVE AGENT RETAINS THE RIGHT TO  BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION  SOLELY IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL  DOCUMENT.  (c) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY  WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION  WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR  PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN  





 






  -191-       #95384462v18   #95384462v18   DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION 9.10.  EACH PARTY  HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY  CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION,  SUIT OR PROCEEDING IN ANY SUCH COURT.  (d) TO THE EXTENT PERMITTED BY LAW, EACH PARTY HERETO HEREBY  IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND AGREES  THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY  SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS  PROVIDED FOR IN SECTION 9.01.  EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO  SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD  OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY LOAN  DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE.  NOTHING IN THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS  AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.  Section 9.11 Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A  TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON  CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR  RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS  CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY HERETO (a) CERTIFIES THAT NO  REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED,  EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF  LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND  THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,  AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.  Section 9.12 Headings.  Article and Section headings and the Table of Contents used herein are for  convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken  into consideration in interpreting, this Agreement.  Section 9.13 Confidentiality.  Each of the Administrative Agent, each Lender, each Issuing Bank and  each Arranger agrees (and each Lender agrees to cause its SPC, if any) to maintain the confidentiality of the  Confidential Information (as defined below), except that Confidential Information may be disclosed (a) to its  Affiliates and its and its Affiliates’ respective directors, officers, managers, employees, independent auditors, or  other experts and advisors, including accountants, legal counsel and other advisors (collectively, the  “Representatives”) on a “need to know” basis solely in connection with the transactions contemplated hereby and  who are informed of the confidential nature of the Confidential Information and are or have been advised of their  obligation to keep the Confidential Information of this type confidential; provided that such Person shall be  responsible for its Affiliates’ and their Representatives’ compliance with this paragraph; provided, further, that  unless the Lead Borrower otherwise consents, no such disclosure shall be made by the Administrative Agent, any  Issuing Bank, any Arranger, any Lender, any Ancillary Lender or any Affiliate or Representative thereof to any  Affiliate or Representative of the Administrative Agent, any Issuing Bank, any Arranger, any Lender or any  Ancillary Lender that (i) is engaged as a principal primarily in private equity, mezzanine financing or venture capital  (other than, in each case, to a limited number of senior employees who are required, in accordance with industry  regulations or the Lender’s internal policies and procedures to act in a supervisory capacity and the Lender’s internal  legal, compliance, risk management, credit or investment committee members and who are informed of the  confidential nature of such information and are or have been advised of their obligation to keep information of this  type confidential) or (ii) is a Disqualified Institution, (b) upon the demand or request of any regulatory or  governmental authority (including any self-regulatory body) purporting to have jurisdiction over such Person or its  Affiliates (in which case such Person shall, except with respect to any audit or examination conducted by bank  accountants or any Governmental Authority or regulatory or self-regulatory authority exercising examination or  regulatory authority, to the extent practicable and permitted by law, (i) inform the Lead Borrower promptly in  advance thereof and (ii) use commercially reasonable efforts to ensure that any information so disclosed is accorded  





 






  -192-       #95384462v18   #95384462v18   confidential treatment), (c) to the extent compelled by legal process in, or reasonably necessary to, the defense of  such legal, judicial or administrative proceeding, in any legal, judicial or administrative proceeding or otherwise as  required by applicable Requirements of Law (in which case such Person shall (i) to the extent practicable and  permitted by law, inform the Lead Borrower promptly in advance thereof and (ii) use commercially reasonable  efforts to ensure that any such information so disclosed is accorded confidential treatment), (d) to any other party to  this Agreement, (e) subject to an acknowledgment and agreement by the relevant recipient that the Confidential  Information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as  otherwise reasonably acceptable to the Lead Borrower and the Administrative Agent) in accordance with the  standard syndication process of the Arrangers or market standards for dissemination of the relevant type of  information, which shall in any event require “click through” or other affirmative action on the part of the recipient  to access the Confidential Information and acknowledge its confidentiality obligations in respect thereof, to (i) any  Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or prospective Participant in, any of  its rights or obligations under this Agreement, including any SPC (in each case other than a Disqualified Institution),  (ii) any pledgee referred to in Section 9.05, (iii) any actual or prospective, direct or indirect contractual counterparty  (or its advisors) to any Derivative Transaction (including any credit default swap) or similar derivative product to  which any Loan Party is a party and (iv) subject to the Lead Borrower’s prior approval of the information to be  disclosed (not to be unreasonably withheld or delayed), to Moody’s or S&P on a confidential basis in connection  with obtaining or maintaining ratings as required under Section 5.13, (f) with the prior written consent of the Lead  Borrower and (g) to the extent (1) the Confidential Information becomes publicly available other than as a result of a  breach of this Section 9.13 by such Person, its Affiliates or their respective Representatives or (2) becomes available  to the Administrative Agent, any Lender, any Issuing Bank or any Arranger or any of their respective Affiliates from  a third-party source that is not known to be subject to a confidentiality obligation to the Lead Borrower and/or any  of its subsidiaries.  For purposes of this Section 9.13, “Confidential Information” means all information relating to  the Borrowers and/or any of their subsidiaries and their respective businesses or the Transactions (including any  information obtained by the Administrative Agent, any Issuing Bank, any Lender, any Ancillary Lender or any  Arranger, or any of their respective Affiliates or Representatives, based on a review of the books and records  relating to the Borrowers and/or any of their subsidiaries and their respective Affiliates from time to time, including  prior to the date hereof) other than any such information that is publicly available to the Administrative Agent or any  Arranger, Issuing Bank, or Lender on a non-confidential basis prior to disclosure by the Borrowers or any of their  subsidiaries.  For the avoidance of doubt, in no event shall any disclosure of any Confidential Information be made  to Person that is a Disqualified Institution at the time of disclosure.  Section 9.14 No Fiduciary Duty.  Each of the Administrative Agent, the Arrangers, each Lender, each  Ancillary Lender, each Issuing Bank and their respective Affiliates (collectively, solely for purposes of this  paragraph, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, their  stockholders and/or their respective affiliates.  Each Loan Party agrees that nothing in the Loan Documents or  otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty  between any Lender, on the one hand, and such Loan Party, its respective stockholders or its respective affiliates, on  the other.  Each Loan Party acknowledges and agrees that:  (i) the transactions contemplated by the Loan Documents  (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions  between the Lenders, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with  the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan  Party, its respective stockholders or its respective affiliates with respect to the transactions contemplated hereby (or  the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any  Lender has advised, is currently advising or will advise any Loan Party, its respective stockholders or its respective  Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the  Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of such Loan  Party, its respective management, stockholders, creditors or any other Person.  Each Loan Party acknowledges and  agrees that such Loan Party has consulted its own legal, tax and financial advisors to the extent it deemed  appropriate and that it is responsible for making its own independent judgment with respect to such transactions and  the process leading thereto.  Section 9.15 Several Obligations.  The respective obligations of the Lenders hereunder are several and  not joint and the failure of any Lender to make any Loan, issue any Letter of Credit or perform any of its obligations  hereunder shall not relieve any other Lender from any of its obligations hereunder.  





 






  -193-       #95384462v18   #95384462v18   Section 9.16 USA PATRIOT Act.  Each Lender that is subject to the requirements of the USA  PATRIOT Act hereby notifies the Loan Parties that pursuant to the requirements of the USA PATRIOT Act, it is  required to obtain, verify and record information that identifies each Loan Party, which information includes the  name and address of such Loan Party and other information that will allow such Lender to identify such Loan Party  in accordance with the USA PATRIOT Act and a certification regarding beneficial ownership required by 31 C.F.R.  § 1010.230.  Section 9.17 Disclosure.  Each Loan Party, each Issuing Bank and each Lender hereby acknowledges  and agrees that the Administrative Agent and/or its Affiliates from time to time may hold investments in, make other  loans to or have other relationships with any of the Loan Parties and their respective Affiliates.  Section 9.18 Appointment for Perfection.  Each Lender hereby appoints each other Lender and each  Issuing Bank as its agent for the purpose of perfecting Liens for the benefit of the Administrative Agent, the Issuing  Banks and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other applicable law can be  perfected only by possession.  If any Lender or Issuing Bank (other than the Administrative Agent) obtains  possession of any Collateral, such Lender, Issuing Bank shall notify the Administrative Agent thereof; and,  promptly upon the Administrative Agent’s request therefor shall deliver such Collateral to the Administrative Agent  or otherwise deal with such Collateral in accordance with the Administrative Agent’s instructions.  Section 9.19 Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any time  the interest rate applicable to any Loan or Letter of Credit, together with all fees, charges and other amounts which  are treated as interest on such Loan or Letter of Credit under applicable law (collectively the “Charged Amounts”),  shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken,  received or reserved by the Lender or Issuing Bank holding such Loan or Letter of Credit in accordance with  applicable law, the rate of interest payable in respect of such Loan or Letter of Credit hereunder, together with all  Charged Amounts payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the  interest and Charged Amounts that would have been payable in respect of such Loan or Letter of Credit but were not  payable as a result of the operation of this Section 9.19 shall be cumulated and the interest and Charged Amounts  payable to such Lender or Issuing Bank in respect of other Loans or Letters of Credit or periods shall be increased  (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the  Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender or Issuing Bank.  Section 9.20 Judgment Currency.  If, for the purposes of obtaining judgment in any court, it is  necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the  rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative  Agent could purchase the first currency with such other currency on the Business Day preceding that on which final  judgment is given.  The obligation of each Borrower in respect of any such sum due from it to the Administrative  Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a  currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the  applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the  Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment  Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement  Currency with the Judgment Currency.  If the amount of the Agreement Currency so purchased is less than the sum  originally due to the Administrative Agent from the Borrowers in the Agreement Currency, the Borrowers agree, as  a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person  to whom such obligation was owing against such loss.  If the amount of the Agreement Currency so purchased is  greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to  return the amount of any excess to the Borrowers (or to any other Person who may be entitled thereto under  applicable Requirements of Law)  Section 9.21 Conflicts.  Notwithstanding anything to the contrary contained herein or in any other  Loan Document, in the event of any conflict or inconsistency between this Agreement and any other Loan  Document, the terms of this Agreement shall govern and control.  





 






  -194-       #95384462v18   #95384462v18   Section 9.22 Release of Guarantors.  Notwithstanding anything in Section 9.02(b) to the contrary, any  Subsidiary Guarantor shall automatically be released from its obligations hereunder (and its Loan Guaranty shall be  automatically released) (a) upon the consummation of any permitted transaction or series of related transactions if as  a result thereof such Subsidiary Guarantor ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary  as a result of a single transaction or series of related transactions permitted hereunder; provided, that the release of  any Subsidiary Guarantor from its obligations under the Loan Guaranty if such Subsidiary Guarantor becomes an  Excluded Subsidiary of the type described in clause (a) of the definition thereof shall only be permitted if at the time  such Guarantor becomes an Excluded Subsidiary of such type (i) no Event of Default exists, (ii) after giving pro  forma effect to such release and the consummation of the transaction that causes such Person to be an Excluded  Subsidiary of such type, the Lead Borrower is deemed to have made a new Investment in such Person for purposes  of Section 6.06 (as if such Person were then newly acquired) in an amount equal to the portion of the fair market  value of the net assets of such Person attributable to the Lead Borrower’s equity interest therein as reasonably  estimated by the Lead Borrower and such Investment is permitted pursuant to Section 6.06 (other than  Section 6.06(f)) at such time and (iii) a Responsible Officer of the Lead Borrower certifies to the Administrative  Agent compliance with preceding clauses (i) and (ii)) and/or (b) upon the occurrence of the Termination Date.  In  connection with any such release, the Administrative Agent shall promptly execute and deliver to the relevant Loan  Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence  termination or release; provided that upon the request of the Administrative Agent, the Lead Borrower shall deliver  a certificate of a Responsible Officer certifying that the relevant transaction has been consummated in compliance  with the terms of this Agreement.  Any execution and delivery of documents pursuant to the preceding sentence of  this Section 9.22 shall be without recourse to or warranty by the Administrative Agent (other than as to the  Administrative Agent’s authority to execute and deliver such documents).  Section 9.23 Reaffirmation.  Except as specifically amended herein, all Loan Documents (including  the Loan Guaranty and each of  the Collateral Documents and all Liens granted thereunder in respect of the Secured  Obligations) shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. As of  the Closing Date, each Loan Party reaffirms its obligations under the Loan Documents to which it is party and its  prior grant and the validity of the Liens granted by it pursuant to the Collateral Documents, with all such Liens  continuing in full force and effect after giving effect to this Agreement and shall secure all Secured Obligations.   Section 9.24 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.   Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or  understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial  Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write- down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges  and agrees to be bound by:   (a) the application of any Write-Down and Conversion Powers by the applicable Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected  Financial Institution; and  (b) the effects of any Bail-in Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other instruments  of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution  that may be issued to it or otherwise conferred on it, and that such shares or other instruments of  ownership will be accepted by it in lieu of any rights with respect to any such liability under this  Agreement or any other Loan Document; or  (iii) the variation of the terms of such liability in connection with the exercise of the  write-down and conversion powers of the applicable Resolution Authority.  





 






  -195-       #95384462v18   #95384462v18   Section 9.25 Acknowledgement Regarding Any Supported QFCs.  To the extent that the Loan  Documents provide support, through a guarantee or otherwise, for any Hedge Agreement or any other agreement or  instrument that is a QFC (such support, “QFC Credit Support,” and each such QFC, a “Supported QFC”), the  parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance  Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and  Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution  Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable  notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws  of the State of New York and/or of the United States or any other state of the United States).  In the event a Covered  Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S.  Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and  any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in  property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to  the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC  and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of  the United States or a state of the United States.  In the event a Covered Party or a BHC Act Affiliate of a Covered  Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan  Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised  against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be  exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed  by the laws of the United States or a state of the United States.  Without limitation of the foregoing, it is understood  and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the  rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.  Section 9.26 ERISA Representation of the Lenders.    (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender  party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person  ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arrangers and their respective  Affiliates and not, for the avoidance of doubt, to or for the benefit of the Borrowers 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 Lender’s entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments, or this Agreement,  (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a  class exemption for certain transactions determined by independent qualified professional asset  managers), PTE 95-60 (a class exemption for certain transactions involving insurance company  general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance  company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions  involving bank collective investment funds) or PTE 96-23 (a class exemption for certain  transactions determined by in-house asset managers), is applicable with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the Letters of  Credit, the Commitments and this Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified Professional  Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional  Asset Manager made the investment decision on behalf of such Lender to enter into, participate in,  administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement,  (C) the entrance into, participation in, administration of and performance of the Loans, the Letters  of Credit, the Commitments and this Agreement satisfies the requirements of subsections (b)  through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements  of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into,  





 






  -196-       #95384462v18   #95384462v18   participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in writing  between the Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless either (1) subclause (i) in the immediately preceding clause (a) is true  with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance  with subclause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of  the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a  Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative  Agent, the Arrangers and their respective Affiliates and not, for the avoidance of doubt, to or for the benefit of the  Borrowers or any other Loan Party, that the 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 Loans,  the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise  of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related  hereto or thereto).  [Signature Pages Follow]  





 






  [Signature Page to Spectrum Credit Agreement (2020)]  #95384462v18   #95384462v18   IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly  executed by their respective authorized officers as of the day and year first above written.    SPECTRUM BRANDS, INC., as the Lead  Borrower     By:__________________________________  Name:  Title:    SB/RH HOLDINGS, LLC, as Holdings    By:__________________________________  Name:  Title:    ROV HOLDING, INC.   UNITED INDUSTRIES CORPORATION  SPECTRUM BRANDS PET GROUP INC.   SPECTRUM BRANDS PET LLC  GLOFISH LLC  SALIX ANIMAL HEALTH, LLC  ALASKA MERGER ACQUISITION CORP., as  Subsidiary Guarantors        By:__________________________________  Name:  Title:      





 






  [Signature Page to Spectrum Credit Agreement (2020)]  #95384462v18   #95384462v18   ROYAL BANK OF CANADA, as Administrative  Agent and Collateral Agent      By:__________________________________  Name:  Title:  By:__________________________________  Name:  Title:  





 






  [Signature Page to Spectrum Credit Agreement (2020)]  #95384462v18   #95384462v18   [___], as a Lender [and as an Issuing Bank]      By:__________________________________  Name:  Title:  By:__________________________________  Name:  Title: