lnth10q063019ex103






                                                           Exhibit 10.3                                                             Execution Version                                            Published CUSIP Number: 51654LAJ4                                    Revolving Loan CUSIP Number: 51654LAK1                                        Term Loan CUSIP Number: 51654LAL9                     CREDIT AGREEMENT                          among           LANTHEUS MEDICAL IMAGING, INC.,                       as Borrower,               LANTHEUS HOLDINGS, INC.,                     The several Lenders               from time to time parties hereto,                WELLS FARGO BANK, N.A.,         as Administrative Agent and Collateral Agent,             WELLS FARGO SECURITIES, LLC,                 CITIZENS BANK, N.A. and              JPMORGAN CHASE BANK, N.A.,        as Joint Lead Arrangers and Joint Bookrunners,                 CITIZENS BANK, N.A. and              JPMORGAN CHASE BANK, N.A.,                 as Co-Syndication Agents,                            and             BMO CAPITAL MARKETS CORP.,                  BANK OF THE WEST,            HSBC SECURITIES (USA) INC. and  MANUFACTURERS AND TRADERS TRUST COMPANY,                as Co-Documentation Agents                   Dated as of June 27, 2019  





 






                                     TABLE OF CONTENTS                                                                                                Page   SECTION 1.     DEFINITIONS .................................................................................................................................. 1        1.1     Defined Terms .................................................................................................................................. 1        1.2     Other Definitional Provisions ......................................................................................................... 33        1.3     Pro Forma Adjustments .................................................................................................................. 34        1.4     Cashless Rollovers .......................................................................................................................... 35        1.5     Divisions ......................................................................................................................................... 35        1.6     Limited Condition Acquisitions ...................................................................................................... 35  SECTION 2.     AMOUNT AND TERMS OF TERM COMMITMENTS .............................................................. 36        2.1     Term Commitments ........................................................................................................................ 36        2.2     Procedure for Term Loan Borrowing .............................................................................................. 36        2.3     Repayment of Term Loans .............................................................................................................. 36        2.4     Incremental Term Loans ................................................................................................................. 37        2.5     [Reserved]. ...................................................................................................................................... 38        2.6     Extension of Maturity Date in Respect of Term Facility ................................................................ 38  SECTION 3.     AMOUNT AND TERMS OF REVOLVING COMMITMENTS .................................................. 39        3.1     Revolving Commitments. ............................................................................................................... 39        3.2     Procedure for Revolving Loan Borrowing ...................................................................................... 40        3.3     Swingline Loans. ............................................................................................................................. 40        3.4     [Reserved]. ...................................................................................................................................... 42        3.5     Fees. ................................................................................................................................................ 42        3.6     Termination or Reduction of Revolving Commitments .................................................................. 42        3.7     L/C Commitment. ........................................................................................................................... 42        3.8     Procedure for Issuance, Amendment, Renewal, Extension of Letters of Credit; Certain                 Conditions. ...................................................................................................................................... 43        3.9     Fees and Other Charges. ................................................................................................................. 43        3.10    L/C Participations. .......................................................................................................................... 44        3.11    Reimbursement Obligation of the Borrower ................................................................................... 44        3.12    Obligations Absolute....................................................................................................................... 45        3.13    Letter of Credit Payments ............................................................................................................... 45        3.14    Applications .................................................................................................................................... 45        3.15    Defaulting Lenders. ......................................................................................................................... 45        3.16    Incremental Revolving Commitments ............................................................................................ 47        3.17    Extension of Maturity Date in Respect of Revolving Facility. ....................................................... 49  SECTION 4.     GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT ............... 50        4.1     Optional Prepayments ..................................................................................................................... 50        4.2     Mandatory Prepayments ................................................................................................................. 50        4.3     Conversion and Continuation Options ............................................................................................ 51        4.4     Limitations on Eurodollar Tranches ................................................................................................ 51        4.5     Interest Rates and Payment Dates ................................................................................................... 52        4.6     Computation of Interest and Fees ................................................................................................... 52        4.7     Inability to Determine Interest Rate ................................................................................................ 52        4.8     Pro Rata Treatment; Application of Payments; Payments .............................................................. 54        4.9     Requirements of Law ...................................................................................................................... 55        4.10    Taxes ............................................................................................................................................... 56        4.11    Indemnity ........................................................................................................................................ 59        4.12    Change of Lending Office ............................................................................................................... 59        4.13    Replacement of Lenders .................................................................................................................. 59                                                 -i-  





 






                                                                                             Page          4.14    Evidence of Debt ............................................................................................................................. 60        4.15    Illegality .......................................................................................................................................... 60  SECTION 5.     REPRESENTATIONS AND WARRANTIES ............................................................................... 60        5.1     Financial Condition ......................................................................................................................... 61        5.2     No Change ...................................................................................................................................... 61        5.3     Corporate Existence; Compliance with Law ................................................................................... 61        5.4     Power; Authorization; Enforceable Obligations ............................................................................. 61        5.5     No Legal Bar ................................................................................................................................... 61        5.6     Litigation and Adverse Proceedings ............................................................................................... 61        5.7     No Default ....................................................................................................................................... 62        5.8     Ownership of Property; Liens ......................................................................................................... 62        5.9     Intellectual Property ........................................................................................................................ 62        5.10    Taxes ............................................................................................................................................... 62        5.11    Federal Reserve Regulations ........................................................................................................... 62        5.12    Labor Matters .................................................................................................................................. 62        5.13    ERISA ............................................................................................................................................. 63        5.14    Investment Company Act; Other Regulations................................................................................. 63        5.15    Capital Stock and Ownership Interests of Subsidiaries ................................................................... 63        5.16    Use of Proceeds ............................................................................................................................... 63        5.17    Environmental Matters .................................................................................................................... 63        5.18    Accuracy of Information, etc .......................................................................................................... 64        5.19    Security Documents ........................................................................................................................ 64        5.20    Solvency .......................................................................................................................................... 65        5.21    Senior Indebtedness ........................................................................................................................ 65        5.22    Sanctions and Anti-Corruption Laws .............................................................................................. 65        5.23    [Reserved] ....................................................................................................................................... 65        5.24    Patriot Act ....................................................................................................................................... 65        5.25    EEA Financial Institutions.. ............................................................................................................ 65        5.26    Beneficial Ownership Certification.. ............................................................................................... 66  SECTION 6.     CONDITIONS PRECEDENT ........................................................................................................ 66        6.1     Conditions to Initial Extension of Credit ........................................................................................ 66        6.2     Conditions to Each Extension of Credit .......................................................................................... 67  SECTION 7.     AFFIRMATIVE COVENANTS ..................................................................................................... 68        7.1     Financial Statements ....................................................................................................................... 68        7.2     Certificates; Other Information ....................................................................................................... 69        7.3     Payment of Taxes ............................................................................................................................ 69        7.4     Maintenance of Existence; Compliance .......................................................................................... 70        7.5     Maintenance of Property; Insurance ............................................................................................... 70        7.6     Inspection of Property; Books and Records; Discussions ............................................................... 70        7.7     Notices ............................................................................................................................................ 70        7.8     Environmental Laws ....................................................................................................................... 71        7.9     OFAC; FCPA; Patriot Act .............................................................................................................. 71        7.10    Post-Closing; Additional Collateral, etc.......................................................................................... 71        7.11    Further Assurances .......................................................................................................................... 73        7.12    [Reserved]. ...................................................................................................................................... 73        7.13    Use of Proceeds ............................................................................................................................... 73        7.14    Designation of Subsidiaries............................................................................................................. 73  SECTION 8.     NEGATIVE COVENANTS ........................................................................................................... 74        8.1     Financial Covenants. ....................................................................................................................... 74        8.2     Indebtedness .................................................................................................................................... 75                                                 -ii-  





 






                                                                                             Page          8.3     Liens ................................................................................................................................................ 77        8.4     Fundamental Changes ..................................................................................................................... 79        8.5     Disposition of Property ................................................................................................................... 80        8.6     Restricted Payments ........................................................................................................................ 81        8.7     Investments ..................................................................................................................................... 83        8.8     Optional Payments and Modifications of Certain Debt Instruments ............................................... 85        8.9     Transactions with Affiliates ............................................................................................................ 85        8.10    Sales and Leasebacks ...................................................................................................................... 86        8.11    Hedge Agreements .......................................................................................................................... 86        8.12    Changes in Fiscal Periods ............................................................................................................... 86        8.13    Negative Pledge Clauses ................................................................................................................. 87        8.14    Clauses Restricting Subsidiary Distributions .................................................................................. 87        8.15    Lines of Business ............................................................................................................................ 88        8.16    Holding Company ........................................................................................................................... 88  SECTION 9.     EVENTS OF DEFAULT ................................................................................................................ 89        9.1     Events of Default ............................................................................................................................ 89  SECTION 10.    THE AGENTS ................................................................................................................................ 91        10.1    Appointment ................................................................................................................................... 91        10.2    Delegation of Duties ....................................................................................................................... 91        10.3    Exculpatory Provisions ................................................................................................................... 91        10.4    Reliance by Agents ......................................................................................................................... 92        10.5    Notice of Default ............................................................................................................................. 92        10.6    Non-Reliance on Agents and Other Lenders ................................................................................... 92        10.7    Indemnification ............................................................................................................................... 93        10.8    Agent in Its Individual Capacity ..................................................................................................... 93        10.9    Successor Administrative Agent ..................................................................................................... 93        10.10   Agents Generally............................................................................................................................. 93        10.11   Lender Action ................................................................................................................................. 93        10.12   Withholding Tax ............................................................................................................................. 94  SECTION 11.    MISCELLANEOUS ....................................................................................................................... 94        11.1    Amendments and Waivers .............................................................................................................. 94        11.2    Notices ............................................................................................................................................ 96        11.3    No Waiver; Cumulative Remedies .................................................................................................. 99        11.4    Survival of Representations and Warranties ................................................................................... 99        11.5    Payment of Expenses ...................................................................................................................... 99        11.6    Successors and Assigns; Participations and Assignments............................................................. 100        11.7    Sharing of Payments; Set-off ........................................................................................................ 104        11.8    Counterparts .................................................................................................................................. 104        11.9    Severability ................................................................................................................................... 104        11.10   Integration ..................................................................................................................................... 104        11.11   GOVERNING LAW ..................................................................................................................... 105        11.12   Submission To Jurisdiction; Waivers ............................................................................................ 105        11.13   Acknowledgments ......................................................................................................................... 105        11.14   Releases of Guarantees and Liens ................................................................................................. 106        11.15   Confidentiality .............................................................................................................................. 106        11.16   WAIVERS OF JURY TRIAL ....................................................................................................... 107        11.17   Patriot Act Notice.......................................................................................................................... 107        11.18   Conflicts ........................................................................................................................................ 107        11.19   Acknowledgement and Consent to Bail-In of EEA Financial Institutions. ................................... 107        11.20   Certain ERISA Matters. ................................................................................................................ 107        11.21   Acknowledgement Regarding Any Supported QFCs.................................................................... 108                                                 -iii-  





 






                                                                                      Page   11.22   No Advisory or Fiduciary Responsibility ..................................................................................... 109                                           -iv-  





 






SCHEDULES:   1.1        Commitments  5.4        Consents, Authorizations, Filings and Notices  5.15       Subsidiaries  5.19       UCC Filing Jurisdictions  8.2        Existing Indebtedness  8.3        Existing Liens  8.5        Dispositions  8.7        Existing Investments  8.9        Transactions with Affiliates  8.14       Clauses Restricting Subsidiary Distributions   EXHIBITS:   A          Form of Assignment and Assumption  B          Form of Compliance Certificate  B-1        Form of Borrowing Notice  C          Form of Guarantee and Collateral Agreement  D          [Reserved]  E-1        Form of Term Note  E-2        Form of Revolving Note  F          Form of Joint Closing Certificate  G          Form of Swingline Note  H          Form of Solvency Certificate  I          [Reserved]  J          [Reserved]  K          [Reserved]  L          [Reserved]  M          [Reserved]  N          [Reserved]  O          [Reserved]  P          [Reserved]  Q-1        Form of Tax Status Certificate  Q-2        Form of Tax Status Certificate  Q-3        Form of Tax Status Certificate  Q-4        Form of Tax Status Certificate                                                   -v-  





 






       CREDIT AGREEMENT, dated as of June 27, 2019, among LANTHEUS MEDICAL IMAGING, INC., a  Delaware corporation (the “Borrower”), LANTHEUS HOLDINGS, INC., a Delaware corporation (“Holdings”), the  several banks and other financial institutions or entities from time to time parties hereto, as Lenders, and WELLS  FARGO BANK, N.A. (“Wells Fargo”), as administrative agent and collateral agent (in such capacities, and together  with its successors and permitted assigns in such capacities, the “Administrative Agent” and the “Collateral Agent,”  respectively) and the Issuing Lender (as defined below).            WHEREAS, reference is made to the Amended and Restated Credit Agreement, dated as of March 30, 2017  (as amended, restated, amended and restated, supplemented or otherwise modified from time to time immediately  prior to the date hereof, the “Original Credit Agreement”), by and among the Borrower, Holdings, the several lenders  from time to time parties thereto and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent;           WHEREAS, the Borrower has requested that (a) the Initial Term Commitments (as defined below) and Initial  Term Loans (as defined below) be made available on the Closing Date (as defined below) to repay in full term loans  outstanding under the Original Credit Agreement and to finance a portion of the Transactions (as defined below) and  to pay related fees and expenses and (b) the Revolving Commitments (as defined below) be made available on and  following the Closing Date for the purposes set forth herein; and          WHEREAS, the Lenders are willing to make available the Initial Term Commitments and the Revolving  Commitments for such purposes on the terms and subject to the conditions set forth in this Agreement;          NOW  THEREFORE,  in  consideration  of  the  premises  and  the  agreements,  provisions  and  covenants  contained herein, the parties hereto agree as follows:          SECTION 1.     DEFINITIONS          1.1     Defined  Terms.   As  used  in  this  Agreement,  the  terms  listed  in  this  Section  1.1  shall  have  the  respective meanings set forth in this Section 1.1.          “Acquired Person”:  as defined in Section 8.2(i).          “Additional Revolving Commitment Lender”:  as defined in Section 3.17(d).          “Additional  Term  Commitment”:   any  Incremental  Term  Loan  Commitments  and/or  any  commitments  established  by  an  Additional  Term  Commitment  Lender  as  a  separate  series  or  tranche  from  the  Initial  Term  Commitment.          “Additional Term Commitment Lender”:  as defined in Section 2.6(d).          “Additional Term Facility”:  each term facility providing a separate series or tranche of Additional Term  Loans under this Agreement.          “Additional Term Loans”: any Incremental Term Loan, any Replacement Term Loans and/or any term loans  from  an  Extending  Term  Lender,  in  each  case,  provided  as  a  separate  series  or  tranche  from  the  Initial  Term  Commitments.          “Adjusted Covenant Period”:  as defined in Section 8.1(a).          “Adjustment Date”:  the date that is three (3) Business Days after the date on which the relevant financial  statements are delivered to the Lenders pursuant to Section 7.1(a) or (b).          “Administrative Agent”:  as defined in the preamble to this Agreement.          “Administrative Agent Parties”:  as defined in Section 11.2(c).                                                  -1-  





 






       “Affected Lender”:  as defined in Section 4.13.          “Affiliate”:  as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by,  or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the power,  directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether through  the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” shall have  meanings correlative thereto.          “Agent Related Parties”:  the Administrative Agent, the Collateral Agent, the Issuing Lender and each of  their respective Affiliates, officers, directors, employees, agents, advisors and representatives.          “Agents”:  the collective reference to the Administrative Agent, the Collateral Agent and the Joint Lead  Arrangers, which term shall include, for purposes of Sections 10 and 11.5 only, the Issuing Lender.          “Aggregate  Exposure”:   with  respect  to  any  Lender  at  any  time,  an  amount  equal  to  the  sum  of  (a)  the  aggregate then unpaid principal amount of such Lender’s Term Loans, (b) the amount of such Lender’s Initial Term  Commitment then in effect and (c) the amount of such  Lender’s Revolving Commitment then in effect or, if the  Revolving Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then  outstanding, giving effect to any assignments.          “Aggregate  Exposure  Percentage”:   with  respect  to  any  Lender  at  any  time,  the  ratio  (expressed  as  a  percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.          “Agreement”:  this Credit Agreement.          “Anti-Corruption Laws”:  as defined in Section 5.22(b).          “Applicable Margin”:  means a percentage per annum equal to:          (a)     until the first Adjustment Date occurring for the first full fiscal quarter ending after the Closing Date,  (i) with respect to the Initial Term Loans that are (A) Eurodollar Loans, 1.75% per annum and (B) Base Rate Loans,  0.75% per annum and (ii) with respect to the Initial Revolving Loans that are (A) Eurodollar Loans, 1.75% per annum  and (B) Base Rate Loans, 0.75% per annum; and          (b)     thereafter, the applicable rate per annum set forth below, based on the Total Net Leverage Ratio as  of the last Adjustment Date:                        Pricing Total Net Leverage   Applicable     Applicable                        level  Ratio                Margin –       Margin –                                                    Eurodollar     Base Rate                                                    Loans          Loans                       I        < 0.75 to 1.00       1.25%          0.25%                       II       ≥ 0.75 to 1.00 and   1.50%          0.50%                               < 1.50 to 1.00                       III      ≥ 1.50 to 1.00 and   1.75%          0.75%                               < 2.50 to 1.00                       IV       ≥ 2.50 to 1.00 and   2.00%          1.00%                               < 3.25 to 1.00                                                    2  





 






                    V        ≥ 3.25 to 1.00       2.25%          1.25%           The Applicable Margin shall be adjusted quarterly on a prospective basis on each Adjustment Date based  upon the Total Net Leverage Ratio in accordance with the table set forth above; provided, that if financial statements  are not delivered when required pursuant to Section 7.1, the Applicable Margin shall be the rate per annum set forth  above in Pricing Level V until such financial statements are delivered in compliance with Section 7.1.          “Application”:  an application, substantially in such form as the Issuing Lender may specify as the form for  use by its similarly situated customers from time to time, requesting the Issuing Lender to issue or amend a Letter of  Credit.          “Approved Fund”:  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, or similar extensions of credit in the ordinary  course and is administered or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an  Affiliate of an entity that administers or manages such Lender.          “Asset Sale”:  any Disposition of Property or series of related Dispositions of Property, including, without  limitation, any issuance of Capital Stock of any Subsidiary of the Borrower to a Person other than to the Borrower or  a Subsidiary of the Borrower (excluding in any case any such Disposition permitted by clauses (a), (b), (c), (d), (e),  (f), (g), (i), (j), (k), (l), (m), (n), (o), (p), (q), (s), (t) and (v) of Section 8.5) that yields gross proceeds to any Group  Member (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other  debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $3,000,000.          “Assignee”:  as defined in Section 11.6(b).          “Assignment and Assumption”:  an assignment and assumption entered into by a Lender and an Eligible  Assignee and accepted by the Administrative Agent, and, if applicable, consented to by the Borrower, substantially in  the form of Exhibit A.          “Assignment Effective Date”:  as defined in Section 11.6(d).          “Available Revolving Commitment”:  as to any Revolving Lender at any time, an amount equal to the excess,  if any, of (a) such Lender’s Revolving Commitment then in effect over (b) such Lender’s Revolving Extensions of  Credit then outstanding.          “Bail-In  Action”  means the exercise of any Write-Down and Conversion Powers by the applicable EEA  Resolution Authority in respect of any liability of an EEA Financial Institution.          “Bail-In Legislation” means, 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 for such  EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.           “Base Rate”:  for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day,  (ii) the Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1% and (iii) the sum of (a) the Eurodollar Rate  (after giving effect to any Eurodollar Rate “floor”) determined on such day for a Eurodollar Loan with a one-month  interest period plus (b) 1.00%.  Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds  Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective  Rate, respectively.          “Base Rate Loans”:  Loans the rate of interest applicable to which is based upon the Base Rate.                                                    3  





 






       “Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the  Beneficial  Ownership  Regulation  and,  in  any  event,  substantially  similar  in  form  and  substance  to  the  form  of  Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan  Syndications and Trading Association and Securities Industry and Financial Markets Association.          “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Benefited Lender”:  as defined in Section 11.7(a).          “Benefit Plan”:  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”:  the Board of Governors of the Federal Reserve System of the United States (or any successor).          “Borrower”:  as defined in the preamble to this Agreement.          “Borrower Materials”: as defined in the penultimate paragraph of Section 11.2.          “Borrowing Date”:  any Business Day specified by the Borrower as a date on which the Borrower requests  the relevant Lenders to make Loans hereunder.          “Business Day”:  a day other than a Saturday, Sunday or other day on which commercial banks in New York  City are authorized or required by law to close; provided, that with respect to notices and determinations in connection  with, and payments of principal and interest on, Eurodollar Loans, such day is also a day for trading by and between  banks in Dollar deposits in the interbank eurodollar market.          “Calculation Date”: as defined in Section 1.3.          “Capital Expenditures”:  for any period, with respect to any Person, the aggregate of all expenditures by such  Person and its Subsidiaries for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or  additions to equipment (including replacements, capitalized repairs and improvements during such period) that should  be capitalized under GAAP on a consolidated balance sheet of such Person and its Subsidiaries, but excluding (a)  expenditures financed with any Reinvestment Deferred Amount, (b) expenditures made in cash to fund the purchase  price for assets acquired in Permitted Acquisitions or incurred by the Person acquired in the Permitted Acquisition  prior to (but not in anticipation of) the closing of such Permitted Acquisition and (c) expenditures made with cash  proceeds from any issuances of Capital Stock of any Group Member or contributions of capital made to the Borrower.          “Capital Lease Obligations”:  as to any Person, the obligations of such Person to pay rent or other amounts  under any lease of (or other arrangement conveying the right  to use) real or personal property, or a combination  thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such  Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the  capitalized amount thereof at such time determined in accordance with GAAP.  Notwithstanding the foregoing, in no  event will any obligation in respect of a lease that would have been categorized as an operating lease in accordance  with GAAP as in effect prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No.  2018-11 “Leases (Topic 842) be considered a Capital Lease Obligation for any purpose under this Agreement (and no  agreement  relating  to  any  such  operating  lease  shall  be  considered  a  capital  lease  for  any  purpose  under  this  Agreement).                                                    4  





 






       “Capital Stock”:  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) and  any and all warrants, rights or options to purchase any of the foregoing; provided, that Capital Stock shall not include  any debt securities that are convertible into or exchangeable for any of the foregoing Capital Stock.          “Cash Collateral”: as defined in the definition of “Cash Collateralize”.           “Cash Collateralize”:  (a) in respect of an obligation, provide and pledge cash collateral in Dollars, pursuant  to documentation in form and substance reasonably satisfactory to the Administrative Agent, and (b) in respect of any  L/C Obligations under Letters of Credit, either the deposit of cash collateral (pursuant to documentation in form and  substance  reasonably  satisfactory  to  the  Issuing  Lender)  in  an  amount  equal  to  102%  of  such  outstanding  L/C  Obligations (the “Cash Collateral”) or the delivery of a “backstop” letter of credit in form and substance, and issued  by an issuing bank, reasonably satisfactory to the Issuing Lender (and “Cash Collateralization” has a corresponding  meaning).          “Cash Equivalents”:                         (i)    Dollars,                         (ii)   (a) euro, or any national currency of any participating member of the EMU, or (b)                 in the case of any Foreign Subsidiary, such local currencies held by them from time to time in the                 ordinary course of business,                         (iii)  securities issued or directly and fully and unconditionally guaranteed or insured                 by  the  U.S.  government  or  any  agency  or  instrumentality  thereof  the  securities  of  which  are                 unconditionally guaranteed as a full faith and credit obligation of such government with maturities                 of twelve (12) months or less from the date of acquisition,                         (iv)   marketable direct EEA Government Obligations with maturities of twelve (12)                 months or less from the date of acquisition,                         (v)    certificates of deposit, time deposits and eurodollar time deposits with maturities                 of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding                 one year and overnight bank deposits, in each case, with any commercial bank having capital and                 surplus of not less than $500,000,000,                         (vi)   repurchase obligations for underlying securities of the types described in clauses                 (iii), (iv) and (v) entered into with any financial institution meeting the qualifications specified in                 clause (v) above,                         (vii)  commercial paper rated at least P-1 by Moody’s or at least A-1 by S&P and, in                 each case, maturing within twenty-four (24) months after the date of creation thereof,                         (viii)  marketable short-term money market and similar securities having a rating of at                 least  P-2  or  A-2  from  either  Moody’s  or  S&P,  respectively,  and  in  each  case,  maturing  within                 twenty-four (24) months after the date of creation thereof,                         (ix)   readily  marketable  direct  obligations  issued  by  any  state,  commonwealth  or                 territory of the United States or any political subdivision or taxing authority thereof having one of                 the two highest ratings obtainable from either Moody’s or S&P (or reasonably equivalent ratings of                 another internationally recognized ratings agency) with maturities of twenty-four (24) months or                 less from the date of acquisition,                                                    5  





 






                      (x)    investment funds investing 90% of their assets in securities of the types described                 in clauses (i) through (ix) above, and                         (xi)   in the case of any Subsidiary organized or having its principal place of business                 outside of the United States, investments of comparable tenor and credit quality to those described                 in the foregoing clauses (iii) through (x) customarily utilized in countries in which such Subsidiary                 operates.          Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than  those set forth in clauses (i) and (ii) above; provided, that such amounts are converted into any currency listed in  clauses (i) and (ii) as promptly as practicable and in any event within ten (10) Business Days following the receipt of  such amounts.          “Cash Management Agreement”:  any agreement for the provision of Cash Management Services.          “Cash  Management  Services”:   (a)  cash  management  services,  including  treasury,  depository,  overdraft,  electronic funds transfer and other cash management arrangements and (b) commercial credit card and merchant card  services.          “Cash  Pool  Obligation”:  the  offshore  cash  management  programs  in  Australian  Dollars,  British  Pound  Sterling, Canadian Dollars, Dollars, Euros, Japanese Yen and Swiss Francs (and such other currencies as may from  time to time be approved by the Administrative Agent) established by the Cash Pool Participants in which cash funds  of the Cash Pool Participants will be concentrated with a Subsidiary of the Borrower that is not a Loan Party.          “Cash Pool Participants”: certain Subsidiaries of the Borrower that are not Loan Parties identified by the  Borrower to the Administrative Agent in writing from time to time.          “CFC”: a controlled foreign corporation within the meaning of Section 957 of the Code.           “Change of Control”:  an event or series of events by which:                  (a)    any  “person”  or  “group”  (as  such  terms  are  used  in  Sections  13(d)  and  14(d)  of  the         Exchange Act, but excluding any employee benefit plan of such Person or its Subsidiaries and any Person         acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the         “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of         Voting Stock of Holdings representing more than 35% or more of the outstanding Voting Stock of Holdings;                  (b)    Holdings shall cease to beneficially own and control 100% on a fully diluted basis of the         economic and voting interest in the Capital Stock of the Borrower; or                  (c)    a “change of control” or similar provision as set forth in any indenture or other instrument         evidencing  Material  Indebtedness  of  a  Group  Member  has  occurred,  obligating  any  Group  Member  to         repurchase,  redeem  or  repay  all  or  any  part  of  the  Indebtedness  provided  for  therein;  provided,  that,  for         purposes  of  this  clause  (c)  only,  the  definition  of  “Material  Indebtedness”  shall  be  Indebtedness,  the         outstanding principal amount of which exceeds in the aggregate $20,000,000.          “Closing Date”:  June 27, 2019.          “Code”:  the Internal Revenue Code of 1986, as amended.          “Collateral”:  all Property of the Loan Parties (other than Excluded Assets), now owned or hereafter acquired,  upon which a Lien is purported to be created by any Security Document.          “Collateral Agent”:  as defined in the preamble to this Agreement.                                                   6  





 






       “Commitment”:  with respect to any Lender, any Initial Term Commitment, Additional Term Commitment,  Initial Revolving Commitment and Incremental Revolving Commitment.          “Commitment Fee Rate”:  for each fiscal quarter or portion thereof, the applicable rate per annum set forth  below  based  upon  the  Total  Net  Leverage  Ratio  as  of  the  last  Adjustment  Date;  provided,  that,  until  the  first  Adjustment Date occurring for the first full fiscal quarter after the Closing Date, the Commitment Fee Rate shall be  the applicable rate per annum set forth below in Pricing Level III.                               Pricing Total Net Leverage   Commitment                               level  Ratio                Fee Rate                              I        < 0.75 to 1.00       0.15%                              II       ≥ 0.75 to 1.00 and   0.20%                                      < 1.50 to 1.00                              III      ≥ 1.50 to 1.00 and   0.25%                                      < 2.50 to 1.00                              IV       ≥ 2.50 to 1.00       0.30%          The Commitment Fee Rate shall be adjusted quarterly on a prospective basis on each Adjustment Date based  upon the Total Net Leverage Ratio in accordance with the table set forth above; provided, that if financial statements  are not delivered when required pursuant to Section 7.1, the Commitment Fee Rate shall be the rate per annum set  forth above in Pricing Level IV until such financial statements are delivered in compliance with Section 7.1.          “Commonly Controlled Entity”:  an entity, whether or not incorporated, that is under common control with  the Borrower within the meaning of Section 4001 of ERISA or is part of a group that includes the Borrower and that  is treated as a single employer under Section 414 of the Code.          “Communications”:  as defined in Section 11.2(b).          “Compliance Certificate”:  a certificate duly executed by a Responsible Officer substantially in the form of  Exhibit B.          “Consolidated Depreciation and Amortization Expense”:  with respect to any Person for any period, the total  amount  of  depreciation  and  amortization  expense,  including  the  amortization  of  goodwill  and  other  intangibles,  deferred financing fees of such Person and its Subsidiaries, for such period on a consolidated basis and otherwise  determined in accordance with GAAP.          “Consolidated EBITDA”:  with respect to any Person for any period, the Consolidated Net Income of such  Person for such period                  (i)    increased (without duplication) by:                         (a)    Permitted Tax Distributions and any other provision for Taxes based on income                 or  profits  or  capital  gains,  including,  with-out  limitation,  state  franchise  and  similar  Taxes  and                 foreign withholding Taxes of such Person paid or accrued during such period deducted (and not                 added back) in computing Consolidated Net Income; plus                         (b)    Consolidated  Interest  Expense  of  such  Person  for  such  period  plus  amounts                 excluded from the definition of Consolidated Interest Expense pursuant to clauses (i)(x) and (i)(y)                 thereof to the extent the same was deducted (and not added back) in calculating such Consolidated                                                  7  





 






Net Income and, to the extent not included therein, agency fees paid to the Administrative Agent  and the Collateral Agent; plus          (c)    Consolidated  Depreciation  and  Amortization  Expense  of  such  Person  for  such  period to the extent the same were deducted (and not added back) in computing Consolidated Net  Income; plus          (d)    the amount of any restructuring charge or reserve deducted (and not added back)  in such period in computing Consolidated Net Income, including any one-time costs incurred in  connection  with  acquisitions  after  the  Closing  Date  and  costs  related  to  the  closure  and/or  consolidation of facilities; plus          (e)    any other non-cash charges, including any write-offs, write-downs or impairment  charges, reducing Consolidated Net Income for such period (provided, that if any such non-cash  charges  represent  an  accrual  or  reserve  for  potential  cash  items  in  any  future  period,  the  cash  payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to  such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus          (f)    any  costs  or  expense  incurred  by  Holdings  or  a  Subsidiary  pursuant  to  any  management equity plan or stock option plan; plus          (g)    any  costs  or  expenses  incurred  in  connection  with  the  ANDA  litigation  in  an  amount not to exceed $4,000,000 in such period; plus          (h)    cash receipts (or any netting arrangements resulting in reduced cash expenditures)  not representing Consolidated EBITDA or Net Income in any period to the extent non-cash gains  relating  to  such  income  were  deducted  in  the  calculation  of  Consolidated  EBITDA  pursuant  to  clause (ii) below for any previous period and not added back; plus          (i)    any  net  loss  included  in  the  consolidated  financial  statements  due  to  the  application of Financial Accounting Standards Board’s Accounting Standards Codification No. 810  “Consolidation” with respect to non-controlling interests; plus          (j)    any  costs  or  expenses  incurred  in  connection  with  pursuing  a  claim  under  its  policy of property or liability insurance (including any business interruption insurance) in an amount  not to exceed $6,000,000 for such period; plus          (k)    costs  and  expenses  incurred  to  relocate,  establish,  qualify  or  commence  manufacturing, supply or distribution operations for the Borrower’s approved products and clinical  candidates  at  third  party  manufacturers,  suppliers  and  distributors  in  an  amount  not  to  exceed  $12,500,000 for such period; plus          (l)    the amount of “run-rate” cost savings, operating expense reductions, restructuring  charges  and  expenses  and  cost-saving  synergies  projected  by  the  Borrower  in  good  faith  to  be  realized as a result of actions taken or expected to be taken during such period (calculated on a pro  forma basis as though such cost savings, operating expense reductions, restructuring charges and  expenses and cost-saving synergies had been realized on the first day of such period), net of the  amount of actual benefits realized during such period from such actions; provided, that (1) such cost  savings, operating expense reductions, restructuring charges and expenses and cost-saving synergies  are  reasonably  identifiable  and  factually  supportable,  (2)  such  cost  savings,  operating  expense  reductions, restructuring charges and expenses and cost saving synergies are commenced within  eighteen  (18)  months  of  such  actions,  (3)  no  cost  savings,  operating  expense  reductions,  restructuring charges and expenses and cost-saving synergies may be added pursuant to this clause  (l) to the extent duplicative of any expenses or charges relating thereto that are either excluded in  computing  Consolidated  Net  Income  or  included  (i.e.,  added  back)  in  computing  Consolidated                                   8  





 






               EBITDA for such period and (4) such adjustments may be incremental to (but not duplicative of)                 pro forma adjustments made pursuant to Section 1.3; plus                         (m)    charges  attributable  to  the  undertaking  and/or  implementation  of  cost  savings                 initiatives, operating expense reductions, transition, opening and pre-opening expenses, business                 optimization  and  other  restructuring  and  integration  charges  (including  inventory  optimization                 programs, software development costs, costs related to the closure or consolidation of facilities and                 plants, costs relating to curtailments, costs related to entry into new markets, strategic initiatives and                 contracts, consulting fees, signing or retention costs, retention or completion bonuses, expansion                 and  relocation  expenses,  severance  payments,  modifications  to  pension  and  post-retirement                 employee benefit plans, new systems design and implementation costs and startup costs);                   (ii)  decreased by (without duplication) non-cash gains increasing Consolidated Net Income of         such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an         accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period, all as         determined on a consolidated basis for such Person and its Subsidiaries in accordance with GAAP;          provided, that, the aggregate amount of costs, expenses and other charges added back pursuant to clauses (k)  and (m) above, together with the aggregate amount of cost savings, operating expense reductions and cost saving  synergies added pursuant to clause (l) above, shall not exceed (A) 20.0% of Consolidated EBITDA (calculated prior  to giving effect to such add-backs or adjustments) for such four-quarter period plus (B) with respect to any adjustments  make pursuant to clause (l), the amount of any such cost savings, operating expense reductions, restructuring charges  and expenses and cost-savings synergies that would be permitted to be included in financial statements prepared in  accordance with Regulation S-X under the Securities Act during such four-quarter period.          “Consolidated  Funded  Debt”:   at  any  date,  the  aggregate  amount  of  indebtedness  that  is  (or  would  be)  reflected on the balance sheet of Holdings and its Subsidiaries determined on a consolidated basis in accordance with  GAAP.          “Consolidated Interest Expense”:  with respect to any Person for any period, without duplication, the sum of:                         (i)    consolidated interest expense of such Person and its Subsidiaries for such period,                 to  the  extent  such  expense  was  deducted  (and  not  added  back)  in  computing  Consolidated  Net                 Income,  including  (a)  amortization  of  original  issue  discount  resulting  from  the  issuance  of                 Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with                 respect to letters of credit or bankers’ acceptances, (c) non-cash interest payments (but excluding                 any  non-cash  interest  expense  attributable  to  the  movement  in  the  mark  to  market  valuation  of                 Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component                 of  Capital  Lease  Obligations,  and  (e)  net  payments,  if  any,  pursuant  to  interest  rate  Hedging                 Obligations with respect to Indebtedness, and excluding, (w) penalties and interest related to taxes,                 (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses                 and (y) any expensing of bridge, commitment and other financing fees; plus                         (ii)   consolidated  capitalized  interest  of  such  Person  and  its  Subsidiaries  for  such                 period, whether paid or accrued; less                         (iii)  interest income of such Person and its Subsidiaries for such period.          For purposes of this definition, interest on a Capital Lease Obligation shall be deemed to accrue at an interest  rate reasonably determined by such Person  to be the rate  of interest implicit in such Capital Lease  Obligation in  accordance with GAAP.          “Consolidated Net Income”:  with respect to any Person for any period, the aggregate of the Net Income of  such Person and its Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance  with GAAP; provided, however, that, without duplication,                                                  9  





 






       (i)    any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less  all fees and expenses relating thereto) or costs, charges and expenses (including relating to the  Transactions), including, without limitation, any severance costs, integration costs, relocation costs,  and curtailments or modifications to pension and post-retirement employee benefit plans, shall be  excluded,          (ii)   the cumulative effect of a change in accounting principles during such period shall  be excluded,          (iii)  any after-tax effect of income (loss) from disposed or discontinued operations and  any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall  be excluded,          (iv)   any after-tax effect of gains or losses (less all fees and expenses relating thereto)  attributable to asset dispositions (including sales or other dispositions under a financing permitted  hereunder)  other  than  in  the  ordinary  course  of  business,  as  determined  in  good  faith  by  the  Borrower, shall be excluded,          (v)    the Net Income for such period of any Person that is not a Subsidiary or that is  accounted for by the equity method of accounting, shall be excluded; provided, that Consolidated  Net Income of Holdings shall be increased by the amount of dividends or distributions or other  payments  that  are  actually  paid  in  cash  (or  to  the  extent  converted  into  cash)  to  Holdings  or  a  Subsidiary thereof in respect of such period by such Person,          (vi)   effects of adjustments (including the effects of such adjustments pushed down to  Holdings and its Subsidiaries) in the property and equipment, software and other intangible assets,  deferred revenue and debt line items in such Person’s consolidated financial statements pursuant to  GAAP  resulting  from  the  application  of  purchase  accounting  in  relation  to  any  consummated  acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,          (vii)  (a)  any  non-cash  compensation  expense  recorded  from  grants  of  stock  appreciation or similar rights, stock options, restricted stock or other rights and non-cash charges  associated  with  the  roll-over,  acceleration  or  payout  of  Capital  Stock  by  management  of  the  Borrower, Holdings or any direct or indirect parent thereof in connection with the Transactions or  other acquisitions shall be excluded and (b) the amount of any contingent payments related to any  acquisition  or  Investment  permitted  hereunder  that  are  treated  as  compensation  expense  in  accordance with GAAP shall be excluded,          (viii)  any impairment charge or asset write-off or write-down, in each case, pursuant to  GAAP  and  the  amortization  of  intangibles  and  other  assets  arising  pursuant  to  GAAP  shall  be  excluded,          (ix)   any net gain or loss in such period (a) due solely to fluctuations in currency values  or (b) resulting from currency translation gains or losses related to currency remeasurements of  Indebtedness  (including  any  net  loss  or  gain  resulting  from  Hedging  Obligations  for  currency  exchange risk) shall be excluded,          (x)    any increase in amortization or depreciation or other non-cash charges resulting  from the application of purchase accounting in relation to any acquisition that is consummated after  the Closing Date, net of taxes, shall be excluded,          (xi)   any after-tax effect of income (loss) from early extinguishment or cancellation of  Indebtedness or Hedging Obligations or other derivative instruments shall be excluded,                                   10  





 






                      (xii)  any  net  gain  or  loss  in  such  period  from  Hedging  Obligations  or  embedded                 derivatives that require similar accounting treatment and the application of Accounting Standards                 Codification Topic 815 and related pronouncements shall be excluded,                         (xiii)  any fees, charges, costs and expenses incurred in connection with the Transactions                 or accruals and reserves that are established within one year from the Closing Date that are required                 to be established as a result of the Transactions in accordance with GAAP shall be excluded, and                         (xiv)  any expenses or charges (other than depreciation or amortization expense) related                 to any equity offering, Investments permitted hereunder, acquisition, disposition, recapitalization or                 the incurrence of Indebtedness permitted hereunder (including a refinancing thereof) (whether or                 not successful), including (a) such fees, expenses or charges related to a Qualified Public Offering,                 the Facilities and any financing permitted hereunder and (b) any amendment or other modification                 of the Loan Documents and any financing permitted hereunder shall be excluded.          In  addition,  to  the  extent  not  already  included  in  the  Net  Income  of  such  Person  and  its  Subsidiaries,  notwithstanding  anything  to  the  contrary  in  the  foregoing,  Consolidated  Net  Income  shall  include  the  amount  of  proceeds received from business interruption insurance and reimbursements of any expenses and charges that are  covered by indemnification or other reimbursement provisions in connection with any permitted Investment or any  sale, conveyance or other Disposition permitted hereunder.          “Consolidated Total Assets”: 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.          “Contractual Obligation”:  as to any Person, any provision of any security issued by such Person or of any  agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is  bound.          “Corporate Family Rating”:  an opinion issued by Moody’s of a corporate family’s ability to honor all of its  financial obligations that is assigned to a corporate family as if it had a single class of debt and a single consolidated  legal entity structure.          “Corporate  Rating”:   an  opinion  issued  by  S&P  of  an  obligor’s  overall  financial  capacity  (its  creditworthiness) to pay its financial obligations.          “Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted  in  accordance  with,  12  C.F.R.  § 252.82(b);  (ii)  a  “covered  bank”  as  that  term  is  defined  in,  and  interpreted  in  accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance  with, 12 C.F.R. § 382.2(b).          “Declined Proceeds”:  as defined in Section 4.2(f).          “Default”:  any of the events specified in Section 9.1, whether or not any requirement for the giving of notice,  the lapse of time, or both, has been satisfied.          “Defaulting Lender”:  subject to Section 3.15(e), any Lender that (a) has failed to (i) fund all or any portion  of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder, unless such  Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s  determination  that  one  or  more  conditions  precedent  to  funding  (which  conditions  precedent,  together  with  the  applicable default, if any, shall be specifically identified in such  writing) has  not been satisfied or (ii) pay to the  Administrative Agent, the Issuing Lender, the Swingline Lender or any other Lender any other amount required to be  paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2)  Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the Issuing Lender or  the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made                                                 11  





 






a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a  Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to  funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such  writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request  by the Administrative Agent, the Issuing Lender or the Borrower, to confirm in writing to the Administrative Agent  or  the  Issuing  Lender  and  the  Borrower  that  it  will  comply  with  its  prospective  funding  obligations  hereunder  (provided, that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such  written confirmation by the Administrative Agent, the Issuing Lender, the Swingline Lender and the Borrower) or (d)  as to which the Administrative Agent has received notification that such Lender is, or has a direct or indirect parent  company that is, (i) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its  inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, (ii) the  subject  of  a  bankruptcy,  insolvency,  reorganization,  liquidation  or  similar  proceeding,  or  a  receiver,  trustee,  conservator, intervenor or sequestrator or the like has been appointed for such Lender or its direct or indirect parent  company, or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating  its consent to or acquiescence in any such proceeding or appointment or (iii) the subject of a Bail-in Action; provided,  that a Lender shall not be a Defaulting Lender solely by virtue of (i) the ownership or acquisition of any equity interest  in that Lender or any direct or indirect parent company thereof by a Governmental Authority, or (ii) in the case of a  solvent Lender, the precautionary appointment of an administrator, guardian, custodian or other similar official by a  Governmental Authority or instrumentality thereof under or based on the law of the country where such Lender is  subject to home jurisdiction supervision if applicable law requires that such appointment not be publicly disclosed, in  any  case  so  long  as  such  ownership  interest  does  not  result  in  or  provide  such  Lender  with  immunity  from  the  jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its  assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or  disaffirm any contracts or agreements made with such Lender.          “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12  C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.          “Disposition”:  with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance,  transfer or other disposition thereof.  The terms “Dispose” and “Disposed of” shall have correlative meanings.          “Disqualified Capital Stock”:  any Capital Stock that is not Qualified Capital Stock.          “Disqualified Institutions”: (i) any Person identified by name in writing to the Joint Lead Arrangers on or  prior to June 10, 2019, 2019, (ii) any other Person that was or is identified by name in writing to the Joint Lead  Arrangers (if after June 10, 2019 and prior to the Closing Date) or the Administrative Agent (on and after the Closing  Date) to the extent such Person is a competitor or is an Affiliate of a competitor of Holdings or its Subsidiaries, which  designations shall become effective two (2) days after delivery of each such written supplement to the Administrative  Agent, but which shall not apply retroactively to disqualify any Persons that have previously acquired an assignment  or participation interest in the Loans and (iii) any Affiliate of any Person referred to in clauses (i) or (ii) above that is  (x) reasonably identifiable as such on the basis of its name (provided, that, the Administrative Agent shall have no  obligation to carry out due diligence in order to identify such Affiliates) or (y) identified as such by name in writing  to the Administrative Agent; provided, that a “competitor” or an Affiliate of a competitor shall not include any bona  fide debt fund or investment vehicle (other than a bona fide debt fund or investment vehicle that has been identified  in  writing pursuant to clause  (i) above) 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 such competitor or Affiliate thereof,  as  applicable,  and  for  which  no  personnel  involved  with  the  competitive  activities  of  its  affiliates  (i)  makes  any  investment decisions for such debt fund or (ii) has access to any information (other than information publicly available)  relating to Holdings or its Subsidiaries from such debt fund.          “Disregarded Domestic Person”:  any direct or indirect Domestic Subsidiary that holds no material assets  other than the equity (or debt treated as equity for U.S. federal income tax purposes) of one or more direct or indirect  Foreign Subsidiaries that are CFCs or other Disregarded Domestic Persons.                                                  12  





 






       “Dollars” and “$”:  dollars in lawful currency of the United States.          “Domestic Subsidiary”:  any Subsidiary of the Borrower that is not a Foreign Subsidiary.          “Earn-Out Obligations”:  those certain obligations of Holdings or any Subsidiary arising in connection with  any acquisition of assets or businesses permitted under Section 8.7 to the seller of such assets or businesses and the  payment of which is dependent on the future earnings or performance of such assets or businesses and contained in  the agreement relating to such acquisition, but only to the extent of the reserve, if any, required under GAAP to be  established in respect thereof by Holdings and its Subsidiaries.          “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 Government Obligation”: any direct non-callable obligation of any European Union member for the  payment of which obligation the full faith and credit of the respective nation is pledged; provided, that such nation  has a credit rating at least equal to that of the highest rated member nation of the European Economic Area.          “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”:   any  Assignee  permitted  by  and  consented  to  in  accordance  with  Section  11.6(b);  provided,  that  notwithstanding  the  foregoing,  “Eligible  Assignee”  shall  not  include  (a)  Holdings  or  any  of  its  subsidiaries or Affiliates, (b) any Defaulting Lender or Affiliate of a Defaulting Lender and (c) any natural person.          “EMU”: the economic and monetary union as contemplated in the Treaty on European Union.          “Environment”:   ambient  air,  indoor  air,  surface  water,  groundwater,  drinking  water,  land  surface  and  subsurface strata, and natural resources such as wetlands, flora and fauna.          “Environmental Laws”:  any and all applicable foreign, federal, state, local or municipal laws, rules, orders,  regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements  of Law (including common law) relating to pollution or protection of the Environment, including those relating to use,  generation, storage, treatment, transport, Release or threat of Release of Materials of Environmental Concern, or to  protection of human health or safety (to the extent relating to the presence in the Environment or the Release or threat  of Release of Materials of Environmental Concern), as now or may at any time hereafter be in effect.          “Equivalent Managing Body”:  (i) with respect to a manager managed limited liability company, the board  of managers, (ii) with respect to a member managed limited liability company, the board of directors of its most direct  corporate parent company and (iii) with respect to a partnership, the board of directors of the general partner to the  extent such general partner is a corporation, or the Equivalent Managing Body of the general partner if such general  partner is not a corporation.          “ERISA”:  the Employee Retirement Income Security Act of 1974, as amended from time to time.          “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.                                                  13  





 






       “Euro” or “EUR”:   the single currency of participating member states of the Economic and Monetary Union.          “Eurocurrency Reserve Requirements”:  for any day as applied to a Eurodollar Loan, the aggregate (without  duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day  (including  basic,  supplemental,  marginal  and  emergency  reserves  under  any  regulations  of  the  Board  or  other  Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for  eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained  by a member bank of the Federal Reserve System.          “Eurodollar Base Rate”:  for any Interest Rate Determination Date with respect to an Interest Period for a  Eurodollar Loan, (a) the rate per annum equal to the rate determined by the Administrative Agent to be the London  interbank offered rate administered by the ICE Benchmark Administration (or any other Person which takes over the  administration of that rate) for deposits (for delivery on the first day of such period) with a term equivalent to such  period in Dollars displayed on page LIBOR01 of the Reuters Screen (or any replacement Reuters page which displays  that rate) or on the appropriate page of such other information service which publishes that rate from time to time in  place  of  Reuters,  determined  as  of  approximately  11:00  a.m.  (London,  England  time)  on  such  Interest  Rate  Determination Date or (b) in the event the rate referenced in the preceding clause (a) is not available, the Interpolated  Rate.          “Eurodollar Floor”:  as defined in the definition of Eurodollar Rate.          “Eurodollar Loans”:  Loans the rate of interest applicable to which is based upon the Eurodollar Rate.          “Eurodollar Rate”:  with respect to each day during each Interest Period pertaining to a Eurodollar Loan, a  rate per annum equal to the greater of (a) 0.00% (the “Eurodollar Floor”) and (b) the rate determined for such day in  accordance with the following formula:                                              Eurodollar Base Rate                                   1.00 - Eurocurrency Reserve Requirements          “Eurodollar  Tranche”:   the  collective  reference  to  Eurodollar  Loans  under  a  particular  Facility  the  then  current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or  not such Loans shall originally have been made on the same day).          “Event of Default”:  any of the events specified in Section 9.1; provided, that any requirement for the giving  of notice, the lapse of time, or both, has been satisfied.          “Exchange Act”:  the Securities Exchange Act of 1934, as amended.          “Excluded Assets”:  (a) assets of Unrestricted Subsidiaries, (b) assets of Foreign Subsidiaries, (c) interests in  partnerships,  joint  ventures  and  non-Wholly  Owned  Subsidiaries  which  cannot  be  pledged  without  the  consent  pursuant to the terms of the governing documents of such partnership or joint venture of one or more third parties,  subject to Uniform Commercial Code override provisions, (d) any assets to the extent a security interest in which  would result in material adverse tax consequences as reasonably determined by the Borrower and the Administrative  Agent, (e) any property and assets the pledge of which would require governmental consent, approval, license or  authorization,  subject  to  Uniform  Commercial  Code  override  provisions,  (f)  any  “intent-to-use”  trademark  applications prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the  extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair  the validity or enforceability of such intent-to-use trademark application under applicable federal law, (g) any fee- owned real property (together with improvements thereof) with a fair market value (as reasonably determined by the  Borrower) not in excess of $2,500,000 and real property leasehold interests, (h) any asset identified in writing with  respect to which the Administrative Agent and the relevant Loan Party 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  or  perfecting  a  security  interest  therein  outweigh the benefit of a security interest to the relevant Secured Parties afforded thereby, (i) voting Capital Stock of                                                 14  





 






any Foreign Subsidiary or Disregarded Domestic Person in excess of 65% of the total outstanding voting Capital Stock  of  such  Foreign  Subsidiary  or  any  Disregarded  Domestic  Person,  (j)  any  Intellectual  Property,  know-how  and/or  regulatory filings related to (i) Flurpiridaz F 18, 18F LMI 1195 – Cardiac Neuronal Imaging Agent. (ii) LMI 1174 –  Vascular Remodeling Imaging Agent and (iii) Quadramet, Matrix Metalloproteinase inhibitors (the “Subject IP”),  solely to the extent that, and for so long as, the Subject IP (x) is or becomes subject to an exclusive license which  prohibits the granting of a Lien thereon (other than in favor of the exclusive licensee) and (y) is not subject to any  other Lien (other than in favor of the exclusive licensee or nonconsensual Liens arising by operation of law) and (k)  the Sale Leaseback Property.           “Excluded Indebtedness”:  all Indebtedness permitted by Section 8.2.          “Excluded Subsidiary”:  (i) any Unrestricted Subsidiaries, (ii) Immaterial Subsidiaries, (iii) any subsidiary to  the extent that the burden or cost (including any potential tax liability) of obtaining a guarantee outweighs the benefit  afforded  thereby  as  reasonably  determined  by  the  Borrower  and  the  Administrative  Agent,  (iv)  any  Disregarded  Domestic Persons, (v) any Foreign Subsidiary that is a CFC, (vi) any Domestic Subsidiary that is a direct or indirect  subsidiary of a Foreign Subsidiary that is a CFC and (vii) any not-for-profit subsidiary or captive insurance subsidiary.          “Excluded Taxes”:  any of the following Taxes imposed on or with respect to the Administrative Agent, any  Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under  any Loan Document or required to be withheld or deducted from a payment to the Administrative Agent, any Lender  or any other recipient, (a) Taxes imposed on or measured by such recipient’s net income or net profits (however  denominated), franchise Taxes imposed on such recipient in lieu of net income Taxes and branch profits (or similar)  Taxes imposed on such recipient, in each case, by any jurisdiction (i) as a result of such recipient being organized or  having its principal office or, in the case of any Lender, its applicable lending office in such jurisdiction, or (ii) that  are Other Connection Taxes, (b) in the case of a Foreign Lender (other than an assignee pursuant to a request by the  Borrower under Section 4.13), any U.S. federal withholding Tax that is imposed on amounts payable to such Foreign  Lender under any laws in effect at the time such Foreign Lender becomes a party hereto (or designates a new lending  office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, immediately prior to the  time of 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 4.10, (c) any withholding Tax attributable to such recipient’s  failure to comply with Section 4.10(e), (d) any withholding Tax that is imposed pursuant to FATCA and (e) any U.S.  federal backup withholding Taxes imposed under Section 3406 of the Code.          “Existing Revolving Facility Maturity Date”:  as defined in Section 3.17(a).          “Existing Term Facility Maturity Date”:  as defined in Section 2.6(a).          “Extending Revolving Lender”:  as defined in Section 3.17(e).          “Extending Term Lender”:  as defined in Section 2.6(e).          “Facility”:  each of the Term Facility, the Revolving Facility and the Swingline Facility.          “FATCA”:  current Sections 1471 through 1474 of the Code (and any amended or successor version that is  substantively  comparable  and  not  materially  more  onerous  to  comply  with),  and  any  current  or  future  Treasury  regulations  or  other  official  administrative  guidance  (including  any  revenue  ruling,  revenue  procedure,  notice  or  similar guidance issued by the IRS) promulgated thereunder, any agreements entered into pursuant to current Section  1471(b)(1) of the Code (and any amended or successor version as described above) any applicable intergovernmental  agreement, treaty or convention, and related legislation or administrative rules or practices implementing any of the  foregoing.          “FCPA”:  as defined in Section 5.22(b).          “Federal Funds Effective Rate”:  for any day, the rate per annum equal to the weighted average of the rates  on overnight Federal Funds transactions with members of the Federal Reserve System, as published by the Federal                                                 15  





 






Reserve  Bank  of  New  York  on  the  Business  Day  next  succeeding  such  day;  provided,  that  if  no  such  rate  is  so  published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average  rate quoted to the Administrative Agent on such day on such transactions as determined by the Administrative Agent  in a commercially reasonable manner.          “FEMA”:  the Federal Emergency Management Agency, a component of the U.S. Department of Homeland  Security that administers the National Flood Insurance Program.          “Flood  Insurance  Laws”:   collectively,  (i)  the  National  Flood  Insurance  Reform  Act  of  1994  (which  comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as  now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or  hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012  as now or hereafter in effect or any successor statute thereto.          “Foreign Lender”:  any Lender that is not a “United States person” within the meaning of Section 7701(a)(30)  of the Code.          “Foreign Subsidiary”:  any direct or indirect subsidiary of the Borrower that is organized under the laws of  any jurisdiction other than the United States, any state thereof or the District of Columbia.          “Funding Office”:  the office of the Administrative Agent specified in Section 11.2 or such other office as  may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower  and the Lenders.          “GAAP”:  generally accepted accounting principles in the United States as in effect from time to time subject  to Section 1.2(e).          “Governmental Authority”:  any nation or government, any state or other political subdivision thereof, and  any  agency,  authority,  instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,  legislative,  judicial,  taxing,  regulatory  or  administrative  functions  of  or  pertaining  to  government  (including  any  supranational bodies such as the European Union or the European Central Bank) and any securities exchange.          “Governmental  Authorization”:   all  laws,  rules,  regulations,  authorizations,  consents,  decrees,  permits,  licenses, waivers, privileges, approvals from and filings with all Governmental Authorities necessary in connection  with any Group Member’s business.          “Grant Cash”:  all cash received from customers of the Borrower or any of its Subsidiaries intended to pay  third-party investigator site fees on behalf of such customer as studies progress.          “Group Members”:  the collective reference to Holdings and its Subsidiaries.          “Guarantee and Collateral Agreement”:  the Guarantee and Collateral Agreement, dated as of the date hereof,  executed and delivered by Holdings, the Borrower and each Subsidiary Guarantor.          “Guarantee Obligation”:  as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing  person  or  (b)  another  Person  (including  any  bank  under  any  letter  of  credit)  to  induce  the  creation  of  which  the  guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing  or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any  other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of  the  guaranteeing  person,  whether  or  not  contingent,  (i)  to  purchase  any  such  primary  obligation  or  any  property  constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any  such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to  maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily  for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make                                                  16  





 






payment  of  such  primary  obligation  or  (iv)  otherwise  to  assure  or  hold  harmless  the  owner  of  any  such  primary  obligation against loss in respect thereof; provided, however, that the term “Guarantee Obligation” shall not include  endorsements of instruments for deposit or collection in the ordinary course of business.  The amount of any Guarantee  Obligation  of  any  guaranteeing  person  shall  be  deemed  to  be  the  lower  of  (a)  an  amount  equal  to  the  stated  or  determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the  maximum  amount  for  which  such  guaranteeing  person  may  be  liable  pursuant  to  the  terms  of  the  instrument  embodying such Guarantee Obligation, unless such primary obligation and the  maximum amount for  which such  guaranteeing  person  may  be  liable  are  not  stated  or  determinable,  in  which  case  the  amount  of  such  Guarantee  Obligation  shall  be  such  guaranteeing  person’s  maximum  reasonably  anticipated  liability  in  respect  thereof  as  determined by the Borrower in good faith.          “guaranteeing person”: as defined in the definition of “Guarantee Obligation”.           “Guarantors”:  collectively, Holdings and the Subsidiary Guarantors.          “Hedge Agreements”:  any agreement with respect to any cap, swap, forward, future or derivative transaction  or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity  or debt instruments or securities, or economic,  financial or pricing indices or measures of economic, financial or  pricing risk or value or any similar transaction or any combination of these transactions; provided, that no phantom  stock or similar plan providing for payments only on account of services provided by current or former directors,  officers, employees or consultants of the Borrower or the Subsidiaries shall be a Hedge Agreement.          “Hedging Obligations”:  obligations under Hedge Agreements.          “Holdings”:  as defined in the preamble to this Agreement.          “Immaterial Subsidiary”:  each Subsidiary of the Borrower now existing or hereafter acquired or formed and  each successor thereto, (a) which accounts for not more than (i) 2.5% of the Consolidated EBITDA of Holdings and  its Subsidiaries or (ii) 2.5% of the Consolidated Total Assets of Holdings and its Subsidiaries, in each case, as of the  last day of the most recently completed fiscal quarter; and (b) if the Subsidiaries that constitute Immaterial Subsidiaries  pursuant to clause (a) above account for, in the aggregate, more than 5% of such Consolidated EBITDA and more  than 5% of the Consolidated Total Assets, each as described in clause (a) above, then the term “Immaterial Subsidiary”  shall not include each such Subsidiary necessary to account for at least 95% of the Consolidated EBITDA and 95%  of the Consolidated Total Assets, each as described in clause (a) above.          “Increase Revolving Joinder”:  as defined in Section 3.16(c).          “Increase Term Joinder”:  as defined in Section 2.4(c).          “Incremental Cap”:                  (a)    (i)  $100,000,000 less  (ii)  the  aggregate  principal  amount  of  all  Incremental  Facilities         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  Initial  Term  Loan         Maturity Date or the Initial Revolving Termination Date, as applicable, an amount equal to the portion of the         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         Commitment  terminated  in  accordance  with  Section  3.6,  an  amount  equal  to  the  relevant  terminated         Revolving Commitment; plus                  (d)    the amount of any optional prepayment of any  Loan in accordance with Section 4.1(a)         and/or the amount of any permanent reduction of any Revolving Commitment, so long as, in the case of any                                                  17  





 






       optional prepayment, such prepayment was not funded (i) with the proceeds of any long-term Indebtedness         (other than revolving Indebtedness) or (ii) with the proceeds of any Incremental Facility incurred in reliance         on clause (b) or (c) above, plus                  (e)    an unlimited amount so long as, the Secured Net Leverage Ratio would not exceed 3.25 to         1.00, 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 fiscal quarter), and assuming a full drawing under all Incremental Revolving         Facilities constituting revolving commitments incurred at such time.          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 Borrower specifies otherwise.          “Incremental  Commitments”:   Incremental  Revolving  Commitments  and  Incremental  Term  Loan  Commitments.          “Incremental Facilities”: the Incremental Term Facilities and Incremental Revolving Facilities.          “Incremental Lender”:  any Person that makes a Loan pursuant to Sections 2.4 or 3.16, or has a commitment  to make a Loan pursuant to Sections 2.4 or 3.16.          “Incremental Loans”:  Incremental Revolving Loans and Incremental Term Loans.          “Incremental Revolving Commitment”:  as defined in Section 3.16(a).          “Incremental Revolving Facility”:  as defined in Section 3.16(a).          “Incremental Revolving Loans”:  as defined in Section 3.16(c).          “Incremental Term Facility”:  as defined in Section 2.4(a).          “Incremental Term Loan Commitment”:  as defined in Section 2.4(a).          “Incremental Term Loans”:  as defined in Section 2.4(c).          “Indebtedness”:   of  any  Person  at  any  date,  without  duplication,  (a)  all  indebtedness  of  such  Person  for  borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (excluding  (i) current trade payables incurred in the ordinary course of such Person’s business and (ii) any Earn-Out Obligations  until they become a liability on the balance sheet of such Person in accordance with GAAP), (c) all obligations of such  Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising  under any conditional sale or other title retention agreement with respect to property acquired by such Person (even  though the rights and remedies of the seller or lender under such agreement in the event of default are limited to  repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such  Person, contingent or otherwise, as an account party or applicant under or in respect of bankers’ acceptances, letters  of credit, surety bonds or similar arrangements, (g) the liquidation value of all Disqualified Capital Stock of such  Person, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a)  through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which  the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property  (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become  liable for the payment of such obligation and (j) for the purposes of Sections 8.2 and 9.1(e) only, all obligations of  such Person in respect of Hedge Agreements.  The Indebtedness of any Person shall include the Indebtedness of any  other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable  therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent  the terms of such Indebtedness expressly provide that such Person is not liable therefor.  For purposes of clause (j)                                                  18  





 






above (including as such clause applies to Section 9.1(e)), the principal amount of Indebtedness in respect of Hedge  Agreements  shall  equal  the  amount  that  would  be  payable  (giving  effect  to  netting)  at  such  time  if  such  Hedge  Agreement were terminated.          “Indemnified Liabilities”:  as defined in Section 11.5(a).          “Indemnified Taxes”:  (a) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment  made by or on account of any obligation of any  Loan Party under any Loan Document and (b) to the extent not  otherwise described in clause (a), Other Taxes.          “Indemnitee”:  as defined in Section 11.5(a).          “Initial  Revolving  Availability  Period”:   the  period  from  the  Closing  Date  to  the  Initial  Revolving  Termination Date.          “Initial Revolving Commitment”:  as to each Lender, the obligation of such Lender, if any, to make Initial  Revolving Loans and participate in Letters of Credit to the Borrower hereunder in a principal amount not to exceed  the amount set forth opposite such Lender’s name on Schedule 1.1 or in the Assignment and Assumption pursuant to  which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.   The original aggregate amount of Initial Revolving Commitments is $200,000,000.          “Initial  Revolving  Facility”:   the  Initial  Revolving  Commitments  and  the  extensions  of  credit  made  thereunder.          “Initial Revolving Loans”:  each Revolving Loan provided under the Initial Revolving Commitment.          “Initial Revolving Termination Date”:  June 27, 2024.          “Initial Term Commitment”:  as to each Lender, the obligation of such Lender, if any, to make Term Loans  to the Borrower hereunder in a principal amount not to exceed the amount set forth opposite such Lender’s name on  Schedule 1.1 or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same  may be changed from time to time pursuant to the terms hereof, including, without limitation, Section 4.2(e).  The  original aggregate amount of Initial Term Commitments is $200,000,000.          “Initial Term Facility”:  the term facility under this agreement providing Initial Term Loans.          “Initial Term Loan Maturity Date”:  June 27, 2024.          “Initial Term Loans”:  each Term Loan provided under the Initial Term Commitment.          “Insolvency”:  with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the  meaning of Section 4245 of ERISA.          “Insolvent”:  pertaining to a condition of Insolvency.          “Intellectual Property”:  collectively, all United States and foreign (a) patents, patent applications, certificates  of inventions, industrial designs, together with any and all inventions or designs described and claimed therein, and  reissues,  divisions,  continuations,  extensions  and  continuations-in-part  thereof  and  amendments  thereto;  (b)  trademarks, service marks, certification marks, trade names, slogans, logos, trade dress, Internet domain names, and  other source identifiers, whether statutory or common law, whether registered or unregistered, and whether established  or registered in the United States or any other country or any political subdivision thereof, together with any and all  registrations  and  applications  for  any  of  the  foregoing,  goodwill  connected  with  the  use  thereof  and  symbolized  thereby, and extensions and renewals thereof and amendments thereto; (c) copyrights (whether statutory or common  law, and whether published or unpublished), copyrightable subject matter, and all mask works (as such term is defined                                                  19  





 






in 17 U.S.C. Section 901, et seq.), together with any and all registrations and applications therefor, and renewals and  extensions thereof and amendments thereto; (d) rights in computer programs (whether in source code, object code, or  other  form),  algorithms,  databases,  compilations  and  data,  technology  supporting  the  foregoing,  and  all  documentation, including user manuals and training materials, related to any of the foregoing (“Software”); (e) trade  secrets and proprietary or confidential information, data and databases, know-how and proprietary processes, designs,  inventions, and any other similar intangible rights, to the extent not covered by the foregoing, whether statutory or  common law, whether registered or unregistered; and (f) rights, priorities, and privileges corresponding to any of the  foregoing or other similar intangible assets throughout the world.          “Intellectual  Property  Security  Agreements”:   an  intellectual  property  security  agreement  or  such  other  agreement, as applicable, pursuant to which each Loan Party which owns any Intellectual Property which is the subject  of a registration or application grants to the Collateral Agent, for the benefit of the Secured Parties a security interest  in such Intellectual Property, substantially in the form attached to the Guarantee and Collateral Agreement.          “Interest Coverage Ratio”: at any date, the ratio of (a) Consolidated EBITDA of Holdings and its Subsidiaries  for the period of four consecutive fiscal quarters ended on such date (or, if such date is not the last day of any fiscal  quarter, the most recently completed fiscal quarter for which financial statements are required to have been delivered  pursuant to Section 7.1) to (b) Consolidated Interest Expense of Holdings and its Subsidiaries for such period, in each  case, with such pro forma adjustments to Consolidated EBITDA and Consolidated Interest Expense as are appropriate  and consistent with the pro forma adjustment provisions set forth in Section 1.3.          “Interest Payment Date”:  (a) as to any Base Rate Loan, the last day of each March, June, September and  December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurodollar  Loan having an Interest Period of three (3) months or less, the last day of such Interest Period, (c) as to any Eurodollar  Loan having an Interest Period longer than three (3) months, each day that is three (3) months, or a whole multiple  thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Loan (other  than any Revolving Loan that is a Base Rate Loan), the date of any repayment or prepayment made in respect thereof.          “Interest  Period”:   as  to  any  Eurodollar  Loan,  (a)  initially,  the  period  commencing  on  the  borrowing  or  conversion date, as the case may be, with respect to such Eurodollar Loan and ending one, two, three or six months  (or if consented to by all Lenders under the relevant Facility, twelve months) thereafter, as selected by the Borrower  in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter,  each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and  ending one, two, three or six months (or if consented to by all Lenders under the relevant Facility, twelve months)  thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent no later than 2:00 p.m., New  York City time, on the date that is three (3) Business Days prior to the last day of the then current Interest Period with  respect thereto; provided, that all of the foregoing provisions relating to Interest Periods are subject to the following:                  (i)    if any Interest Period would otherwise end on a day that is not a Business Day, such Interest         Period shall be extended to the next succeeding Business Day unless the result of such extension would be         to carry such Interest Period into another calendar month in which event such Interest Period shall end on the         immediately preceding Business Day;                  (ii)   the Borrower may not select an Interest Period under a particular Facility that would extend         beyond the Maturity Date with respect thereto; and                  (iii)  any Interest Period that begins on the last Business Day of a calendar month (or on a day         for which there is no numerically corresponding day in the calendar month at the end of such Interest Period)         shall end on the last Business Day of a calendar month.          “Interest Rate Determination Date”:  with respect to any Interest Period, the date that is two (2) Business  Days prior to the first day of such Interest Period.          “Interpolated Rate”:  in relation to the Eurodollar Base Rate Loans for any Loan, the rate which results from  interpolating on a linear basis between: (a) the ICE Benchmark Administration’s Interest Settlement Rates for deposits                                                 20  





 






in Dollars for the longest period (for which that rate is available) which is less than the Interest Period and (b) the ICE  Benchmark Administration’s interest settlement rates for deposits in Dollars for the shortest period (for which that  rate is available) which exceeds the Interest Period, each as of approximately 11:00 a.m., London time, two Business  Days prior to the commencement of such Interest Period.          “Investments”:  as defined in Section 8.7.          “IRS”:  the United States Internal Revenue Service.          “Issuing Lender”: (a) Wells Fargo, in its capacity as issuer of any Letter of Credit and/or (b) such other  Lender or Affiliate of a Lender as the Borrower may select, and Administrative Agent approves, which Lender or  Affiliate of a Lender has agreed in writing, in its sole discretion, to serve as the Issuing Lender hereunder pursuant to  this Agreement.          “Joint Lead Arrangers”: Wells Fargo Securities, LLC, Citizens Bank, N.A. and JPMorgan Chase Bank, N.A.,  in their capacities as joint lead arrangers and joint bookrunners under this Agreement.          “Junior Debt”: any (i) Subordinated Indebtedness and any Indebtedness that is secured by a Lien on the  Collateral that is junior to the Liens on the Collateral securing the Initial Term Facility and Initial Revolving Facility,  and (ii) Indebtedness that was incurred pursuant to Section 8.2(j).          “Junior  Financing”:   any  Indebtedness  of  Holdings  or  any  Subsidiary  that  is,  or  that  is  required  to  be,  subordinated in right of payment to the Obligations and/or secured by a Lien on the Collateral that is junior to the  Liens on the Collateral securing the Initial Term Facility and Initial Revolving Facility.          “Junior Financing Documentation”:  any documentation governing any Junior Financing.          “L/C Commitment”:  $20,000,000.          “L/C Exposure”:  as to any Lender, its Revolving Percentage of the L/C Obligations.          “L/C Fee Payment Date”:  the last day of each March, June, September and December (commencing on  September 30, 2019) and the last day of the Initial Revolving Availability Period.          “L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired  amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that  have not then been reimbursed pursuant to Section 3.11.          “L/C Participants”:  the collective reference to all the Revolving Lenders other than the Issuing Lender.          “Lender  Presentation”:   the  Lender  Presentation,  dated  May  30,  2019,  and  furnished  to  the  Lenders  in  connection with the syndication of the Facilities.          “Lenders”:  each Revolving Lender, Term Lender and Incremental Lender; provided, that unless the context  otherwise  requires,  each  reference  herein  to  the  Lenders  shall  be  deemed  to  include  the  Issuing  Lender  and  the  Swingline Lender.          “Letters of Credit”:  as defined in Section 3.7(a).          “Lien”:  any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance,  lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or  preferential  arrangement  of  any  kind  or  nature  whatsoever  (including  any  conditional  sale  or  other  title  retention  agreement and any capital lease having substantially the same economic effect as any of the foregoing).                                                  21  





 






       “Limited Condition Acquisition”:  any acquisition that is not prohibited under this Agreement and is not  conditioned on the availability of, or on obtaining, third-party financing.          “Loan”:  any loans and advances made by the Lenders pursuant to this Agreement, including any Additional  Term Loans, any Incremental Revolving Loans and any Swingline Loan.          “Loan Documents”:  this Agreement, the Security Documents and the Notes.          “Loan Party”:  each of Holdings, the Borrower and the Subsidiary Guarantors.          “Long-Term  Indebtedness”:   any  Indebtedness  for  borrowed  money  that,  in  accordance  with  GAAP,  constitutes (or, when incurred, constituted) a long-term liability (other than any revolving credit facility).          “Majority Facility Lenders”:  the holders of more than 50% of (a) with respect to the Initial Term Facility,  the aggregate unpaid principal amount of the outstanding Initial Term Loans, (b) with respect to the any Additional  Term Facility, the aggregate unpaid principal amount of the outstanding Additional Term Loans under such Additional  Term  Facility  and  (c)  with  respect  to  the  Initial  Revolving  Facility,  the  total  Initial  Revolving  Commitments  outstanding under such facility (or, if the relevant Initial Revolving Commitments have been terminated pursuant to  the terms hereof, the total Revolving Extensions of Credit under such Initial Revolving Commitment then outstanding).          “Margin Stock”:  as defined in Regulation U of the Board as from time to time in effect and any successor to  all or a portion thereof.          “Material Acquisition”:  a Permitted Acquisition for which the aggregate amount of consideration paid or to  be paid exceeds $35,000,000.          “Material Adverse Effect”:  (a) a material adverse change in, or a material adverse effect upon, the business,  operations or financial condition of Holdings and its Subsidiaries, taken as a whole; (b) a material adverse effect on  the ability of the  Loan Parties taken as a  whole  to perform their respective payment obligations  under any  Loan  Document; (c) a material and adverse effect on the rights of or remedies available to the Lenders or the Administrative  Agent under any Loan Document; or (d) a material adverse effect on the Liens in favor of the Administrative Agent  (for its benefit and for the benefit of the other Secured Parties) on the Collateral or the priority of such Liens.          “Material Indebtedness”:  of any Person at any date, Indebtedness the outstanding principal amount of which  exceeds in the aggregate $20,000,000.          “Materials  of  Environmental  Concern”:   any  gasoline  or  petroleum  (including  crude  oil  or  any  fraction  thereof) or petroleum products, or any chemicals, substances, materials, wastes, pollutants or contaminants in any  form regulated under any Environmental Law, including asbestos and asbestos-containing materials, polychlorinated  biphenyls, radon gas, radiation, and infectious, biological or medical waste or animal carcasses.          “Maturity Date”: (i) with respect to the Initial Term Loans, the Initial Term Loan Maturity Date, (ii) with  respect to the Initial Revolving Commitments, the Initial Revolving Termination Date and (iii) with respect to any  Additional Term Loans, the final maturity date applicable thereto.          “Maximum Rate”:  as defined in Section 4.5(e).          “Moody’s”:  Moody’s Investors Service, Inc.          “Mortgaged Properties”:  the real properties as to which the Collateral Agent for the benefit of the Secured  Parties shall be granted a Lien pursuant to the Mortgages pursuant to Section 7.10.                                                   22  





 






       “Mortgages”:  any mortgages and deeds of trust or any other documents creating and evidencing a Lien on  the Mortgaged Properties made by any Loan Party in favor of, or for the benefit of, the Collateral Agent for the benefit  of the Secured Parties, which shall be in a form reasonably satisfactory to the Collateral Agent.          “Multiemployer Plan”:  a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.          “Net Cash Proceeds”:                  (a)    in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form         of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal         pursuant to a note or installment receivable or held in escrow or purchase price adjustment receivable or by         the Disposition of any non-cash consideration received in connection therewith or otherwise, but only as and         when received and net of costs, amounts and taxes set forth below), net of:                         (i)    attorneys’ fees, accountants’ fees, investment banking fees and other professional                 and transactional fees actually incurred in connection therewith;                         (ii)   amounts required to be applied to the repayment of Indebtedness secured by a                 Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale or Recovery                 Event (other than any Lien pursuant to a Security Document or any Indebtedness secured by the                 Collateral on a pari passu or junior basis to the Liens of the Security Documents on the Collateral);                         (iii)  other customary fees and expenses actually incurred in connection therewith;                         (iv)   taxes  paid  or  reasonably  estimated  to  be  payable  (including  Permitted  Tax                 Distributions) as a result thereof (after taking into account any available tax credits or deductions                 and any tax sharing arrangements); and                         (v)    amounts provided as a reserve in accordance with GAAP against any liabilities                 associated with the assets disposed of in an Asset Sale (including, without limitation, pension and                 other post-employment benefit liabilities and liabilities related to environmental matters or against                 any indemnification obligations associated with such Asset Sale); provided, that such amounts shall                 be considered Net Cash Proceeds upon release of such reserve; or                  (b)    in connection with any issuance or sale of Capital Stock, any capital contribution or any         incurrence of Indebtedness, the cash proceeds received from such issuance, contribution or incurrence, net         of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and         other customary fees and expenses actually incurred in connection therewith.          “Net Income”:  with respect to any Person, the net income (loss) of such Person, determined on a consolidated  basis in accordance with GAAP.          “Non-Consenting Lender”:  as defined in Section 11.1.          “Non-Defaulting Lender”:  at any time, a Lender that is not a Defaulting Lender.          “Non-Extending Revolving Lender”:  as defined in Section 3.17(b).          “Non-Extending Term Lender”:  as defined in Section 2.6(b).          “Notes”:  the collective reference to any promissory note evidencing Loans.          “Obligations”:  the unpaid principal of and interest on (including interest and fees accruing after the maturity  of  the  Loans  and  Reimbursement  Obligations  and  interest  and  fees  accruing  after  the  filing  of  any  petition  in                                                  23  





 






bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower,  whether or not a claim for post-filing or post-petition interest or fees is allowed or allowable in such proceeding) the  Loans and all other obligations and liabilities of the Loan Parties to any Agent or to any Lender (or, in the case of  Specified  Hedge  Agreements  or  Specified  Cash  Management  Agreements,  any  Qualified  Counterparty)  or  any  Affiliate of any Agent or any Lender (including the obligation to provide Cash Collateral hereunder), whether direct  or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under,  out  of,  or  in  connection  with,  this  Agreement,  any  other  Loan  Document,  the  Letters  of  Credit  (including  Reimbursement Obligations), any Specified Hedge Agreement, Specified Cash Management Agreement or any other  document made, delivered or given in connection herewith or therewith, whether on account of principal, interest,  reimbursement  obligations,  fees,  indemnities,  costs,  expenses  (including  all  fees,  charges  and  disbursements  of  counsel to any Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.          “Original Credit Agreement”:  as defined in the recitals hereto.          “Organizational Documents”: as to any Person, the Certificate of Incorporation, Certificate of Formation, By  Laws, Limited Liability Company Agreement, Partnership Agreement or other similar organizational or governing  documents of such Person.          “Other Connection Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient  of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document, Taxes  imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax  (other than connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in any other  transaction  pursuant  to  or  enforced  any  Loan  Document,  or  sold  or  assigned  an  interest  in  any  Loan  or  Loan  Document).          “Other Taxes”:  all present or future stamp or documentary Taxes or any other excise or intangible Taxes  arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, the  receipt or perfection of a security interest  under, or otherwise  with respect to, this  Agreement or any other Loan  Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than  an assignment made pursuant to Section 4.13).          “Participant”:  as defined in Section 11.6(e).          “Participant Register”:  as defined in Section 11.6(e).          “Patriot Act”:  the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).          “PBGC”:  the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA  (or any successor thereto).          “Permitted Acquisition”:  any acquisition, whether by purchase, merger or otherwise, of all or substantially  all of the assets of, a majority of the Capital Stock of, or a business line or unit or a division of, any Person; provided,  that                  (a)    at the time of the execution of the definitive purchase agreement in connection with such         Permitted Acquisition, and after giving pro forma effect thereto, no Event of Default shall have occurred and         be continuing or would result therefrom;                  (b)    all transactions in connection therewith shall be consummated, in all material respects, in         accordance with all applicable laws and in conformity with all applicable Governmental Authorizations;                                                   24  





 






               (c)    the Borrower shall be in compliance with the covenants in Section 8.1, calculated on a pro         forma basis after giving effect to such acquisition as if such acquisition had occurred on the first day of the         most recent period of four (4) consecutive fiscal quarters for which financial statements have been delivered;                   (d)    any Person or assets or division as acquired in accordance herewith shall be in substantially         the same business or lines of business in which the Borrower and/or its Subsidiaries are engaged, or are         permitted to be engaged as provided in Section 8.15, as of the time of such acquisition; and                  (e)    with respect to any Material Acquisition:                          (A)  no  less  than  five  (5)  Business  Days  prior  to  the  proposed  closing  date  of  such                 acquisition (or such shorter period as may be agreed to by the Administrative Agent), the Borrower                 shall have delivered written notice of such acquisition to the Administrative Agent, which notice                 shall include the proposed closing date of such Acquisition;                         (B)  no  later  than  five  (5)  Business  Days  prior  to  the  proposed  closing  date  of  such                 acquisition (or such shorter period as may be agreed to by the Administrative Agent) the Borrower,                 to the extent requested by the Administrative Agent, (i) shall have delivered to the Administrative                 Agent final copies or substantially final drafts if not executed at the required time of delivery of the                 purchase  agreement,  sale  agreement,  merger  agreement  or  other  agreement  evidencing  such                 Acquisition, and (ii) shall have delivered to, or made available for inspection by, the Administrative                 Agent all material financial information available with respect to such acquisition; and                         (C)  the  Borrower  shall  have  delivered  to  the  Administrative  Agent  a  Compliance                 Certificate  for  the  most  recent  fiscal  quarter  end  preceding  such  acquisition  for  which  financial                 statements have been delivered giving pro forma effect to such acquisition as if it had occurred as                 of the balance sheet date (in the case of the balance sheet) or at the beginning of such period (in the                 case of such income statements), demonstrating compliance with condition (c) above and certifying                 that all of the requirements of a “Permitted Acquisition” hereunder have been satisfied or will be                 satisfied on or prior to the consummation of such purchase or other Acquisition.          “Permitted Refinancing”:  as to any Indebtedness, the incurrence of other Indebtedness to refinance, extend,  renew, defease, restructure, replace or refund (collectively, “refinance”) such existing Indebtedness; provided, that, in  the case of such other Indebtedness, the following conditions are satisfied:  (a) the weighted average life to maturity  of  such  refinancing  Indebtedness  shall  be  greater  than  or  equal  to  the  weighted  average  life  to  maturity  of  the  Indebtedness being refinanced; (b) the principal amount of such refinancing Indebtedness shall be less than or equal  to the principal amount (including any accreted or capitalized amount) then outstanding of the Indebtedness being  refinanced, plus any required premiums, accrued and unpaid interest and other reasonable amounts paid, and fees and  expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and  by any amount equal to any existing commitments unutilized thereunder; (c) the respective obligor or obligors shall  be the same on the refinancing Indebtedness as on the Indebtedness being refinanced; (d) the security, if any, for the  refinancing Indebtedness shall be substantially the same as that for the Indebtedness being refinanced (except to the  extent that less security is granted to holders of refinancing Indebtedness); and (e) if the Indebtedness being refinanced  is subordinated to the Obligations, the refinancing Indebtedness is subordinated to the Obligations on terms that are  at least as favorable, taken as a whole, as the Indebtedness being refinanced (as determined in good faith and, if  requested by the Administrative Agent, certified in writing to the Administrative Agent by a Responsible Officer of  the Borrower) and the holders of such refinancing Indebtedness have entered into any subordination or intercreditor  agreements reasonably requested by the Administrative Agent evidencing such subordination.          “Permitted  Sale  Leaseback”:  any  arrangement  with  any  Person  whereby  the  Borrower  or  any  of  its  Subsidiaries sells or transfers the Sale Leaseback Property to such Person and thereafter rents or leases such Sale  Leaseback Property and uses it for substantially the same purpose or purposes as it was used prior to the sale.          “Permitted Tax Distribution”:  for any taxable period for which the Borrower and/or any of its Subsidiaries  or Unrestricted Subsidiaries are members of a consolidated, unitary, combined or similar income tax group for U.S.                                                 25  





 






federal and/or applicable state or local income tax purposes of which Holdings (or its successor) is the common parent  (a “Tax Group”), distributions to pay the actual consolidated, combined, unitary or similar income Tax liabilities of a  Tax Group for such taxable period that are attributable to income of the Borrower and/or any of its Subsidiaries or  Unrestricted Subsidiaries, in an amount not to exceed the amount that the Borrower and its applicable Subsidiaries or  Unrestricted Subsidiaries would have been required to pay in respect of such federal, state and local income Taxes, as  the case may be, in respect of such taxable period if the Borrower and/or its applicable Subsidiaries or Unrestricted  Subsidiaries had paid such Taxes directly as a stand-alone corporate taxpayer or stand-alone corporate group for all  taxable periods ending after the Closing Date (reduced by any such Taxes directly paid by the Borrower or any of its  Subsidiaries  or  Unrestricted  Subsidiaries),  provided,  that  distributions  to  pay  Taxes  attributable  to  the  income  of  Unrestricted Subsidiaries shall only be permitted to the extent of cash payments made by Unrestricted Subsidiaries to  the Borrower or any Subsidiary Guarantor for such purpose, provided further, that any distributions under this clause  in respect of any taxable period (or portion thereof) ending on or before the Closing Date shall be permitted only to  the  extent  relating  to  income  tax  adjustments  that  arise  after  the  Closing  Date  as  a  result  of  audits  or  other  tax  proceedings.          “Person”:   an  individual,  partnership,  corporation,  limited  liability  company,  business  trust,  joint  stock  company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.          “Plan”:  at a particular time, any employee benefit plan that is covered by ERISA and in respect of which the  Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section  4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.          “Platform”:  as defined in Section 11.2(b).          “Pledged Company”:  any Subsidiary of the Borrower the Capital Stock of which is pledged to the Collateral  Agent pursuant to any Security Document.          “Pledged Equity Interests”:  as defined in the Guarantee and Collateral Agreement.          “Portfolio Interest Exemption”:  as defined in Section 4.10(e).          “Pound Sterling”: the lawful currency of the United Kingdom.          “primary obligations”: as defined in the definition of “Guarantee Obligation”.           “primary obligor”: as defined in the definition of “Guarantee Obligation”.            “Prime Rate”:  the rate of interest per annum determined from time to time by Wells Fargo as its prime rate  in effect at its principal office in New York City and notified to the Borrower, which rate is determined in good faith  and applies generally to similarly situated borrowers.  The prime rate is a rate set by Wells Fargo based upon various  factors including Wells Fargo’s costs and desired return, general economic conditions and other factors, and is used  as a reference point for pricing some loans, which may be priced at, above, or below such rate.          “Projections”:  as defined in Section 7.2(b).          “Properties”:  as defined in Section 5.17(a).          “Property”:  any right or interest in or to property of any kind whatsoever, whether real, personal or mixed  and whether tangible or intangible, including, without limitation, Capital Stock.          “PTE”:   a  prohibited  transaction  class  exemption  issued  by  the  U.S.  Department  of  Labor,  as  any  such  exemption may be amended from time to time.                                                   26  





 






       “Public Company Costs”: (a) costs, expenses and disbursements associated with, related to or incurred in  anticipation of, or preparation for compliance with (x) the requirements of the Sarbanes-Oxley Act of 2002 and the  rules and regulations promulgated in connection therewith, (y) the provisions of the Securities Act and the Exchange  Act, as applicable to companies with equity or debt securities held by the public, and (z) the rules of national securities  exchange companies with listed equity or debt securities, (b) costs and expenses associated with investor relations,  shareholder meetings and reports to shareholders or debtholders and listing fees, and (c) directors’ compensation, fees,  indemnification, expense reimbursement (including legal and other professional fees, expenses and disbursements),  and directors’ and officers’ insurance.          “Public Lender”: as defined in the penultimate paragraph of Section 11.2.          “QFC”  has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in  accordance with, 12 U.S.C. 5390(c)(8)(D).          “Qualified  Capital  Stock”:   any  Capital  Stock  (other  than  warrants,  rights  or  options  referenced  in  the  definition thereof) that either (a) does not have a maturity and is not mandatorily redeemable, or (b) by its terms (or  by the terms of any employee stock option, incentive stock or other equity-based plan or arrangement under which it  is issued 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, (x) matures (excluding any maturity as the result of an optional redemption by the issuer  thereof) or is mandatorily redeemable (excluding any mandatory redemption resulting from an asset sale or change in  control so long as no payments in respect thereof are due or owing, or otherwise required to be made, until all  Obligations have been paid in full in cash), pursuant to a sinking fund obligation or otherwise, or is redeemable at the  option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled  payment constituting a return of capital, in each case, at any time on or after the ninety-first (91st) day following the  Initial Term Loan Maturity Date, or (y) is convertible into or exchangeable (unless at the sole option of the issuer  thereof) for (i) debt securities or (ii) any Capital Stock referred to in clause (x) above, in each case, at any time on or  after the ninety-first (91st) day following the Initial Term Loan Maturity Date.          “Qualified  Counterparty”:   with  respect  to  any  Hedge  Agreement  or  Cash  Management  Agreement,  any  counterparty thereto that is, or that at the time such Hedge Agreement or Cash Management Agreement was entered  into, was, a Lender, an Affiliate of a Lender, a Joint Lead Arranger, an Affiliate of a Joint Lead Arranger, an Agent  or an Affiliate of an Agent (or, in the case of any such Hedge Agreement entered into prior to the Closing Date, any  counterparty that was a Lender, an Affiliate of a Lender, a Joint Lead Arranger, an Affiliate of a Joint Lead Arranger,  an Agent or an Affiliate of an Agent on the Closing Date); provided, that, in the event a counterparty to a Hedge  Agreement or Cash Management Agreement at the time such Hedge Agreement or Cash Management Agreement was  entered into (or, in the case of any Hedge Agreement entered into prior to the Closing Date, on the Closing Date) was  a Qualified Counterparty, such counterparty shall constitute a Qualified Counterparty hereunder and under the other  Loan Documents; provided, further, that if such counterparty is not a Lender or an Agent, such counterparty executes  and delivers to the Administrative Agent a letter agreement in form and substance acceptable to the Administrative  Agent pursuant to which such person appoints the Collateral Agent as its agent under the applicable Loan Documents  and agrees to be bound by the provisions of Sections 10.3, 11.5, 11.11, 11.12, 11.16 as if it were an Agent or a Lender.          “Qualified Public Offering”:  an underwritten primary public offering of common Capital Stock of Holdings  pursuant to an effective registration statement on Form S-1 under the Securities Act resulting in gross proceeds of at  least $65,000,000.          “Quarterly Payment Date”:  March 31, June 30, September 30 and December 31 of each year.          “Recovery Event”:  any settlement of or payment in excess of $3,000,000 in respect of any property or  casualty insurance claim (but in any case, excluding any business interruption insurance claim) or any condemnation  proceeding relating to any asset of any Group Member.          “refinance”: as defined in the definition of “Permitted Refinancing”.           “Refinanced Term Loans”:  as defined in Section 11.1.                                                 27  





 






       “Refinancing”: the (a) repayment in full of the loans under the Original Credit Agreement, (b) the termination  of the revolving commitments under the Original Credit Agreement, (c) the repayment in full of all accrued interest,  fees and other amounts due and payable under the Original Credit Agreement and (d) the release of all Liens and  return of all collateral securing the foregoing obligations.          “Register”:  as defined in Section 11.6(d).          “Regulation T”:  Regulation T of the Board as in effect from time to time.          “Regulation U”:  Regulation U of the Board as in effect from time to time.          “Regulation X”:  Regulation X of the Board as in effect from time to time.          “Reimbursement Obligation”:  the obligation of the Borrower to reimburse the Issuing Lender pursuant to  Section 3.11 for amounts drawn under Letters of Credit.          “Reinvestment Deferred Amount”:  with respect to any Reinvestment Event, the aggregate Net Cash Proceeds  received by any Group Member in connection therewith that are not applied to prepay the Loans pursuant to Section  4.2(b) as a result of the delivery of a Reinvestment Notice.          “Reinvestment Event”:  any Asset Sale or Recovery Event in respect of which the Borrower has delivered a  Reinvestment Notice.          “Reinvestment Notice”:  a written notice executed by a Responsible Officer stating that no Event of Default  has occurred and is continuing and that the Borrower (directly or indirectly through a Subsidiary) intends and expects  to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire or repair assets  useful in its business.          “Reinvestment Prepayment Amount”:  with respect to any Reinvestment Event, the Reinvestment Deferred  Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire or  repair assets useful in the Borrower’s or its Subsidiaries’ businesses.          “Reinvestment  Prepayment  Date”:   with  respect  to  any  Reinvestment  Event,  the  earlier  of  (a)  the  date  occurring twelve (12) months after such Reinvestment Event, or, if within such twelve (12) month period the Borrower  or  a  Subsidiary  has  entered  into  an  agreement  in  definitive  form  to  apply  any  such  Net  Cash  Proceeds  to  a  Reinvestment Event, then such period shall be extended, solely for purposes of applying such Net Cash Proceeds  pursuant  to  such  agreement,  for  a  period  of  six  (6)  months  and  (b)  the  date  on  which  the  Borrower  shall  have  determined  not  to,  or  shall  have  otherwise  ceased  to,  acquire  or  repair  assets  useful  in  the  Borrower’s  or  its  Subsidiaries’ businesses with all or any portion of the relevant Reinvestment Deferred Amount.          “Related Party Register”:  as defined in Section 11.6(d).          “Release”:  any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping,  emptying, injection, or leaching into the Environment, or into or from any building or facility.          “Replacement Rate”:  as defined in Section 4.7.          “Replacement Term Loans”:  as defined in Section 11.1.          “Reportable Event”:  any of the events set forth in Section 4043(c) of ERISA, other than those events as to  which the thirty (30) day notice period is waived pursuant to PBGC Reg. § 4043.          “Required Lenders”:  at any time, the holders of more than 50% of the sum of (a) the aggregate unpaid  principal amount of the Term Loans then outstanding and (b) the total amount of the Revolving Commitments then in                                                  28  





 






effect or, if any Revolving Commitments have been terminated, the total amount of Revolving Extensions of Credit  then  outstanding.   The  Loans  and  Commitments  of  any  Defaulting  Lender  shall  be  disregarded  in  determining  Required Lenders at any time.          “Required Revolving Lenders”:  at any time, the holders of more than 50% of the sum the total amount of  the Revolving Commitments then in effect or, if any Revolving Commitments have been terminated, the total amount  of Revolving Extensions of Credit then outstanding.  The Loans and Commitments of any Defaulting Lender shall be  disregarded in determining Required Revolving Lenders at any time.          “Requirement of Law”:  as to any Person, any law, treaty, rule or regulation, binding determination of an  arbitrator  or  a  court  or  other  Governmental  Authority  or  official  administrative  pronouncement,  in  each  case,  applicable to or binding upon such Person or any of its property or to which such Person or any of its property is  subject.          “Responsible  Officer”:   the  chief  executive  officer,  president,  chief  financial  officer,  treasurer,  assistant  treasurer, secretary or assistant secretary of Holdings or the Borrower (unless otherwise specified), but in any event,  with respect to financial matters, the chief financial officer, treasurer or assistant treasurer of the Borrower.          “Restricted Debt Payments”:  as defined in Section 8.8.          “Restricted Payments”:  as defined in Section 8.6.          “Revolving  Commitment”:  the  Initial  Revolving  Commitments  and  the  Incremental  Revolving  Commitments.           “Revolving Commitment Increase Effective Date”:  as defined in Section 3.16(a).          “Revolving Extensions of Credit”:  as to any Revolving Lender at any time, an amount equal to the sum of  (a) the aggregate principal amount of all Revolving Loans held by such Lender then outstanding and (b) such Lender’s  Revolving Percentage of the L/C Obligations and Swingline Loans then outstanding.           “Revolving Facility”:  the Revolving Commitments and the extensions of credit made thereunder.          “Revolving Lender”:  each Lender that has a Revolving Commitment or that holds Revolving Loans.          “Revolving Loans”:  the Initial Revolving Loans and the Incremental Revolving Loans.          “Revolving Notice Date”:  as defined in Section 3.17(b).          “Revolving  Percentage”:   as  to  any  Revolving  Lender  at  any  time,  the  percentage  which  such  Lender’s  Revolving Commitment then constitutes of the Total Revolving Commitments (or, at any time after the Revolving  Commitments  shall  have  expired  or  terminated,  the  percentage  which  the  aggregate  amount  of  such  Lender’s  Revolving  Extensions  of  Credit  then  outstanding  constitutes  of  the  aggregate  amount  of  the  Total  Revolving  Extensions of Credit then outstanding).          “S&P”:  Standard & Poor’s Ratings Services.          “Sale Leaseback Property”: that certain Property owned by the Borrower on the Closing Date and located at  331 Treble Cove Road, North Billerica, Massachusetts.          “Sanctioned  Country”:  at  any  time,  a  country,  territory  or  region  which  is  the  subject  or  target  of  any  Sanctions.          “Sanctions”: as defined in Section 5.22(a).                                                  29  





 






       “SEC”:  the Securities and Exchange Commission, any successor thereto and any analogous Governmental  Authority.          “Secured Net Leverage Ratio”:  at any date, the ratio of (a) Consolidated Funded Debt secured by a Lien on  all or any portion of the Collateral or any other assets of any of the Loan Parties as of such date, net of unrestricted  cash and Cash Equivalents of the Borrower and its Subsidiaries and cash and Cash Equivalents of the Borrower and  its Subsidiaries restricted in favor of the Administrative Agent, the Collateral Agent or any Secured Party (which may  also include cash and Cash Equivalents securing indebtedness secured by a Lien and is included in Consolidated  Funded Debt) in an aggregate amount of such cash or Cash Equivalents not to exceed $50,000,000 to (b) Consolidated  EBITDA of Holdings and its Subsidiaries for the period of four consecutive fiscal quarters ended on such date (or, if  such date is  not the last day  of any  fiscal quarter, the  most recently completed  fiscal quarter for  which  financial  statements are required to have been delivered pursuant to Section 7.1), in each case, with such pro forma adjustments  to  Consolidated  Funded  Debt  and  Consolidated  EBITDA  as  are  appropriate  and  consistent  with  the pro  forma adjustment provisions set forth in Section 1.3.          “Secured Parties”:  the collective reference to the Lenders, the Administrative Agent, the Collateral Agent,  the Qualified Counterparties and the Issuing Lender and each of their successors and permitted assigns.          “Securities Act”:  the Securities Act of 1933, as amended.          “Security Documents”:  the collective reference to the Guarantee and Collateral Agreement, the Mortgages  (if any), the Intellectual Property Security Agreements and all other security documents hereafter delivered to the  Administrative Agent or the Collateral Agent granting (or purporting to grant) a Lien on any Property of any Person  to secure the Obligations of any Loan Party under any Loan Document, Specified Hedge Agreement or Specified Cash  Management Agreement.          “Single Employer Plan”:  any Plan that is covered by Title IV of ERISA, but that is not a Multiemployer  Plan.          “Software”:  as defined in the definition of Intellectual Property.          “Solvent”:  as to any Person at any time, that (a) the fair value of the property of such Person is greater than  the total amount of liabilities, including contingent liabilities, of such Person; (b) the present fair salable value of the  assets of such Person is greater than the amount that will be required to pay the probable liability of such Person on  the sum of its debts and other liabilities, including contingent liabilities; (c) such Person has not, does not intend to,  and does not believe (nor should it reasonably believe) that it will, incur debts or liabilities beyond such Person’s  ability to pay such debts and liabilities as they become due (whether at maturity or otherwise); and (d) such Person  does  not  have  unreasonably  small  capital  with  which  to  conduct  the  businesses  in  which  it  is  engaged  as  such  businesses are now conducted and are proposed to be conducted following the Closing Date.          “Special Flood Hazard Area”:  an area that FEMA’s current flood maps indicate has at least one percent (1%)  chance of a flood equal to or exceeding the base flood elevation (a 100-year flood) in any given year.          “Specified Cash Management Agreement”:  any Cash Management Agreement entered into by (a) any Loan  Party and (b) any Qualified  Counterparty, as counterparty; provided, that any release of Collateral or Guarantors  effected in the  manner permitted by this  Agreement shall  not require the consent of holders of obligations  under  Specified Cash Management Agreements.  No Specified Cash Management Agreement shall create in favor of any  Qualified Counterparty thereof that is a party thereto any rights in connection with the management or release of any  Collateral or of the obligations of any Guarantor under the Guarantee and Collateral Agreement.            “Specified  Hedge  Agreement”:   any  Hedge  Agreement  entered  into  by  (a)  any  Loan  Party  and  (b)  any  Qualified Counterparty, as counterparty; provided, that any release of Collateral or Guarantors effected in the manner  permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements.   No Specified Hedge Agreement shall create in favor of any Qualified Counterparty thereof that is a party thereto any  rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the                                                 30  





 






Guarantee and Collateral Agreement; provided, however, nothing herein shall limit the rights of any such Qualified  Counterparty set forth in such Specified Hedge Agreement.            “Subject IP”: as defined in the definition of Excluded Assets.           “Subordinated Indebtedness”: any Indebtedness of the Borrower or a Subsidiary Guarantor the payment of  principal and interest of which and other obligations of the Borrower or such Subsidiary Guarantor in respect thereof  are subordinated to the prior payment in full of the Obligations on terms and conditions reasonably satisfactory to the  Administrative Agent.          “Subsidiary”:  as to any Person, a corporation, partnership, limited liability company or other entity of which  shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership  interests having such power only by reason of the happening of a contingency) to elect a majority of the board of  directors or other managers of such corporation, partnership or other entity are at the time owned by such Person.   Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a  Subsidiary  or  Subsidiaries  of  the  Borrower.   Notwithstanding  the  foregoing,  an  Unrestricted  Subsidiary  shall  be  deemed  not  to  be  a  Subsidiary  of  Holdings  or  any  of  its  Subsidiaries  (except  for  purposes  of  the  definition  of  Unrestricted Subsidiary contained herein) for purposes of this Agreement.          “Subsidiary Guarantor”:  each Subsidiary of the Borrower that is a Wholly Owned Subsidiary on the date it  became (or  was required to become) a party  hereto or to the Guarantee and  Collateral  Agreement, other than an  Excluded Subsidiary.          “Subsidiary Redesignation”:  as defined in Section 7.14.          “Survey”:  a survey of any Mortgaged Property (and all improvements thereon) which is (a) (i) prepared by  a surveyor or engineer licensed to perform surveys in the jurisdiction where such Mortgaged Property is located, (ii)  dated (or redated) not earlier than six (6) months prior to the date of delivery thereof, unless there shall have occurred  within six (6) months prior to such date of delivery any exterior construction on the site of such Mortgaged Property  or any easement, right of way or other interest in the Mortgaged Property has been granted or become effective through  operation of law or otherwise with respect to such Mortgaged Property which, in either case, can be depicted on a  survey, in which events, as applicable, such survey shall be dated (or redated) after the completion of such construction  or if such construction shall not have been completed as of such date of delivery, not earlier than twenty (20) days  prior to such date of delivery, or after the grant or effectiveness of any such easement, right of way or other interest in  the Mortgaged Property; provided, that the Borrower shall have a reasonable amount of time to deliver such redated  survey,  (iii)  certified  by  the  surveyor  (in  a  manner  reasonably  acceptable  to  the  Administrative  Agent)  to  the  Administrative Agent, the Collateral Agent and the Title Company, (iv) complying in all respects with the minimum  detail  requirements  of  the  American  Land  Title  Association  as  such  requirements  are  in  effect  on  the  date  of  preparation of such survey and (v) sufficient for the Title Company to remove all standard survey exceptions from the  title insurance policy (or commitment) relating to such Mortgaged Property and issue customary endorsements or (b)  otherwise reasonably acceptable to the Collateral Agent.          “Swingline Commitment”:  a portion of the Revolving Facility not in excess of $10,000,000.          “Swingline Facility”:  the swingline facility established pursuant to Section 3.3.          “Swingline Lender”:  Wells Fargo in its capacity as swingline lender hereunder or any successor thereto.          “Swingline  Loan”:   any  swingline  loan  made  by  the  Swingline  Lender  to  the  Borrower  pursuant  to  Section 3.3, and all such swingline loans collectively as the context requires.          “Swingline Note”:  a promissory note made by the Borrower in favor of the Swingline Lender evidencing  the  Swingline  Loans  made  by  the  Swingline  Lender,  substantially  in  the  form  attached  as  Exhibit G,  and  any  substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.                                                  31  





 






       “Swingline Participation Amount”: as defined in Section 3.3(b)(iii).          “Tax Group”: as defined in the definition of “Permitted Tax Distribution”.           “Tax Status Certificate”:  as defined in Section 4.10(e).          “Taxes”:  all present or future taxes, levies, imposts, duties, fees, deductions or withholdings or other charges  imposed by any Governmental Authority, and any interest, penalties or additions to tax imposed with respect thereto.          “Term Facility”:  the Initial Term Facility, together with each Additional Term Facility, as applicable.          “Term Lender”:  each Lender that provides Initial Term Loans or Additional Term Loans, as applicable.          “Term Loan”:  the Initial Term Loans, together with any Additional Term Loans, if applicable.          “Term Loan Increase Effective Date”:  as defined in Section 2.4(a).          “Term Notice Date”:  as defined in Section 2.6(b).          “Term Percentage”:  as to any Term Lender at any time, the percentage which the aggregate principal amount  of such Lender’s Term Loans then outstanding constitutes of the aggregate principal amount of the Term Loans then  outstanding.          “Title Company”:  any title insurance company as shall be retained by Borrower and reasonably acceptable  to the Collateral Agent.          “Total Net Leverage Ratio”:  at any date, the ratio of (a) Consolidated Funded Debt as of such date, net of  unrestricted cash and Cash Equivalents of the Borrower and its Subsidiaries and cash and Cash Equivalents of the  Borrower and its Subsidiaries restricted in favor of the Administrative Agent, the Collateral Agent or any Secured  Party (which may also include cash and Cash Equivalents securing indebtedness included in Consolidated Funded  Debt)  in  an  aggregate  amount  of  such  cash  or  Cash  Equivalents  not  to  exceed  $50,000,000  to  (b)  Consolidated  EBITDA of Holdings and its Subsidiaries for the period of four consecutive fiscal quarters ended on such date (or, if  such date is  not the last day  of any  fiscal quarter, the  most recently completed  fiscal quarter for  which  financial  statements are required to have been delivered pursuant to Section 7.1), in each case, with such pro forma adjustments  to  Consolidated  Funded  Debt  and  Consolidated  EBITDA  as  are  appropriate  and  consistent  with  the pro  forma adjustment provisions set forth in Section 1.3.          “Total Revolving Commitments”:  at any time, the aggregate amount of the Revolving Commitments then in  effect.          “Total Revolving Extensions of Credit”:  at any time, the aggregate amount of the Revolving Extensions of  Credit of the Revolving Lenders outstanding at such time.          “Transactions”:  collectively, (a) the Refinancing, (b) the borrowing of the Initial Term Loans on the Closing  Date and (c) the other transactions contemplated by the Loan Documents.          “Transferee”:  any Assignee or Participant.          “Type”:  as to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.          “UCC” or “Uniform Commercial Code”:  the Uniform  Commercial Code as in effect from time to time  (except as otherwise specified) in any applicable state or jurisdiction.          “Unasserted Contingent Obligations”:  as defined in the Guarantee and Collateral Agreement.                                                 32  





 






       “Uniform  Customs”:   the  rules  of  the  Uniform  Customs  and  Practice  for  Documentary  Credits,  as  most  recently published by the International Chamber of Commerce (or such later version thereof as may be in effect at the  time of issuance).         “United States”:  the United States of America.          “Unrestricted Subsidiary”:  (a) any Subsidiary of the Borrower designated by the Borrower as an Unrestricted  Subsidiary and (b) any subsidiary of an Unrestricted Subsidiary.          “Voting Stock”:  of any Person as of any date means the Capital Stock of such Person that is at the time  entitled to vote, directly or indirectly, in the election of the board of directors or Equivalent Managing Body of such  Person.          “Wells Fargo”:  as defined in the preamble to this Agreement.          “Wholly Owned Subsidiary”:  as to any Person, any other Person all of the Capital Stock of which (other  than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly  Owned Subsidiaries.          “Write-Down and Conversion Powers” means, 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.          1.2     Other Definitional Provisions.                    (a)    Unless  otherwise  specified  therein,  all  terms  defined  in  this  Agreement  shall  have  the  defined meanings when used in the other Loan Documents or any certificate or other document made or delivered  pursuant hereto or thereto.                  (b)    As used herein and in the other Loan Documents, and any certificate or other document  made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section  1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings  given to them under GAAP or, in the case of any Foreign Subsidiary, other accounting standards, if applicable, (ii)  the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,”  (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to  exist  (and  the  words  “incurred”  and  “incurrence”  shall  have  correlative  meanings),  (iv)  the  words  “asset”  and  “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible  assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract  rights, (v) the words “renew”, “renewing” and “renewal”, when used in respect of a Letter of Credit, shall be construed  to refer to the extension of the expiry date of such Letter of Credit, (vi) references to agreements or other Contractual  Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as  amended,  supplemented,  restated  or  otherwise  modified  from  time  to  time  (subject  to  any  applicable  restrictions  hereunder), (vii) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or  regulation as amended, modified or supplemented from time to time and (viii) any references herein to any Person  shall be construed to include such Person’s successors and permitted assigns.                  (c)    The words “hereof,” “herein” and “hereunder” and words of similar import when used in  this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and  Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.                  (d)    The meanings given to terms defined herein shall be equally applicable to both the singular  and plural forms of such terms.                                                  33  





 






               (e)    Except  as  otherwise  expressly  provided  herein,  all  terms  of  an  accounting  or  financial  nature shall be construed in accordance with GAAP in effect as of the date hereof; provided, that, if either the Borrower  notifies the Administrative Agent that such Borrower requests an amendment to any provision hereof to eliminate the  effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such  provision (or if the Administrative Agent notifies the 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 the Administrative Agent, the Borrower and the Required Lenders shall  negotiate  in  good  faith  to  amend  such  provision  to  preserve  the  original  intent  in  light  of  the  change  in  GAAP;  provided, that such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before  such change shall have become effective until such notice shall have been withdrawn or such provision amended in  accordance herewith.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant  (including  the  computation  of  any  financial  covenant)  contained  herein,  Indebtedness  of  the  Borrower  and  its  Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of  FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.                  (f)    When the payment of any obligation or the performance of any covenant, duty or obligation  is  stated  to  be  due  or  performance  required  on  a  day  which  is  not  a  Business  Day,  the  date  of  such  payment  or  performance shall extend to the immediately succeeding Business Day and such extension of time shall be reflected  in computing interest or fees, as the case may be; provided, that, with respect to any payment of interest on or principal  of Eurodollar Loans, if such extension would cause any such payment to be made in the next succeeding calendar  month, such payment shall be made on the immediately preceding Business Day.          1.3     Pro Forma Adjustments.  In the event that Holdings or any Subsidiary incurs, assumes, guarantees,  redeems, retires or extinguishes any Indebtedness subsequent to the commencement of the period for which the Total  Net Leverage Ratio or the Secured Net Leverage Ratio is being calculated but prior to or simultaneously with the  event  for  which the calculation of the Total Net Leverage Ratio or the Secured Net Leverage Ratio is  made (the  “Calculation Date”), then the Total Net Leverage Ratio or the Secured Net Leverage Ratio, as the case may be, shall  be  calculated  giving pro  forma  effect  to  such  incurrence,  assumption,  guarantee,  redemption,  retirement  or  extinguishment of Indebtedness as if the same had occurred at the beginning of the applicable period; provided, that,  no such pro forma adjustment shall be made for purposes of Section 8.1 for any events occurring after the last day of  the fiscal quarter.          For purposes of making computations herein, Investments, acquisitions, dispositions, mergers, consolidations  and discontinued operations (as determined in accordance with GAAP) that have been made (or committed to be made  pursuant to a definitive agreement) by Holdings or any of its Subsidiaries during the reference period or subsequent  to such reference period and on or prior to or simultaneously with the Calculation Date shall be calculated on a pro  forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and discontinued  operations  (and  the  change  in  any  associated  Indebtedness  and  the  change  in  Consolidated  EBITDA  resulting  therefrom) had occurred on the first day of the reference period.  If since the beginning of such period any Person that  subsequently  became  a  Subsidiary  or  was  merged  with  or  into  the  Borrower  or  any  of  its  Subsidiaries  since  the  beginning  of  such  period  shall  have  made  any  Investment,  acquisition,  disposition,  merger,  consolidation  or  discontinued operation that would have required adjustment pursuant to this definition, then the Total Net Leverage  Ratio and the Secured Net Leverage Ratio shall be calculated giving pro forma effect thereto for such period as if such  Investment, acquisition, disposition, merger, consolidation or discontinued operation had occurred at the beginning of  the applicable period.          For purposes of this Section 1.3, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of Holdings or the Borrower  and may include, without duplication, cost savings, operating expense reductions, restructuring charges and expenses  and  cost-saving  synergies  resulting  from  such  Investment,  acquisition,  disposition,  merger,  consolidation  or  discontinued  operation  (including  the  Transactions)  or  other  transaction,  in  each  case,  calculated  in  the  manner  described in, and not to exceed the amount set forth in clause (i)(l) of, the definition of Consolidated EBITDA.            If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such  Indebtedness shall be calculated as if the rate in effect on the applicable calculation date had been the applicable rate                                                 34  





 






for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness).  Interest on a  Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial  or accounting officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance  with  GAAP.   For  purposes  of  making  the  computation  referred  to  above,  interest  on  any  Indebtedness  under  a  revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of  such Indebtedness during the applicable period except as set forth in the second paragraph of this Section 1.3.  Interest  on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a  eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen,  or, if none, then based upon such optional rate chosen as the Borrower may designate.          1.4     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 Additional 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 Dollars”, “in immediately  available funds”, “in Cash” or any other similar requirement.            1.5     Divisions.  For all purposes under the Loan Documents, in connection with any division or plan of  division under Delaware law (or any comparable event under a different jurisdiction’s laws): (i) if any asset, right,  obligation, or liability of any Person becomes the asset, right, obligation, or liability of a different Person, then it shall  be deemed to have been transferred from the original Person to the subsequent Person, and (ii) if any new Person  comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the  holders of its Capital Stock at such time.          1.6     Limited Condition Acquisitions. In the event that the Borrower notifies the Administrative Agent in  writing that any proposed acquisition is a Limited Condition Acquisition and that the Borrower wishes to test the  conditions to such acquisition and the Indebtedness that is to be used to finance such acquisition in accordance with  this Section, then, the following provisions shall apply:                  (a)    any condition to  such acquisition or such Indebtedness that requires that no Default or  Event of Default shall have occurred and be continuing at  the time of such acquisition  or the incurrence of such  Indebtedness, shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time  of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing  such acquisition and (ii) no Event of Default under any of Sections 9.1(a), 9.1(e) or 9.1(f) shall have occurred and be  continuing  both  before  and  after  giving  effect  to  such  acquisition  and  any  Indebtedness  incurred  in  connection  therewith;                  (b)    any  condition  to  such  acquisition  or  such  Indebtedness  that  the  representations  and  warranties in this Agreement and the other Loan Documents shall be true and correct at the time of such acquisition  or  the  incurrence  of  such  Indebtedness  shall  be  subject  to  customary  “certain  funds”  conditionality  provisions  (including,  without  limitation,  a  condition  that  the  representations  and  warranties  under  the  relevant  agreements  relating to such Limited Condition Acquisition as are material to the lenders providing such Indebtedness shall be true  and  correct,  but  only  to  the  extent  that  the  Borrower  or  its  applicable  Subsidiary  has  the  right  to  terminate  its  obligations under such agreement as a result of a breach of such representations and warranties or the failure of those  representations and warranties to be true and correct), so long as all representations and warranties in this Agreement  and the other Loan Documents are true and correct at the time of execution of the definitive purchase agreement,  merger agreement or other acquisition agreement governing such acquisition;                  (c)    any  financial  ratio  test  or  condition  may  be  tested  either  (i) upon  the  execution  of  the  definitive agreement with respect to such Limited Condition Acquisition or (ii) upon the consummation of the Limited  Condition Acquisition and related incurrence of Indebtedness, in each case, after giving effect to the relevant Limited  Condition Acquisition and related incurrence of Indebtedness, on a pro forma basis; and                                                  35  





 






               (d)    except as provided in the next sentence, if the Borrower has made an election with respect  to any Limited Condition Acquisition to test a financial ratio test or condition at the time specified in clause (c)(i) of  this Section, then in connection with any subsequent calculation of any ratio or basket on or following the relevant  date of execution of the definitive agreement with respect to such Limited Condition Acquisition and prior to the  earlier of (i) the date on which such Limited Condition Acquisition is consummated or (ii) the date that the definitive  agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited  Condition Acquisition, any such ratio or basket shall be required to be satisfied on a pro forma basis assuming such  Limited Condition Acquisition and other transactions in connection therewith (including the incurrence or assumption  of Indebtedness) have been consummated.  Notwithstanding the foregoing, any calculation of a ratio in connection  with determining (A) the Applicable Margin, (B) whether the Borrower can make a Restricted Payment pursuant to  Section 8.6(o), (C) whether the Borrower can make a Restricted Debt Payment pursuant to Section 8.8(a)(iv) and (D)  whether or not the Borrower is in compliance with the requirements of Section 8.1 shall, in each case be calculated  assuming such Limited Condition Acquisition and other transactions in connection therewith (including the incurrence  or assumption of Indebtedness) have not been consummated.                  The foregoing provisions shall apply with similar effect during the pendency of multiple Limited  Condition Acquisitions such that each of the possible scenarios is separately tested.            SECTION 2.     AMOUNT AND TERMS OF TERM COMMITMENTS          2.1     Term Commitments.  Subject to the terms and conditions hereof, each Lender with an Initial Term  Commitment agrees to make Initial Term Loans to the Borrower in Dollars on the Closing Date in an amount not to  exceed the amount of its Initial Term Commitment.  The Initial Term Loans may from time to time be Eurodollar  Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance  with Sections 2.2 and 4.3.            2.2     Procedure  for  Term  Loan  Borrowing.   The  Borrower  shall  give  the  Administrative  Agent  irrevocable notice substantially in the form of Exhibit B-1 (which notice must be received by the Administrative Agent  (i) prior to 11:00 a.m., New York City time, three (3) Business Days prior to the requested Borrowing Date, in the  case of Eurodollar Loans, or (ii) prior to 11:00 a.m., New York City time, on the requested Borrowing Date, in the  case of Base Rate Loans) requesting that the applicable Term Lenders make the Initial Term Loans on the Closing  Date and specifying the amount to be borrowed.  Upon receipt of such notice the Administrative Agent shall promptly  notify each applicable Term Lender thereof.  Not later than 2:00 p.m., New York City time, on the Closing Date, each  applicable  Term  Lender  shall  make  available  to  the  Administrative  Agent  at  the  Funding  Office  an  amount  in  immediately available funds equal to the Initial Term Loans to be made by such Lender.  The Administrative Agent  shall make the proceeds of such Initial Term Loans available to the Borrower on such Borrowing Date by wire transfer  in immediately available funds to a bank account designated in writing by the Borrower to the Administrative Agent.          2.3     Repayment  of  Term  Loans.   On  each  Quarterly  Payment  Date,  beginning  with  the  Quarterly  Payment Date ending on September 30, 2019, the Borrower shall repay to the Administrative Agent for the ratable  account of the Lenders the principal amount of the Initial Term Loans then outstanding in an amount equal to the  amount set forth below opposite such Quarterly Payment Date.      Quarterly Payment Date                          Amortization Payment   Each Quarterly Payment Date ended on or prior to $2,500,000   September 30, 2022   Each Quarterly Payment Date ended after September $3,750,000   30, 2022 and prior to the Initial Term Loan Maturity   Date          The remaining unpaid principal amount of the Initial Term Loans and all other Obligations under or in respect  of the Initial Term Loans shall be due and payable in full, if not earlier in accordance with this Agreement, on the  Initial Term Loan Maturity Date.                                                  36  





 






       2.4     Incremental Term Loans.                    (a)    Borrowing Request.  The Borrower may at any time and from time to time after the Closing  Date by written notice to the Administrative Agent elect to increase the Term Facility and/or request the establishment  of one or more new term loan facilities (each, an “Incremental Term Facility”) with term loan commitments (each, an  “Incremental  Term  Loan  Commitment”)  in  an  amount  not  in  excess  of  the  Incremental  Cap,  and  in  minimum  increments of $1,000,000 and a minimum amount of $10,000,000 (or such lesser amount equal to the remaining  Incremental Cap).  Each such notice shall specify (i) the date (each, a “Term Loan Increase Effective Date”) on which  the Borrower proposes that the Incremental Term Loan Commitment shall be effective, which shall be a date not less  than three (3) Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the  identity of each Person (which, if not a Lender, an Approved Fund or an Affiliate of a Lender, shall be reasonably  satisfactory to the Administrative Agent (such acceptance not to be unreasonably withheld or delayed)) to whom the  Borrower proposes any portion of such Incremental Term Loan Commitment be allocated and the amounts of such  allocations.                  (b)    Conditions.  The Incremental Term Loan Commitment shall become effective, as of such  Term Loan Increase Effective Date; provided, that, subject to Section 1.6 in the case of an Incremental Term Facility  incurred in connection with a Limited Condition Acquisition:                         (i)    each of the representations and warranties made by any Loan Party in or pursuant                 to the Loan Documents shall be true and correct in all material respects on and as of such Term                 Loan Increase Effective Date as if made on and as of such date (except to the extent made as of a                 specific date, in which case such representation and warranty shall be true and correct in all material                 respects on and as of such specific date);                         (ii)   no Event of Default shall exist immediately prior to or after giving effect to such                 Incremental Term Facility;                         (iii)  the Borrower shall deliver or cause to be delivered any customary legal opinions                 or other documents reasonably requested by the Administrative Agent in connection with any such                 transaction;                         (iv)   no Lender will be required to participate in any Incremental Term Facility without                 its consent;                          (v)    the Borrower shall be in compliance with the covenants in Section 8.1, calculated                 on a pro forma basis, including the application of the proceeds of such Incremental Term Loan                 Commitment  (without  “netting”  the  cash  proceeds  of  the  applicable  Incremental  Facility)  (and                 determined on the basis of the financial statements for the most recently ended fiscal quarter), and                 assuming  a  full  drawing  under  all  Incremental  Revolving  Facilities  constituting  revolving                 commitments incurred at such time; and                         (vi)   the all-in-yield applicable to any Incremental Term Loan will be determined by                 the Borrower and the lenders providing such Incremental Term Loan.                  (c)    Terms of Incremental Term Loans and Incremental Term Loan Commitments.  The terms  and provisions of the Incremental Term Loans made pursuant to the Incremental Term Loan Commitments shall be  as follows:                         (i)    terms  and  provisions  of  Loans  made  pursuant  to  Incremental  Term  Loan                 Commitments (the “Incremental Term Loans”) shall be on terms consistent with the existing Term                 Loans (except as otherwise set forth herein) or, to the extent not consistent with such existing Term                 Loans, on terms agreed upon between the Borrower and the Lenders providing such Incremental                 Term Loans and reasonably acceptable to the Administrative Agent (except as otherwise set forth                                                  37  





 






               herein) (it being understood that Incremental Term Loans may be part of the existing tranche of                 Term Loans or may comprise one or more new tranches of Term Loans);                         (ii)   the maturity date of such Incremental Term Loan shall be no earlier than the Initial                 Term Loan Maturity Date and the weighted average life to maturity of all new Incremental Term                 Loans shall be no shorter than the then remaining weighted average life to maturity of the existing                 Term Loans;                         (iii)  the Incremental Term Loans shall be guaranteed by the Guarantors and secured                 by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Initial                 Term Facility.          The Incremental Term Loan Commitments shall be effected by a joinder agreement (the “Increase Term  Joinder”) executed by the Borrower, the Administrative Agent and each Lender making such Incremental Term Loan  Commitment, in form and substance reasonably satisfactory to each of them (in the case of the Administrative Agent,  to the extent required herein).  The Increase Term Joinder may, without the consent of any other Lenders, effect such  amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of  the  Administrative  Agent,  to  effect  the  provisions  of  this  Section  2.4  and,  in  the  case  of  a  Limited  Condition  Acquisition, subject to the provisions of Section 1.6.  In addition, unless otherwise specifically provided herein, all  references in the Loan Documents to Term Loans shall be deemed, unless the context otherwise requires, to include  references to Incremental Term Loans that are Term Loans made pursuant to this Agreement.                  (d)    [Reserved].                  (e)    Making of Incremental Term Loans.  On any Term Loan Increase Effective Date on which  Incremental Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions,  each Lender of such Incremental Term Loan Commitment shall make an Incremental Term Loan to the Borrower in  an amount equal to its Incremental Term Loan Commitment.                  (f)    Ranking.   The  Incremental  Term  Loans  and  Incremental  Term  Loan  Commitments  established pursuant to this Section 2.4 shall constitute Loans and Commitments under, and shall be entitled to all the  benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit  equally and ratably from (x) security interests created by the Security Documents and the guarantees of the Guarantors  and (y) mandatory prepayments of the Term Facility unless the Borrower and the Lenders in respect of the Incremental  Term Facility elect lesser payments.  The Loan Parties shall take any actions reasonably required by the Administrative  Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue  to be perfected under the Uniform Commercial Code or otherwise after giving effect to the establishment of any such  class of Incremental Term Loans or any such Incremental Term Loan Commitments.          2.5     [Reserved].          2.6     Extension of Maturity Date in Respect of Term Facility.                    (a)    Requests for Extension.  The Borrower may, by notice to the Administrative Agent (who  shall promptly notify the Lenders) not later than 30 days prior to the maturity date then in effect hereunder in respect  of the Term Facility (the “Existing Term Facility Maturity Date”), request that each Term Lender extend such Lender’s  Existing Term  Facility Maturity Date in respect of the Term Facility; provided, that (i) the interest rate  margins,  interest rate “floors,” fees and maturity applicable to any Term Loan shall be determined by the Borrower and the  Extending  Term  Lenders  and  (ii)  any  such  extension  shall  be  on  the  terms  and  pursuant  to  documentation  to  be  determined by the Borrower and the Extending Term Lenders.                  (b)    Term Lender Elections to Extend.  Each Term Lender, acting in its sole and individual  discretion, shall, by notice to the Administrative Agent given within ten (10) Business Days of delivery of the notice  referred to in clause (a) (or such other period as the Borrower and the Administrative Agent shall mutually agree) (the  “Term Notice Date”), advise the Administrative Agent whether or not such Term Lender agrees to such extension                                                 38  





 






(and each Term Lender that determines not to so extend its Existing Term Facility Maturity Date (a “Non-Extending  Term Lender”) shall notify the Administrative Agent of such fact promptly after such determination (but in any event  no later than the Term Notice Date) and any Term Lender that does not so advise the Administrative Agent on or  before the Term Notice Date shall be deemed to be a Non-Extending Term Lender.  The election of any Term Lender  to agree to such extension shall not obligate any other Term Lender to so agree.                  (c)    Notification by Administrative Agent.  The Administrative Agent shall notify the Borrower  of each Term Lender’s determination under this Section 2.6 promptly following the Term Notice Date.                  (d)    Additional Commitment Lenders.  Subject to Section 4.11, the Borrower shall have the  right to replace each Non-Extending Term Lender with, and add as “Term Lenders” under this Agreement in place  thereof, one or more Eligible Assignees (each, an “Additional Term Commitment Lender”) as provided in Section  11.6;  provided,  that  each  of  such  Additional  Term  Commitment  Lenders  shall  enter  into  an  Assignment  and  Assumption  pursuant  to  which  such  Additional  Term  Commitment  Lender  shall  undertake  an  Initial  Term  Commitment  (and,  if  any  such  Additional  Term  Commitment  Lender  is  already  a  Term  Lender,  its  Initial  Term  Commitment shall be in addition to any other Initial Term Commitment of such Lender hereunder on such date).                  (e)    Extension Requirement.  If (and only if) any Term Lender has agreed so to extend their  Existing Term Facility Maturity Date (each, an “Extending Term Lender”), the Existing Term Facility Maturity Date  in respect of the Term Facility of each Extending Term Lender and of each Additional Term Commitment Lender  shall be extended subject to the terms of any such notice of extension and each Additional Term Commitment Lender  shall thereupon become a “Term Lender” for all purposes of this Agreement.                  (f)    Conditions to Effectiveness of Extensions.  As a condition precedent to such extension, the  Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the effective date of such  extension signed by a Responsible Officer of the Borrower (i) certifying and attaching the resolutions adopted by the  Borrower approving or consenting to such extension and (ii) certifying that, before and after giving effect to such  extension, (A) the representations and warranties contained in Section 5 and the other Loan Documents are true and  correct  in  all  material  respects  on  and  as  of  the  effective  date  of  such  extension,  except  to  the  extent  that  such  representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material  respects as of such earlier date, and except that for purposes of this Section 2.6, the representations and warranties  contained in Section 5.1 shall be deemed to refer to the most recent statements furnished pursuant to Section 6.1(c),  and (B) no Default exists. In addition, on the Existing Term Facility Maturity Date of each Non-Extending Term Lender,  the Borrower shall repay any non-extended Term Loans of such Non-Extending Term Lender outstanding on such date.                  (g)    Conflicting Provisions.  This Section shall supersede any provisions in Section 11.1 or 11.7  to the contrary, and the Borrower and the Administrative Agent shall be entitled to enter into any amendments to this  Agreement necessary or desirable to reflect the extensions pursuant to this Section 2.6.          SECTION 3.     AMOUNT AND TERMS OF REVOLVING COMMITMENTS          3.1     Revolving Commitments.                  (a)    Subject  to  the  terms  and  conditions  hereof,  each  Revolving  Lender  severally  agrees  to  make  Revolving  Loans  to  the  Borrower  from  time  to  time  during  the  Initial  Revolving  Availability  Period  in  an  aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage  of the L/C Obligations then outstanding, does not exceed the amount of such Lender’s Initial Revolving Commitment.   During  the  Initial  Revolving  Availability  Period  the  Borrower  may  use  the  Initial  Revolving  Commitments  by  borrowing, prepaying and reborrowing the Initial Revolving Loans in whole or in part, all in accordance with the terms  and conditions hereof.  The Initial Revolving Loans may from time to time be Eurodollar Loans or Base Rate Loans,  as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 3.2 and 4.3.                    (b)    The Borrower shall repay all outstanding Initial Revolving Loans on the Initial Revolving  Termination Date.  In addition, if at any time the sum of (i) the aggregate principal amount of Revolving Loans, plus                                                  39  





 






(ii) the aggregate amount of L/C Obligations exceeds the Total Revolving Commitment, the Borrower shall, promptly,  but in any event within two Business Days, repay Revolving Loans in an amount equal to such excess.          3.2     Procedure  for  Revolving  Loan  Borrowing.   The  Borrower  may  borrow  under  the  Revolving  Commitments during the Initial Revolving Availability Period on any Business Day; provided, that the Borrower shall  give  the  Administrative  Agent  irrevocable  notice  substantially  in  the  form  of  Exhibit  B-1  (which  notice  must  be  received by the Administrative Agent (i) prior to 11:00 a.m., New York City time, three (3) Business Days prior to  the requested Borrowing Date, in the case of Eurodollar Loans, or (ii) prior to 11:00 a.m., New York City time, on the  requested Borrowing Date, in the case of Base Rate Loans) (provided, that any such notice of a borrowing of Base  Rate Loans to finance payments required to be made pursuant to Section 3.5 may be given not later than 1:00 p.m.,  New York City time, on the date of the proposed borrowing), specifying (x) the amount and Type of Revolving Loans  to be borrowed, (y) the requested Borrowing Date and (z) in the case of Eurodollar Loans, the respective amounts of  each such Type of Loan and the respective lengths of the initial Interest Period therefor.  Each borrowing under the  Revolving Commitments shall be in an amount equal to (x) in the case of Base Rate Loans, $250,000 or a multiple of  $100,000 in excess thereof (or, if the then aggregate Available Revolving Commitments are less than $250,000 or  $100,000, as the case may be, such lesser amounts) and (y) in the case of Eurodollar Loans, $500,000 or a whole  multiple of $100,000 in excess thereof (or, if the then aggregate Available Revolving Commitments are less than  $500,000 or $100,000, as the case may be, such lesser amounts); provided, that borrowings of Base Rate Loans  pursuant to Section 3.11 shall not be subject to the foregoing minimum amounts.  Upon receipt of any such notice  from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender thereof.  Each Revolving  Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the  account  of  the  Borrower  at  the  Funding  Office  prior  to  2:00  p.m.,  New  York  City  time,  on  the  Borrowing  Date  requested by the Borrower in funds immediately available to the Administrative Agent.  The Administrative Agent  shall make the proceeds of such Revolving Loan available to the Borrower on such Borrowing Date by wire transfer  of immediately available funds to a bank account designated in writing by the Borrower to the Administrative Agent.          3.3     Swingline Loans.                  (a)    Availability.  Subject to the terms and conditions of this Agreement and the other Loan  Documents, and in reliance upon the representations and warranties set forth in this Agreement and the other Loan  Documents, the Swingline Lender may, in its sole discretion (not to be unreasonably withheld), make Swingline Loans  in  Dollars  to  the  Borrower  from  time  to  time  from  the  Closing  Date  to,  but  not  including,  the  Initial  Revolving  Termination Date; provided, that (i) after giving effect to any amount requested, the Revolving Extensions of Credit  shall not exceed the Revolving Commitment and (ii) the aggregate principal amount of all outstanding Swingline  Loans (after giving effect to any amount requested) shall not exceed the Swingline Commitment.                  (b)    Requests for Borrowing.  The Borrower shall give the Administrative Agent irrevocable  prior written notice substantially in the form of Exhibit B-1 not later than 1:00 p.m. on the same Business Day as each  Swingline Loan of its intention to borrow, specifying (A) the date of such borrowing, which shall be a Business Day,  (B) the amount of such borrowing, which shall be, with respect to Swingline Loans in an aggregate principal amount  of $250,000 or a whole multiple of $100,000 in excess thereof and (C) specifying that such Loan is to be a Swingline  Loan.  All Swingline Loans will be Base Rate Loans.                   (c)    Disbursement of Swingline Loans.  Not later than 3:00 p.m. on the proposed borrowing  date, the Swingline Lender will make available to the Administrative Agent, for the account of the Borrower, at the  office of the Administrative Agent in funds immediately available to the Administrative Agent, the Swingline Loans  to be made on such borrowing date.  The Administrative Agent shall make the proceeds of such Swingline Loan  available to the Borrower on such Borrowing Date by wire transfer of immediately available funds to a bank account  designated in writing by the Borrower to the Administrative Agent.                  (d)    Repayment on Termination Date.  The Borrower hereby agrees to repay the outstanding  principal amount of all Swingline Loans in accordance with Section 3.2(b) (but, in any event, no later than the Initial  Revolving Termination Date), together, with all accrued but unpaid interest thereon.                   (e)    Refunding.                                                 40  





 






       (i)    The Swingline Lender, at any time and from time to time in its sole and absolute  discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender  to act on its behalf), by written notice given no later than 11:00 a.m. on any Business Day request  each Revolving Lender to make, and each Revolving Lender hereby agrees to make, a Revolving  Loan as a Base Rate Loan in an amount equal to such Revolving Lender’s Revolving Percentage of  the aggregate amount of the Swingline Loans outstanding on the date of such notice, to repay the  Swingline Lender.  Each Revolving Lender shall make the amount of such Revolving Loan available  to the Administrative Agent in immediately available funds at the Administrative Agent’s Office  not later than 1:00 p.m. on the day specified in such notice.  The proceeds of such Revolving Loans  shall  be  immediately  made  available  by  the  Administrative  Agent  to  the  Swingline  Lender  for  application  by  the  Swingline  Lender  to  the  repayment  of  the  Swingline  Loans.   No  Revolving  Lender’s  obligation  to  fund  its  respective  Revolving  Percentage  of  a  Swingline  Loan  shall  be  affected by any other Revolving Lender’s failure to fund its Revolving Percentage of a Swingline  Loan, nor shall any Revolving Lender’s Revolving Percentage be increased as a result of any such  failure of any other Revolving Lender to fund its Revolving Percentage of a Swingline Loan.          (ii)   The Borrower shall pay to the Swingline Lender within two (2) Business Days of  demand, and in any event on the Initial Revolving Termination Date, in immediately available funds  the amount of such Swingline Loans to the extent amounts received from the Revolving Lenders  are  not  sufficient  to  repay  in  full  the  outstanding  Swingline  Loans  requested  or  required  to  be  refunded.  If any portion of any such amount paid to the Swingline Lender shall be recovered by or  on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the  amount so recovered shall be ratably shared among all the Revolving Lenders in accordance with  their respective Revolving Percentages.          (iii)  If for any reason any Swingline Loan cannot be refinanced with a Revolving Loan  pursuant to Section 3.3(b)(i), each Revolving Lender shall, on the date such Revolving Loan was to  have been made pursuant to the notice referred to in Section 3.3(b)(i), purchase for cash an undivided  participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an  amount  (the  “Swingline  Participation  Amount”)  equal  to  such  Revolving  Lender’s  Revolving  Percentage of the aggregate principal amount of Swingline Loans then outstanding.  Each Revolving  Lender  will  immediately  transfer  to  the  Swingline  Lender,  in  immediately  available  funds,  the  amount of its Swingline Participation Amount.  Whenever, at any time after the Swingline Lender  has received from any Revolving Lender such Revolving Lender’s Swingline Participation Amount,  the  Swingline  Lender  receives  any  payment  on  account  of  the  Swingline  Loans,  the  Swingline  Lender will distribute to such Revolving Lender its Swingline Participation Amount (appropriately  adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s  participating interest was outstanding and funded and, in the case of principal and interest payments,  to reflect such Revolving Lender’s pro rata portion of such payment if such payment is not sufficient  to pay the principal of and interest on all Swingline Loans then due); provided that in the event that  such payment received by the Swingline Lender is required to be returned, such Revolving Lender  will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline  Lender.          (iv)   Each Revolving Lender’s obligation to make the Revolving Loans referred to in  Section  3.3(b)(i)  and  to  purchase  participating  interests  pursuant  to  Section  3.3(b)(iii)  shall  be  absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff,  counterclaim, recoupment, defense or other right that such Revolving Lender or the Borrower may  have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever,  (B) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of  the other conditions specified in Section VI, (C) any adverse change in the condition (financial or  otherwise) of the Borrower, (D) any breach of this Agreement or any other Loan Document by the  Borrower, any other Loan Party or any other Revolving Lender or (E) any other circumstance,  happening or event whatsoever, whether or not similar to any of the foregoing.                                   41  





 






                      (v)    If any Revolving Lender fails to make available to the Administrative Agent, for                 the account of the Swingline Lender, any amount required to be paid by such Revolving Lender                 pursuant to the foregoing provisions of this Section 3.3(b) by the time specified in Section 3.3(b)(i)                 or 3.3(b)(iii), as applicable, the Swingline Lender shall be entitled to recover from such 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 the Swingline Lender at a rate per annum equal to the applicable Federal                 Funds Effective Rate, plus any administrative, processing or similar fees customarily charged by                 the Swingline Lender in connection with the foregoing.  If such Revolving Lender pays such amount                 (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s                 Revolving  Loan  or  Swingline  Participation  Amount,  as  the  case  may  be.   A  certificate  of  the                 Swingline  Lender  submitted  to  any  Revolving  Lender  (through  the  Administrative  Agent)  with                 respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.                  (f)    Defaulting  Lenders.   Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement, this Section 3.3 shall be subject to the terms and conditions of Section 3.15.          3.4     [Reserved].          3.5     Fees.                  (a)    The Borrower agrees to pay to the Administrative Agent for the account of each Lender  with an Initial Revolving Commitment (other than a Defaulting Lender) a commitment fee for the period from and  including the Closing Date to the last day of the Initial Revolving Availability Period, computed at the Commitment  Fee Rate on the average daily amount of the Available Revolving Commitment of such Lender during the period for  which payment is made, payable quarterly in arrears on the last day of each March, June, September and December  and on the Initial Revolving Termination Date, commencing on the first of such dates to occur after the date hereof.                   (b)    The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the  dates previously agreed to in writing by the Borrower and the Administrative Agent.          3.6     Termination or Reduction of Revolving Commitments.  The Borrower shall have the right, upon not  less than three (3) Business Days’ notice to the Administrative Agent, to terminate the Revolving Commitments or,  from  time  to  time,  to  reduce  the  amount  of  the  Revolving  Commitments;  provided,  that  no  such  termination  or  reduction of Revolving Commitments shall be permitted if, after giving effect thereto and to any prepayments of the  Revolving Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total  Revolving Commitments; provided, further, that such notice may be contingent on the occurrence of a refinancing or  the consummation of a sale, transfer, lease or other disposition of assets and may be revoked or the termination date  deferred if the refinancing or sale, transfer, lease or other disposition of assets does not occur.  Any such reduction  shall be in an amount equal to $500,000, or a multiple of $250,000 in excess thereof (or, if less, the amount of the  Revolving Commitments then in effect), and shall reduce permanently the Revolving Commitments then in effect.          3.7     L/C Commitment.                  (a)    Subject  to  the  terms  and  conditions  hereof,  the  Issuing  Lender,  in  reliance  on  the  agreements of the other Revolving Lenders and the Loan Parties set forth herein and in the other Loan Documents,  agrees to issue documentary or standby letters of credit (the “Letters of Credit”) for the account of the Borrower on  any Business Day during the Initial Revolving Availability Period in such form as may be approved from time to time  by the Issuing Lender; provided, that the Issuing Lender shall have no obligation to issue or cause to be issued any  Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment or  (ii) the aggregate amount of the Available Revolving Commitments would be less than zero.  Each Letter of Credit  shall (i) be denominated in Dollars, (ii) have a face amount of at least $200,000 (unless otherwise agreed by the Issuing  Lender) and (iii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that  is five (5) Business Days prior to the Initial Revolving Termination Date; provided, that any Letter of Credit with a  one-year term may provide for the extension thereof for additional one-year periods (or a longer period if agreed to                                                 42  





 






by the Issuing Lender but in no event shall any extended period extend beyond the date referred to in clause (y) above),  unless the Issuing Lender elects, in its sole discretion, not to extend for any such additional period; provided, further,  that (i) any Letter of Credit that expires after the Initial Revolving Termination Date shall be Cash Collateralized on  or prior to the Initial Revolving Termination Date and (ii) to the extent that the  L/C Obligations exceed the L/C  Commitment, the Borrower shall promptly, but in any event within one (1) Business Day, Cash Collateralize such  excess (it being agreed that the Issuing Lender shall promptly upon written request return such Cash Collateral to the  Borrower if the L/C Obligations are less than or equal to the L/C Commitment for ten (10) consecutive Business  Days).   Each  Letter  of  Credit  shall  be  governed  by  laws  of  the  State  of  New  York  (unless  the  laws  of  another  jurisdiction is agreed to by the respective Issuing Lender) and governed under The International Standby Practices  (ISP98) or the Uniform Customs, as applicable.                    (b)    The Issuing Lender shall not at any time be obligated to issue any Letter of Credit hereunder  if such issuance  would (i) conflict  with, or cause the Issuing  Lender or any  L/C Participant to exceed any limits  imposed by, any applicable Requirement of Law or (ii) violate one or more policies of general application of the  Issuing Lender now or hereafter in effect.          3.8     Procedure for Issuance, Amendment, Renewal, Extension of Letters of Credit; Certain Conditions.   The Borrower may from time to time request that the Issuing Lender issue a Letter of Credit.  To request the issuance  of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall  hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved  by  the  Issuing  Lender)  to  the  Issuing  Lender  an  Application  requesting  the  issuance  of  the  Letter  of  Credit  and  specifying the requested date of issuance of such Letter of Credit (which shall be a Business Day) and, as applicable,  specifying the date of amendment, renewal or extension (which shall be a Business Day), the date on which such  Letter of Credit is to expire (which shall comply with Section 3.7(a)(iii)), the amount of such Letter of Credit, the  name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew  or extend such Letter of Credit.  Such Application shall be accompanied by documentary and other evidence of the  proposed beneficiary’s identity as may reasonably be requested by the Issuing Lender to enable the Issuing Lender to  verify the beneficiary’s identity or to comply with any applicable laws or regulations, including, without limitation,  Section 326 of the Patriot Act.  The Issuing Lender will issue, amend, renew or extend (or cause to be issued, amended,  renewed or extended) the requested Letter of Credit for the account of the Borrower in the Issuing Lender’s then  current standard form with such revisions as shall be requested by the Borrower and approved by the Issuing Lender,  which shall have been approved by the Borrower, within (x) in the case of an issuance, five (5) Business Days of the  date of the receipt of the Application and all related information and (y) in the case of an amendment, renewal or  extension, three (3) Business Days of the date of the receipt of the Application and all related information.  The Issuing  Lender  shall  furnish  a  copy  of  such  Letter  of  Credit  to  the  Borrower  (with  a  copy  to  the  Administrative  Agent)  promptly following the issuance thereof.  The Issuing Lender shall promptly furnish to the Administrative Agent,  which shall in turn promptly furnish to the Lenders, notice of the issuance (or, amendment, extension or renewal, as  applicable) of each Letter of Credit (including the amount thereof).          3.9     Fees and Other Charges.                  (a)    The Borrower will pay a fee on all outstanding Letters of Credit at a per annum rate equal  to the Applicable Margin then in effect with respect to Eurodollar Loans under the Revolving Facility on the face  amount of such Letter of Credit, shared ratably among the Revolving Lenders and payable quarterly in arrears on each  L/C Fee Payment Date after the issuance date of such Letter of Credit.  In addition, the Borrower shall pay to the  Issuing Lender for its own account a fronting fee of 0.125% per annum on the face amount of each Letter of Credit,  payable quarterly in arrears on each L/C Fee Payment Date after the issuance date of such Letter of Credit.                  (b)    In addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing Lender  for  such  normal  and  customary  costs  and  expenses  as  are  incurred  or  charged  by  the  Issuing  Lender  in  issuing,  negotiating, effecting payment under, amending or otherwise administering any Letter of Credit.                                                   43  





 






       3.10    L/C Participations.                  (a)    The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,  and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to  accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms and conditions set forth  below, for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving  Percentage in the Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued hereunder  and the amount of each draft or other demand for payment paid by the Issuing Lender thereunder.  Each L/C Participant  unconditionally and irrevocably agrees with the Issuing Lender that, if a draft or other demand for payment is paid  under any Letter of Credit for which the Issuing Lender is not reimbursed in full by the Borrower in accordance with  the terms of this Agreement, such L/C Participant shall pay to the Administrative Agent upon demand of the Issuing  Lender an amount equal to such L/C Participant’s Revolving Percentage of the amount of such draft or other demand  for payment, or any part thereof, that is not so reimbursed (it being agreed that with respect to a Letter of Credit in a  currency other than Dollars, each L/C Participant shall pay the Administrative Agent the applicable amount). The  Administrative Agent shall promptly forward such amounts to the Issuing Lender.                  (b)    If any amount required to be paid by any L/C Participant to the Administrative Agent for  the account of the Issuing Lender pursuant to Section 3.10(a) is paid to the Administrative Agent for the account of  the Issuing Lender after the date such payment is due, then such L/C Participant shall pay interest on such amount to  the Administrative Agent for the account of the Issuing Lender on demand at a rate per annum equal to the product of  (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the  date such payment is required to be made to the date on which such payment is immediately available to the Issuing  Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the  denominator of which is 360.  Notwithstanding the foregoing sentence, if any such amount required to be paid by any  L/C Participant pursuant to Section 3.10(a) is not made available to the Administrative Agent for the account of the  Issuing Lender by such L/C Participant by the date that is three (3) Business Days after such payment is due, then the  Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon  calculated from such due date to the date on which such payment is immediately available to the Issuing Lender at the  rate per annum applicable to Base Rate  Loans  under the Revolving Facility.   A certificate of the Issuing  Lender  submitted to any L/C Participant with respect to any amounts owing under this Section 3.10 shall be conclusive in the  absence of manifest error.                  (c)    Whenever, at any time after the Issuing Lender has made payment under any Letter of  Credit and has received from any L/C Participant its pro rata share of such payment in accordance with Section  3.10(a), the Administrative Agent or the Issuing Lender receives any payment related to such Letter of Credit (whether  directly from the Borrower or otherwise, including proceeds of collateral applied thereto by the Administrative Agent  or the Issuing Lender), or any payment of interest on account thereof, the Administrative Agent will distribute to such  L/C Participant (or in the case of any such amounts received directly by the Issuing Lender, the Issuing Lender will  distribute to the Administrative Agent who in turn will distribute to such L/C Participant) its pro rata share thereof;  provided, that in the event that any such payment received by the Administrative Agent or the Issuing Lender, as the  case may be, shall be required to be returned by the Administrative Agent or the Issuing Lender, such L/C Participant  shall return to the Administrative Agent for the account of the Issuing Lender the portion thereof previously distributed  by the Administrative Agent or the Issuing Lender, as the case may be, to it.          3.11    Reimbursement Obligation of the Borrower.  The Issuing Lender shall notify the Administrative  Agent who shall in turn notify the Borrower of the date and amount paid by the Issuing Lender under any Letter of  Credit.  The Borrower agrees to reimburse the Issuing Lender for the amount of (a) such draft or other demand for  payment so paid and (b) any fees, charges or other costs or expenses (other than taxes or similar amounts) incurred by  the  Issuing  Lender  in  connection  with  such  payment  on  the  next  Business  Day  following  the  date  on  which  the  Borrower receives such notice.  Each such payment shall be made to the Issuing Lender at its address for notices  referred to herein in Dollars and in immediately available funds.  Interest shall be payable on any such amounts from  the date on which the relevant draft or other demand for payment is paid until payment in full at the rate set forth in  (i) until the Business Day next succeeding the date of the relevant notice, Section 4.5(b) and (ii) thereafter, Section  4.5(c).  Each drawing under any Letter of Credit shall (unless an event of the type described in clause (i) or (ii) of  Section 9.1(f) shall have occurred and be continuing with respect to the Borrower, in which case, the procedures                                                 44  





 






specified in Section 3.10 for funding by L/C Participants shall apply) constitute a request by the Borrower to the  Administrative Agent for a borrowing pursuant to Section 3.2 of Base Rate Loans in the amount of such drawing.  The  Borrowing Date with respect to such borrowing shall be the first date on which a borrowing of Revolving Loans could  be made, pursuant to Section 3.2, if the Administrative Agent had received a notice of such borrowing at the time the  Administrative Agent receives notice from the Issuing Lender of such drawing under such Letter of Credit.          3.12    Obligations  Absolute.   The  Borrower’s  obligations  under  Section  3.11  shall  be  absolute,  unconditional and irrevocable under any and all circumstances and irrespective of any setoff, counterclaim or defense  to payment that the Borrower may have or have had against the Issuing Lender, any beneficiary of a Letter of Credit  or any other Person.  The Borrower also agrees with the Issuing Lender that the Issuing Lender shall not be responsible  for, and the Borrower’s Reimbursement Obligations under Section 3.11 shall not be affected by, among other things,  the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact  prove to be invalid, fraudulent or forged, any dispute between or among the Borrower and any beneficiary of any  Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the  Borrower against any beneficiary of such Letter of Credit or any such transferee, payment by the Issuing Lender under  a Letter of Credit against presentation or a draft or other document that does not comply with the terms of such Letter  of Credit, or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might,  but for the provisions of this Section 3.12, constitute a legal or equitable discharge of, or provide a right of setoff  against, the Obligations of the Borrower hereunder.  The Issuing Lender shall not be liable for any error, omission,  interruption  or  delay  in  transmission,  dispatch  or  delivery  of  any  message  or  advice,  however  transmitted,  in  connection  with  any  Letter  of  Credit,  except  for  errors,  omissions,  interruptions  or  delays  found  by  a  final  and  nonappealable decision of a court of competent jurisdiction to have resulted from the  gross negligence or  willful  misconduct of the Issuing Lender.  The Borrower agrees that any action taken or omitted by the Issuing Lender under  or in connection with any Letter of Credit or the related drafts other demands for payment or documents, if done in  the absence of gross negligence or willful misconduct, shall be binding on the Borrower and shall not result in any  liability of the Issuing Lender to the Borrower. In furtherance of the foregoing and without limiting the generality  thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial  compliance with the terms of a Letter of Credit, the Issuing Lender 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          3.13    Letter of Credit Payments.  If any draft or other demand for payment shall be presented for payment  under  any  Letter  of  Credit,  the  Issuing  Lender  shall  promptly  notify  the  Administrative  Agent  who  in  turn  shall  promptly notify the Borrower of the date of payment and amount paid by the Issuing Lender in respect thereof.  The  responsibility  of  the  Issuing  Lender  to  the  Borrower  in  connection  with  any  draft  or  other  demand  for  payment  presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for  in such  Letter of Credit, be limited to determining that the documents (including each  draft or other demand for  payment) delivered under such Letter of Credit in connection with such presentment are substantially in conformity  with such Letter of Credit.          3.14    Applications.  To the extent that any provision of any Application related to any Letter of Credit is  inconsistent with the provisions of this Agreement, the provisions of this Agreement shall apply.          3.15    Defaulting Lenders.                  (a)    The  Borrower  may  terminate  the  unused  amount  of  the  Commitment  of  a  Defaulting  Lender upon not less than three (3) Business Days’ prior notice to the Administrative Agent (which will promptly  notify the Lenders thereof), and in such event the provisions of clause (b)(ii) below will apply to all amounts thereafter  paid  by  the  Borrower  for  the  account  of  such  Defaulting  Lender  under  this  Agreement  (whether  on  account  of  principal, interest, fees, indemnity or other amounts); provided, that such termination will not be deemed to be a waiver  or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any Lender may have against  such Defaulting Lender.                                                   45  





 






               (b)    If a Revolving Lender becomes, and during the period it remains, a Defaulting Lender, the  following  provisions  shall  apply  with  respect  to  any  outstanding  L/C  Exposure  and  any  outstanding  Revolving  Percentage of such Defaulting Lender:                         (i)    the L/C Exposure and the Revolving Percentage of such Defaulting Lender will,                 subject to the limitation in the proviso below, automatically be reallocated (effective on the day such                 Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance                 with  their  respective  Commitments;  provided,  that  (x)  no  Event  of  Default  has  occurred  and  is                 continuing at such time (and, unless the Borrower shall have otherwise notified the Administrative                 Agent  at  the  time,  the  Borrower  shall  be  deemed  to  have  represented  and  warranted  that  such                 conditions  are  satisfied  at  such  time),  (y)  the  sum  of  each  Non-Defaulting  Lender’s  Revolving                 Extensions  of  Credit  may  not  in  any  event  exceed  the  Revolving  Commitment  of  such  Non-                Defaulting Lender as in effect at the time of such reallocation and (z) neither such reallocation nor                 any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any                 claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have                 against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;                 provided, further, that, (A) for purposes of clause (x) in the first proviso above, such reallocation                 shall be given effect immediately upon the cure or waiver of such Event of Default and subject to                 clauses  (y)  and  (z)  above  and  (B)  the  Borrower  shall  Cash  Collateralize  the  Lender’s  fronting                 exposure with respect to such Defaulting Lender to the extent the L/C Exposure of such Defaulting                 Lender cannot be reallocated as provided in this clause (i); and                         (ii)   any  payment  of  principal,  interest,  fees  or  other  amounts  received  by  the                 Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory,                 at maturity, pursuant to Section 9 or otherwise) or received by the Administrative Agent from a                 Defaulting Lender pursuant to Section 11.7(b) shall be applied at such time or times as may be                 determined by the Administrative Agent as follows:                         first,  to  the  payment  of  any  amounts  owing  by  such  Defaulting  Lender  to  the                 Administrative Agent hereunder;                         second,  to  the  payment  on  a pro  rata  basis  of  any  amounts  owing  by  such  Defaulting                 Lender to the Issuing Lender hereunder;                         third, to Cash Collateralize the Issuing Lender’s fronting exposure with respect to such                 Defaulting Lender;                         fourth, as the Borrower may request (so long as no Event of Default exists), to the funding                 of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as                 required by this Agreement, as determined by the Administrative Agent;                         fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit                 account and released in order to, on a pro rata basis, (x) satisfy such Defaulting Lender’s potential                 future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize                 the Issuing Lender’s future fronting exposure with respect to such Defaulting Lender with respect                 to future Letters of Credit issued under this Agreement;                         sixth, to the payment of any amounts owing to the Lenders or the Issuing Lender as a result                 of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Lender                 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 Borrower as a result of any judgment                 of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a                 result of such Defaulting Lender’s breach of its obligations under this Agreement; and                                                 46  





 






                      eighth,  to  such  Defaulting  Lender  or  as  otherwise  directed  by  a  court  of  competent                 jurisdiction;          provided, that if (x) such payment is a payment of the principal amount of any Loans or payment under any         Letter of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share and (y)         such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in         Section 6.2 were satisfied and waived, such payment shall be applied solely to pay the Loans of, and any         payment under any Letter of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being         applied to the payment of any Loans of, or payment under any Letter of Credit owed to, such Defaulting         Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by         the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect         to Section 3.15(b)(i).  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender         that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to         this Section 3.15(b)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender         irrevocably consents hereto.                  (c)    Notwithstanding  anything  to  the  contrary  set  forth  in  this  Agreement,  if  any  Lender  becomes, and during the period it remains, a Defaulting Lender, the Issuing Lender will not be required to issue any  Letter of Credit or to amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing  terms thereunder or extend the expiry date thereof, unless any exposure that would result therefrom is eliminated or  fully covered by the Commitments of the Non-Defaulting Lenders or replacement Lenders or by Cash Collateralization  or a combination thereof reasonably satisfactory to the Issuing Lender.                  (d)    Notwithstanding anything to the contrary set forth in this Agreement, during such period  as a Lender is a Defaulting Lender, all fees pursuant to Sections 3.5(a) and 3.9 shall cease to accrue with respect to  such Defaulting Lender (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of  such fees); provided, that (i) to the extent that a portion of the L/C Exposure of such Defaulting Lender is reallocated  to the Non-Defaulting Lenders pursuant to clause (b)(i) above, such fees that would have accrued for the benefit of  such Defaulting Lender will instead accrue for the benefit of and be payable to such Non-Defaulting Lenders, pro rata  in accordance with their respective Revolving Commitments, and (ii) to the extent any portion of such L/C Exposure  cannot be so reallocated, such fees will instead accrue for the benefit of and be payable to the Issuing Lender as its  interests appear (and the pro rata payment provisions of Section 4.8 will automatically be deemed adjusted to reflect  the provisions of this Section) until and to the extent that such L/C Exposure is reallocated, Cash Collateralized and/or  such Defaulting Lender is replaced.                  (e)    If the Borrower, the Administrative Agent and the Issuing Lender agree in writing in their  discretion  that  a  Lender  that  is  a  Defaulting  Lender  should  no  longer  be  deemed  to  be  a  Defaulting  Lender,  the  Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and  subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in  the segregated account referred to in clause (b) above), such Lender will, to the extent applicable, purchase such  portion of outstanding Loans of the other Lenders and/or make such other adjustments as the Administrative Agent  may determine to be necessary to cause the Revolving Extensions of Credit and L/C Exposure of the Lenders to be on  a pro rata basis in accordance with their respective Revolving Commitments, whereupon such Lender will cease to be  a Defaulting Lender and will be a Non-Defaulting Lender (and such L/C Exposure of each Lender will automatically  be adjusted on a prospective basis to reflect the foregoing); provided, that no adjustments will be made retroactively  with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting  Lender; provided, further, that, except to the extent otherwise expressly agreed by the affected parties, no change  hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any  party hereunder arising from such Lender’s having been a Defaulting Lender.          3.16    Incremental Revolving Commitments Borrower Request.  The Borrower may at any time and from  time to time after the Closing Date by written notice to the Administrative Agent elect to request an increase to the  Initial Revolving Commitment (each, an “Incremental Revolving Facility”) with revolving commitments (each, an  “Incremental  Revolving  Commitment”)  in  an  amount  not  in  excess  of  the  Incremental  Cap,  and  in  minimum  increments  of  $500,000  and  a  minimum  amount  of  $5,000,000  (or  such  lesser  amount  equal  to  the  remaining                                                 47  





 






Incremental Cap).  Each such notice shall specify (i) the date (each, a “Revolving Commitment Increase Effective  Date”) on which the Borrower proposes that the Incremental Revolving Commitment shall be effective, which shall  be a date not less than three (3) Business Days after the date on which such notice is delivered to the Administrative  Agent and (ii) the identity of each Person (which, if not a Lender, an Approved Fund or an Affiliate of a Lender, shall  be  reasonably  satisfactory  to  the  Administrative  Agent  and  the  Issuing  Lender  (each  such  acceptance  not  to  be  unreasonably  withheld  or  delayed))  to  whom  the  Borrower  proposes  any  portion  of  such  Incremental  Revolving  Commitment be allocated and the amounts of such allocations; provided, that any existing  Lender approached to  provide all or a portion of the Incremental Revolving Commitments may elect or decline, in its sole discretion, to  provide such Incremental Revolving Commitment.                  (b)    Conditions.  The Incremental Revolving Commitment shall become effective as of such  Revolving Commitment Increase Effective Date; provided, that, subject to Section 1.6 in the case of Incremental  Revolving Commitments incurred in connection with a Limited Condition Acquisition:                         (i)    subject to clause (b)(ii) below, each of the conditions set forth in Section 6.2 shall                 be satisfied;                          (ii)   no Event of Default shall exist immediately prior to or after giving effect to such                 Incremental Facility;                         (iii)  the Borrower shall deliver or cause to be delivered any customary legal opinions                 or other documents reasonably requested by the Administrative Agent in connection with any such                 transaction;                         (iv)   no existing Lender will be required to participate in any Incremental Revolving                 Facility without its consent; and                         (v)    the Borrower shall be in compliance with the covenants in Section 8.1, calculated                 on a pro forma basis, including the application of the proceeds of such Incremental Term Loan                 Commitment  (without  “netting”  the  cash  proceeds  of  the  applicable  Incremental  Facility)  (and                 determined on the basis of the financial statements for the most recently ended fiscal quarter), and                 assuming  a  full  drawing  under  all  Incremental  Revolving  Facilities  constituting  revolving                 commitments incurred at such time.                  (c)    Terms of Incremental Revolving Loans and Incremental Revolving Commitments.  The  terms and provisions of the Incremental Revolving Commitments and the Loans made pursuant to the Incremental  Revolving Commitments shall be as follows:                         (i)    terms  and  provisions  of  Loans  made  pursuant  to  Incremental  Revolving                 Commitments (the “Incremental Revolving Loans”) shall be on terms consistent with the existing                 Revolving Loans; and                         (ii)   the Incremental Revolving Loans may only be guaranteed by the Guarantors and                 may only be secured by Liens on Collateral that are pari passu with the Liens on Collateral securing                 the Initial Revolving Facility.          The Incremental Revolving Commitments shall be effected by a joinder agreement (the “Increase Revolving  Joinder”) executed by the Borrower, the Administrative Agent and each Lender making such Incremental Revolving  Commitment, in form and substance reasonably satisfactory to each of them (in the case of the Administrative Agent,  to the extent required herein).  The Increase Revolving Joinder may, without the consent of any other Lenders, effect  such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion  of the Administrative Agent, to effect the provisions of this Section 3.16.                  (d)    Ranking.  The Incremental Revolving  Loans and Incremental  Revolving Commitments  established pursuant to this Section 3.16 shall constitute Loans and Commitments under, and shall be entitled to all                                                 48  





 






the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing,  benefit  equally  and  ratably  from  security  interests  created  by  the  Security  Documents  and  the  guarantees  of  the  Guarantors.          3.17    Extension of Maturity Date in Respect of Revolving Facility.Requests for ExtensionThe Borrower  may, by notice to the Administrative Agent (who shall promptly notify the Lenders) not later than thirty (30) days  prior to the termination date then in effect with respect to the Revolving Facility (the “Existing Revolving Facility  Maturity Date”), request that each Revolving Lender extend such Lender’s Existing Revolving Facility Maturity Date  in respect of the Revolving Facility; provided, that (i) the interest rate margins, interest rate “floors,” fees and maturity  applicable to any extended Revolving Loan shall be determined by the Borrower and the Extending Revolving Lenders  and (ii) any such extension shall be on the terms and pursuant to documentation to be determined by the Borrower and  the Extending Revolving Lenders.Revolving Lender Elections to Extend.  Each Revolving Lender, acting in its sole  and individual discretion, shall, by notice to the Administrative Agent given within ten (10) Business Days of delivery  of the notice referred to in clause (a) (or such other period as the Borrower and the Administrative Agent shall mutually  agree) (the “Revolving Notice Date”), advise the Administrative Agent whether or not such Revolving Lender agrees  to such extension (and each Revolving Lender that determines not to so extend its Existing Revolving Facility Maturity  Date (a “Non-Extending Revolving Lender”) shall notify the Administrative Agent of such fact promptly after such  determination (but in any event no later than the Revolving Notice Date) and any Revolving Lender that does not so  advise the Administrative Agent on or before the Revolving Notice Date shall be deemed to be a Non-Extending  Revolving Lender.  The election of any Revolving Lender to agree to such extension shall not obligate any other  Revolving Lender to so agree.                  (c)    Notification by Administrative Agent.  The Administrative Agent shall notify the Borrower  of each Revolving Lender’s determination under this Section 3.17 promptly following the Revolving Notice Date.                  (d)    Additional Commitment Lenders.  Subject to Section 4.11, the Borrower shall have the  right to replace each Non-Extending Revolving Lender with, and add as “Revolving Lenders” under this Agreement  in place thereof, one or more Eligible Assignees (each, an “Additional Revolving Commitment Lender”) as provided  in Section 11.6; provided, that each of such Additional Revolving Commitment Lenders shall enter into an Assignment  and Assumption pursuant to which such Additional Revolving Commitment Lender shall undertake an Revolving  Commitment  (and,  if  any  such  Additional  Revolving  Commitment  Lender  is  already  a  Revolving  Lender,  its  Revolving Commitment shall be in addition to any other Revolving Commitment of such Lender with respect thereto  on such date).                  (e)    Extension Requirement.  If (and only if) any Revolving Lender has agreed so to extend  their  Existing  Revolving  Facility  Maturity  Date  (each,  an  “Extending  Revolving  Lender”),  the  Initial  Revolving  Termination  Date  in  respect  of  such  Initial  Revolving  Facility  of  each  Extending  Revolving  Lender  and  of  each  Additional Revolving Commitment Lender shall be extended subject to the terms of any such notice of extension and  each Additional Revolving Commitment Lender shall thereupon become a “Revolving Lender” for all purposes of  this Agreement.                  (f)    Conditions to Effectiveness of Extensions.  As a condition precedent to such extension, the  Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the effective date of such  extension signed by a Responsible Officer of the Borrower (i) certifying and attaching the resolutions adopted by the  Borrower approving or consenting to such extension and (ii) certifying that, before and after giving effect to such  extension, (A) the representations and warranties contained in Section 5 and the other Loan Documents are true and  correct  in  all  material  respects  on  and  as  of  the  effective  date  of  such  extension,  except  to  the  extent  that  such  representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material  respects as of such earlier date, and except that for purposes of this Section 3.17, the representations and warranties  contained in Section 5.1 shall be deemed to refer to the most recent statements furnished pursuant to Section 6.1(c),  and (B) no Default exists.  In addition, on the termination date of each Non-Extending Revolving Lender, the Borrower  shall repay any non-extended Revolving Loans of such Non-Extending Revolving Lender outstanding on such date.                                                   49  





 






               (g)    Conflicting Provisions.  This Section shall supersede any provisions in Section 11.1 or 11.7  to the contrary, and the Borrower and the Administrative Agent shall be entitled to enter into any amendments to this  Agreement necessary or desirable to reflect the extensions pursuant to this Section 3.17.          SECTION 4.     GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT          4.1     Optional Prepayments.  The Borrower may at any time and from time to time prepay the Loans  under  any  Facility,  in  whole  or  in  part,  without  premium  or  penalty,  upon  irrevocable  notice  delivered  to  the  Administrative Agent no later than 2:00 p.m., New York City time, three (3) Business Days prior thereto, in the case  of Eurodollar Loans, and no later than 2:00 p.m., New York City time, one (1) Business Day prior thereto, in the case  of Base Rate Loans, which notice shall specify the date and amount of prepayment, the applicable Facility and whether  the prepayment is of Eurodollar Loans or Base Rate Loans and if such payment is to be applied to prepay Term Loans,  the manner in which such prepayment is to be applied thereto; provided, that if a Eurodollar Loan is prepaid on any  day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing  pursuant to Section 4.11; provided, further, that such notice may be contingent on the occurrence of a refinancing or  the consummation of a sale, transfer, lease or other Disposition of assets and may be revoked or the termination date  deferred if the refinancing or sale, transfer, lease or other Disposition of assets does not occur.  Upon receipt of any  such notice the Administrative Agent shall promptly notify each relevant Lender thereof.  If any such notice is given,  the amount specified in such notice shall be due and payable on the date specified therein, together with (except in the  case of Revolving Loans that are Base Rate Loans) accrued interest to such date on the amount prepaid.  Partial  prepayments  of  Eurodollar  Loans  shall  be  in  an  aggregate  principal  amount  of  $500,000  or  integral  multiples  of  $100,000 in excess thereof.  Partial prepayments of Base Rate Loans shall be in an aggregate principal amount of  $250,000 or integral multiples of $100,000 in excess thereof.            4.2     Mandatory Prepayments.                    (a)    If any Indebtedness shall be incurred or issued by any Group Member after the Closing  Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied  on the date of such incurrence or issuance toward the prepayment of the Term Loans and accrued and unpaid interest  thereon as set forth in Section 4.2(e).                  (b)    If on any date any Group Member shall receive Net Cash Proceeds in excess of $5,000,000  in any fiscal year from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in  respect  thereof,  an  amount  equal  to  100%  of  such  Net  Cash  Proceeds  shall  be  applied  on  such  date  toward  the  prepayment of the Term Loans and accrued and unpaid interest thereon as set forth in Section 4.2(e); provided, that,  notwithstanding  the  foregoing,  on  each  Reinvestment  Prepayment  Date,  an  amount  equal  to  the  Reinvestment  Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the  Term Loans and accrued and unpaid interest thereon as set forth in Section 4.2(e).                  (c)    [reserved].                  (d)    [reserved].                  (e)    Unless any Increase Term Joinder or any other amendment governing any Incremental  Term Loans, any Replacement Term Loans and/or any term loans provided by an Extending Term Lender provides  that Incremental Term Loans, Replacement Term Loans or such term loans provided by an Extending Term Lender,  as applicable, shall participate on a less than pro rata basis with the Initial Term Loans in connection with prepayments  pursuant to this Section 4.2, each prepayment of Term Loans pursuant to this Section 4.2 shall be applied on a pro rata  basis between the Initial Term Loans and each Additional Term Facility then outstanding based on the aggregate  principal amount of the Term Loans under each such Term Facility then outstanding (provided, that any prepayment  of Term Loans with the net proceeds of an Incremental Term Facility or Replacement Term Loans incurred for the  purpose of refinancing or replacing such Term Loans shall be applied to the Term Loans of the applicable Term  Facility being refinanced or replaced).  With respect to Term Loans under any Term Facility, amounts to be applied  in connection with prepayments made pursuant to this Section 4.2 shall be applied against the remaining scheduled  installments of principal due in respect of the Term Loans of such Term Facility as directed by the Borrower (or, in                                                 50  





 






the absence of direction from the Borrower, to the remaining scheduled amortization payments in respect of the Term  Loans of such Term Facility in direct order of maturity), and each such prepayment shall be paid to the Term Lenders  of such class in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans in a manner  that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 4.11.  Each  prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such  prepayment on the amount prepaid.                  (f)    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  Borrower pursuant Section 4.2(b), to decline all (but not a portion) of its share of such prepayment (such declined  amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower; provided,  that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 4.2(a) above to the extent  that such prepayment is made with the Net Cash Proceeds of any Permitted Refinancing incurred to refinance all or a  portion of the Term Loans.  If any Lender fails to deliver a notice to the Administrative Agent of its election to decline  receipt of its share 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 share of the total amount of such mandatory  prepayment of Term Loans.                  (g)    Notwithstanding the foregoing, to the extent that (and for so long as) the repatriation to the  Borrower as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to  Section 4.2(b) above that are attributable to any Foreign Subsidiary are (i) prohibited or delayed by applicable local  Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower or (ii) would result in  a  material  and  adverse  Tax  liability  (including  any  withholding  Tax)  (such  amount,  a  “Restricted  Amount”),  the  calculation of Net Cash Proceeds shall be reduced by such Restricted Amount; provided, that once such repatriation  of any such affected Net Cash Proceeds is (x) permitted under the applicable local Requirements of Law and/or (y)  would no longer result in such  material and adverse Tax liability, the Group Members shall be treated as having  received Net Cash Proceeds equal to the amount of such reduction.          4.3     Conversion and Continuation Options.                    (a)    The Borrower may elect from time to time to convert Eurodollar Loans to Base Rate Loans  by giving the Administrative Agent prior irrevocable notice of such election no later than 2:00 p.m., New York City  time, on the Business Day preceding the proposed conversion date; provided, that any such conversion of Eurodollar  Loans may be made only on the last day of an Interest Period with respect thereto.  The Borrower may elect from time  to time to convert Base Rate Loans to Eurodollar Loans by giving the Administrative Agent prior irrevocable notice  of such election no later than 2:00 p.m., New York City time, on the third (3rd) Business Day preceding the proposed  conversion date (which notice shall specify the length of the initial Interest Period therefor); provided, that no Base  Rate Loan under a particular Facility may be converted into a Eurodollar Loan when any Event of Default has occurred  and is continuing and the Administrative Agent has or the Majority Facility Lenders in respect of such Facility have  determined  in  its  or  their  sole  discretion  not  to  permit  such  conversions.   Upon  receipt  of  any  such  notice  the  Administrative Agent shall promptly notify each relevant Lender thereof.                  (b)    Any Eurodollar Loan may be continued as such upon the expiration of the then current  Interest  Period  with  respect  thereto  by  the  Borrower  giving  irrevocable  notice  to  the  Administrative  Agent,  in  accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the  next Interest Period to be applicable to such Loans; provided, that no Eurodollar Loan under a particular Facility may  be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or  the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit  such continuations; and provided, further, that if the Borrower shall fail to give any required notice as described above  in  this  paragraph  or  if  such  continuation  is  not  permitted  pursuant  to  the  preceding  proviso  such  Loans  shall  be  automatically converted to Base Rate Loans on the last day of such then expiring Interest Period.  Upon receipt of any  such notice the Administrative Agent shall promptly notify each relevant Lender thereof.          4.4     Limitations on Eurodollar Tranches.  Notwithstanding anything to the contrary in this Agreement,  all borrowings, conversions and continuations of Eurodollar Loans hereunder and all selections of Interest Periods                                                 51  





 






hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the  aggregate principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $500,000  or integral multiples of $100,000 in excess thereof (or, if less, the then outstanding amount of the Eurodollar Loans  (or, in the case of a conversion, Base Rate Loans) to be borrowed, converted or continued) and (b) no more than five  (5) Eurodollar Tranches shall be outstanding at any one time.          4.5     Interest Rates and Payment Dates.                    (a)    Each Eurodollar Loan  shall bear interest  for each day during each Interest Period  with  respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the Applicable Margin.                  (b)    Each Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus the  Applicable Margin.                  (c)    If an Event of Default under Section 9.1(a) shall have occurred and be continuing, such  overdue amounts shall bear interest at a rate per annum equal to (i) in the case of the Loans, the rate that would  otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus 2.00%, (ii) in the case of  Reimbursement Obligations, the non-default rate applicable to Base Rate Loans under the Revolving Facility plus  2.00% and (iii) in the case of any such other amounts that do not relate to a particular Facility, the non-default rate  then applicable to Base Rate Loans under the Revolving Facility plus 2.00%, in each case, from the date of such Event  of Default until such Event of Default is no longer continuing.                  (d)    Interest  shall  be  payable  in  arrears  on  each  Interest  Payment  Date  and  as  provided  in  Section 3.11; provided, that interest accruing pursuant to clause (c) of this Section shall be payable from time to time  on demand.                  (e)    Notwithstanding anything to the contrary contained in any Loan Document, the interest  paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest  permitted by applicable law (the “Maximum Rate”).  If any Agent or any Lender shall receive interest in an amount  that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such  unpaid principal, refunded to the Borrower.  In determining whether the interest contracted for, charged, or received  by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (i)  characterize any payment that is not principal as an expense, fee, or premium rather than interest, (ii) exclude voluntary  prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal or unequal parts the total  amount of interest throughout the contemplated term of the Obligations hereunder.          4.6     Computation of Interest and Fees.                    (a)    Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year  for the actual days elapsed, except that, with respect to Base Rate Loans, the interest thereon shall be calculated on  the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed.  The Administrative Agent shall  as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Eurodollar Rate.  Any  change  in  the  interest  rate  on  a  Loan  resulting  from  a  change  in  the  Base  Rate  or  the  Eurocurrency  Reserve  Requirements shall become effective as of the opening of business on the day on which such change becomes effective.   The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective  date and the amount of each such change in interest rate.                  (b)    Each  determination  of  an  interest  rate  by  the  Administrative  Agent  pursuant  to  any  provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of  manifest error.  The Administrative Agent shall, at the request of the Borrower, promptly deliver to the Borrower a  statement  showing  the  quotations  used  by  the  Administrative  Agent  in  determining  any  interest  rate  pursuant  to  Section 4.6(a).          4.7     Inability to Determine Interest Rate.                                                    52  





 






               (a)    If prior to the first day of any Interest Period:                         (i)    the Administrative Agent shall have reasonably determined (which determination                 shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the                 relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate                 for such Interest Period, or                         (ii)   the Administrative Agent shall have received notice from the Majority Facility                 Lenders in respect of the relevant Facility that the Eurodollar Rate determined or to be determined                 for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as reasonably                 determined and conclusively  certified by such Lenders) of making or  maintaining their  affected                 Loans during such Interest Period,   the  Administrative  Agent  shall  give  written  notice  thereof  to  the  Borrower  and  the  relevant  Lenders  as  soon  as  practicable thereafter but at least two (2) Business Days prior to the first day of such Interest Period.  If such notice is  given (x) any Eurodollar Loans under the relevant Facility requested to be made on the first day of such Interest Period  shall be made as Base Rate Loans, (y) any Loans under the relevant Facility that were to have been converted on the  first day of such Interest Period to Eurodollar Loans shall be continued as Base Rate Loans and (z) any outstanding  Eurodollar Loans under the relevant Facility shall be converted, on the last day of the then current Interest Period, to  Base Rate Loans.  Until such notice has been withdrawn by the Administrative Agent (which notice the Administrative  Agent agrees to withdraw promptly upon a determination that the condition or situation which gave rise to such notice  no longer exists), no further Eurodollar Loans under the relevant Facility shall be made or continued as such, nor shall  the Borrower have the right to convert Loans under the relevant Facility to Eurodollar Loans.                  (b)    Notwithstanding anything to the contrary in Section 4.7(a) above, if the Administrative  Agent has made the determination (such determination to be conclusive absent manifest error) or the Borrower notifies  the Administrative Agent that (i) the circumstances described in Section 4.7(a) have arisen and that such circumstances  are  unlikely  to  be  temporary,  (ii)  any  applicable  interest  rate  specified  herein  is  no  longer  a  widely  recognized  benchmark rate for newly originated loans in the U.S. syndicated loan market in the applicable currency or (iii) the  applicable supervisor or administrator (if any) of any applicable interest rate specified herein or any Governmental  Authority  having,  or  purporting  to  have,  jurisdiction  over  the  Administrative  Agent  has  made  a  public  statement  identifying  a  specific  date  after  which  any  applicable  interest  rate  specified  herein  shall  no  longer  be  used  for  determining  interest  rates  for  loans  in  the  U.S.  syndicated  loan  market  in  the  applicable  currency,  then  the  Administrative Agent and the Borrower may, to the extent practicable (as determined by the Administrative Agent  and the Borrower to be generally in accordance with similar situations in other transactions in which Wells Fargo is  serving  as  administrative  agent  or  otherwise  consistent  with  market  practice  generally),  establish  a  replacement  interest rate (the “Replacement Rate”), in which case, the Replacement Rate shall, subject to the next two sentences,  replace such applicable interest rate for all purposes under the Loan Documents unless and until (A) an event described  in  Section  4.7(a)  occurs  with  respect  to  the  Replacement  Rate  or  (B)  the  Administrative  Agent  (or  the  Required  Lenders through the Administrative Agent) notifies the Borrower that the Replacement Rate does not adequately and  fairly reflect the cost to the Lenders of funding the Loans bearing interest at the Replacement Rate.  In connection  with the establishment and application of the Replacement Rate, this Agreement and the other Loan Documents shall  be amended solely with the consent of the Administrative Agent and the Borrower, as may be necessary or appropriate,  in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 4.7 (including,  without limitation, adjustments to the interest rate margins or interest rate benchmark floors as the Administrative  Agent or the Required Lenders may request to equalize (to the extent practicable), as of the effective date of such  amendment, the sum of the Replacement Rate and any applicable interest rate margin with respect thereto (taking into  account applicable currencies and/or interest periods) with the sum of the applicable interest rate being replaced with  such Replacement Rate and the interest rate margin applicable thereto).  Notwithstanding anything to the contrary in  this Agreement or the other Loan Documents (including, without limitation, Section 11.1), such amendment shall  become  effective  without  any  further  action  or  consent  of  any  other  party  to  this  Agreement  so  long  as  the  Administrative Agent shall not have received, within five (5) Business Days of the delivery of such amendment to the  Lenders, written notices from such Lenders that in the aggregate constitute Required Lenders, with each such notice  stating  that  such  Lender  objects  to  such  amendment  (which  such  notice  shall  note  with  specificity  the  particular  provisions of the amendment to which such Lender objects).  To the extent the Replacement Rate is approved by the                                                 53  





 






Administrative Agent and the Borrower in connection with this clause (b), the Replacement Rate shall be applied in a  manner  consistent  with  market  practice;  provided  that,  in  each  case,  to  the  extent  such  market  practice  is  not  administratively  feasible  for  the  Administrative  Agent,  such  Replacement  Rate  shall  be  applied  as  otherwise  reasonably determined by the Administrative Agent and the Borrower (it being understood that any such modification  by  the  Administrative  Agent  and  the  Borrower  shall  not  require  the  consent  of,  or  consultation  with,  any  of  the  Lenders).          4.8     Pro Rata Treatment; Application of Payments; Payments.                    (a)    Each  borrowing  by  the  Borrower  from  the  Lenders  hereunder,  each  payment  by  the  Borrower  on  account  of  any  commitment  fee  and  any  reduction  in  the  Commitments  of  the  Lenders  under  the  applicable Facility shall be made pro rata according to the respective Term Percentages or Revolving Percentages, as  the case may be, of the relevant Lenders.                  (b)    Except  as  provided  in  Section  4.2(e),  each  payment  (including  each  prepayment)  on  account of principal of and interest on the Term Loans under any Term Facility shall be made pro rata according to  the respective outstanding principal amounts of the Term Loans then held by the Term Lenders under such Term  Facility.  The amount of each principal prepayment of the Term Loans under the relevant Term Facility made pursuant  to Section 4.1(a) shall be applied to reduce the then remaining installments of the Term Loans under such Term Facility  as specified by the Borrower in the applicable notice of prepayment.  The amount of each principal prepayment of the  Term Loans made pursuant to Section 4.2 shall be applied to reduce the then remaining installments of the Term Loans  in direct order of maturity.                  (c)    Each payment on account of principal of and interest on the Revolving Loans under any  Revolving Facility shall be made pro rata according to the respective outstanding principal amounts of the Revolving  Loans then held by the Revolving Lenders under such Revolving Facility.                  (d)    All payments (including prepayments) to be made by the Borrower hereunder, whether on  account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior  to 1:00 p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders,  at the Funding Office, in Dollars and in immediately available funds.  The Administrative Agent shall distribute such  payments to the Lenders promptly upon receipt  in  like  funds as received.  If any payment hereunder (other than  payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall  be extended to the next succeeding Business Day.  If any payment on a Eurodollar Loan becomes due and payable on  a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless  the result of such extension  would be to extend such payment into another calendar  month, in  which event such  payment shall be made on the immediately preceding Business Day.  In the case of any extension of any payment of  principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during  such extension.                  (e)    Unless the Administrative Agent shall have been notified in writing by any Lender prior to  a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to  the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available  to the Administrative Agent, and the Administrative Agent may (but shall not be required to), in reliance upon such  assumption, make available to the Borrower a corresponding amount.  If such amount is not made available to the  Administrative  Agent  by  the  required  time  on  the  Borrowing  Date  therefor,  such  Lender  shall  pay  to  the  Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal  Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules  on  interbank  compensation  for  the  period  until  such  Lender  makes  such  amount  immediately  available  to  the  Administrative Agent.  A certificate of the Administrative Agent submitted to any Lender with respect to any amounts  owing  under this paragraph shall be conclusive in the absence of  manifest error.  If such Lender’s share of  such  borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days of such  Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the  rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.                                                  54  





 






               (f)    Unless the Administrative Agent shall have been notified in writing by the Borrower prior  to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment  to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and  the Administrative Agent may (but shall not be required to), in reliance upon such assumption, make available to the  Lenders their respective pro rata shares of a corresponding amount.  If such payment is not made to the Administrative  Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled  to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding  sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective  Rate.   Nothing  herein  shall  be  deemed  to  limit  the  rights  of  the  Administrative  Agent  or  any  Lender  against  the  Borrower.                  (g)    Notwithstanding anything to the contrary contained herein, the provisions of this Section  4.8 (i) shall be subject to the express provisions of this Agreement which require or permit differing payments to be  made to Non-Defaulting Lenders as opposed to Defaulting Lenders and (ii) shall not restrict any transactions permitted  by Section 11.6, or any “amend and extend” transactions.          4.9     Requirements of Law.                    (a)    If the adoption of, taking effect of or any change in any Requirement of Law or in the  administration, interpretation or application thereof or compliance by any Lender or Issuing Lender with any request,  guideline or directive (whether or not having the force of law) from any central bank or other Governmental Authority  made subsequent to the date hereof (and, for purposes of this Agreement, (i) the Dodd-Frank Wall Street Reform and  Consumer Protection Act and all requests, rules, guidelines or directives in connection therewith and (ii) all requests,  rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking  Supervision (or any successor or similar authority) or regulatory authorities, in each case, pursuant to Basel III, are  deemed to have gone into effect and adopted subsequent to the date hereof):                         (A)    shall impose, modify or hold applicable any reserve, special deposit, liquidity,                 compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for                 the account of, advances, loans or other extensions of credit by, or any other acquisition of funds                 by, any office of such Lender or Issuing Lender that is not otherwise included in the determination                 of the Eurodollar Rate hereunder;                          (B)    shall impose on such Lender or Issuing Lender (or its applicable lending office)                 any  additional  Tax  (other  than  any  Indemnified  Taxes  indemnified  under  Section  4.10  or  any                 Excluded Taxes) with respect to this Agreement or any of the other Loan Documents or any of its                 obligations  hereunder  or  thereunder  or  any  payments  to  such  Lender  or  Issuing  Lender  (or  its                 applicable  lending  office)  of  principal,  interest,  fees  or  any  other  amount  payable  hereunder  or                 thereunder; or                         (C)    shall impose on such Lender or Issuing Lender or the London interbank market                 any other condition, cost or expense affecting this Agreement or Loans made by such Lender or any                 Letter of Credit or participation therein;   and the result of any of the foregoing is to increase the cost to such Lender or Issuing Lender of making, converting  into, continuing or maintaining Loans or Letters of Credit or to reduce any amount receivable hereunder in respect  thereof (whether of principal, interest or any other amount), then, in any such case, the Borrower shall promptly pay  such Lender or Issuing Lender, upon its demand, any additional amounts necessary to compensate such Lender or  Issuing  Lender  for such increased cost or reduced amount  receivable.  If any  Lender or Issuing  Lender becomes  entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy  to the Administrative Agent) of the event by reason of which it has become so entitled.                   (b)    If any Lender or Issuing Lender shall have reasonably determined that the adoption of,  taking effect of or any change in any  Requirement of Law regarding capital adequacy or in the interpretation or  application thereof or compliance by such Lender or Issuing Lender or any corporation controlling such Lender or                                                 55  





 






Issuing Lender with any request or directive regarding capital adequacy or liquidity (whether or not having the force  of law) from any Governmental Authority made subsequent to the date hereof (and, for purposes of this Agreement,  (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives  in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International  Settlements,  the  Basel  Committee  on  Banking  Supervision  (or  any  successor  or  similar  authority)  or  regulatory  authorities, in each case, pursuant to Basel III, are deemed to have gone into effect and adopted subsequent to the date  hereof) shall have the effect of reducing the rate of return on such Lender’s or Issuing Lender’s or such corporation’s  capital as a consequence of its obligations hereunder or under or in respect to the Loans or the Letters of Credit to a  level below that which such Lender or Issuing Lender or such corporation could have achieved but for such adoption,  change or compliance (taking into consideration such Lender’s or Issuing Lender’s or such corporation’s policies with  respect  to  capital  adequacy),  then  from  time  to  time,  after  submission  by  such  Lender  or  Issuing  Lender  to  the  Borrower (with a copy to the Administrative Agent) of a written request therefor, the Borrower shall pay to such  Lender or Issuing Lender such additional amount or amounts as will compensate such Lender or Issuing Lender or  such corporation for such reduction.                    (c)    A certificate as to any additional amounts payable pursuant to this Section submitted by  any Lender or Issuing Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the  absence of manifest error.  Failure or delay on the part of any Lender or Issuing Lender to demand compensation  pursuant to  this Section  shall not constitute a  waiver of  such  Lender’s or Issuing  Lender’s right to demand such  compensation; provided, that the Borrower shall not be required to compensate a Lender or Issuing Lender pursuant  to this Section for any amounts incurred more than 180 days prior to the date that such Lender or Issuing Lender  notifies the Borrower of such Lender’s or Issuing Lender’s intention to claim compensation therefor; provided, further,  that, if the circumstances giving rise to such claim have a retroactive effect, then such 180 day period shall be extended  to include the period of such retroactive effect.  The obligations of the Borrower pursuant to this Section shall survive  the  termination  of  this  Agreement  and  the  payment  of  the  Loans  and  all  other  amounts  payable  hereunder.   The  Borrower shall pay the Lender or Issuing Lender, as the case may be, the amount shown as due on any certificate  referred to above within thirty (30) days after receipt thereof.          4.10    Taxes.                    (a)    Payments Free of Indemnified Taxes.  All payments by or on account of any obligation of  any Loan Party hereunder or under any other Loan Document shall (except to the extent required by any Requirement  of Law) be made free and clear of and without deduction or withholding for any Taxes; provided, that if any Loan  Party,  the  Administrative  Agent  or  any  other  applicable  withholding  agent  shall  be  required  by  applicable  Requirements of Law to deduct or withhold any Taxes from any sum paid or payable by any Loan Party under any of  the Loan Documents, then (i) if the Tax in question is an Indemnified Tax, the sum payable by the applicable Loan  Party shall be increased as necessary so that after all required deductions or withholdings have been made by any  applicable withholding agent (including deductions or withholdings applicable to additional sums payable under this  Section 4.10), the Lender or the applicable Agent (in the case of payments being made to such Agent for its own  account), as the case may be, receives on the due date a net amount equal to the sum it would have received had no  such deductions or withholdings been made, (ii) the applicable Loan Party, the Administrative Agent or withholding  agent shall make such deductions or withholdings and (iii) the applicable Loan Party, the Administrative Agent or  withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in  accordance with applicable Requirements of Law.                  (b)    Payment of Other Taxes by the Borrower.  Without limiting the provisions of clause (a)  above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with  applicable Requirements of Law.                  (c)    Indemnification by the Borrower.  The Loan Parties shall, jointly and severally, indemnify  each  Agent  or  Lender,  within  ten  (10)  Business  Days  after  written  demand  therefor,  for  the  full  amount  of  any  Indemnified  Taxes  (including  Indemnified  Taxes  imposed  on  or  attributable  to  amounts  payable  under  this  Section 4.10) imposed on or payable by such Agent or Lender, as the case may be, with respect to this Agreement or  any other Loan Document, and reasonable expenses arising therefrom, whether or not such Indemnified Taxes were  correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate setting forth the amount                                                 56  





 






of such payment or liability delivered by a Lender (with a copy to the relevant Agent), or by an Agent on its own  behalf or on behalf of a Lender, shall be conclusive absent manifest error.                  (d)    Evidence of Payments.  As soon as practicable after any payment of any Taxes by any Loan  Party to a Governmental Authority pursuant to this Section 4.10, the Borrower shall deliver to the Agent the original  or a certified copy of a receipt issued by such Governmental Authority evidencing such payment or other evidence of  such payment reasonably satisfactory to the Agent.                  (e)    Status of Lenders.  Each Lender shall deliver to the Borrower and to the Administrative  Agent, whenever reasonably requested by the Borrower or the Administrative Agent, such properly completed and  executed  documentation  prescribed  by  applicable  Requirements  of  Law  and  such  other  reasonably  requested  information as will permit the Borrower or the Administrative Agent, as the case may be, (a) to determine whether or  not payments made hereunder or under any other Loan Document are subject to Taxes, (b) to determine, if applicable,  the required rate of withholding or deduction and (c) to establish such Lender’s entitlement to any available exemption  from, or reduction of, applicable Taxes in respect of any payments to be made to such Lender pursuant to any Loan  Document or otherwise to establish such Lender’s status for withholding Tax purposes in an applicable jurisdiction.   If any form, certification or other documentation provided by a Lender pursuant to this Section 4.10(e) (including any  of the specific documentation described below) expires or becomes obsolete or inaccurate in any respect, such Lender  shall promptly notify the Borrower and the Administrative Agent in writing and shall promptly update or otherwise  correct the affected documentation or promptly notify the Borrower and the Administrative Agent in writing that such  Lender is not legally eligible to do so.  Each Lender hereby authorizes the Administrative Agent to deliver to the  Borrower  and  to  any  successor  Administrative  Agent  any  documentation  provided  to  the  Administrative  Agent  pursuant to this Section 4.10(e).          Without limiting the generality of the foregoing,                         (A)    Any  Lender  that  is  a  “United  States  person”  within  the  meaning  of  Section                 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or prior to                 the date on which such Lender becomes a Lender under this Agreement (and from time to time                 thereafter upon the request of the Borrower or the Administrative Agent) two duly completed and                 executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup                 withholding.                         (B)    Each Foreign Lender shall deliver to the Borrower and the Administrative Agent                 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 request of the Borrower or the Administrative Agent), two                 duly completed and executed originals of whichever of the following is applicable:                                (i)     IRS Form W-8BEN or W-8BEN-E (or any successor thereto) claiming                        eligibility for benefits of an income tax treaty to which the United States is a party,                                (ii)    IRS Form W-8ECI (or any successor thereto),                                (iii)   in the case of a Foreign Lender claiming the benefits of the exemption                        for portfolio interest under Sections 881(c) or 871(h) of the Code (the “Portfolio Interest                        Exemption”), (x) a certificate, substantially in the form of Exhibit Q-1, Q-2, Q-3 or Q-4,                        as applicable (a “Tax Status Certificate”) and (y) IRS Form W-8BEN or W-8BEN-E (or                        any successor thereto),                                (iv)    where  such  Lender  is  a  partnership  (for  U.S.  federal  income  tax                        purposes)  or  otherwise  not  a  beneficial  owner  (e.g.,  where  such  Lender  has  sold  a                        participation), IRS Form W-8IMY (or any successor thereto) and all required supporting                        documentation  (including,  where  one  or  more  of  the  underlying  beneficial  owner(s)  is                        claiming the benefits of the Portfolio Interest Exemption, a Tax Status Certificate of such                        beneficial  owner(s)  (provided,  that,  if  the  Foreign  Lender  is  a  partnership  and  not  a                                                 57  





 






                      participating Lender, the Tax Status Certificate from the direct or indirect partner(s) may                        be provided by the Foreign Lender on behalf of the direct or indirect partner(s)), or                                (v)     any other form prescribed by applicable Requirements of Law as a basis                        for  claiming  exemption  from  or  a  reduction  in  United  States  federal  withholding  Tax                        together  with  such  supplementary  documentation  as  may  be  prescribed  by  applicable                        Requirements of Law to permit the Borrower or the Administrative Agent to determine the                        withholding or deduction required to be made.                         (C)    If a payment made to a Lender under any Loan Document would be subject to                 U.S. federal withholding Tax imposed by FATCA if such Lender 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  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  Borrower  or  the  Administrative  Agent,  such                 documentation prescribed by applicable Requirements of Law (including as prescribed by Section                 1471(b)(3)(C)(i)  of  the  Code)  and  such  additional  documentation  reasonably  requested  by  the                 Borrower or the Administrative Agent as may be necessary for the applicable withholding agent to                 comply with its obligations under FATCA, to determine whether such Lender has complied with                 such  Lender’s  obligations  under  FATCA  and  to  determine  the  amount,  if  any,  to  deduct  and                 withhold from such payment. Solely for purposes of this clause (C), “FATCA” shall include any                 amendments made to FATCA after the date of this Agreement.                  Notwithstanding anything to the contrary in this Section 4.10(e), no Lender shall be required to                 deliver any documentation pursuant to this Section 4.10(e) that it is not legally eligible to provide.                  Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any                 successor Administrative Agent any documentation provided by the Lender to the Administrative                 Agent pursuant to this Section 4.10(e).                  (f)    On or prior to the date on which the Administrative Agent becomes an  Administrative  Agent under this Agreement (and from time to time thereafter upon the request of the Borrower), the Administrative  Agent shall deliver to the Borrower two duly completed and executed originals of  whichever of  the  following is  applicable: (i) if the Administrative Agent is a “United States person” within the meaning of Section 7701(a)(30) of  the Code, IRS Form W-9 certifying that such Administrative Agent is exempt from U.S. federal backup withholding  or (ii) if the Administrative Agent is not a “United States person” within the meaning of Section 7701(a)(30) of the  Code, (x) IRS Form W-8ECI with respect to payments received for its own account and (y) IRS Form W-8IMY  certifying that the Administrative Agent is a U.S. branch and has agreed to be treated as a “United States person”  within the meaning of Section 7701(a)(30) of the Code with respect to payments received by it from the Borrower in  its capacity as Administrative Agent on behalf of the Lenders. Notwithstanding anything to the contrary in this Section  4.10(f), the Administrative Agent shall not be required to deliver any documentation that the Administrative Agent is  not legally eligible to deliver as a result of a change in Requirements of Law occurring after the Closing Date. If any  documentation provided by the Administrative Agent pursuant to this Section 4.10(f) expires or becomes obsolete or  inaccurate in any respect, the Administrative Agent shall promptly notify the Borrower in writing and shall promptly  update or otherwise correct the affected documentation or promptly notify the Borrower in writing that such Lender  is not legally eligible to do so.                  (g)    If any Agent or Lender determines, in its good faith discretion, that it has received a refund  (whether received in cash or applied as an offset against other Taxes due) of any Indemnified Taxes as to which it has  been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to  this Section 4.10, it shall promptly pay to the Borrower an amount equal to such refund (but only to the extent of  indemnity payments made, or additional amounts paid, by any Loan Party under this Section 4.10 with respect to the  Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses of such Agent or Lender (including  any  Taxes),  as  the  case  may  be,  and  without  interest  (other  than  any  interest  paid  by  the  relevant  Governmental  Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or Lender, shall                                                 58  





 






repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant  Governmental Authority) to such Agent or Lender in the event such Agent or Lender is required to repay such refund  to  such  Governmental  Authority.   Such  Lender  or  Agent,  as  the  case  may  be,  shall,  at  the  Borrower’s  written  reasonable  request,  provide  the  Borrower  with  a  copy  of  any  notice  of  assessment  or  other  evidence  reasonably  satisfactory to the Borrower of the requirement to repay such refund received from the relevant taxing authority.  This  subsection shall not be construed to require any Agent or Lender to make available its  Tax returns (or any other  information relating to its Taxes that it deems confidential) to the Borrower or any other Person.                  (h)    The agreements in this Section 4.10 shall survive the termination of this Agreement, the  payment of the Loans and all other amounts payable hereunder or under any other Loan Document the resignation of  the Administrative Agent and any assignment of rights by, or replacement of, any Lender.          4.11    Indemnity.  The Borrower agrees to indemnify each Lender and to hold each Lender harmless from  any loss, cost or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in  making a borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower has given a notice  requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any  prepayment of or conversion from Eurodollar Loans after the Borrower has given a notice thereof in accordance with  the provisions of this Agreement, (c) the making of a prepayment of, or a conversion from, Eurodollar Loans on a day  that is not the last day of an  Interest Period  with respect thereto or (d) any other default by the Borrower in the  repayment  of  such  Eurodollar  Loans  when  and  as  required  pursuant  to  the  terms  of  this  Agreement.   Such  indemnification may include an amount (other than with respect to clause (d)) equal to the excess, if any, of (i) the  amount of interest that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for  the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such  Interest  Period  (or,  in  the  case  of  a  failure  to  borrow,  convert  or  continue,  the  Interest  Period  that  would  have  commenced on the date of such failure), in each case, at the applicable rate of interest for such Loans provided for  herein (excluding, however, the Applicable Margin and the Eurodollar Floor included therein, if any) over (ii) the  amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender on such amount  by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market.  A  certificate as to any amounts payable pursuant to this Section submitted to the Borrower by any  Lender shall be  conclusive in the absence of manifest error.  This covenant shall survive the termination of this Agreement and the  payment of the Loans and all other amounts payable hereunder.          4.12    Change of Lending Office.  Each Lender agrees that, upon the occurrence of any event giving rise  to the operation of Section 4.9 or 4.10(a), (b) or (c) with respect to such Lender, it will, if requested by the Borrower,  use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for  any Loans affected by such event with the object of avoiding the consequences of such event; provided, that such  designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to  suffer no economic, legal or regulatory disadvantage or any unreimbursed costs or expenses; and provided, further,  that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender  pursuant to Section 4.9 or 4.10(a), (b) or (c).  The Borrower hereby agrees to pay all reasonable, documented out-of- pocket costs and expenses incurred by any Lender in connection with any such designation.          4.13    Replacement of Lenders.  The Borrower shall be permitted to replace any Lender that (a) requests  reimbursement for amounts owing pursuant to Section 4.9 or 4.10(a), (b) or (c) (such Lender, an “Affected Lender”),  (b) is a Non-Consenting Lender or (c) is a Defaulting Lender, with a replacement financial institution or other entity;  provided, that (i) such replacement does not conflict with any Requirement of Law, (ii) in the case of an Affected  Lender, prior to any such replacement, such Lender shall have taken no action under Section 4.12 so as to eliminate  the continued need for payment of amounts owing pursuant to Section 4.9 or 4.10(a), (b) or (c), (iii) the replacement  financial institution or entity shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or  prior to the date of replacement, (iv) the Borrower shall be liable to such replaced Lender under Section 4.11 if any  Eurodollar Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period  relating thereto, (v) the replacement financial institution or entity shall be an Eligible  Assignee, (vi) the replaced  Lender shall be obligated to make such replacement in accordance with the provisions of Section 11.6 (provided, that,  except in the case of clause (c) hereof, the Borrower shall be obligated to pay the registration and processing fee  referred  to  therein),  (vii)  until  such  time  as  such  replacement  shall  be  consummated,  the  Borrower  shall  pay  all                                                 59  





 






additional amounts (if any) required pursuant to Section 4.9 or 4.10(a), (b) or (c), as the case may be, (viii) any such  replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other  Lender shall have against the replaced Lender and (ix) in the case of a Non-Consenting Lender, the replacement  financial institution or entity  shall consent at the time of such assignment to each  matter in respect of  which the  replaced Lender was a Non-Consenting Lender.          4.14    Evidence of Debt.                    (a)    Each Lender shall maintain in accordance with its usual practice an account or accounts  evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time,  including  the  amounts  of  principal  and  interest  payable  and  paid  to  such  Lender  from  time  to  time  under  this  Agreement.                  (b)    The Administrative Agent, on behalf of the Borrower (or, in the case of an assignment not  required to be recorded in the Register in accordance with the provisions of Section 11.6(d), the assigning Lender,  acting solely for this purpose as a non-fiduciary agent of the Borrower), shall maintain the Register (or, in the case of  an assignment not required to be recorded in the Register in accordance with the provisions of Section 11.6(d), a  Related Party Register), in each case, pursuant to Section 11.6(d), and a subaccount therein for each Lender, in which  shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such  Loan and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to  become due and payable from the Borrower to each Lender hereunder and (iii) both the amount of any sum received  by the Administrative Agent (or, in the case of an assignment not required to be recorded in the Register in accordance  with the provisions of Section 11.6(d), the assigning Lender) hereunder from the Borrower and each Lender’s share  thereof.                  (c)    The entries made in the Register and the accounts of each Lender maintained pursuant to  Section 4.14(a) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts  of the obligations of the Borrower therein recorded (absent manifest error); provided, however, that the failure of any  Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any  manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by  such Lender in accordance with the terms of this Agreement; provided, further that, in the event of any inconsistency  between entries made in the Register and such account of a Lender, the entries in the Register shall control.                  (d)    The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the  Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing any Term Loans or  Revolving Loans, as the case may be, of such Lender, substantially in the forms of Exhibit E-1, or E-2, respectively,  with appropriate insertions as to date and principal amount.          4.15    Illegality.  Notwithstanding any other provision  herein, if  the adoption of or any change in any  Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or  maintain Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder to make  Eurodollar Loans, continue Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall forthwith  be canceled and (b) such Lender’s Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically  to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within  such earlier period as required by law.  If any such conversion of a Eurodollar Loan occurs on a day which is not the  last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts,  if any, as may be required pursuant to Section 4.11.          SECTION 5.     REPRESENTATIONS AND WARRANTIES          To induce the Agents and the Lenders to enter into this Agreement and to make the Loans and issue, amend,  extend, renew or participate in the Letters of Credit, each of Holdings and the Borrower hereby represents and warrants  to each Agent and each Lender that:                                                  60  





 






       5.1     Financial Condition.  The audited consolidated balance sheets and related statements of income,  stockholders’ equity and cash flows of Holdings and its Subsidiaries as of and for each of the fiscal years ended on  December 31, 2016, 2017 and 2018, accompanied by a report from Deloitte & Touche LLP, present fairly in all  material  respects  the  consolidated  financial  condition  of  Holdings  and  its  Subsidiaries  as  at  such  dates,  and  the  consolidated results of their respective operations and cash flows  for such period then ended.  All such financial  statements, including the related schedules and notes thereto, have been prepared substantially in accordance with  GAAP applied consistently throughout the periods involved.          5.2     No Change.  Since December 31, 2018, there has been no development or event that has had or  could reasonably be expected to have a Material Adverse Effect.          5.3     Corporate Existence; Compliance with Law.  Except as permitted under Section 8.4, each Group  Member  (a)  is  duly  organized,  validly  existing  and  in  good  standing  under  the  laws  of  the  jurisdiction  of  its  organization, (b) has the organizational power and authority, and the legal right, to own and operate its property, to  lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified  as a foreign entity and in good standing under the laws of each jurisdiction where its ownership, lease or operation of  property  or  the  conduct  of  its  business  requires  such  qualification,  (d)  is  in  compliance  with  the  terms  of  its  Organizational Documents and (e) is in compliance with the terms of all Requirements of Law and all Governmental  Authorizations, except to the extent that any failure under clause (a) (with respect to any Group Member other than  the Borrower) or clauses (b), (c) and (e) to comply therewith could not, in the aggregate, reasonably be expected to  have a Material Adverse Effect.          5.4     Power; Authorization; Enforceable Obligations.  Each Loan Party has the organizational power and  authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case  of the Borrower, to obtain extensions of credit hereunder.  Each Loan Party has taken all necessary organizational and  other action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and,  in the case of the Borrower, to authorize the extensions of credit on the terms and conditions of this Agreement.  No  consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any  other Person is required in connection with the execution, delivery, performance, validity or enforceability of this  Agreement  or  any  of  the  Loan  Documents,  except  (a)  consents,  authorizations,  filings  and  notices  described  in  Schedule 5.4, (b) consents, authorizations, filings and notices which have been, or will be, obtained or made and are  in full force and effect on or before the Closing Date, (c) any such consent, authorizations, filings and notices the  absence of which could not reasonably be expected to have a Material Adverse Effect, and (d) the filings referred to  in Section 5.19.  Each Loan Document has been duly executed and delivered on behalf of each Loan Party thereto.   This Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid and binding  obligation of each Loan Party thereto, enforceable against each such Loan Party in accordance with its terms, except  as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws  affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is  sought by proceedings in equity or at law).          5.5     No Legal Bar.  The execution, delivery and performance of this Agreement and the other Loan  Documents, the issuance of Letters of Credit, the borrowings hereunder and the use of the proceeds thereof will not  violate  (a)  the  Organizational  Documents  of  any  Loan  Party,  (b)  any  Requirement  of  Law,  Governmental  Authorization or any Contractual Obligation of any Group Member and (c) will not result in, or require, the creation  or imposition of any Lien on any Group Member’s respective properties or revenues pursuant to its Organizational  Documents, any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security  Documents and Liens permitted by Section 8.3), except for any violation set forth in clause (b) or (c) which could not  reasonably be expected to have a Material Adverse Effect.          5.6     Litigation and Adverse Proceedings.  No litigation, investigation or proceeding of or before any  arbitrator or Governmental Authority is pending or, to the knowledge of Holdings or the Borrower, threatened in  writing by or against any Group Member or against any of their respective properties or revenues (a) with respect to  any of the Loan Documents, which would in any respect impair the enforceability of the Loan Documents, taken as a  whole or (b) that could reasonably be expected to have a Material Adverse Effect.                                                  61  





 






       5.7     No  Default.   No  Group  Member  is  in  default  under  or  with  respect  to  any  of  its  Contractual  Obligations in any respect that could reasonably be expected to have a Material Adverse Effect.  No Default or Event  of Default has occurred and is continuing.          5.8     Ownership of Property; Liens.                    (a)    Each Group Member has title in fee simple (or local law equivalent) to all of its owned real  property, a valid leasehold interest in all its leased real property, and good title to, or a valid leasehold interest in,  license to, or right to use, all its other tangible Property material to its business, in all material respects, and no such  Property is subject to any Lien except as permitted by Section 8.3.  The tangible Property of the Group Members,  taken  as  a  whole,  (i)  is  in  good  operating  order,  condition  and  repair  (ordinary  wear  and  tear  excepted)  and  (ii)  constitutes all the Property which is required for the business and operations of the Group Members as presently  conducted.                  (b)    Schedule 3 to the perfection certificate dated the Closing Date contains a true and complete  list of each interest in real property owned by any Loan Party in the United States having a fair market value (as  reasonably determined by the Borrower) in excess of $2,500,000 (other than any Excluded Asset) as of the date hereof.                  (c)    No Mortgage encumbers improved real property that is located in Special Flood Hazard  Area unless flood insurance under the applicable Flood Insurance Laws has been obtained in connection with Section  7.5.          5.9     Intellectual Property.  Except as could not reasonably be expected to have a Material Adverse Effect,  to the knowledge of any Loan Party:  (a) the conduct of, and the use of Intellectual Property in, the business of the  Group Members as currently conducted (including the products and services of the Group Members) does not infringe,  misappropriate, or otherwise violate the Intellectual Property rights of any other Person; (b) in the last two (2) years,  there has been no such claim, to the knowledge of any Loan Party, threatened in writing against any Group Member;  (c) to the knowledge of any Loan Party, there is no valid basis for a claim of infringement, misappropriation, or other  violation of Intellectual Property rights against any Group Member; (d) to the knowledge of any Loan Party, no Person  is infringing, misappropriating, or otherwise violating any Intellectual Property of any Group Member, and there has  been no such claim asserted or threatened in writing against any third party by any Group Member or to the knowledge  of any Loan Party, any other Person; and (e) each Group Member has at all times complied with all applicable laws,  as well as its own rules, policies, and procedures, relating to privacy, data protection, and the collection and use of  personal information collected, used, or held for use by such Group Member.          5.10    Taxes.  Each Loan Party has filed or caused to be filed all federal, state and other tax returns that  are required to be filed by it and each Loan Party has paid all federal, state and other taxes and any assessments made  in writing against it or any of its property by any Governmental Authority, other than (a) any which are not yet due or  the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect  to which reserves in conformity with GAAP have been provided on the books of the relevant Loan Party or (b) any  which the failure to so file or pay could not reasonably be expected, individually or in the aggregate, to result in a  Material Adverse Effect.          5.11    Federal Reserve Regulations.  No Group Member 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.  No part of the  proceeds of any extension of credit under this Agreement will be used for any purpose that violates or would be  inconsistent with the provisions of Regulation T, U or X of the Board.          5.12    Labor Matters.  Except as, in the aggregate, could not reasonably be expected to have a Material  Adverse  Effect:   (a)  there  are  no  strikes  or  other  labor  disputes  against  any  Group  Member  pending  or,  to  the  knowledge of Holdings or the Borrower, threatened; (b) hours worked by and payment made to employees of each  Group Member have  not been in  violation of the Fair  Labor Standards Act, as amended, or any other applicable  Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of  employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant Group  Member.                                                 62  





 






       5.13    ERISA.  Neither a Reportable Event nor a failure to satisfy the minimum funding standard under  Section 412 of the Code or Section 302 of ERISA, whether or not waived has occurred or is reasonably expected to  occur  with  respect  to  any  Single  Employer  Plan,  and  each  Single  Employer  Plan  and  Multiemployer  Plan  is  in  compliance in all respects with the applicable provisions of ERISA and the Code except where such Reportable Event,  failure, or non-compliance could not reasonably be expected to have a Material Adverse Effect.  No withdrawal by  the Borrower or any Commonly Controlled Entity from a Single Employer Plan subject to Section 4063 of ERISA  during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation  of operations that is treated as such a withdrawal under Section 4062(e) of ERISA has occurred or is reasonably  expected to occur, except as could not reasonably be expected to have a Material Adverse Effect.  Except as could not  reasonably be expected to have a Material Adverse Effect, no termination of a Single Employer Plan has occurred or  is reasonably expected to occur.  No Lien against the Borrower or any Commonly Controlled Entity in favor of the  PBGC or a Single Employer Plan or a Multiemployer Plan has arisen during the past five years, except as could not  reasonably be expected to have a Material Adverse Effect.  No non-exempt prohibited transaction (within the meaning  of Section 4975 of the Code or Section 406 of ERISA) has occurred or is reasonably expected to occur with respect  to any Plan, except as could not reasonably be expected to have a Material Adverse Effect.  Neither the Borrower nor  any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan and neither  the Borrower nor any Commonly Controlled Entity reasonably would become subject to any liability under ERISA if  the Borrower or any such Commonly Controlled Entity were to withdraw completely from all Multiemployer Plans  as of the valuation date most closely preceding the date on which this representation is made or deemed made, except,  in each case, for any liability that could not reasonably be expected to result in a Material Adverse Effect.  No failure  to make a required contribution to a Multiemployer Plan has occurred or is reasonably expected to occur, except as  could not reasonably be expected to have a Material Adverse Effect.  No such Multiemployer Plan is Insolvent or in  “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), except as  could not reasonably be expected to have a Material Adverse Effect.          5.14    Investment Company Act; Other Regulations.  No Loan Party is an “investment company,” or a  company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as  amended.  No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the  Board, as amended) that limits its ability to incur Indebtedness.          5.15    Capital Stock and Ownership Interests of Subsidiaries.  As of the Closing Date (a) Schedule 5.15  sets forth the name and jurisdiction of formation or incorporation of each Group Member and, as to each such Group  Member (other than Holdings), states the beneficial and record owners thereof and the percentage of each class of  Capital Stock owned by any Loan Party, and (b) there are no outstanding subscriptions, options, warrants, calls, rights  or  other  agreements  or  commitments  (other  than  stock  options  granted  to  employees,  independent  contractors  or  directors and directors’ qualifying shares) of any nature relating to any Capital Stock of any Group Member (other  than Holdings), except as created by the Loan Documents or as permitted hereby.  Except as listed on Schedule 5.15,  as of the Closing Date, no Group Member owns any interests in any joint venture, partnership or similar arrangements  with any Person.          5.16    Use of Proceeds.  The proceeds of the Initial Term Loans shall be used to effect the Transactions,  including the payment of fees and expenses related thereto. The proceeds of the Revolving Loans shall be used on and  after  the  Closing  Date  to  finance  working  capital  and  for  general  corporate  purposes  of  the  Borrower  and  its  Subsidiaries.  The Letters of Credit and Swingline Loans shall be used for working capital and general corporate  purposes of the Borrower and its Subsidiaries.          5.17    Environmental Matters.  Except as, individually or in the aggregate, could not reasonably be  expected to have a Material Adverse Effect:                  (a)    the facilities and properties owned or, to the Borrower’s knowledge, leased or operated by         any Group Member (the “Properties”) do not contain any Materials of Environmental Concern in amounts or         concentrations or under circumstances that constitute a violation of, or could reasonably be expected to give         rise to liability under, any Environmental Law;                                                  63  





 






               (b)    no Group Member has received any written claim, demand, notice of violation, or of actual         or potential liability with respect to any Environmental Laws relating to any Group Member;                  (c)    Materials  of  Environmental  Concern  have  not  been  transported,  sent  for  treatment  or         disposed of from the Properties by any Group Member or, to the Borrower’s knowledge, by any other person         in violation of, or in a manner or to a location that could reasonably be expected to result in any Group         Member incurring liability under, any Environmental Law, nor have any Materials of Environmental Concern         been released, generated, treated, or stored by any Group Member or, to the Borrower’s knowledge, by any         other person at, on, under or from any of the Properties in violation of, or in a manner that could reasonably         be  expected  to  give  rise  to  result  in  any  Group  Member  incurring  liability  under,  any  applicable         Environmental Law;                  (d)    no  judicial  proceeding  or  governmental  or  administrative  action  is  pending  or,  to  the         knowledge of the Borrower, threatened, under any Environmental Law to which any Group Member is or, to         the Borrower’s knowledge, will be named as a party, nor are there any consent decrees or other decrees,         consent  orders,  administrative  orders  or  other  orders,  or  other  administrative  or  judicial  requirements         outstanding under any Environmental Law with respect to the Properties or relating to  any Group Member;                  (e)    each Group Member, the Properties and all operations at the Properties are in compliance         with all applicable Environmental Laws; and                  (f)    no  Group  Member  has  assumed  by  contract  any  liability  of  any  other  Person  under         Environmental Laws, nor is any Group Member paying for or conducting , in whole or in part,  any response         or other corrective action to address any Materials of Environmental Concern at any location pursuant to any         Environmental Law.          5.18    Accuracy of Information, etc.  No written statement contained in this Agreement, any other Loan  Document or any other document, certificate or statement furnished by any Loan Party to the Administrative Agent  or the Lenders, or any of them, for use in connection with the transactions contemplated by this Agreement or the  other Loan Documents (including the Lender Presentation) (other than information of a general economic or industry- specific nature), when taken as a whole, contained as of the date such statement, information, document or certificate  was  furnished,  any  untrue  statement  of  a  material  fact  or  omitted  to  state  a  material  fact  necessary  to  make  the  statements contained herein or therein not materially misleading in the light of the circumstances under which such  statements were made after giving effect to any supplements thereto; provided, however, that (i) with respect to the  pro forma financial information contained in the materials referenced above, the Borrower represents only that the  same were prepared in good faith and are based upon assumptions believed by management of the Borrower to be  reasonable at the time made, it being recognized by the Lenders that such financial information as it relates to future  events is not to be viewed as fact, is by its nature inherently uncertain and that actual results during the period or  periods covered by such financial information may differ from the projected results set forth therein by a material  amount and (ii) no representation is made with respect to information of a general economic or industry nature.          5.19    Security Documents.  The Guarantee and Collateral Agreement and each other Security Document  is, or upon execution will be, effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties,  a valid security interest in the Collateral described therein and proceeds thereof (to the extent a security interest can  be created therein under the Uniform Commercial Code).  In the case of the Pledged Equity Interests, when stock or  interest certificates representing such Pledged Equity Interests (along with properly completed stock or interest powers  endorsing the Pledged Equity Interest and executed by the owner of such shares or interests) are delivered to the  Collateral Agent, and in the case of the other Collateral described in the Guarantee and Collateral Agreement or any  other Security Document, when financing statements and other filings specified on Schedule 5.19 in appropriate form  are filed in the offices specified on Schedule 5.19 and upon the taking of possession or control by the Collateral Agent  of the Collateral with respect to which a security interest may be perfected only by possession or control (which  possession or control shall be given to the Collateral Agent to the extent required by the Security Documents), the  Collateral Agent, for the benefit of the Secured Parties, shall have a fully perfected Lien on, and security interest in,  all right, title and interest of the Loan Parties in such Collateral (other than Intellectual Property, if any, established  under laws of jurisdictions outside the United States, except to the extent a security interest therein can be perfected                                                 64  





 






by filing of a financing statement under the Uniform Commercial Code) and the proceeds thereof, as security for the  Obligations, in each case, prior and superior in right to any other Person (except Liens permitted by Section 8.3)  subject, in the case of the Intellectual Property that is the subject of any application or registration, to the recordation  of appropriate evidence of the Collateral Agent’s Lien in the United States Patent and Trademark Office and/or United  States Copyright Office, as appropriate, and the taking of actions and making of filings necessary under the applicable  Requirements of Law to obtain the equivalent of perfection.          5.20    Solvency.   Holdings  and  its  Subsidiaries  (on  a  consolidated  basis),  after  giving  effect  to  the  Transactions  and  the  incurrence  of  all  Indebtedness  and  obligations  being  incurred  in  connection  herewith  and  therewith, will be and will continue to be Solvent.          5.21    Senior Indebtedness.  The Obligations constitute “senior debt,” “senior indebtedness,” “designated  senior debt,” “guarantor senior debt” or “senior secured financing” (or any comparable term) of each Loan Party with  respect to any Junior Financing.          5.22    Sanctions and Anti-Corruption Laws.                    (a)    Neither  Holdings,  the  Borrower  nor  any  of  their  Subsidiaries  or,  to  the  knowledge  of  Holdings and Borrower, any director, officer, employee, agent or representative of Holdings or the Borrower, is an  individual or entity (for purposes of only this Section 5.22, “Person”) that is, or is controlled by Persons that are  currently the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign  Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s  Treasury,  or  other  relevant  sanctions  authority  (collectively,  “Sanctions”),  nor  is  Holdings,  the  Borrower  or  any  Subsidiary located, organized or resident in a Sanctioned Country.  Holdings, the Borrower, and their Subsidiaries  have instituted and maintain policies and procedures designed to ensure compliance with all applicable Sanctions.   Each of Holdings, the Borrower and their Subsidiaries represent that it will not, directly or indirectly, use any Loan,  Letter of Credit or proceeds of the transaction, or lend, contribute or otherwise make available such Loan, Letter of  Credit or proceeds to any subsidiary, joint venture partner or other Person, to fund any activities of or business with  any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions, or in any other  manner that will result in a violation by any Person (including any Person participating in the transaction, whether as  underwriter, advisor, investor or otherwise) of Sanctions.                  (b)    Neither the Borrower nor any of its Subsidiaries nor, to the knowledge of the Borrower,  any director, officer, agent or employee of the Borrower or any of its Subsidiaries is aware of or has taken any action,  directly or indirectly, that would result in a violation by such persons of the U.S. Foreign Corrupt Practices Act of  1977, as amended, and the rules and regulations thereunder (the “FCPA”) or any other applicable anti-bribery or anti- corruption law (“Anti-Corruption Laws”), including, without limitation, making use of the mails or any means or  instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization  of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of  value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof  or any candidate for foreign political office, in contravention of the FCPA and the Borrower and its Subsidiaries have  conducted their businesses in compliance with the FCPA.  No part of the proceeds of the Loans or Letters of Credit  will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official  of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain  or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law.            5.23    [Reserved].            5.24    Patriot Act.  The Borrower and each of its Subsidiaries are in compliance in all material respects  with (a) the Trading  with the Enemy  Act, and each of the foreign assets control regulations of the United States  Treasury Department (31 CFR, Subtitle B Chapter V, as amended) and any other enabling legislation or executive  order relating thereto, (b) the Patriot Act and (c) other federal or state laws relating to “know your customer” and anti- money laundering rules and regulations.          5.25    EEA Financial Institutions.  No Loan Party is an EEA Financial Institution.                                                 65  





 






       5.26    Beneficial Ownership Certification.  As of the Closing Date, the information included in any  Beneficial Ownership Certification provided to any Lender on or prior to the Closing Date is true and correct in all  respects.          SECTION 6.     CONDITIONS PRECEDENT          6.1     Conditions  to  Initial  Extension  of  Credit.   The  agreement  of  each  Lender  to  make  the  initial  extension  of  credit  requested  to  be  made  by  it  is  subject  to  the  satisfaction  or  waiver,  prior  to  or  substantially  concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent:                  (a)    Loan  Documents.   The  Administrative  Agent  shall  have  received  (i)  this  Agreement,         executed and delivered by Holdings, the Borrower, each Person that is a Lender as of the Closing Date and         each other party listed on the signature pages hereto, (ii) the Guarantee and Collateral Agreement and each         other Security Document (except for Mortgages and other deliverables as set forth in Section 7.10) required         to be delivered on the Closing Date, executed and delivered by the Borrower and each other Loan Party that         is a party thereto, (iii) a perfection certificate in customary form and substance and (iv) a Note executed by         the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days in advance of         the Closing Date.                  (b)    Transactions.  On the Closing Date, after giving effect to the Transactions, neither Holdings         nor any of its Subsidiaries on a consolidated basis shall have any indebtedness for borrowed money other         than the Facilities and other indebtedness permitted by Section 8.2.                  (c)    Financial  Statements.   The  Joint  Lead  Arrangers  shall  have  received,  (i)  the  financial         statements  described  in  Section  5.1  and  (ii)  the  forecasts  of  the  consolidated  financial  performance  of         Holdings and its Subsidiaries on an annual basis through 2021.                  (d)    Lien Searches.  The Administrative Agent shall have received the results of a recent lien         search in the jurisdiction where each Loan Party is organized and maintains its chief executive office.                  (e)    Fees.  The Joint Lead Arrangers and the Agents shall have received all reasonable and         documented  out-of-pocket  costs  and  expenses  required  to  be  paid,  including  without  limitation,  the         reasonable and invoiced fees and disbursements of Cahill Gordon & Reindel LLP.  The Borrower and its         Subsidiaries shall have paid all fees required to be paid on the Closing Date under (i) that certain Engagement         Letter dated June 10, 2019 and (ii) any fee letters delivered in connection with such Engagement Letter.                   (f)    Closing Certificate.  The Administrative Agent shall have received a certificate of each         Loan Party, dated the Closing Date, substantially in the form of Exhibit F, with appropriate insertions and         attachments including the certificate of incorporation or certificate of formation, as applicable, of each Loan         Party certified by the relevant authority of the jurisdiction of organization of such Loan Party.                  (g)    Legal Opinions.  The Administrative Agent shall have received the legal opinions of Weil,         Gotshal & Manges LLP, counsel to Holdings and its Subsidiaries.  Such legal opinions shall be addressed to         the Agents and the Lenders and shall cover such other matters incident to the transactions contemplated by         this Agreement as the Administrative Agent may reasonably require that are customary for transactions of         this kind.                  (h)    Pledged Equity Interests; Stock Powers; Pledged Notes.  Subject to Section 7.10(f), the         Collateral  Agent  shall  have  received  (i)  the  certificates  representing  the  shares  of  Capital  Stock  pledged         pursuant to the Guarantee and Collateral Agreement, if applicable, together with an undated stock power for         each  such  certificate  executed  in  blank  by  a  duly  authorized  officer  of  the  pledgor  thereof  and  (ii)  each         promissory  note  (if  any)  pledged  to  the  Administrative  Agent  pursuant  to  the  Guarantee  and  Collateral         Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by         the pledgor thereof.                                                  66  





 






               (i)    Filings,  Registrations  and  Recordings.   Each  Uniform  Commercial  Code  financing         statement  and  Intellectual  Property  Security  Agreement  required  by  the  Security  Documents  to  be  filed,         registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties,         a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other         than with respect to Liens expressly permitted by Section 8.3), shall be in proper form for filing, registration         or recordation.                  (j)    Patriot  Act,  Etc.   The  Administrative  Agent  shall  have  received,  with  respect  to  such         documents and other information requested in writing at least ten (10) Business Days prior to the Closing         Date, (i) all documentation and other information required by regulatory authorities under applicable “know         your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and (ii) to the         extent a Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least         five days prior to the Closing Date, any Lender that has requested, in a written notice to such Borrower at         least  ten  (10)  days  prior  to  the  Closing  Date,  a  Beneficial  Ownership  Certification  in  relation  to  such         Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution         and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii)         shall be deemed to be satisfied).                  (k)    Solvency Certificate.  The Administrative Agent shall have received a certificate, in the         form of Exhibit H, from a senior financial officer of Holdings or the Borrower certifying that Holdings and         its subsidiaries, on a consolidated basis after giving effect  to the Transactions and the other transactions         contemplated hereby are Solvent.                  (l)    Insurance.  The Administrative Agent shall have received insurance certificates satisfying         the requirements of Section 5.3 of the Guarantee and Collateral Agreement (except as set forth in Section         7.10).                  (m)    Refinancing.   Substantially  concurrently  with  the  initial  funding  of  the  Term  Loans         hereunder, the Refinancing shall have been consummated.          6.2     Conditions to Each Extension of Credit.  The agreement of each Lender to make any extension of  credit (other than the amendment, modification, renewal or extension of a Letter of Credit which does not increase the  face amount, of such Letter of Credit and except as otherwise expressly set forth herein) requested to be made by it is  subject to the satisfaction of the following conditions precedent:                  (a)    Representations and Warranties.  Each of the representations and warranties made by any         Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as         of such date as if made on and as of such date (except to the extent made as of a specific date, in which case         such representation and warranty shall be true and correct in all material respects on and as of such specific         date).                  (b)    No Default.  No Default or Event of Default shall have occurred and be continuing on such         date or after giving effect to the extensions of credit requested to be made on such date.                  (c)    Notices.  The Borrower shall have delivered to the Administrative Agent and, if applicable,         the Issuing Lender, the notice of borrowing or Application, as the case may be, for such extension of credit         in accordance with this Agreement.          Each borrowing by and issuance or amendment of a Letter of Credit (other than the amendment, modification,  renewal or extension of a Letter of Credit which does not increase the face amount, of such Letter of Credit and except  as otherwise expressly set forth herein) on behalf of the Borrower hereunder shall constitute a representation and  warranty by the Borrower as of the date of such extension of credit that the conditions contained in this Section 6.2  have been satisfied.                                                  67  





 






       SECTION 7.     AFFIRMATIVE COVENANTS          The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of Credit remains  outstanding or any Loan or other amount is owing to any Lender or Agent hereunder (other than Unasserted Contingent  Obligations,  Letters  of  Credit  that  have  been  Cash  Collateralized  and  any  amount  owing  under  Specified  Hedge  Agreements and Specified Cash Management Agreements), Holdings shall and shall cause each of its Subsidiaries to:          7.1     Financial Statements.  Furnish to the Administrative Agent which shall distribute to each Lender:                  (a)    as soon as available, but in any event within ninety (90) days after the end of each fiscal         year of Holdings, beginning with the fiscal year ending on December 31, 2019, (i) a copy of the audited         consolidated balance sheet of Holdings and its consolidated Subsidiaries as at the end of such year and the         related audited consolidated statements of income or operations, members’ equity and cash flows for such         year, setting forth, in each case in comparative form the figures for the previous year, reported on without a         “going concern” or like qualification or exception, or qualification arising out of the scope of the audit (other         than upcoming maturity of the Facilities or any default or potential default under Section 8.1), by Deloitte &         Touche LLP or other independent certified public accountants of nationally recognized standing and (ii) a         narrative report and management’s discussion and analysis of the financial condition and results of operations         of Holdings for such fiscal year, as compared to amounts for the previous fiscal year; and                  (b)    as soon as available, but in any event within forty-five (45) days after the end of each of         the first three quarterly periods of each fiscal year of Holdings, beginning with the quarter ending June 30,         2019, (i) the unaudited consolidated balance sheet of Holdings and its consolidated Subsidiaries as at the end         of such quarter and the related unaudited consolidated statements of income or operations, and cash flows         for such quarter and the portion of the fiscal year through the end of such quarter, setting forth, in each case         in comparative form the figures for the previous year, certified by a Responsible Officer of Holdings as fairly         presenting in all material respects the financial condition, results of operation, and cash flows of Holdings in         accordance with GAAP applied consistently throughout the periods reflected therein (subject to normal year-        end audit adjustments and the absence of footnotes) and (ii) a narrative report and management’s discussion         and analysis of the financial condition and results of operations for such fiscal quarter and the then elapsed         portion of the fiscal year, as compared to the corresponding period of the previous fiscal year.          Documents required to be delivered pursuant to Section 7.1(a) or (b) or Section 7.2(d) (to the extent any such  documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered,  shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a  link thereto on the Borrower’s website on the Internet at www.lantheus.com (or such other website specified by the  Borrower  to  the  Administrative  Agent  from  time  to  time);  or  (ii)  on  which  such  documents  are  posted  on  the  Borrower’s behalf on an Internet or intranet 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); provided, that,  (x) to the extent the Administrative Agent so requests, the Borrower shall deliver paper copies of such documents to  the Administrative Agent until a written request to cease delivering paper copies is given by the Administrative Agent  and (y) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such  documents.  The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the  documents referred to herein, and in any event shall have no responsibility to monitor compliance by the Borrower  with  any  such  request  for  delivery,  and  each  Lender  shall  be  solely  responsible  for  requesting  delivery  to  it  or  maintaining its copies of such documents.          Notwithstanding the foregoing, if (i) Holdings’ financial statements are consolidated with its direct or indirect  parent’s  financial  statements  or  (ii)  any  direct  or  indirect  parent  of  Holdings  is  subject  to  periodic  reporting  requirements  of  the  Exchange  Act  and  Holdings  is  not,  then  the  requirement  to  deliver  consolidated  financial  statements of Holdings and its Subsidiaries pursuant to Sections 7.1(a) and 7.1(b) and the related narrative discussion  and analysis and opinion of an independent certified public accountant, as applicable, may be satisfied by delivering  consolidated financial statements of such direct or indirect parent of Holdings accompanied by a schedule showing,  in reasonable detail, consolidating adjustments, if any, attributable solely to such direct or indirect parent and any of  its subsidiaries that are not Holdings or any of its Subsidiaries, and the related narrative discussion and analysis and                                                 68  





 






opinion of an independent certified public accountant, as applicable, of such direct or indirect parent; provided, that  any  such  opinion  of  an  independent  certified  public  accountant  shall  otherwise  meet  the  requirements  of  Section  7.1(a)(i) and shall relate solely to Holdings, its Subsidiaries, and such direct or indirect parent (as applicable) but, in  the case of such indirect parent, only if such indirect parent has no direct or indirect Subsidiaries other than (i) the  direct parent of Holdings, Holdings and its Subsidiaries and (ii) any intermediate parent that itself has no direct or  indirect Subsidiaries other than the direct parent of Holdings, Holdings and its Subsidiaries and one or more other  intermediate parents that meet the requirements of this clause (ii).          7.2     Certificates; Other Information.  Furnish to the Administrative Agent and the Collateral Agent (as  applicable):                  (a)    concurrently with the delivery of any financial statements pursuant to Section 7.1(a) or (b),         a Compliance Certificate of a Responsible Officer of the Borrower (i) certifying that no Default or Event of         Default has occurred and is continuing except as specified in such certificate, (ii) in the case of financial         statements delivered pursuant to Section 7.1(a), to the extent not previously disclosed and delivered to the         Administrative Agent and the Collateral Agent, listing any Intellectual Property which is the subject of a         United  States  federal  registration  or  federal  application  (including  Intellectual  Property  included  in  the         Collateral which was theretofore unregistered and becomes the subject of a United States federal registration         or federal application) acquired by any Loan Party since the date of the most recent list delivered pursuant to         this clause (ii) (or, in the case of the first such list so delivered, since the Closing Date), and promptly deliver         to the Collateral Agent an Intellectual Property Security Agreement suitable for recordation in the United         States  Patent  and  Trademark  Office  or  the  United  States  Copyright  Office,  as  applicable,  or  such  other         instrument in form and substance reasonably acceptable to the Administrative Agent, and undertake the filing         of any instruments or statements as shall be reasonably necessary to create, record, preserve, protect or perfect         the Collateral Agent’s security interest in such Intellectual Property and (iii) setting forth the reasonably         detailed calculations demonstrating compliance with Section 8.1;                  (b)    as soon as available, and in any event no later than ninety (90) days after the end of each         fiscal year of the Borrower, a detailed consolidated budget for the following fiscal year shown on a quarterly         basis (including a projected consolidated balance sheet of Holdings and its Subsidiaries as of the end of the         following fiscal year, the related consolidated statements of projected cash flow and projected income and a         description  of  the  underlying  assumptions  applicable  thereto)  (collectively,  the  “Projections”),  which         Projections shall, in each case, be accompanied by a certificate of a Responsible Officer of Holdings stating         that such Projections are based on reasonable estimates, information and assumptions at the time prepared;                  (c)    promptly  after  the  same  are  filed,  copies  of  all  annual,  regular  or  periodic  and  special         reports and registration statements which the Loan Parties may file or be required to file with the SEC and         not otherwise required to be delivered to the Administrative Agent pursuant hereto;                  (d)    promptly, such additional financial and other information regarding the business, financial         or corporate affairs of Holdings or any of its Subsidiaries as the Administrative Agent may from time to time         reasonably request, including, without limitation, other information with respect to the Patriot Act; and                  (e)    concurrently with the delivery of a Compliance Certificate pursuant to Section 7.2(a), any         change in the information provided in the Beneficial Ownership Certification provided to any Lender that         would result in a change to the list of beneficial owners identified in such certification since the later of the         date of such Beneficial Ownership Certification or the most recent list provided.          7.3     Payment of Taxes.  Pay all Taxes, assessments, fees or other charges imposed on it or any of its  property by any Governmental Authority before they become delinquent, except (a) where the amount or validity  thereof  is  currently  being  contested  in  good  faith  by  appropriate  proceedings  diligently  conducted  and  adequate  reserves  in  conformity  with  GAAP  with  respect  thereto  have  been  provided  on  the  books  of  the  relevant  Group  Member or (b) where the failure to pay could not reasonably be expected, individually or in the aggregate, to result in  a Material Adverse Effect.                                                  69  





 






       7.4     Maintenance of Existence; Compliance.                    (a)    (i)  Preserve, renew and keep in full force and effect its organizational existence except as  permitted hereunder and (ii) take all reasonable action to maintain all rights, privileges and franchises necessary or  desirable  in  the  normal  conduct  of  its  business,  including,  without  limitation,  all  necessary  Governmental  Authorizations, except, in each case, as otherwise permitted by Section 8.4 and except, in the case of clause (i) above  solely  with  respect  to  Holdings  or  any  Subsidiary  of  the  Borrower,  to  the  extent  that  failure  to  do  so  could  not  reasonably be expected to have a Material Adverse Effect; and                  (b)    Comply with all Organizational Documents and Requirements of Law (including, without  limitation, and as applicable, ERISA and the Code), except to the extent that failure to comply therewith could not, in  the aggregate, reasonably be expected to have a Material Adverse Effect.          7.5     Maintenance  of  Property;  Insurance.   (a)  Except  as  permitted  by  Section  8.5,  keep  all  material  Property useful and necessary in its business in good working order and condition, subject to casualty, condemnation,  ordinary wear and tear and obsolescence and (b) maintain insurance with financially sound and reputable insurance  companies on all its Property in at least such amounts and against at least such risks as are usually insured against in  the same general area by companies engaged in the same or a similar business.  The Borrower will furnish to the  Administrative Agent, upon its reasonable request, information in reasonable detail as to the insurance so maintained.   If any improvement located on any Mortgaged Property is at any time located in an area identified by the Federal  Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which  flood insurance has been made available under the Flood Insurance Laws, then the Borrower shall, or shall cause each  Loan Party to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance  in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the  Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance  reasonably acceptable to the Administrative Agent.          7.6     Inspection of Property; Books and Records; Discussions.  Keep proper books of records and account  in which full, true and correct entries in conformity with GAAP shall be made of all material dealings and transactions  in  relation  to  its  business  and  activities  and  permit  representatives  of  the  Administrative  Agent  who  may  be  accompanied by any Lender to visit and inspect any of its properties (which inspection shall not include any invasive  sampling of the Environment) and examine and make abstracts from any of its books and records at any reasonable  time during normal business hours and upon reasonable advance notice to the Borrower and to discuss the business,  operations, properties and financial and other condition of the Group Members with the officers of the Group Members  and with their independent certified public accountants (provided, that the Borrower or its Subsidiaries may, at their  option, have one or more employees or representatives present at any discussion with such accountants); provided,  that, unless an Event of Default has occurred and is continuing, only one (1) such visit in any calendar year shall be  permitted and such visit shall be at the Borrower’s expense.          7.7     Notices.  Promptly give notice to the Administrative Agent of:                  (a)    the occurrence of any Default or Event of Default;                  (b)    any (i) default or event of default under any Contractual Obligation of any Group Member         that  could  reasonably  be  expected  to  have  a  Material  Adverse  Effect  or  (ii)  litigation,  investigation  or         proceeding that may exist at any time between any Group Member and any Governmental Authority, which         could reasonably be expected to have a Material Adverse Effect;                  (c)    the filing or commencement of, or any written threat or notice of intention of any person         to file or commence, any action, suit, litigation or proceeding, whether at law or in equity by or before any         Governmental Authority (i) which could reasonably be expected to have a Material Adverse Effect or (ii)         which relates to any Loan Document;                  (d)    the following events, as soon as possible and in any event within thirty (30) days after a         Responsible Officer of the Borrower obtains actual knowledge thereof, except to the extent as such events                                                 70  





 






       could not reasonably be expected to have a Material Adverse Effect: (i) the occurrence of any Reportable         Event with respect to any Single Employer Plan, a failure to make any required contribution to any Single         Employer Plan or Multiemployer Plan, the creation of any Lien against the Borrower or any Commonly         Controlled Entity in favor of the PBGC or a Single Employer Plan or Multiemployer Plan or any withdrawal         from, or the termination or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the         taking  of  any  other  action  by  the  PBGC  or  the  Borrower  or  any  Commonly  Controlled  Entity  or  any         Multiemployer Plan with respect to the withdrawal from, or the termination or Insolvency of, any Single         Employer Plan or Multiemployer Plan; and                  (e)    any development or event that has had or could reasonably be expected to have a Material         Adverse Effect.   Each notice pursuant to this Section 7.7 shall be accompanied by a statement of a Responsible Officer setting forth  details of the occurrence referred to therein and stating what action, if any, the Borrower or the relevant Subsidiary  proposes to take with respect thereto.          7.8     Environmental Laws.                    (a)    Comply with, and use commercially reasonable efforts to ensure compliance in all material  respects by all tenants and subtenants, if any, with, all applicable Environmental Laws, and obtain and comply with  and maintain, and use commercially reasonable efforts to ensure that all tenants and subtenants obtain and comply in  all material respects with and maintain, any and all licenses, approvals, notifications, registrations or permits required  by applicable Environmental Laws, except, in each case, to the extent the failure to do so could not reasonably be  expected to have a Material Adverse Effect.                  (b)    Conduct and complete all investigations, studies, sampling and testing, and all remedial,  removal and other actions required under Environmental Laws to address Materials of Environmental Concern, and  promptly comply with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws,  except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.          7.9     OFAC; FCPA; Patriot Act.                    (a)    Comply in all material respects with the requirements described in Section 5.22(a) and 5.24.                  (b)    Not directly, or to its knowledge, indirectly, use any part of the proceeds of the Loans for  any payments to any governmental official or employee, political party, official of a political party, candidate for  political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any  improper advantage, in violation of any Anti-Corruption Law.          7.10    Post-Closing; Additional Collateral, etc.                    (a)    With respect to any property acquired after the Closing Date by any Group Member (other  than (x) any property described in clauses (b), (c) or (d) below, (y) property acquired by any Group Member that is  not a Loan Party and (z) property that is not required to become subject to Liens in favor of the Collateral Agent  pursuant to the Loan Documents) as to which the Collateral Agent, for the benefit of the Secured Parties, does not  have a perfected Lien, promptly (but in any event within sixty (60) days following such acquisition or such later date  as the Collateral Agent may agree) (i) execute and deliver to the Collateral Agent such amendments to the applicable  Security Document or such other documents as the Collateral Agent deems reasonably necessary or advisable to grant  to the Collateral Agent, for the benefit of the Secured Parties, a security interest in such property, and (ii) take all  actions reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a  perfected first priority security interest in such property, subject only to Liens permitted by Section 8.3, including, the  filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the applicable  Security Document or by law and, in the case of Intellectual Property subject to a United States federal registration or  federal application, the delivery for filing of an Intellectual Property Security Agreement suitable for recordation in  the United States Patent and Trademark Office or the United States Copyright Office, as applicable, or such other                                                 71  





 






instrument in form and substance reasonably acceptable to the Collateral Agent, or as may be reasonably requested  by the Collateral Agent.                  (b)    With respect to any fee interest in any real property having a fair market value (together  with improvements thereof), as reasonably determined by the Borrower, of at least $2,500,000 owned or acquired  after  the  Closing  Date  by  any  Group  Member  (other  than  (x)  any  such  real  property  subject  to  a  Lien  expressly  permitted by Section 8.3(g), (y) real property acquired by a Group Member that is not a Loan Party and (z) the Sale  Leaseback Property), promptly (but in any event within ninety (90) days or such later date as the Collateral Agent  may agree) (i) execute and deliver a first priority Mortgage subject to Liens permitted under Section 8.3, in favor of  the Collateral Agent, for the benefit of the Secured Parties, covering such real property, (ii) provide the Secured Parties  with  a  policy  of  title  insurance  (or  marked  up  title  insurance  commitment  having  the  effect  of  a  policy  of  title  insurance) covering such real property in an amount at least equal to the purchase price of such real property (or such  other amount as shall be reasonably acceptable to the Collateral Agent; provided, that in jurisdictions that impose  mortgage recording taxes, the Security Documents shall not secure indebtedness in an amount exceeding 105% of the  fair  market  value  of  the  Mortgaged  Property,  as  reasonably  determined  in  good  faith  by  the  Loan  Parties  and  reasonably acceptable to Collateral Agent), as well as a Survey or any existing survey together with a no change  affidavit from the mortgagor in lieu thereof, each of the foregoing in form and substance reasonably satisfactory to  the  Administrative  Agent,  (iii)  deliver  to  the  Collateral  Agent  legal  opinions  relating  to,  among  other  things,  the  enforceability,  due  authorization,  execution  and  delivery  of  the  applicable  Mortgage,  which  opinions  shall  be  in  customary form and substance reasonably satisfactory to the Collateral Agent and (iv) deliver to the Administrative  Agent  a  “Life-of-Loan”  Federal  Emergency  Standard  Flood  Hazard  Determination  (together  with  a  notice  about  Special Flood Hazard Area status and flood disaster assistance duly executed by the Borrower and each Loan Party  relating  thereto),  and  if  such  Mortgaged  Property  is  located  in  a  Special  Flood  Hazard  Area,  evidence  of  flood  insurance confirming that such insurance has been obtained and any and all other documents as the Collateral Agent  may reasonably request, in each case, in form and substance reasonably satisfactory to the Collateral Agent.                  (c)    With respect to any new Wholly Owned Subsidiary (other than an Excluded Subsidiary)  created or acquired after the Closing Date by any Group Member (except that, for the purposes of this clause (c), the  term  Subsidiary  shall  include  any  existing  Wholly  Owned  Subsidiary  that  ceases  to  be  an  Excluded  Subsidiary),  promptly (but in any event within sixty (60) days or such later date as the Collateral Agent may agree) (i) execute and  deliver  to  the  Collateral  Agent  such  Security  Documents  as  the  Collateral  Agent  deems  reasonably  necessary  or  advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security  interest in the Capital Stock of such new Subsidiary that is owned by any Loan Party, (ii) deliver to the Collateral  Agent the certificates, if any, representing such Capital Stock, together with undated stock powers, in blank, executed  and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become  a party to the applicable Security Documents, (B) to take such actions reasonably necessary or advisable to grant to  the Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest (subject to Liens  permitted by Section 8.3 hereof) in all or substantially all, or any portion of the property of such new Subsidiary that  is required to become subject to a Lien in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant  to the Loan Documents as the Collateral Agent shall determine, in its reasonable discretion, including the filing of  Uniform  Commercial  Code  financing  statements  in  such  jurisdictions  as  may  be  required  by  the  Guarantee  and  Collateral Agreement or by law or as may be requested by the Collateral Agent and (C) deliver to the Collateral Agent  a certificate of such Subsidiary, substantially in the form of Exhibit F, with appropriate insertions and attachments,  and (iv) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the  matters described above, which opinions shall be in customary form and substance; provided, that such opinions will  only be given as to Subsidiaries other than Immaterial Subsidiaries.                  (d)    With respect to any new “first-tier” Foreign Subsidiary or Disregarded Domestic Person  created or acquired after the Closing Date (other than any Foreign Subsidiary (i) excluded pursuant to Section 7.10(g)  or (ii) that is an Immaterial Subsidiary) by any Loan Party, promptly (but in any event within sixty (60) days or such  later date as the Collateral Agent may agree) (A) execute and deliver to the Collateral Agent such Security Documents  as the Collateral Agent deems reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the  Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned  by any such Loan Party (provided, that in no event shall more than 65% of the total outstanding voting Capital Stock  of any such new Subsidiary be required to be so pledged) and (B) deliver to the Collateral Agent the certificates                                                 72  





 






representing such Capital  Stock, together  with undated stock powers, in blank, executed and delivered by a duly  authorized officer of the relevant Loan Party, as the case may be, and take such other action as may be reasonably  necessary or, in the opinion of the Collateral Agent, desirable to perfect the Collateral Agent’s security interest therein.                  (e)    Within thirty (30) days after the Closing Date (or such later date as the Collateral Agent  may  in  its  sole  discretion  agree),  the  Collateral  Agent  shall  receive  endorsements  with  respect  to  the  insurance  certificates delivered pursuant to Section 6.1(l), thereby naming the Collateral Agent, for the benefit of the Secured  Parties, as additional insured and/or mortgagee/loss payee, in each case, in form and substance reasonably satisfactory  to the Collateral Agent.                  (f)    Within sixty (60) days after the Closing Date (or such later date as the Collateral Agent  may in its sole discretion agree), the Collateral Agent shall receive the certificate representing 65% of the shares of  Capital Stock of Lantheus EU Limited pledged pursuant to the Guarantee and Collateral Agreement, together with an  undated stock power for such certificate executed in blank by a duly authorized officer of the pledgor thereof.                  (g)    Notwithstanding anything to the contrary in this Section 7.10, (x) clauses (a), (b), (c) and  (d) of this Section 7.10 shall not apply to (i) any property, new Subsidiary or Capital Stock of a “first-tier” Foreign  Subsidiary created or acquired after the Closing Date, as applicable, as to which the Administrative Agent and the  Borrower have reasonably determined that (A) the collateral value thereof is insufficient to justify the cost, burden or  consequences (including adverse tax consequences) of obtaining a perfected security interest therein, (B) under the  law of such Foreign Subsidiary’s jurisdiction of formation, it is unlikely that the Collateral Agent would have the  ability to enforce such security interest if granted or (C) such security interest would violate any applicable law; (ii)  any  property  which  is  otherwise  excluded  or  excepted  under  the  Guarantee  and  Collateral  Agreement  or  any  corresponding section of any Security Document; or (iii) any Excluded Assets; and (y) no foreign law security or  pledge agreements will be required.          7.11    Further Assurances.  From time to time execute and deliver, or cause to be executed and delivered,  such additional instruments, certificates or documents, and take all such actions, as the Administrative Agent or the  Collateral  Agent  may  reasonably  request  for  the  purposes  of  implementing  or  effectuating  the  provisions  of  this  Agreement and the other Loan Documents, or of more fully perfecting or renewing the rights of the Administrative  Agent, the Collateral Agent and the Secured Parties with respect to the Collateral (or with respect to any additions  thereto or replacements or proceeds thereof or with respect to any other property or assets hereafter acquired by the  Borrower or any other Loan Party which may be deemed to be part of the Collateral) pursuant hereto or thereto.  Upon  the reasonable exercise by the Administrative Agent, the Collateral Agent or any Secured Party of any power, right,  privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any consent, approval,  recording qualification or authorization of any Governmental Authority, the Borrower will execute and deliver, or will  cause the execution and delivery of, all applications, certifications, instruments and other documents and papers that  the Administrative Agent, the Collateral Agent or such Secured Party may be reasonably required to obtain from the  Borrower or any of its Subsidiaries for such governmental consent, approval, recording, qualification or authorization.          7.12    [Reserved].          7.13    Use of Proceeds.  The Borrower shall use the proceeds of the Loans and the Letters of Credit solely  as set forth in Section 5.16.          7.14    Designation  of  Subsidiaries.   The  Borrower  shall  be  permitted  to  designate  an  existing  or  subsequently acquired or organized Subsidiary as an Unrestricted Subsidiary after the Closing Date, by written notice  to the Administrative Agent, so long as (a) no Default has occurred and is continuing or would result therefrom, (b)  immediately after giving effect to such designation, the Total Net Leverage Ratio on a pro forma basis does not exceed  the lesser of (i) 4.00 to 1.00 and (ii) the maximum Total Net Leverage Ratio then in effect under Section 8.1(a), such  compliance to be determined on the basis of the financial information most recently delivered to Administrative Agent  by the Borrower pursuant to Section 7.1, (c) such Unrestricted Subsidiary shall be capitalized (to the extent capitalized  by the Borrower or any of its Subsidiaries) through Investments as permitted by, and in compliance with, Section 8.7,  (d)  without  duplication  of  clause  (c),  any  assets  owned  by  such  Unrestricted  Subsidiary  at  the  time  of  the  initial  designation thereof shall be treated as Investments pursuant to Section 8.7, and (e) the Borrower shall have delivered                                                 73  





 






to the Administrative Agent an officer’s certificate executed by a Responsible Officer of the Borrower, certifying  compliance with the requirements of preceding clauses (a) through (d), and containing the calculations and information  required by the preceding clause (b).  The Borrower may designate any Unrestricted Subsidiary to be a Subsidiary for  purposes of this Agreement (each, a “Subsidiary Redesignation”); provided, that (i) no Default has occurred and is  continuing or would result therefrom, (ii) immediately after giving effect to such Subsidiary Resignation, the Total  Net Leverage Ratio on a pro forma basis does not exceed the lesser of (i) 4.00:1.00 and (ii) the maximum Total Net  Leverage Ratio then in effect under Section 8.1(a), such compliance to be determined on the basis of the financial  information  most  recently  delivered  to  Administrative  Agent  by  the  Borrower  pursuant  to  Section  7.1,  (iii)  the  representations and warranties set forth in Section 5 and in the other Loan Documents shall be true and correct in all  material  respects  immediately  after  giving  effect  to  such  Subsidiary  Redesignation,  except  to  the  extent  such  representations and warranties expressly relate to an earlier date, in which case such representation and warranties  shall  have  been  true  and  correct  in  all  material  respects  as  of  such  earlier  date  and  (iv)  the  Borrower  shall  have  delivered to the Administrative Agent an officer’s certificate executed by a Responsible Officer of the Borrower,  certifying  compliance  with  the  requirements  of  preceding  clauses  (i)  through  (iii);  provided,  further,  that  no  Unrestricted Subsidiary that has been designated as a Subsidiary pursuant to a Subsidiary Redesignation may again  be designated as an Unrestricted Subsidiary.  No Unrestricted Subsidiary may own Intellectual Property that is material  to the business operations of Holdings, the Borrower or any Subsidiary, or exclusively license Intellectual Property of  Holdings, the Borrower or any Subsidiary.          SECTION 8.     NEGATIVE COVENANTS          Holdings and the Borrower hereby agree that, so long as the Commitments remain in effect, any Letter of  Credit remains outstanding or any  Loan or other amount is owing to any Lender or Agent hereunder (other than  Unasserted Contingent Obligations, Letters of Credit that have been Cash Collateralized and any amount owing under  Specified Hedge  Agreements or any Specified Cash Management  Agreements), Holdings shall  not, and shall  not  permit any of its Subsidiaries to:          8.1     Financial Covenants.                  (a)    Total Net Leverage Ratio.  Permit the Total Net Leverage Ratio, as of the last day of the         most recent fiscal quarter of Holdings then last ended, to exceed the ratio set forth below opposite the period         during which such last day occurs:                       Date of Fiscal Quarter End                    Ratio              Each fiscal quarter end from and including              September 30, 2019 to and including June 30,          4.00 to 1.00              2020               Each fiscal quarter end from and including                                                                    3.75 to 1.00              September 30, 2020 to and including June 30,              2021                                                                    3.50 to 1.00              September 30, 2021 and thereafter          provided,  that  the  Borrower  may,  in  connection  with  any  Material  Acquisition,  by  written  notice  to  the  Administrative Agent for distribution to the Lenders and not more than an aggregate total of two (2) times during the  term of this Agreement, elect to increase (a “Covenant Increase”) the maximum Total Net Leverage Ratio by 0.50 to  1.00 solely for purposes of (i) determining pro forma compliance with this Section 8.1 in determining (x) whether  such transaction meets the requirements of a Permitted Acquisition and (y) compliance with Section 2.4(b)(v), Section  3.16(b)(v), Section 8.2(i) and Section 8.2(j) and (ii) determining compliance with this Section 8.1(a) for a period of  four  consecutive  fiscal  quarters  beginning  with  the  fiscal  quarter  in  which  such  Material  Acquisition  occurred  (“Adjusted Covenant Period”); provided, further, that (x) in no event shall the maximum Total Net Leverage Ratio  permitted by this Section 8.1(a) exceed 4.25 to 1.00 and (y) with respect to the second Covenant Increase, either (i)  the Borrower may not elect a second Covenant Increase for at least two (2) full fiscal quarters following the end of  the first Adjusted Covenant Period elected by the Borrower or (ii) the Borrower shall be in compliance with this                                                 74  





 






Section 8.1(a) for the two (2) most recently ended periods of four consecutive fiscal quarters for which financial  statements have been delivered without giving effect to any Covenant Increase or the Material Acquisition related to  the second Covenant Increase.                  (b)    Minimum Interest Coverage Ratio.  Permit the Interest Coverage Ratio, determined as of         the last day of the most recent fiscal quarter of the Borrower then last ended (commencing with the fiscal         quarter ending September 30, 2019), for the period of four consecutive fiscal quarters ending on the last day         of such fiscal quarter, to be less than 3.00 to 1.00.Indebtedness.  Create, issue, incur, assume, become liable         in respect of or suffer to exist any Indebtedness, except:                  (a)    Indebtedness of any Loan Party pursuant to any Loan Document;                  (b)    unsecured Indebtedness of (i) any Loan Party owed to any other Loan Party; (ii) any Loan         Party owed to any Group Member; (iii) any Group Member that is not a Loan Party owed to any other Group         Member that is not a Loan Party; and (iv) subject to Section 8.7(g), any Group Member that is not a Loan         Party owed to a Loan Party; provided, that (x) in the case of clauses (i) and (iv), any such Indebtedness is         evidenced by, and subject to the provisions of, an intercompany note, which shall be in a form reasonably         satisfactory to the Administrative Agent, and (y) in the case of any such Indebtedness of a Loan Party owed         to a Group Member that is not a Loan Party, such Indebtedness shall be subordinated in right of payment to         the Obligations on terms reasonably satisfactory to the Administrative Agent;                  (c)    Guarantee  Obligations  incurred  in  the  ordinary  course  of  business  by  (i)  any  Group         Member that is a Loan Party of obligations of any other Loan Party and, subject to Section 8.7(g), of any         Group Member that is not a Loan Party and (ii) any Group Member that is not a Loan Party of obligations of         any Loan Party or any other Group Member;                  (d)    Indebtedness outstanding on the date hereof and listed on Schedule 8.2 and any Permitted         Refinancing thereof;                  (e)    Indebtedness  incurred  to  finance  the  acquisition  of  fixed  or  capital  assets  (including,         without limitation, Capital Lease Obligations) of the Borrower or any Subsidiary secured by Liens permitted         by Section 8.3(g), and any Permitted Refinancing thereof, in an aggregate principal amount not to exceed         $35,000,000 at any one time outstanding;                  (f)    Hedge Agreements permitted under Section 8.11;                  (g)    Indebtedness of the Borrower or any Subsidiary in respect of performance, bid, surety,         indemnity, appeal bonds, completion guarantees and other obligations of like nature and guarantees and/or         obligations as an account party in respect of the face amount of letters of credit in respect thereof, in each         case,  securing  obligations  not  constituting  Indebtedness  for  borrowed  money  (including  worker’s         compensation  claims,  environmental  remediation  and  other  environmental  matters  and  obligations  in         connection with insurance or similar requirements) provided in the ordinary course of business;                  (h)    Indebtedness  arising  from  the  endorsement  of  instruments  in  the  ordinary  course  of         business;                  (i)    Indebtedness of a Person existing at the time such Person became a Subsidiary of any Loan         Party (such Person, an “Acquired Person”), together with all Indebtedness assumed by the Borrower or any         of its Subsidiaries in connection with any acquisition permitted under Section 8.7, but only to the extent that         (i) such Indebtedness was not created or incurred in contemplation of such Person becoming a Subsidiary of         such Loan Party or such acquisition, (ii) any Liens securing such Indebtedness attach only to the assets of the         Acquired  Person  and  (iii)  after  giving pro  forma  effect  to  the  acquisition,  (x)  the  Borrower  shall  be  in         compliance with the covenants in Section 8.1, calculated on a pro forma basis and (y) no Event of Default         has occurred and is continuing or would result therefrom;                                                  75  





 






        (j)    Unsecured Indebtedness of the Borrower or any of the Subsidiary Guarantors; provided,  that (i) no Event of Default shall exist immediately prior to or after giving effect to the incurrence of such  Indebtedness, (ii) the Total Net Leverage Ratio, after giving pro forma effect thereto (without “netting” the  cash proceeds of such Indebtedness), does not exceed the lesser of (x) 4.00 to 1.00 and (y) the maximum  Total Net Leverage Ratio then in effect under Section 8.1(a), (iii) such Indebtedness shall not require any  amortization prior to the date that is ninety-one (91) days following the Initial Term Loan Maturity Date, (iv)  the maturity of such Indebtedness shall be no earlier than ninety-one (91) days following the Initial Term  Loan Maturity Date and (v) such Indebtedness shall not be guaranteed by any Person that is not a Loan Party;           (k)    Indebtedness arising from the honoring by a bank or other financial institution of a check,  draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient  funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within  ten (10) Business Days of incurrence;           (l)    Indebtedness of Holdings or any Subsidiary that may be deemed to exist in connection with  agreements  providing  for  indemnification,  purchase  price  adjustments,  Earn-Out  Obligations  and  similar  obligations in connection with investments, acquisitions or sales of assets and/or businesses;           (m)    [reserved];           (n)    Indebtedness arising from judgments or decrees not constituting an Event of Default under  Section 9.1(h);           (o)    Guarantee Obligations incurred by any Loan Party in respect of Indebtedness otherwise  permitted  by  this  Section  8.2;  provided,  that,  any  Guarantee  Obligations  of  a  Loan  Party  in  respect  of  Indebtedness of a Group Member that is not a Loan Party shall be subject to Section 8.7(g);           (p)    other Indebtedness of the Borrower or any of its Subsidiary Guarantors in an aggregate  principal amount (for the Borrower and all Subsidiary Guarantors) not in excess of $35,000,000 at any time  outstanding; provided that no Event of Default has occurred and is continuing or would result therefrom;           (q)    Indebtedness of Foreign Subsidiaries and Subsidiaries of the Borrower that are not Loan  Parties not in excess of $50,000,000 at any time outstanding;           (r)    Indebtedness representing deferred compensation to future, present or former employees,  officers, directors or consultants of Holdings, the Borrower or any Subsidiary;           (s)    Indebtedness consisting of promissory notes issued by any Loan Party to current or former  officers,  directors,  employees  or  consultants  of  any  Group  Member  (or  any  spouses,  successors,  administrators, heirs or legatees of any of the foregoing) to finance the purchase or redemption of Capital  Stock permitted by Section 8.6(d);           (t)    Indebtedness consisting of the financing of insurance premiums in the ordinary course of  business;           (u)    any Indebtedness of any Group Member that is not a Loan Party owing to another Group  Member that is not a Loan Party under any Cash Pool Obligation;           (v)    Indebtedness  in  respect  of  overdraft  facilities,  foreign  exchange  facilities,  payment  facilities, cash management obligations and similar obligations incurred in the ordinary course of business;           (w)    Indebtedness in respect of the Permitted Sale Leaseback;           (x)    [reserved];                                            76  





 






               (y)    Indebtedness in respect of ordinary course intercompany balances among Group Members;         and                  (z)    Indebtedness in respect of letters of credit and bank guarantees in an aggregate stated or         face amount not to exceed $10,000,000 at any time outstanding.           8.3     Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property, whether now  owned or hereafter acquired, except for:                  (a)    Liens for Taxes, assessments or governmental charges or levies (i) that are not overdue for         a period of more than 30 days, (ii) that are being contested in good faith by appropriate proceedings that stay         the enforcement of such claim; provided, that adequate reserves with respect thereto are maintained on the         books of the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP, (iii) that arise from         government allowed payment plans providing for payment of Taxes over a period of time not to exceed one         year  that  stay  the  enforcement  of  such  Lien  and  for  which  adequate  reserves  have  been  established  in         accordance with GAAP or (iv) that are immaterial amounts;                  (b)    Liens imposed by law, including, carriers’, warehousemen’s, mechanics’, materialmen’s,         repairmen’s or other like Liens arising in the ordinary course of business that are not overdue for a period of         more than sixty (60) days (or, if more than sixty (60) days overdue, no action has been taken to enforce such         Lien) or that are being contested in good faith by appropriate proceedings, which proceedings have the effect         of preventing the forfeiture and sale of the property or assets subject to any such Lien;                  (c)    pledges or deposits in connection with workers’ compensation, unemployment insurance         and other social security legislation, or letters of credit or guarantees issued in respect thereof, other than any         Lien imposed by ERISA with respect to a Single Employer Plan or Multiemployer Plan;                  (d)    pledges  or  deposits  to  secure  the  performance  of  bids,  trade  contracts  (other  than  for         borrowed  money),  leases,  statutory  obligations,  surety  and  appeal  bonds,  performance  bonds  and  other         obligations of a like nature incurred in the ordinary course of business or letters of credit or guarantees issued         in respect thereof;                  (e)    easements,  zoning  restrictions,  rights-of-way,  restrictions,  covenants,  licenses,         encroachments, protrusions and other similar encumbrances incurred in the ordinary course of business, and         minor title deficiencies, in each case, that do not in any case individually or in  the aggregate  materially         interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;                  (f)    Liens in existence on the date hereof listed on Schedule 8.3 and any renewals or extensions         of any of the foregoing; provided, that no such Lien is spread to cover any additional property after the         Closing  Date  (other  than  improvements  thereon)  and  the  Indebtedness  secured  thereby  is  permitted  by         Section 8.2(d);                  (g)    Liens  securing  Indebtedness  of  the  Borrower  or  any  Subsidiary  incurred  pursuant  to         Section 8.2(e) to finance the acquisition of fixed or capital assets; provided, that (i) such Liens do not at any         time encumber any property other than the property financed by such Indebtedness and (ii) the amount of         Indebtedness secured thereby is not increased other than as permitted by Section 8.2(e);                  (h)    Liens created pursuant to the Security Documents or any other Loan Document;                  (i)    Liens approved by Collateral Agent appearing on the policies of title insurance being issued         in connection with any Mortgages;                  (j)    any  interest  or  title  of  a  lessor  under  any  lease  entered  into  by  the  Borrower  or  any         Subsidiary in the ordinary course of its business and covering only the assets so leased;                                                  77  





 






        (k)    licenses, leases or subleases granted to third parties or Group Members in the ordinary  course of business which, individually or in the aggregate, do not (i) materially impair the use (for its intended  purposes) or the value of the property subject thereto or (ii) materially interfere with the ordinary course of  business of the Borrower or any of its Subsidiaries;           (l)    Liens  securing  judgments  not  constituting  an  Event  of  Default  under  Section  9.1(h)  or  securing appeal or other surety bonds related to such judgments;           (m)    the filing of UCC financing statements solely as a precautionary measure in connection  with operating leases and consignment arrangements;           (n)    Liens existing on property acquired by the Borrower or any Subsidiary at the time such  property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed) and any  modification,  replacement,  renewal  or  extension  thereof;  provided,  that  (i)  such  Lien  is  not  created  in  contemplation of such acquisition, (ii) such Lien does not extend to any other property of any Group Member  not  subject  to  such  Lien  at  the  time  of  acquisition  (other  than  improvements  thereon)  and  (iii)  the  Indebtedness secured by such Liens is permitted by Section 8.2(i);           (o)    (i) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to  cash and Cash Equivalents on deposit in one or more accounts maintained by any Group Member, in each  case, granted in the ordinary course of business in favor of the bank or banks with which such accounts are  maintained, securing amounts owing to such bank with respect to cash management and operating account  arrangements, including those involving pooled accounts and netting arrangements; provided, that, unless  such Liens are nonconsensual and arise by operation of law, in no case shall any such Liens secure (either  directly or indirectly) the repayment of any Indebtedness, and (ii) Liens of a collection bank arising under  Section 4-210 of the UCC on items in the course of collection;           (p)    Liens in favor of customs and revenue authorities arising as a matter of law and in the  ordinary course of business to secure payment of customs duties in connection with the importation of goods;           (q)    statutory and common law landlords’ liens under leases to which the Borrower or any of  its Subsidiaries is a party;           (r)    Liens on assets of Foreign Subsidiaries and Subsidiaries of the Borrower that are not Loan  Parties  securing  Indebtedness  of  such  Subsidiaries  to  the  extent  such  Indebtedness  secured  thereby  is  permitted under Section 8.2;           (s)    Liens not otherwise permitted by this Section so long as the aggregate outstanding principal  amount of the obligations secured thereby do not exceed $30,000,000 at any one time; provided, that no  Event of Default has occurred and is continuing or would result therefrom;           (t)    Liens  arising  by  virtue  of  deposits  made  in  the  ordinary  course  of  business  to  secure  liability for premiums to insurance carriers or Indebtedness permitted under Section 8.2(v);           (u)    Liens arising out of conditional sale, title retention, consignment or similar arrangements  for the sale of goods entered into by any Group Member in the ordinary course of business;           (v)    licenses of Intellectual Property granted by any Group Member in the ordinary course of  business  and  not  interfering  in  any  material  respect  with  the  ordinary  conduct  of  business  of  the  Group  Members;           (w)    Liens (i) on deposits of cash or Cash Equivalents in favor of the seller of any property to  be acquired in any Permitted Acquisition or any other Investment permitted by this Agreement to be applied  against the purchase price for such Permitted Acquisition or Investment, (ii) consisting of an agreement to                                           78  





 






       dispose  of  any  property  in  a  permitted  Disposition  and  (iii)  earnest  money  deposits  of  cash  or  Cash         Equivalents  made  by  any  Group  Member  in  connection  with  any  letter  of  intent  or  purchase  agreement         permitted hereunder;                  (x)    Liens on cash or cash equivalents securing Indebtedness permitted by Section 8.2(z);                  (y)    [reserved]; and                  (z)    Liens in connection with the Permitted Sale Leaseback.          8.4     Fundamental Changes.  Merge into, amalgamate or consolidate with any Person, or permit any other  Person  to  merge  into,  amalgamate  or  consolidate  with  it,  or  liquidate,  wind  up  or  dissolve  itself  (or  suffer  any  liquidation or dissolution), or Dispose of, all or substantially all of its property or business, except that:                  (a)    any Subsidiary of the Borrower may be merged, consolidated or be amalgamated (i) with         or into the Borrower (provided, that the Borrower shall be the continuing or surviving corporation), (ii) with         or  into  any  other  Subsidiary  of  the  Borrower  (provided,  that  if  only  one  party  to  such  transaction  is  a         Subsidiary Guarantor, the Subsidiary Guarantor shall be the continuing or surviving corporation) or (iii) with         or  into  any  other  Group  Member; provided,  that,  any  Loan  Party  may  only  be  merged,  consolidated  or         amalgamated with a Group Member that is not a Loan Party pursuant to Section 8.7(g);                  (b)    any Subsidiary of the Borrower may Dispose of all or substantially all of its assets (upon         voluntary liquidation or otherwise) to the Borrower or any Subsidiary Guarantor or any other Group Member;         provided, that, any such Disposition by a Loan Party to a Group Member that is not a Loan Party shall be         made pursuant to Section 8.7(g);                  (c)    any Subsidiary that is not a Loan Party may (i) merge, consolidate or otherwise combine         (including via contribution or sale) with or into any Subsidiary that is not a Loan Party or (ii) dispose of all         or substantially all of its assets (including any Disposition that is in the nature of a voluntary liquidation) to         (x) another Subsidiary that is not a Loan Party or (y) to a Loan Party;                  (d)    any Subsidiary may enter into any merger, consolidation or similar transaction with another         Person to effect a transaction permitted under Section 8.7;                  (e)    transactions permitted under Section 8.5 shall be permitted;                  (f)    any Subsidiary of the Borrower may dissolve, liquidate or wind up its affairs at any time;         provided, that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to         have a Material Adverse Effect; and                  (g)    so long as no Event of Default exists or would result therefrom, Holdings may merge or         consolidate or amalgamate with or into any other Person (other than the Borrower and any of its subsidiaries),         so long as (i) Holdings shall be the continuing or surviving Person or (ii) if the Person formed by or surviving         any such merger or consolidation or amalgamation is not Holdings, (A) the successor Person shall expressly         assume  all  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; (B) such successor shall be an entity organized under the laws of the United States,         any state thereof or the District of Columbia and (C) such successor has no Indebtedness or other liabilities         and engages in no business activities and owns no material assets, in each case, other than as permitted under         Section  8.16;  provided,  that  if  the  conditions  set  forth  in  this  clause  (A)  are  satisfied  are  satisfied,  the         successor to Holdings will succeed to, and be substituted for, Holdings under this Agreement; provided, that         the Borrower agrees to provide any documentation and other information about the successor as shall have         been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall         have reasonably determined is required by regulatory authorities under applicable “know your customer” and                                                  79  





 






       anti-money  laundering  rules  and  regulations,  including  the  Patriot  Act  and  the  Beneficial  Ownership         Regulation;          For the avoidance of doubt, nothing in this Agreement shall prevent Holdings or any Subsidiary thereof from  being converted into, or reorganized or reconstituted as a limited liability company, limited partnership or corporation;  provided, that (i) the Administrative Agent shall have been provided at least ten (10) days’ prior written notice of such  change (or such other period acceptable to the Administrative Agent in its sole discretion) and (ii) the relevant Group  Member shall take all such actions and execute all such documents as the Administrative Agent or the Collateral Agent  may reasonably request in connection therewith.          8.5     Disposition of Property.  Dispose of any of its property, whether now owned or hereafter acquired,  or, in the case of the Borrower or any Subsidiary, issue or sell any shares of the Borrower’s or such Subsidiary’s  Capital Stock to any Person, except:                  (a)    Dispositions of obsolete, damaged, uneconomic or worn out machinery, parts, property or         equipment, or property or equipment no longer used or useful, in the conduct of its business, whether now         owned or hereafter acquired;                  (b)    the sale of inventory and owned or leased vehicles, each in the ordinary course of business;                  (c)    Dispositions permitted by Sections 8.4(a), (b), (c), (d) and (f);                  (d)    the sale or issuance of any Subsidiary’s Capital Stock to the Borrower or any Subsidiary         Guarantor or, if such Subsidiary is not a Loan Party, to any other Group Member;                  (e)    any  Subsidiary  of  the  Borrower  may  Dispose  of  any  assets  to  the  Borrower  or  any         Subsidiary Guarantor or any other Group Member, and any Subsidiary that is not a Subsidiary Guarantor         may Dispose of any assets, or issue or sell Capital Stock, to any other Subsidiary that is not a Subsidiary         Guarantor; provided, that, any such Disposition by a Loan Party to a Group Member that is not a Loan Party         is made pursuant to Section 8.7(g);                  (f)    Dispositions of cash or Cash Equivalents in the ordinary course of business in transactions         not otherwise prohibited by this Agreement;                  (g)    licenses  granted  by  the  Loan  Parties  with  respect  to  Intellectual  Property,  or  leases  or         subleases, granted to third parties in the ordinary course of business which, individually or in the aggregate,         do not  materially interfere  with the ordinary conduct of the business of the  Loan Parties or any of their         Subsidiaries, taken as a whole;                  (h)    the Disposition of other property; provided, that at least 75% of the consideration received         in connection therewith consists of cash or Cash Equivalents;                  (i)    the  issuance  or  sale  of  shares  of  any  Subsidiary’s  Capital  Stock  to  qualify  directors  if         required by applicable law;                  (j)    Dispositions or exchanges of equipment or real property to the extent that (i) such property         is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such         Disposition are reasonably promptly applied to the purchase price of such replacement property;                  (k)    Dispositions of leases entered into in the ordinary course of business, to the extent that they         do not materially interfere with the business of the Loan Parties and their Subsidiaries, taken as a whole;                                                   80  





 






               (l)    the abandonment or other Disposition of Intellectual Property that is, in the reasonable         judgment of the Borrower, no longer economically practicable to maintain and material in the conduct of the         business of the Loan Parties and their Subsidiaries, taken as a whole;                  (m)    the Disposition of Property which constitutes a Recovery Event;                  (n)    Dispositions consisting of the sale, transfer, assignment or other Disposition of accounts         receivable in connection  with the collection, compromise  or settlement thereof in the ordinary course of         business and not as part of a financing transaction;                  (o)    Dispositions constituting Investments in compliance with Section 8.7;                  (p)    dispositions of non-core assets acquired in connection with any Permitted Acquisition in         an aggregate amount not to exceed $4,000,000 per calendar year;                  (q)    the disposition of property which constitutes, or which is subject to, a Recovery Event;                  (r)    Dispositions of Investments in joint ventures to the extent required by, or made pursuant         to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements         and similar binding arrangements;                  (s)    sale  or  issuances  of  Qualified  Capital  Stock  of  Holdings  to  future,  present  or  former         employees, officers, directors or consultants in respect of compensation of services;                  (t)    the unwinding of any Hedge Agreements;                  (u)    Dispositions of intellectual property, so long as (i) the subject intellectual property solely         relates to products that are still in the development phase and (ii) such disposition is made for cash and Cash         Equivalents in an amount not less than the fair market value of such property;                   (v)    Dispositions listed on Schedule 8.5;                   (w)    the Disposition of other property having a fair market value not to exceed $30,000,000;         and                  (x)    the Permitted Sale Leaseback.          8.6     Restricted Payments.  Declare or pay any dividend (other than dividends payable solely in common  stock or other common equity interests of the Person making such dividend) on, or make any payment on account of,  or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other  acquisition of, any Capital Stock of any Group Member, in each case, whether now or hereafter outstanding, or make  any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of  Holdings or any Subsidiary (collectively, “Restricted Payments”), except that:                  (a)    any  Subsidiary  may  make  Restricted  Payments  to  the  Borrower  or  any  Subsidiary         Guarantor or any other Person that owns a direct equity interest in such Subsidiary in proportion to such         Person’s ownership interest in such Subsidiary;                  (b)    each Subsidiary may make Restricted Payments to the Borrower and to Wholly Owned         Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Subsidiary, to the Borrower         and any Subsidiary and to each other owner of Capital Stock or other equity interests of such Subsidiary on         a pro rata basis based on their relative ownership interests);                                                   81  





 






        (c)    so long as no Default or Event of Default has occurred and is continuing or would result  therefrom, Holdings may purchase, redeem or otherwise acquire shares of its common stock or other common  equity interests or warrants or options to acquire any such shares, in each case, to the extent consideration  therefor consists of the proceeds received from the substantially concurrent issue of new shares of Qualified  Capital Stock;           (d)    (i) Holdings may make a Restricted Payment to (or to allow any direct or indirect parent  thereof to) pay for the repurchase, retirement or other acquisition of Capital Stock of Holdings (or any direct  or indirect parent thereof) held by any future, present or former officers, directors, employees or consultants  of any Group Member (or any spouses, successors, administrators, heirs or legatees of any of the foregoing)  upon the death, disability or termination of employment or services of such individual, and (ii) any Group  Member may purchase, redeem or otherwise acquire any Capital Stock from the present or former employees,  officers, directors and consultants of any Group Member (or any spouses, successors, administrators, heirs  or legatees of any of the foregoing) pursuant to the terms of any employee stock option, incentive stock or  other equity-based plan or arrangement; provided, that the aggregate amount of payments under this clause  (d) shall not exceed in any fiscal year $3,000,000 (with unused amounts in any fiscal year being carried over  to succeeding fiscal years subject to a maximum of $6,000,000 in any fiscal year) plus, in each case, (x) any  proceeds received by any Group Member after the date hereof in connection with the issuance of Qualified  Capital Stock that are used for the purposes described in this clause (d) plus (y) the net cash proceeds of any  “key-man” life insurance policies of any Group Member that have not been used to make any repurchases,  redemptions or payments under this clause (d);           (e)    [reserved];           (f)    the Borrower or its Subsidiaries may make Permitted Tax Distributions;           (g)    (i)  to  the  extent  actually  used  by  Holdings  to  pay  such  taxes,  costs  and  expenses,  the  Borrower may make Restricted Payments to or on behalf of Holdings in an amount sufficient to pay franchise  taxes or similar taxes or fees required to maintain the legal existence of Holdings or its qualification to do  business, (ii) the Borrower may make Restricted Payments to or on behalf of Holdings in an amount sufficient  to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the  ordinary course of business of Holdings (or any direct or indirect parent thereof) to the extent such expenses  are attributable to the ownership or operation of the Borrower and the Subsidiaries in an aggregate amount  not to exceed $5,000,000 in any fiscal year, (iii) the Borrower may make Restricted Payments to or on behalf  of  Holdings  (or  any  direct  or  indirect  parent  thereof)  to  enable  Holdings  to  pay  fees,  salaries,  bonuses,  expenses and indemnities owing to directors, officers and employees of Holdings (or any direct or indirect  parent thereof) to the extent such expenses are attributable to the ownership or operation of the Borrower and  the Subsidiaries and (iv) the Borrower may make Restricted Payments to Holdings in an amount sufficient  to pay any Public Company Costs;           (h)    the Borrower may make Restricted Payments to Holdings (or any direct or indirect parent  thereof)  the  proceeds  of  which  are  used  to  make  cash  payments  in  lieu  of  issuing  fractional  shares  in  connection with the exercise of warrants, options, or other securities convertible into or exchangeable for  Capital Stock in an amount not to exceed $250,000 in any fiscal year;           (i)    Holdings  may  make  Restricted  Payments  constituting  non-cash  repurchases  of  Capital  Stock of Holdings (or any direct or indirect parent thereof) deemed to occur upon exercise or vesting of stock  options or warrants (or equivalent) if such Capital Stock represents a portion of the exercise price and/or  related tax liability of such options or warrants (or equivalent);           (j)    to  the  extent  constituting  Restricted  Payments,  any  Group  Member  may  enter  into  transactions expressly permitted by Sections 8.4, 8.5 or 8.7;           (k)    [reserved];                                           82  





 






               (l)    [reserved];                  (m)    Holdings and the Borrower may make additional Restricted Payments (i) in an aggregate         amount not to exceed $25,000,000 minus (A) the amount of Restricted Debt Payments made in reliance on         Section  8.8(a)(iii)(B)  minus  the  outstanding  amount  of  any  Investments  made  in  reliance  on  Section         8.7(e)(ii);  provided,  that,  no Default  or  Event  of  Default  has  occurred  and  is  continuing  or  would  result         therefrom;                  (n)    the Borrower may make Restricted Payments to Holdings to fund Restricted Payments to         be made by Holdings pursuant to clause (c), (d), (e), (f), (m) or (o) of this Section 8.6; and                  (o)    Holdings and the Borrower may  make additional Restricted Payments  so long as, after         giving  effect  thereto  on  a pro  forma basis,  the  Total  Net  Leverage  Ratio  does  not  exceed  2.25  to  1.00;         provided, that, no Default or Event of Default has occurred and is continuing or would result therefrom.          8.7     Investments.  Make any advance, loan, extension of credit (by way of guarantee or otherwise) or  capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any  assets constituting a business line or unit of, or a division of, or make any other investment in, any Person (all of the  foregoing, “Investments”), except:                  (a)    extensions of trade credit in the ordinary course of business;                  (b)    Investments in cash and Cash Equivalents;                  (c)    Guarantee Obligations permitted by Section 8.2;                  (d)    loans  and  advances  to  present  or  prospective  officers,  directors  and  employees  of  any         Group Member in the ordinary course of business (including for travel, entertainment, relocation and similar         expenses) in an aggregate amount for all Group Members not to exceed $2,500,000 at any time outstanding;                  (e)    Investments made after the Closing Date by the Borrower or any of its Subsidiaries in an         aggregate amount (valued at cost, if applicable) not to exceed                         (i)    $25,000,000, plus                         (ii)   $25,000,000,  minus  the  amount  of  Restricted  Payments  made  in  reliance  on                 Section 8.6(m), minus any Restricted Debt Payments made in reliance on Section 8.8(a)(iii)(B);                  (f)    intercompany Investments by (i) any Group Member in any Loan Party; provided, that all         such intercompany Investments to the extent such Investment is a loan or advance owed to a Loan Party are         evidenced by an intercompany note and (ii) any Group Member that is not a Loan Party to any other Group         Member that is not a Loan Party;                  (g)    intercompany Investments by any Loan Party in any Subsidiary, that, after giving effect to         such Investment, is not a Subsidiary Guarantor (including, without limitation, Guarantee Obligations with         respect to obligations of any such Subsidiary, loans made to any such Subsidiary, Investments resulting from         mergers  with  or  sales  of  assets  to  any  such  Subsidiary  and  Investments  in  Foreign  Subsidiaries)  and         Investments by any Subsidiaries that are not Loan Parties in an aggregate amount (valued at cost) not to         exceed $30,000,000 at any time outstanding; provided that no Event of Default has occurred and is continuing         or would result therefrom;                  (h)    Investments in the ordinary course of business consisting of endorsements for collection or         deposit  or  lease,  utility  and  other  similar  deposits  and  deposits  with  suppliers  in  the  ordinary  course  of         business;                                                  83  





 






        (i)    Permitted  Acquisitions,  including  Investments  by  any  Loan  Party  in  any  Foreign  Subsidiary  the  proceeds  of  which  are  promptly  used  by  such  Foreign  Subsidiary  (directly  or  indirectly  through another Foreign Subsidiary) to consummate a Permitted Acquisition of Persons organized under the  laws of, and/or assets located in, a jurisdiction other than the United States or any State thereof (and pay fees  and expenses incurred in connection therewith);           (j)    Investments consisting of Hedge Agreements permitted by Section 8.11;           (k)    Investments existing as of the Closing Date and set forth in Schedule 8.7 and any extension  or renewal thereof; provided, that the amount of any such Investment is not increased at the time of such  extension or renewal;           (l)    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 or other Persons to the  extent  reasonably  necessary  in  order  to  prevent  or  limit  loss  or  in  connection  with  the  bankruptcy  or  reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes  with, suppliers or customers arising in the ordinary course of business;           (m)    Investments  received  as  consideration  in  connection  with  Dispositions  permitted  under  Section 8.5 and Investments as consideration for services provided by the Borrower and its Subsidiaries;           (n)    [reserved];           (o)    Investments  by  a  Group  Member  that  is  not  a  Loan  Party  in  the  form  of  Cash  Pool  Obligations;           (p)    loans and advances to Holdings (or any direct or indirect parent thereof) in lieu of, and not  in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect  thereof), Restricted Payments to the extent permitted to be made to Holdings (or any direct or indirect parent  thereof) in accordance with Section 8.6;           (q)    promissory notes or other obligations of directors, officers, employees or consultants of a  Group Member in connection with such directors’, officers’, employees’ or consultants’ purchase of Capital  Stock of Holdings (or any direct or indirect parent thereof), so long as no cash or Cash Equivalent is advanced  by any Group Member in connection with such Investment;           (r)    purchases and other acquisitions of inventory, materials, equipment and intangible property  in the ordinary course of business;           (s)    leases,  licenses  and  sublicenses  of  real  or  personal  property  in  the  ordinary  course  of  business;           (t)    mergers and consolidations in compliance with Section 8.4 (other than Section 8.4(d));           (u)    [reserved];           (v)    Investments in joint ventures not to exceed $30,000,000 at any time outstanding; provided  that no Event of Default has occurred and is continuing or would result therefrom;           (w)    [reserved];           (x)    [reserved];                                            84  





 






               (y)    additional Investments so long as, (i) after giving effect thereto on a pro forma basis, the         Total Net Leverage Ratio does not exceed 2.75 to 1.00 and (ii) no Event of Default has occurred and is         continuing or would result therefrom; and                  (z)    Investments permitted by Section 8.2(y).          8.8     Optional Payments and Modifications of Certain Debt Instruments.                    (a)    Make  or  offer  to  make  any  optional  or  voluntary  payment,  prepayment,  repurchase  or  redemption  of  or  otherwise  optionally  or  voluntarily  defease  or  segregate  funds  with  respect  to  any  Junior  Debt  (collectively “Restricted Debt Payments”), except for:                         (i)    Permitted Refinancings;                         (ii)   [reserved];                         (iii)  Restricted Debt Payments in an aggregate amount not to exceed:                                (A)     $25,000,000, plus                                (B)     $25,000,000, minus the amount of Restricted Payments made in reliance                        on Section 8.6(m), minus the amount of any Investments made in reliance on Section                        8.7(e)(ii); and                         (iv)   additional Restricted Debt Payments so long as, after giving effect thereto on a                 pro forma basis, the Total Net Leverage Ratio does not exceed 2.25 to 1.00; provided, that, no                 Default or Event of Default has occurred and is continuing or would result therefrom;                  (b)    amend,  modify,  waive  or  otherwise  change,  or  consent  or  agree  to  any  amendment,  modification, waiver or other change to, any of the terms of any Junior Debt (other than any amendment that is not  materially adverse to the Lenders, it being agreed that any amendment, modification, waiver or other change that, in  the case of any Junior Debt, would extend the maturity or reduce the amount of any payment of principal thereof or  reduce the rate or extend any date for payment of interest thereon is not materially adverse to the Lenders); or amend,  modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to,  any of the terms of any Qualified Capital Stock that would cause such Qualified Capital Stock to become Disqualified  Capital Stock; and                  (c)    amend,  modify,  waive  or  otherwise  change,  or  consent  or  agree  to  any  amendment,  modification, waiver or other change to, any of the terms of any Organizational Document of any Loan Party or any  Pledged Company if such amendment, modification, waiver or change could reasonably be expected to have a Material  Adverse Effect.          8.9     Transactions with Affiliates.  Enter into any transaction of any kind involving payments in excess  of $2,000,000 in any fiscal year with any Affiliate of the Borrower, whether or not in the ordinary course of business,  other  than  on  fair  and  reasonable  terms  substantially  as  favorable  to  Holdings  or  such  Subsidiary  as  would  be  obtainable by Holdings or such Subsidiary at the time in a comparable arm’s length transaction with a Person other  than an Affiliate, except:                  (a)    transactions between Holdings and its Subsidiaries;                  (b)    loans or advances to directors, officers and employees permitted under Section 8.7(d) and         transactions permitted by Sections 8.2(r), 8.2(s) and 8.7(q);                                                   85  





 






               (c)    the  payment  of  reasonable  and  customary  fees,  compensation,  benefits  and  incentive         arrangements paid or provide to, and indemnities provided on behalf of, officers, directors, employees or         consultants of the Borrower, Holdings (or any direct or indirect parent thereof) or any of its Subsidiaries;                  (d)    (i) any issuances of securities or other payments, awards or grants in cash, securities or         otherwise pursuant to, or the funding of, employment agreements, stock options and stock ownership plans         approved by Holdings’ board of managers (or similar governing body) or the senior management thereof and         (ii) any repurchases of any issuances, awards or grants issued pursuant to clause (i), in each case, to the extent         permitted by Section 8.6;                  (e)    employment  arrangements  entered  into  in  the  ordinary  course  of  business  between         Holdings or any Subsidiary and any employee thereof;                  (f)    any Restricted Payment permitted by Section 8.6;                  (g)    the Transactions and the payment of all fees and expenses related to the Transactions as set         forth in the Lender Presentation;                  (h)    [reserved];                  (i)    Intellectual Property licenses to Group Members in existence on the Closing Date;                  (j)    sales of Qualified Capital Stock of Holdings to Affiliates of the Borrower not otherwise         prohibited by the Loan Documents and the granting of registration and other customary rights in connection         therewith;                  (k)    any transaction with an Affiliate where the only consideration paid by any Loan Party is         Qualified Capital Stock of Holdings;                  (l)    transactions  with  customers,  clients,  suppliers,  joint  venture  partners  or  purchasers  or         sellers of goods and services, in each case, in the ordinary course of business and otherwise not prohibited         by the Loan Documents;                  (m)    transactions in the ordinary course of business with (i) Unrestricted Subsidiaries or (ii) joint         ventures in which Holdings or a Subsidiary thereof holds or acquires an ownership interest (whether by way         of Capital Stock or otherwise) so long as the terms of any such transactions are no less favorable to Holdings         or Subsidiary participating in such joint ventures than they are to other joint venture partners; and                  (n)    the transactions listed on Schedule 8.9.          8.10    Sales and Leasebacks.  Enter into any arrangement, directly or indirectly, with any Person whereby  it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter  acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same  purpose or purposes as the property being sold or transferred, unless (i) the sale of such property is permitted by  Section 8.5 and (ii) any Liens arising in connection with its use of such property are permitted by Section 8.3.          8.11    Hedge Agreements.  Enter into any Hedge Agreement, except Hedge Agreements entered into in  the ordinary course of business and not for speculative purposes.          8.12    Changes in Fiscal Periods.  Permit any change in the fiscal year of the Borrower; provided, that the  Borrower  may,  upon  written  notice  to  the  Administrative  Agent,  change  its  fiscal  year  to  any  other  fiscal  year  reasonably acceptable to the Administrative Agent (such acceptance not to be unreasonably withheld or delayed), in  which case, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any  adjustments to this Agreement that are necessary to reflect such change in fiscal year.                                                  86  





 






       8.13    Negative  Pledge  Clauses.   Enter  into  or  suffer  to  exist  or  become  effective  any  agreement  that  prohibits, limits or imposes any condition upon the ability of any Group Member to create, incur, assume or suffer to  exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired other than (a) this  Agreement and the other Loan Documents, (b) any agreements governing any purchase money Liens or Capital Lease  Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective against  the assets financed thereby), (c) any agreement governing the Permitted Sale Leaseback, (d) any restrictions with  respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection with the Disposition  of all or substantially all of the Capital Stock or assets of such Subsidiary, (e) customary provisions in leases, licenses  and other contracts restricting the assignment thereof, (f) any licenses in connection with the Subject IP, (g) any other  agreement that does not restrict in any manner (directly or indirectly) Liens created pursuant to the Loan Documents  or any Collateral securing the Obligations and does not require the direct or indirect granting of any Lien securing any  Indebtedness or other obligation by virtue of the granting of Liens on or pledge of Property of any Loan Party to secure  the Obligations and (h) any prohibition or limitation that (i) exists pursuant to applicable Requirements of Law, (ii)  consists of customary restrictions and conditions contained in any agreement relating to any transaction permitted  under Section 8.4 or the sale of any property permitted under Section 8.5, (iii) restricts subletting or assignment of  leasehold interests contained in any lease governing a leasehold interest of any Group Member, (iv) exists in any  agreement in effect at the time such Subsidiary becomes a Subsidiary of the Borrower, so long as such agreement was  not  entered  into  in  contemplation  of  such  Person  becoming  a  Subsidiary,  (v)  exists  in  any  instrument  governing  Indebtedness  assumed  in  connection  with  any  Permitted  Acquisition,  which  encumbrance  or  restriction  is  not  applicable to any Person, or the Property or assets of any Person, other than the Person or the Property or assets of the  Person so acquired or (vi) is imposed by any amendments or refinancings that are otherwise permitted by the Loan  Documents or the contracts, instruments or obligations referred to in clause (b), (c), (d), (e), (f), (g), (h)(iv) or (h)(v);  provided, that such amendments and refinancings are no more materially restrictive with respect to such prohibitions  and  limitations  than  those  in  effect  prior  to  such  amendment  or  refinancing  (as  determined  in  good  faith  and,  if  requested by the Administrative Agent, certified in writing to the Administrative Agent by a Responsible Officer of  the Borrower).          8.14    Clauses Restricting Subsidiary Distributions.  Enter into or suffer to exist or become effective any  consensual  encumbrance  or  restriction  on  the  ability  of  any  Subsidiary  of  the  Borrower  to  (a)  make  Restricted  Payments in respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, the Borrower  or any other Subsidiary of the Borrower, (b) make loans or advances to, or other Investments in, the Borrower or any  other  Subsidiary  of  the  Borrower  or  (c)  transfer  any  of  its  assets  to  the  Borrower  or  any  other  Subsidiary  of  the  Borrower, except for such encumbrances or restrictions existing under or by reason of:                         (i)    any  restrictions  existing  under  the  Loan  Documents  and  any  Permitted                 Refinancing thereof,                         (ii)   any restrictions with respect to a Subsidiary imposed pursuant to an agreement                 that has been entered into in connection with the Disposition of all or substantially all of the Capital                 Stock or assets of such Subsidiary,                         (iii)  any restrictions set forth in the agreement governing any Indebtedness incurred                 under Section 8.2(j), so long as the restrictions set forth therein are not materially more restrictive                 than the corresponding provisions in the Loan Documents,                         (iv)   any agreements governing any purchase money Liens, Capital Lease Obligations                 or  the  Permitted  Sale  Leaseback  otherwise  permitted  hereby  (in  which  case,  any  prohibition  or                 limitation shall only be effective against the assets financed thereby),                         (v)    restrictions and conditions existing on the date hereof identified on Schedule 8.14                 (but not to any amendment or modification expanding the scope or duration of any such restriction                 or condition),                                                   87  





 






                      (vi)   restrictions or conditions imposed by any agreement relating to Liens permitted                 by this  Agreement but solely to the extent that such restrictions or conditions apply only to the                 property or assets subject to such permitted Lien,                         (vii)  customary provisions in leases, licenses and other contracts entered into in the                 ordinary course of business restricting the assignment thereof,                         (viii) customary restrictions in joint venture agreements and other similar agreements                 applicable to joint ventures permitted hereunder and applicable solely to such joint venture,                         (ix)   any agreement of a Foreign Subsidiary governing Indebtedness permitted to be                 incurred or permitted to exist under Section 8.2,                         (x)    any agreement or arrangement already binding on a Subsidiary when it is acquired                 so long as such agreement or arrangement was not created in anticipation of such acquisition,                         (xi)   Requirements of Law,                         (xii)  customary restrictions and conditions contained in any agreement relating to any                 transaction permitted  under Section 8.4 or the sale of any  property permitted  under Section 8.5                 pending the consummation of such transaction or sale,                         (xiii) any agreement in effect at the time such Subsidiary becomes a Subsidiary of the                 Borrower, so long as such agreement was not entered into in connection with or in contemplation                 of such Person becoming a Subsidiary of the Borrower,                         (xiv)  any  instrument  governing  Indebtedness  assumed  in  connection  with  any                 Permitted  Acquisition,  which encumbrance or restriction  is not applicable to any Person, or the                 Property or assets of any Person, other than the Person or the Property or assets of the Person so                 acquired, or                         (xv)   any encumbrances or restrictions imposed by any amendments or refinancings                 that are otherwise permitted by the Loan Documents or the contracts, instruments or obligations                 referred to in clause (vi), (x), (xiii) or (xiv) of this Section; provided, that such amendments or                 refinancings are no more materially restrictive with respect to such encumbrances and restrictions                 than those in effect prior to such amendment or refinancing (as determined in good faith and, if                 requested  by  the  Administrative  Agent,  certified  in  writing  to  the  Administrative  Agent  by  a                 Responsible Officer of the Borrower).          8.15    Lines of Business.  Enter into any business, either directly or through any Subsidiary, except for  those businesses in which Holdings and its Subsidiaries are engaged on the date of this Agreement (after giving effect  to the Transactions) or that are reasonably related, incidental, ancillary or complementary thereto.          8.16    Holding Company.  In the case of Holdings, engage in any business or activity other than (a) the  ownership of all outstanding Capital Stock in the Borrower, (b) maintaining its corporate existence, (c) participating  in  tax,  accounting  and  other  administrative  activities  as  a  member  of  the  consolidated  group  of  companies,  that  includes  the  Loan  Parties,  (d)  the  execution  and  delivery  of  the  Loan  Documents  to  which  it  is  a  party  and  the  performance of its obligations thereunder, (e) the incurrence of Indebtedness permitted to be incurred by Holdings  pursuant  to  Section  8.2,  (f)  the  consummation  of  any  Permitted  Acquisition,  so  long  as  any  assets  acquired  in  connection with such Permitted Acquisition are owned by the Borrower or a Subsidiary of the Borrower immediately  following such Permitted Acquisition, (g) Restricted Payments permitted to be made or received by Holdings under  Section 8.6, (h) the consummation of a Qualified Public Offering or any other issuance of its Capital Stock, (i) any  transaction that Holdings is expressly permitted or contemplated to enter into or consummate under this Section 8,  and (j) activities incidental to the businesses or activities described in clauses (a) through (i) of this Section 8.16.                                                  88  





 






SECTION 9.     EVENTS OF DEFAULT   9.1     Events of Default.  If any of the following events shall occur and be continuing:           (a)    the Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation  when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan or  Reimbursement Obligation, fee or any other amount payable hereunder or under any other Loan Document,  within five (5) days after any such interest or other amount becomes due in accordance with the terms hereof;  or           (b)    any representation or warranty made or deemed made by any Loan Party herein or in any  other  Loan  Document  or  that  is  contained  in  any  certificate,  document  or  financial  or  other  statement  furnished by it at any time under or in connection with this Agreement or any such other Loan Document  shall prove to have been inaccurate in any material respect on or as of the date made or deemed made; or           (c)    any Loan Party shall default in the observance or performance of any agreement contained  in Section 7.4(a) (with respect to the Borrower only), Section 7.7(a) or Section 8 of this Agreement; or           (d)    any  Loan Party shall default  in the observance or performance of any other agreement  contained in this Agreement or any other Loan Document (other than as provided in clauses(a) through (c)  of this Section 9.1), and such default shall continue unremedied for a period of thirty (30) days after any such  days after notice to the Borrower from the Administrative Agent; or           (e)    any Group Member (i) defaults in making any payment of any principal of any Material  Indebtedness  (including  any  Guarantee  Obligation  or  Hedge  Agreement  that  constitutes  Material  Indebtedness, but excluding the Loans) on the scheduled or original due date with respect thereto; or (ii)  defaults in making any payment of any interest on any such Material Indebtedness beyond the period of  grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii)  defaults in the observance or performance of any other agreement or condition relating to any such Material  Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any  other event shall occur or condition exist, the effect of which default or other event or condition is to cause,  or to permit the holder or beneficiary of such Material Indebtedness (or a trustee or agent on behalf of such  holder or beneficiary) to cause, with the giving of notice if required, such Material Indebtedness to become  due prior to its stated maturity or to become subject to a mandatory offer to purchase by the obligor thereunder  or (in the case of any such Material Indebtedness constituting a Guarantee Obligation) to become payable;  or           (f)    (i) any Group Member (other than an Immaterial Subsidiary) shall commence any case,  proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign,  relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief  entered  with  respect  to  it,  or seeking  to  adjudicate  it  a  bankrupt  or  insolvent,  or  seeking  reorganization,  arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it  or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official  for  it  or  for  all  or  any  substantial  part  of  its  assets,  or  any  Group  Member  (other  than  an  Immaterial  Subsidiary) shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced  against any Group Member (other than an Immaterial Subsidiary) any case, proceeding or other action of a  nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication  or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii)  there shall be commenced any case, proceeding or other action seeking issuance of a warrant of attachment,  execution, distraint or similar process against all or any substantial part of the assets of the Group Members,  taken as a whole, that results in the entry of an order for any such relief that shall not have been vacated,  discharged, or stayed or bonded pending appeal within sixty (60) days after any such days from the entry  thereof; or (iv) any Group Member (other than an Immaterial Subsidiary) shall generally not, or shall be  unable to, or shall admit in writing its inability to, pay its debts as they become due; or                                           89  





 






               (g)    (i)  any failure to satisfy the minimum funding standard under Section 412 of the Code or         Section 302 of ERISA, whether or not waived, shall occur with respect to any Single Employer Plan or any         Lien in favor of the PBGC or a Single Employer Plan or Multiemployer Plan shall arise on the assets of the         Borrower  or  any  Commonly  Controlled  Entity,  (ii)  a  Reportable  Event  shall  occur,  or  proceedings  shall         commence under Section 4042 of ERISA to have a trustee appointed, or a trustee shall be appointed, with         respect to a Single Employer Plan, (iii) any Single Employer Plan shall be terminated under Section 4041(c)         of ERISA, (iv)  any withdrawal by the Borrower or any Commonly Controlled Entity from a Single Employer         Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined         in Section 4001(a)(2) of ERISA) shall occur or a cessation of operations that is treated as such a withdrawal         under Section 4062(e) of ERISA shall occur, (v) any Group Member or any Commonly Controlled Entity         shall, or is reasonably likely to, incur any liability in connection with a withdrawal from, or the Insolvency         of, a Multiemployer Plan, (vi) any failure to make a required contribution to a Multiemployer Plan shall         occur,  (vii)  the  occurrence  of  any  event  or  condition  which  could  reasonably  be  expected  to  constitute         grounds  under  ERISA  for  the  termination  of,  or  the  appointment  of  a  trustee  to  administer,  any  Single         Employer Plan, or (viii) any Group Member shall engage in any nonexempt “prohibited transaction” (within         the meaning of Section 406 of ERISA or Section 4975 of the Code) involving any Plan; and, in each case, in         clauses (i) through (viii) above, such event or condition, together with all other such events or conditions, if         any, could reasonably be expected to have a Material Adverse Effect; or                  (h)    one or more judgments or decrees shall be entered against any Group Member and the same         shall  not  have  been  vacated,  discharged,  stayed  or  bonded  pending  appeal  for  a  period  of  thirty  (30)         consecutive days and any such judgments or decrees is for the payment of money, individually or in the         aggregate  (not  paid  or  fully  covered  by  insurance  as  to  which  the  relevant  insurance  company  has         acknowledged coverage), of $20,000,000 or more; or                  (i)    any of the Security Documents shall cease, for any reason, to be in full force and effect, or         any Loan Party or any Subsidiary of any Loan Party shall so assert, or any Lien created by any of the Security         Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby         (except to the extent the loss of perfection or priority results from the failure of the Administrative Agent to         maintain  possession  of  certificates  actually  delivered  to  it  representing  Collateral  or  to  file  Uniform         Commercial Code continuation statements); or any Loan Party or any Subsidiary of any Loan Party shall so         assert in writing; or                  (j)    the  guarantee  contained  in  Section  2  of  the  Guarantee  and  Collateral  Agreement  shall         cease, for any reason, to be in full force and effect or any Loan Party or any Subsidiary of any Loan Party         shall so assert in writing; or                  (k)    a Change of Control occurs; or                  (l)    (i) any of the Obligations of the Loan Parties under the Loan Documents for any reason         shall cease to be “senior debt,” “senior indebtedness,” “designated senior debt,” “guarantor senior debt” or         “senior  secured  financing”  (or  any  comparable  term)  under,  and  as  defined  in,  any  Junior  Financing         Documentation, (ii) the subordination provisions set forth in any Junior Financing Documentation shall, in         whole or in part, cease to be effective or cease to be legally valid, bonding and enforceable against the holders         of any Junior Financing, if applicable, or (iii) any Loan Party or any Subsidiary of any Loan Party, shall         assert any of the foregoing in writing;   then, and in any such event, (A) if such event is an Event of Default specified in clause (f) above with respect to the  Borrower or Holdings, automatically the Commitments shall immediately terminate and the Loans hereunder (with  accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall  immediately  become  due  and  payable,  and  (B)  if  such  event  is  any  other  Event  of  Default,  either  or  both of  the  following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon  the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the Revolving  Commitments to be terminated forthwith, whereupon the Revolving Commitments shall immediately terminate; and  (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required                                                 90  





 






Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans hereunder (with accrued interest  thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable  forthwith, whereupon the same shall immediately become due and payable.  With respect to all Letters of Credit with  respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph,  the Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount  equal to 102% the aggregate then undrawn and unexpired amount of such Letters of Credit.  Amounts held in such  cash collateral account shall be applied by the Administrative Agent to the payment of drafts or other demands for  payment drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have  expired (without any pending drawing thereon) or been fully drawn upon, if any, shall be applied to repay other  obligations of the Borrower hereunder and under the other Loan Documents in accordance with the Guarantee and  Collateral Agreement.  After all such Letters of Credit shall have expired (without any pending drawing thereon) or  been  fully  drawn  upon,  all  Reimbursement  Obligations  shall  have  been  satisfied  and  all  other  obligations  of  the  Borrower hereunder and under the other Loan Documents shall have been paid in full, the balance, if any, in such cash  collateral account shall be returned to the Borrower (or such other Person as may be lawfully entitled thereto).  Except  as expressly provided above in this Section 9.1, presentment, demand, protest and all other notices of any kind are  hereby expressly waived by the Borrower.          SECTION 10.    THE AGENTS          10.1    Appointment.                    (a)    Each Lender (and, if applicable, each other Secured Party) hereby irrevocably designates  and  appoints  each  Agent  as  the  agent  of  such  Lender  (and,  if  applicable,  each  other  Secured  Party)  under  this  Agreement  and  the  other  Loan  Documents,  and  each  such  Lender  (and,  if  applicable,  each  other  Secured  Party)  irrevocably authorizes such Agent, in such capacity, to take such action on its behalf under the provisions of this  Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly  delegated to such Agent by the terms of this Agreement and the other Loan Documents, together with such other  powers  as  are  reasonably  incidental  thereto.  Notwithstanding  any  provision  to  the  contrary  elsewhere  in  this  Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary  relationship with any Lender or other Secured Party, and no implied covenants, functions, responsibilities, duties,  obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any  Agent.                  (b)    Each of the Secured Parties hereby irrevocable designates and appoints Wells Fargo Bank,  N.A. as collateral agent of such Secured Party under this Agreement and the other Loan Documents, and each such  Secured Party irrevocably authorizes the Collateral Agent, in such capacity, to take such action on its behalf as are  necessary or advisable  with respect to the  Collateral  under this  Agreement or any of  the other Loan Documents,  together  with  such  powers  as  are  reasonably  incidental  thereto.   The  Collateral  Agent  hereby  accepts  such  appointment.          10.2    Delegation of Duties.  Each Agent may execute any of its duties under this Agreement and the other  Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all  matters pertaining to such duties.  No Agent shall be responsible for the negligence or misconduct of any agents or  attorneys-in-fact selected by it with reasonable care.          10.3    Exculpatory Provisions.  Neither any Agent nor any of their respective officers, directors, members,  partners, employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully taken or omitted  to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except to  the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction  to have resulted from its or such Person’s own gross negligence or willful misconduct), (ii) subject to any fiduciary  duty or implied duties, regardless of whether a Default of Event of Default has occurred and is continuing or (iii)  responsible in any manner to any of the Lenders or any other Secured Party for any recitals, statements, representations  or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document  or any Specified Hedge Agreement or in any certificate, report, statement or other document referred to or provided  for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document or any                                                 91  





 






Specified Hedge Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this  Agreement or any other Loan Document or any Specified Hedge Agreement or for any failure of any Loan Party a  party thereto to perform its obligations hereunder or thereunder or for the existence, value or collectability of the  Collateral or the existence, priority or perfection of the Collateral Agent’s Lien thereon.  The Agents shall not be under  any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements  contained in, or conditions of, this Agreement or any other Loan Document or any Specified Hedge Agreement, or to  inspect the properties, books or records of any Loan Party.          10.4    Reliance by Agents.  Each Agent shall be entitled to rely, and shall be fully protected in relying,  upon  any  instrument,  writing,  resolution,  notice,  consent,  certificate,  affidavit,  letter,  telecopy,  telex  or  teletype  message, statement, order or other document or conversation believed by it to be genuine and correct and to have been  signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including  counsel to the Borrower), independent accountants and other experts selected by such Agent.  The Administrative  Agent shall deem and treat the Lender specified in the Register with respect to any amount owing hereunder as the  owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been  filed with the Administrative Agent.  Each Agent shall be fully justified in failing or refusing to take any action under  this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required  Lenders (or, if so specified by this Agreement, all Lenders or the Majority Facility Lenders) as it deems appropriate  or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be  incurred by it by reason of taking or continuing to take any such action.  The Agents shall in all cases be fully protected  in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a  request of the Required Lenders (or, if so specified by this Agreement, all Lenders or the Majority Facility Lenders),  and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all  future holders of the Loans and all other Secured Parties.          10.5    Notice of Default.  No Agent shall be deemed to have knowledge or notice of the occurrence of any  Default or Event of Default hereunder unless such Agent has received written notice from a Lender or the Borrower  referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of  default.”  In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice  thereof to the Lenders.  The Administrative Agent shall take such action with respect to such Default or Event of  Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders or  any other instructing group of Lenders specified by this Agreement); provided, that unless and until the Administrative  Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such  action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable  in the best interests of the Secured Parties.          10.6    Non-Reliance on Agents and Other Lenders.  Each Lender (and, if applicable, each other Secured  Party)  expressly  acknowledges  that  neither  the  Agents  nor  any  of  their  respective  officers,  directors,  employees,  agents, attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by any Agent  hereafter taken, including any review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed  to constitute any representation or warranty by any Agent to any Lender or any other Secured Party.  Each Lender  (and, if applicable, each other Secured Party) represents to the Agents that it has, independently and without reliance  upon any Agent or any other Lender or any other Secured Party, and based on such documents and information as it  has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial  and other condition and creditworthiness of the Loan Parties and their affiliates and made its own decision to make its  Loans hereunder and enter into this Agreement, any Specified Hedge Agreement or any Specified Cash Management  Agreement.  Each Lender (and, if applicable, each other Secured Party) also represents that it will, independently and  without reliance upon any Agent or any other Lender or any other Secured Party, and based on such documents and  information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions  in taking or not taking action under this Agreement and the other Loan Documents, any Specified Hedge Agreement  or any Specified Cash Management Agreement, and to make such investigation as it deems necessary to inform itself  as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and  their affiliates.  Except for notices, reports and other documents expressly required to be furnished to the Lenders by  the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide  any  Lender  or  any  other  Secured  Party  with  any  credit  or  other  information  concerning  the  business,  operations,                                                 92  





 






property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan  Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees,  agents, attorneys-in-fact or Affiliates.          10.7    Indemnification.  To the extent that the Borrower for any reason fails to indefeasibly pay any amount  required under Section 11.5 to be paid by it to any Agent Related Party (or any sub-agent thereof), each Lender  severally agrees to pay to such Agent Related Party (or any such sub-agent thereof) such Lender’s Aggregate Exposure  Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of  such unpaid amount; provided, that (a) the unreimbursed expense or indemnified loss, claim, damage, liability or  related expense, as the case may be, was incurred by or asserted against any Agent Related Party (or any such sub- agent thereof) and (b) no Lender shall be liable for the payment of any portion of such unreimbursed expense or  indemnified loss, claim, damage, liability or related expense that is found by a final and nonappealable decision of a  court  of  competent  jurisdiction  to  have  resulted  from  such  Agent’s  gross  negligence  or  willful  misconduct.  The  agreements in this Section 10.7 shall survive the payment of the Loans and all other amounts payable hereunder.          10.8    Agent in Its Individual Capacity.  Each Agent and its affiliates may make loans to, accept deposits  from and generally engage in any kind of business with any Loan Party as though such Agent were not an Agent.   With respect to its Loans made or renewed by it and with respect to any Letters of Credit issued or participated in by  it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any  Lender and may exercise the same as though it were not an Agent, and the terms “Lender,” “Lenders,” “Secured Party”  and “Secured Parties” shall include each Agent in its individual capacity.          10.9    Successor Administrative Agent.  The Administrative Agent and the Collateral Agent may resign  as Administrative Agent and Collateral Agent, respectively, upon ten (10) Business Days’ notice to the Lenders and  the Borrower.  If the Administrative Agent or Collateral Agent, as applicable, shall resign as Administrative Agent or  Collateral Agent, as applicable, under this Agreement and the other Loan Documents, then the Required Lenders shall  appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of  Default under Section 9.1(a) or Section 9.1(f) with respect to the Borrower shall have occurred and be continuing) be  subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such  successor agent shall succeed to the rights, powers and duties of the Administrative Agent or Collateral Agent, as  applicable, and the term “Administrative Agent” or “Collateral Agent,” as applicable, shall mean such successor agent  effective  upon  such  appointment  and  approval,  and  the  former  Administrative  Agent’s  or  Collateral  Agent’s,  as  applicable, rights, powers and duties as Administrative Agent or Collateral Agent, as applicable, shall be terminated,  without any other or further act or deed on the part of such former Administrative Agent or Collateral Agent, as  applicable, or any of the parties to this Agreement or any holders of the Loans.  If no successor agent has accepted  appointment as Administrative Agent or Collateral Agent, as applicable, by the date that is ten (10) Business Days  following a retiring Administrative Agent’s or Collateral Agent’s, as applicable, notice of resignation, the retiring  Administrative Agent’s or Collateral Agent’s, as applicable, resignation shall nevertheless thereupon become effective  and the Required Lenders shall assume and perform all of the duties of the Administrative Agent or Collateral Agent,  as applicable, hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for  above.  After any retiring Administrative Agent’s or Collateral Agent’s, as applicable, resignation as Administrative  Agent or retiring Collateral Agent’s resignation as Collateral Agent, as applicable, the provisions of this Section 10  shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent or  Collateral Agent, as applicable, under this Agreement and the other Loan Documents.          10.10   Agents Generally.  The Joint Lead Arrangers shall not have any duties or responsibilities hereunder  in its capacity as such.          10.11   Lender Action.  Each Lender agrees that it shall not take or institute any actions or proceedings,  judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan  Documents, the Specified Hedge Agreements or the Specified Cash Management Agreements (including the exercise  of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute  any actions or proceeds, or otherwise commence any remedial procedures, with respect to any Collateral or any other  property of any such Loan Party, without the prior written consent of the Administrative Agent; provided, that the                                                  93  





 






foregoing shall not prohibit any Lender from filing proofs of claim during the pendency of a proceeding relative to  any Loan Party under any bankruptcy or other debtor relief law.          10.12   Withholding Tax.  To the extent required by any applicable Requirements of Law (as determined in  good faith by the Agent), an Agent may withhold from any payment to any Lender under any Loan Document an  amount equal to any applicable withholding Tax.  If the IRS or any Governmental Authority asserts a claim that the  Agent  did  not  properly  withhold  Tax  from  any  amount  paid  to  or  for  the  account  of  any  Lender  for  any  reason  (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed  to notify the Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding Tax  ineffective), such Lender shall indemnify and hold harmless the Agent (to the extent that the Agent has not already  been reimbursed by the Borrower and without limiting or expanding the obligation of the Borrower to do so) for all  amounts paid, directly or indirectly, by the Agent as Tax or otherwise, including any penalties, additions to Tax or  interest  thereon,  together  with  all  expenses  incurred,  including  legal  expenses  and  any  out-of-pocket  expenses,  whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority.  A  certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive  absent manifest error.  Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time  owing to such Lender under this Agreement or any other Loan Document against any amount due to the Agent.  The  agreements in this Section 10.12 shall survive the resignation and/or replacement of the Agent, any assignment of  rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge  of all obligations under this Agreement. For the avoidance of doubt, for purposes of this Section 10.12, the term  “Lender” shall include the Issuing Lender.          SECTION 11.    MISCELLANEOUS          11.1    Amendments  and  Waivers.   Neither  this  Agreement,  any  other  Loan  Document,  nor  any  terms  hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section  11.1.  The Required Lenders and each Loan Party to the relevant Loan Document may, or, with the written consent of  the Required Lenders, the Administrative Agent and each Loan Party to the relevant Loan Document may, from time  to time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for  the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the  rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the  Required  Lenders  or  the  Administrative  Agent,  as  the  case  may  be,  may  specify  in  such  instrument,  any  of  the  requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences;  provided, however, that                          (i)    the consent of each Lender directly and adversely affected thereby (but not the                 consent of the Required Lenders) shall be required for any waiver, amendment or modification that                 forgives the principal amount or extends the final scheduled date of maturity of any Loan, extends                 the scheduled date of any amortization payment in respect of any Term Loan, reduces the stated rate                 of any interest or forgives or reduces any interest or fee payable hereunder (except in connection                 with the waiver of applicability of any post-default increase in interest rates, which waiver shall be                 effective with the consent of the Required Lenders), extends the scheduled date of any payment                 thereof,  or  increases  the  amount  or  extends  the  expiration  date  of  any  Lender’s  Commitment;                 provided, that neither any amendment, modification or waiver of a mandatory prepayment required                 hereunder, nor any amendment of Section 4.2 or any related definitions, including Asset Sale or                 Recovery Event, shall constitute a reduction of the amount of, or an extension of the scheduled date                 of, any principal installment of any Loan or Note or other amendment, modification or supplement                 to which this clause (i) is applicable; and                         (ii)   no  such  waiver  and  no  such  amendment,  supplement  or  modification  shall,                 without the consent of all Lenders:                                (A)     eliminate or reduce the voting rights of any Lender under this Section                        11.1 without the written consent of such Lender;                                                  94  





 






                             (B)     reduce any percentage specified in the definition of Required Lenders,                        consent to the assignment or transfer by the Borrower of any of its rights and obligations                        under this Agreement and the other Loan Documents, release all or substantially all of the                        Collateral or release Holdings or all or substantially all of the Subsidiary Guarantors from                        their obligations under the Guarantee and Collateral Agreement, in each case, without the                        written consent of all Lenders;                                (C)     reduce  the  percentage  specified  in  the  definition  of  Majority  Facility                        Lenders with respect to any Facility without the written consent of all Lenders under such                        Facility;                                (D)     amend,  modify  or  waive  any  provision  of  Section  10  or  any  other                        provision in any manner which increases the obligations or diminishes the rights of any                        Agent without the written consent of each Agent adversely affected thereby;                                (E)     [reserved];                                (F)     amend, modify or waive any provision of Sections 3.7 to 3.15 or any                        other provision hereof in any manner which increases the obligations or diminishes the                        rights of the Issuing Lender without the written consent of each Issuing Lender;                                 (G)     change the order of application set forth in Section 6.5 of the Guarantee                        and Collateral Agreement;                                (H)     amend, modify or waive any provision of Section 4.8(a), 4.8(b) or 4.8(c)                        in any manner; and                                (I)     release all or substantially all of the Guarantors or the Collateral without                        the written consent of all Lenders, except as otherwise may be provided in this Agreement                        or the other Loan Documents.                         (iii)  no such waiver, amendment, supplement or modification shall, without the written                 consent of the Required Revolving Lenders, amend, modify or waive Section 6.2 if the effect of                 such amendment, modification or waiver is to require the Revolving Lenders to make Revolving                 Loans when such Revolving Lenders would not otherwise be required to do so.          In the case of any waiver, the Loan Parties, the Lenders and the Agents shall be restored to their former  position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall  be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event  of Default, or impair any right consequent thereon.          In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the  Administrative Agent, the Borrower and the Lenders providing the relevant Replacement Term Loans (as defined  below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term  loan  tranche  hereunder  (“Replacement  Term  Loans”);  provided.  that  (a)  the  aggregate  principal  amount  of  such  Replacement  Term  Loans  shall  not  exceed  the  aggregate  principal  amount  of  such  Refinanced  Term  Loans  plus  accrued interest, fees and expenses related thereto, (b) the Applicable Margin for such Replacement Term Loans shall  not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity  of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced  Term  Loans  at  the  time  of  such  refinancing  (except  to  the  extent  of  nominal  amortization  for  periods  where  amortization has been eliminated as a result of prepayment of the applicable Term Loans) and (d) all other terms  applicable  to  such  Replacement  Term  Loans  shall  be  substantially  identical  to,  or  less  favorable  to  the  Lenders  providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent  necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term  Loans in effect immediately prior to such refinancing.                                                 95  





 






       If, in connection with any proposed amendment, modification, waiver or termination requiring the consent  of all (or all affected) Lenders (including all Lenders under a single Facility), the consent of the Required Lenders (or  Majority Facility Lenders, as the case may be) is obtained, but the consent of other Lenders whose consent is required  is not obtained (any such Lender whose consent is not obtained being referred to as a “Non-Consenting Lender”),  then, so long as the Administrative Agent is not a Non-Consenting Lender, the Administrative Agent or a Person  reasonably acceptable to the Administrative Agent shall have the right but not the obligation to purchase at par from  such  Non-Consenting  Lenders,  and  such  Non-Consenting  Lenders  agree  that  they  shall,  upon  the  Administrative  Agent’s request, sell and assign to the Administrative Agent or such Person, all of the Term Loans and Revolving  Commitments of such Non-Consenting Lenders for an amount equal to the principal balance of all such Term Loans  and/or outstanding Revolving Loans held by such Non-Consenting Lenders and all accrued interest and fees with  respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment  and Assumption.  In addition to the foregoing, the Borrower may replace any Non-Consenting Lender pursuant to  Section 4.13.          Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended  and restated), modified or supplemented with the written consent of the Administrative Agent and the Borrower (a) to  cure any ambiguity, omission, defect or inconsistency, so long as such amendment, modification or supplement does  not adversely affect the rights of any Lender or Issuing Lender, (b) to add one or more additional credit facilities with  respect  to  Incremental  Term  Loans  to  this  Agreement  and  to  permit  the  extensions  of  credit  from  time  to  time  outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this  Agreement and the other Loan Documents with the Term Loans, as applicable, and the accrued interest and fees in  respect thereof and (c) to include appropriately the Lenders holding such credit facilities in any determination of the  Required Lenders and Majority Facility Lenders; provided, that the conditions set forth in Section 2.4 are satisfied.          Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, to  the fullest extent permitted by applicable law, such Lender will not be entitled to vote in respect of amendments and  waivers  hereunder  and  the  Commitment  and  the  outstanding  Loans  or  other  extensions  of  credit  of  such  Lender  hereunder  will  not  be  taken  into  account  in  determining  whether  the  Required  Lenders  or  all  of  the  Lenders,  as  required, have approved any such amendment or waiver (and the definitions of “Required Lenders” and “Majority  Facility Lenders” will automatically be deemed modified accordingly for the duration of such period); provided, that,  subject to the limitations set forth in the first paragraph of this Section 11.1, any such amendment or waiver that would  increase or extend the term of the Commitment of such Defaulting Lender, extend the date fixed for the payment of  principal or interest owing to such Defaulting Lender hereunder, reduce the principal amount of any obligation owing  to such Defaulting Lender, reduce the amount of or the rate or amount of interest on any amount owing to such  Defaulting Lender or of any fee payable to such Defaulting Lender hereunder, or alter the terms of this proviso, will  require the consent of such Defaulting Lender.          11.2    Notices.                    (a)    All notices and other communications provided for hereunder shall be either (i) in writing  (including telecopy or e-mail communication) and mailed, telecopied or delivered or (ii) as and to the extent set forth  in Section 11.2(b) and in the proviso to this Section 11.2(a), in an electronic medium and as delivered as set forth in  Section 11.2(b):           If to the Borrower:          Lantheus Medical Imaging, Inc.          331 Treble Cove Road         North Billerica, MA 01862         Attention: Robert Marshall, Chief Financial Officer and Treasurer          Email: robert.marshall@lantheus.com         Telephone: 978-671-8734                                                  96  





 






       with a copy to:           Lantheus Medical Imaging, Inc.         331 Treble Cove Road         North Billerica, MA 01862         Attention: Michael Duffy, SVP, General Counsel and Secretary         Email: michael.duffy@lantheus.com         Telephone: 978-671-8408          with a copy to:           Weil, Gotshal & Manges LLP         767 Fifth Avenue         New York, New York 10153         Attention:  Andrew J. Yoon         E-mail:  andrew.yoon@weil.com         Telephone: 212-310-8689         Fax No.:  (212) 310-8007          If to the Administrative Agent or Collateral Agent:           Wells Fargo Bank, N.A.         Attention:  Syndication Agency Services         1525 West W.T. Harris Blvd.         Charlotte, NC 28262         MAC D1109-019         Fax No.: (704) 590-2703         Email: Agencyservices.requests@wellsfargo.com        Telephone:  (704) 590-3481   or, as to any party, at such other address as shall be designated by such party in a written notice to the other parties;  provided, however, that materials and information described in Section 11.2(b) shall be delivered to the Administrative  Agent in accordance  with the provisions thereof or as otherwise specified to the Borrower by the  Administrative  Agent.  All such notices and other communications shall, when mailed, be effective four days after having been mailed  by regular mail, one (1) Business Day after having been mailed by overnight courier, and when telecopied or E-mailed,  be effective when properly transmitted, except that notices and communications to any Agent pursuant to Sections 2,  3, 4, 6 and 10 shall not be effective until received by such Agent. Delivery by telecopier of an executed counterpart  of a signature page to any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit  hereto to be executed and delivered hereunder shall be effective as delivery of an original executed counterpart thereof.                  (b)    The  Borrower  hereby  agrees  that  it  will  provide  to  the  Administrative  Agent  all  information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the  Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports,  certificates and other information materials, but excluding any such communication that (i) relates to a request for a  new, or a conversion of an existing, borrowing or other extension of credit (including any election of an interest rate  or  interest  period  relating  thereto),  (ii)  relates  to  the  payment  of  any  principal  or  other  amount  due  under  this  Agreement prior to the scheduled date therefor, (iii) provides notice of any default or event of default under this  Agreement or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement  and/or any borrowing or other extension of credit hereunder (all such non-excluded communications being referred to  herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a  format reasonably acceptable to the Administrative Agent to an electronic address specified by the Administrative  Agent to the Borrower (the “Platform”). In addition, the Borrower agrees to continue to provide the Communications  to the Agents in the manner specified in the Loan Documents but only to the extent requested by the Administrative  Agent.                                                 97  





 






               (c)    THE  PLATFORM  IS  PROVIDED  “AS  IS”  AND  “AS  AVAILABLE.”  THE  ADMINISTRATIVE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR  COMPLETENESS  OF  THE  COMMUNICATIONS,  OR  THE  ADEQUACY  OF  THE  PLATFORM  AND  EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS, EXCEPT  TO  THE  EXTENT  THE  LIABILITY  OF  SUCH  PERSON  IS  FOUND  IN  A  FINAL,  NON-APPEALABLE  JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S  GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED  OR  STATUTORY,  INCLUDING,  WITHOUT  LIMITATION,  ANY  WARRANTY  OF  MERCHANTABILITY,  FITNESS  FOR  A  PARTICULAR  PURPOSE,  NON-INFRINGEMENT  OF  THIRD  PARTY  RIGHTS  OR  FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT  PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL  THE  ADMINISTRATIVE  AGENT  OR  ANY  OF  ITS  AFFILIATES  OR  ANY  OF  THEIR  RESPECTIVE  OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY,  “ADMINISTRATIVE  AGENT  PARTIES”)  HAVE  ANY  LIABILITY  TO  THE  BORROWER,  ANY  LENDER  PARTY OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT  LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES  OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S  OR  THE  ADMINISTRATIVE  AGENT’S  TRANSMISSION  OF  COMMUNICATIONS  THROUGH  THE  INTERNET.          The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its  e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent  for purposes of the Loan Documents.  Each Lender agrees that notice to it (as provided in the next sentence) specifying  that the Communications have been posted to the Platform shall constitute effective delivery of the Communications  to such Lender for purposes of the Loan Documents.  Each Lender agrees to notify the Administrative Agent in writing  (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing  notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such e-mail address.   Nothing  herein  shall  prejudice  the  right  of  the  Administrative  Agent  or  any  Lender  to  give  any  notice  or  other  communication pursuant to any Loan Document in any other manner specified in such Loan Document.          The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders  materials  and/or  information  provided  by  or  on  behalf  of  the  Borrower  hereunder  (collectively,  the  “Borrower  Materials”) by posting the Borrower Materials on the Platform and (b) certain of the Lenders may be “public-side”  Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its  securities)  (each,  a  “Public  Lender”).   The  Administrative  Agent  shall  provide  the  Borrower  with  a  reasonable  opportunity to review any information proposed to be distributed to the Lenders and, if the Borrower advises the  Administrative Agent that any such information should be not be distributed to Public Lenders, then the Administrative  Agent will not post such information on that portion of the Platform designated for such Public Lenders unless the  Borrower  otherwise  consents.    The  Borrower  hereby  agrees  that  (x)  unless  clearly  and  conspicuously  marked  “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page  thereof, the Administrative Agent shall be entitled to treat any Borrower Materials as being suitable only for posting  on a portion of the Platform not marked as “Public Investor”, (y) by marking Borrower Materials “PUBLIC,” the  Borrower  shall  be  deemed  to  have  authorized  the  Administrative  Agent  and  the  Lenders  to  treat  such  Borrower  Materials as not containing any material non-public information  with respect to the Borrower or its securities for  purposes of United States federal and state securities laws and (z) all Borrower Materials marked “PUBLIC” are  permitted to be made available through a portion of the Platform designated as “Public Investor”.  Notwithstanding  the  foregoing,  the  following  Borrower  Materials  shall  be  marked  “PUBLIC”,  unless  the  Borrower  notifies  the  Administrative  Agent  promptly  that  any  such  document  contains  material  non-public  information:  (1)  the  Loan  Documents and (2) notification of changes in the terms of the Facility.           Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times  have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform  in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures  and applicable law, including United States Federal and state securities laws, to make reference to communications  that  are  not  made  available  through  the  “Public  Side  Information”  portion  of  the  Platform  and  that  may  contain                                                 98  





 






material non-public information with respect to the Borrower or its securities for purposes of United States Federal or  state securities laws.  In the event that any Public Lender has determined for itself to not access any information  disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed  themselves of such information and (ii) neither the Borrower nor any of its Affiliates nor the Administrative Agent  has  any  responsibility  for  such  Public  Lender’s  decision  to  limit  the  scope  of  the  information  it  has  obtained  in  connection with this Agreement and the other Loan Documents.          11.3    No Waiver; Cumulative Remedies.  No failure to exercise and no delay in exercising, on the part of  any Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall  operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder  preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The  rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies,  powers and privileges provided by law.          11.4    Survival of Representations and Warranties.  All representations and warranties made hereunder, in  the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection  herewith shall survive the execution and delivery of this Agreement and the making of the Loans and other extensions  of credit hereunder and shall continue in full force and effect as long as any Loan or any other Obligation hereunder  shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding and so long as the Commitments  of any Lender have not been terminated.          11.5    Payment of Expenses.                    (a)    The Borrower agrees (i) to pay or reimburse each Agent and the Joint Lead Arrangers for  all  of  their  reasonable  and  documented  out-of-pocket  costs  and  expenses  associated  with  the  syndication  of  the  Facilities and incurred in connection with the preparation, negotiation, execution and delivery, and any amendment,  supplement  or  modification  to,  this  Agreement  and  the  other  Loan  Documents,  any  security  arrangements  in  connection therewith and any other documents prepared in connection herewith or therewith, and the consummation  and administration of the transactions contemplated hereby and thereby, including the reasonable invoiced fees and  disbursements  of  counsel  to  such  parties  (provided,  that,  unless  there  is  a  conflict  of  interest,  such  fees  and  disbursements shall not include fees and disbursements for more than one primary counsel and one local counsel in  each relevant jurisdiction) and filing and recording fees and expenses, with statements with respect to the foregoing  to be submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and  from time to time thereafter as such parties shall deem appropriate, (ii) to pay or reimburse each Lender and Agent for  all  its  reasonable  documented  out-of-pocket  costs  and  expenses  incurred  in  connection  with  the  enforcement  or  preservation of any rights under this Agreement, the other Loan Documents and any such other documents, or during  any workout or restructuring, including the reasonable and invoiced fees and disbursements of counsel to such parties  (provided,  that  such  fees  and  disbursements  shall  not  include  fees  and  disbursements  for  more  than  one  primary  counsel and one local counsel in each relevant jurisdiction), (iii) to pay, indemnify, and hold each Lender and each  Agent harmless from, any and all recording and filing fees, if any, that may be payable or determined to be payable in  connection  with  the  execution  and  delivery  of,  or  consummation  or  administration  of  any  of  the  transactions  contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of,  this Agreement, the other Loan Documents and any such other documents, and (iv) to pay, indemnify, and hold each  Lender  and  Agent  and  the  Joint  Lead  Arrangers  and  their  respective  affiliates  (including,  without  limitation,  controlling persons) and each member, partner, director, officer, employee, advisor, agent, affiliate, successor, partner,  member, representative and assign of each of the forgoing (each, an “Indemnitee”) harmless from and against any and  all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements  of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration  of this Agreement, the other Loan Documents (regardless of whether any Loan Party is or is not a party to any such  actions or suits) and any such other documents or each Letter of Credit, including any of the foregoing relating to the  use of proceeds of the Loans or any Letter of Credit, and the reasonable and documented fees, disbursements and other  charges of one legal counsel to such Indemnitees taken as a whole (and, if applicable, one local counsel to such persons  taken as a whole in each appropriate jurisdiction and, in the case of a conflict of interest, one additional local counsel  in each appropriate jurisdiction to all affected Indemnitees taken as a whole) in connection with claims, actions or  proceedings by any Indemnitee against any Loan Party under any Loan Document; provided, that this clause (iv) shall                                                 99  





 






not apply with respect to Taxes, other than any Taxes that represent losses, claims, damages, etc. arising from any  non-Tax claim (all the foregoing in this clause (iv), collectively, the “Indemnified Liabilities”); provided, that the  Borrower shall not have any obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the  extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction  to  have  resulted  from  the  bad  faith,  gross  negligence  or  willful  misconduct  of,  or  material  breach  of  any  Loan  Documents by, such Indemnitee or its controlled affiliates, officers or employees acting on behalf of such Indemnitee  or any of its controlled affiliates.  Statements payable by the Borrower pursuant to this Section 11.5 shall be submitted  to the Chief Financial Officer, at the address of the Borrower set forth in Section 11.2, or to such other Person or  address  as  may  be  hereafter  designated  by  the  Borrower  in  a  written  notice  to  the  Administrative  Agent.   The  agreements in this Section 11.5 shall survive repayment of the Loans and all other amounts payable hereunder.                  (b)    To the fullest extent permitted by applicable law, neither the Borrower nor any Indemnitee  shall assert, and each of the Borrower and each Indemnitee does hereby waive, any claim against any party hereto, on  any theory of liability, for special, indirect, exemplary, consequential or punitive damages (as opposed to direct or  actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any  agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of  Credit or the use of the proceeds thereof; provided, that the foregoing shall not limit the indemnification obligations  of the Borrower under clause (a) above.  No Indemnitee shall be liable for any damages arising from the use by  unintended recipients of any information or other materials distributed by it through telecommunications, electronic  or other information transmission systems in connection with this Agreement or the other Loan Documents or the  transactions contemplated hereby or thereby, except to the extent such damages are found by a final and nonappealable  decision of a court of competent jurisdiction to have resulted from the bad faith, gross negligence or willful misconduct  of, or material breach of any Loan Documents by, such Indemnitee or its controlled affiliates, officers or employees  acting on behalf of such Indemnitee or any of its controlled affiliates in connection with the Transactions.                  (c)    The  Borrower  shall  not,  without  the  prior  written  consent  of  the  Indemnitee,  settle,  compromise, consent to the entry of any judgment in or otherwise seek to terminate any proceeding in respect of which  indemnification may be sought hereunder (whether or not any Indemnitee is a party thereto) unless such settlement,  compromise, consent or termination (i) includes an unconditional release of each Indemnitee from all liability arising  out of such proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability, or a failure to  act by or on behalf of such Indemnitee.          11.6    Successors and Assigns; Participations and Assignments.                    (a)    The provisions of this Agreement shall be binding upon and inure to the benefit of the  parties hereto and their respective successors and assigns  permitted hereby (including any affiliate of the Issuing  Lender that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its  rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender (and  any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender  may assign or otherwise transfer its rights or obligations hereunder, except (w) to an assignee in accordance with the  provisions of Section 11.6(b), (x) by way of participation in accordance with the provisions of Section 11.6(e) or (y)  by way of pledge or assignment of a security interest subject to the restrictions of Section 11.6(g) (and any other  attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, express or  implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors as  assigns  permitted  hereby,  Participants  to  the  extent  provided  in  Section  11.6(e)  and,  to  the  extent  expressly  contemplated hereby, the Affiliates of each of the Administrative Agent and the Lenders) any legal or equitable right,  remedy or claim under or by reason of this Agreement.                  (b)    Any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of  its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the  time owing to it); provided, that any such assignment shall be subject to the following conditions:                         (i)    except in the case of an assignment to a Lender, an Affiliate of a Lender or an                 Approved  Fund,  or  an  assignment  of  the  entire  remaining  amount  of  the  assigning  Lender’s                 Commitments  or  Loans  under  any  Facility,  the  amount  of  the  Commitments  or  Loans  of  the                                                 100  





 






               assigning Lender subject to each such assignment (determined as of the date the Assignment and                 Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade                 Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than                 $1,000,000 (in the case of the Term Facility) and $5,000,000 (in the case of the Revolving Facility),                 in  each  case,  unless  otherwise  agreed  by  the  Borrower  and  the  Administrative  Agent  otherwise                 consent (such consent not to be unreasonably withheld or delayed); provided, that no such consent                 of the Borrower shall be required if an Event of Default has occurred and is continuing;                         (ii)   each partial assignment shall be made as an assignment of a proportionate part of                 all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or                 the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning                 all or a portion of its rights and obligations among separate tranches of Loans (if any) on a non-pro                 rata basis;                         (iii)  no consent shall be required for any assignment except to the extent required by                 clause (b)(i) of this Section and, in addition, the consent of:                                (A)     the Borrower (such consent not to be unreasonably withheld or delayed)                        shall be required unless (x) an Event of Default has occurred and is continuing at the time                        of such assignment or (y) such assignment is in respect of the Term Facility and is to a                        Lender, an Affiliate of a Lender or an Approved Fund; provided, that, in each case, the                        Borrower shall be deemed to have consented to any such assignment unless it shall object                        thereto by written notice to the Administrative Agent within ten (10) Business Days after                        having received written notice thereof; and                                (B)     the Administrative Agent (such consent not to be unreasonably withheld                        or delayed) shall be required for assignments in respect of (x) the Term Facility if such                        assignment is to an Assignee that is not a Lender, an Affiliate of a Lender or an Approved                        Fund or (y) the Revolving Facility if such assignment is to an Assignee that is not a Lender                        with a Revolving Commitment, an Affiliate of such Lender or an Approved Fund with                        respect to such Lender; and                                (C)     in the case of any assignment of a Revolving Commitment, the Issuing                        Lender;                         (iv)   except in the case of assignments pursuant to clause (c) below, 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), together with a processing and recordation fee of $3,500                 (provided,  that  such  fee  may  be  waived  or  reduced  in  the  sole  discretion  of  the  Administrative                 Agent), and the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an                 administrative questionnaire;                         (v)    no assignment shall be permitted to be made to Holdings, the Borrower or any of                 their Subsidiaries;                         (vi)   no assignment shall be permitted to be made to a natural person; and                         (vii)  no assignment shall be permitted to be made to a Disqualified Institution.   Except as otherwise provided in clause (c) below, subject to acceptance and recording thereof pursuant to clause (d)  below,  from  and  after  the  effective  date  specified  in  each  Assignment  and  Assumption,  the  Eligible  Assignee  thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have  the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent  of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement                                                 101  





 






(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under  this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections  4.9, 4.10, 4.11 and 11.5; provided, with respect to such Section 4.10, that such Lender continues to comply with the  requirements of Sections 4.10 and 4.10(e)).  Any assignment or transfer by a Lender of rights or obligations under this  Agreement that does not comply with this Section 11.6 shall be treated for purposes of this Agreement as a sale by  such Lender of a participation in such rights and obligations in accordance with Section 11.6(e).     Notwithstanding the foregoing, each Loan Party and the Lenders acknowledge and agree that the Administrative Agent  shall not have any responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified  Institution and the Administrative Agent (solely in its capacity as such) shall have no liability with respect to any  assignment made to a Disqualified Institution.  In addition, the Loan Parties acknowledge that the Administrative  Agent may upon the request of a Lender provide the list of Disqualified Institutions to such Lender.   If any assignment or participation under this Section 11.6 is made to any Disqualified Institution, then the Borrower  may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative Agent,  (A) terminate any Commitment of such Disqualified Institution and repay all obligations of the Borrower owing to  such Disqualified Institution, (B) in the case of any outstanding Term Loans, purchase such Term Loans by paying  the lesser of (x) par and (y) the amount that such Disqualified Institution paid to acquire such Term Loans, in the case  of clauses (x) and (y), plus accrued interest thereon, accrued fees an all other amounts payable to it hereunder; provided,  that, such Term Loans shall be automatically and permanently canceled immediately upon acquisition by the Borrower  and/or (C) require such Disqualified Institution to assign, without recourse (in accordance with and subject to the  restrictions contained in this Section 11.6), all of its interests, rights and obligations under this Agreement to one or  more  eligible  Assignees;  provided,  that,  (I)  in  the  case  of  clause  (B),  the  applicable  Disqualified  Institution  has  received payment of an amount equal to the lesser of (1) par and (2) the amount that such Disqualified Institution paid  for the applicable Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from  the Borrower, and (II) in the case of clause (C), the relevant assignment shall otherwise comply with this Section 11.6  (except that no registration and processing fee required under this Section 11.6 shall be required with any assignment  pursuant  to  this  paragraph).  Nothing  in  this  Section  11.6  shall  be  deemed  to  prejudice  any  right  or  remedy  that  Holdings or the Borrower may otherwise have at law or equity.                  (c)    Notwithstanding anything in this Section 11.6 to the contrary, a Lender may assign any or  all of its rights hereunder to an Affiliate of such Lender or an Approved Fund of such Lender without (a) providing  any notice (including, without limitation, any administrative questionnaire) to the Administrative Agent or any other  Person or (b) delivering an executed Assignment and Assumption to the Administrative Agent; provided, that (A)  such assigning Lender shall remain solely responsible to the other parties hereto for the performance of its obligations  under this Agreement, (B) the Borrower, the Administrative Agent, the Issuing Lender and the other Lenders shall  continue to deal solely and directly with such assigning Lender in connection with such assigning Lender’s rights and  obligations under this Agreement until an Assignment and Assumption and an administrative questionnaire have been  delivered  to  the  Administrative  Agent,  (C)  the  failure  of  such  assigning  Lender  to  deliver  an  Assignment  and  Assumption  or  administrative  questionnaire  to  the  Administrative  Agent  or  any  other  Person  shall  not  affect  the  legality, validity or binding effect of such assignment and (D) an Assignment and Assumption between an assigning  Lender  and  its  Affiliate  or  Approved  Fund  shall  be  effective  as  of  the  date  specified  in  such  Assignment  and  Assumption.                  (d)    The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower,  shall maintain at one of its offices in the United States a copy of each Assignment and Assumption delivered to it and  a register for the recordation of the names and addresses of the  Lenders, and the Commitments of, and principal  amount of and interest owing with respect to the Loans and L/C Obligations owing to, each Lender pursuant to the  terms hereof from time to time (the “Register”).  Subject to the penultimate sentence of this clause (d), the entries in  the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing Lender  and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a  Lender  hereunder  for  all  purposes  of  this  Agreement,  notwithstanding  notice  to  the  contrary.   In  the  case  of  an  assignment to an Affiliate of a Lender or an Approved Fund pursuant to clause (c), as to which an Assignment and  Assumption and an administrative questionnaire are not delivered to the Administrative Agent, the assigning Lender  shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register (a “Related Party                                                 102  





 






Register”) comparable to the Register on behalf of the Borrower.  The Register or Related Party Register shall be  available for inspection by the Borrower, the Issuing Lender and any Lender (with respect to the Commitments of,  and principal amount of and interest owing with respect to the Loans and L/C Obligations owing to such Lender only)  at the Administrative Agent’s office at any reasonable time and from time to time upon reasonable prior notice.  Except  as otherwise provided in clause (c) above, upon its receipt of a duly completed Assignment and Assumption executed  by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee  shall already be a Lender hereunder), the processing and recordation fee referred to in Section 11.6(b)(iv) and any  written  consent  to  such  assignment  required  by  Section  11.6(b),  the  Administrative  Agent  shall  accept  such  Assignment  and  Assumption  and  record  the  information  contained  therein  in  the  Register.   Except  as  otherwise  provided in clause (c) above, no assignment shall be effective for purposes of this Agreement unless and until it has  been recorded in the Register (or, in the case of an assignment pursuant to clause (c) above, the applicable Related  Party Register) as provided in this clause (d).  The date of such recordation of a transfer shall be referred to herein as  the “Assignment Effective Date.”                  (e)    Any Lender may, at any time, without the consent of, or notice to, the Borrower or the  Administrative Agent, sell participations to one or more banks or other entities (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, (C)  the Borrower, the Administrative Agent, the Issuing Lender 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 and (D) no  participation shall be permitted to be made to Holdings or any of its Subsidiaries or Affiliates, nor any officer or  director of any such Person or a natural person or Disqualified Institution (which list of Disqualified Institutions shall  be made available upon request).  Any agreement or instrument pursuant to which a Lender sells such a participation  shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and  to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document;  provided,  that  such  agreement  or  instrument  may  provide  that  such  Lender  will  not,  without  the  consent  of  the  Participant, agree to any amendment, modification or waiver that requires the consent of each Lender directly affected  thereby pursuant to the proviso to the second sentence of  Section 11.1.  Subject to clause (f) of this Section, the  Borrower agrees that each Participant shall be entitled to the benefits of Sections 4.9, 4.10 and 4.11 to the same extent  as if it were a Lender (subject to the requirements and obligations of those sections and Section 4.12 and 4.13, and it  being understood that the documentation required under Section 4.10(e) shall be delivered solely to the participating  Lender) and had acquired its interest by assignment pursuant to clause (b) of this Section.  To the extent permitted by  applicable law, each Participant also shall be entitled to the benefits of Section 11.7(b) as though it were a Lender;  provided, that such Participant shall be subject to Section 11.7(a) as though it were a Lender. Each Lender that sells a  participation  shall,  acting  solely  for  this  purpose  as  a  non-fiduciary  agent  of  the  Borrower,  maintain  a  register  complying with the requirements of Sections 163(f), 871(h) and 881(c)(2) of the Code on which it enters the name  and address of each Participant and the principal amounts (and interest amounts) of each Participant’s interest in the  Loans or other obligations under this Agreement (the “Participant Register”); provided, that no Lender shall have any  obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any  information relating to a Participant’s interest in the Loans or other obligation under this Agreement) to any Person  except to the extent such disclosure is necessary to establish that such Loan 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 such Lender shall treat each person whose name is recorded in the Participant Register as  the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.                    (f)    A Participant shall not be entitled to receive any greater payment under Section 4.9 or 4.10  than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant,  except to the extent such Participant’s entitlement to a greater payment results from a change in Requirements of Law  occurring after the sale of such participation.                  (g)    Any Lender may at any time pledge or assign a security interest in all or any portion of its  rights  under  this  Agreement  to  secure  obligations  of  such  Lender,  including  any  pledge  or  assignment  to  secure  obligations to a Federal Reserve Bank, any central bank or any other Person, and this Section shall not apply to any  such pledge or assignment of a security interest or to any such sale or securitization; provided, that no such pledge or                                                 103  





 






assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such  pledgee or Assignee for such Lender as a party hereto.          11.7    Sharing of Payments; Set-off.                    (a)    Except to the extent that this Agreement expressly provides for payments to be allocated  to a particular Lender or their Affiliates or to the Lenders or their Affiliates under a particular Facility, if any Lender  (a “Benefited Lender”) shall, at any time after the Loans and other amounts payable hereunder shall become due and  payable pursuant to Section 9, receive any payment of all or part of the Obligations owing to it, or receive any collateral  in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature  referred to in Section 9.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by  any  other  Lender,  if  any,  in  respect  of  the  Obligations  owing  to  such  other  Lender,  such  Benefited  Lender  shall  purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such  other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to  cause  such  Benefited  Lender  to  share  the  excess  payment  or  benefits  of  such  collateral  ratably  with  each  of  the  Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from  such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent  of such recovery, but without interest.  Each Loan Party consents to the foregoing and agrees, to the extent it may  effectively  do  so  under  applicable  law,  that  any  Lender  acquiring  a  participation  pursuant  to  the  foregoing  arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation  as fully as if such Lender were a director creditor of each Loan Party in the amount of such participation to the extent  provided in clause (b) of this Section 11.7.                  (b)    In addition to any rights and remedies of the Lenders provided by law, subject to Section  10.11, each Lender and their Affiliates shall have the right, without prior notice to the Borrower, any such notice being  expressly waived by the Borrower, and to the extent permitted by applicable law, upon the occurrence of any Event  of Default which is continuing, upon any amount becoming due and payable by the Borrower hereunder (whether at  the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and  all  deposits  (general  or  special,  time  or  demand,  provisional  or  final),  in  any  currency,  and  any  other  credits,  indebtedness or claims, in any currency, in each case, whether direct or indirect, absolute or contingent, matured or  unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account  of the Borrower, as the case may be.  Each Lender or their Affiliates agrees promptly to notify the Borrower and the  Administrative Agent after any such setoff and application made by such Lender; provided, that the failure to give  such notice shall not affect the validity of such setoff and application.                  (c)    Notwithstanding anything to the contrary contained herein, the provisions of this Section  11.7 shall be subject to the express provisions of this Agreement which require or permit differing payments to be  made to Non-Defaulting Lenders as opposed to Defaulting Lenders.          11.8    Counterparts.  This Agreement may be executed by one or more of the parties to this Agreement on  any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and  the same instrument.  Delivery of an executed signature page of this Agreement by facsimile transmission or electronic  mail (in “.pdf” or similar format) shall be effective as delivery of a manually executed counterpart hereof.          11.9    Severability.  Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction  shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating  the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate  or render unenforceable such provision in any other jurisdiction.          11.10   Integration.   This  Agreement  and  the  other  Loan  Documents  represent  the  entire  agreement  of  Holdings, the Borrower, the Agents and the Lenders with respect to the subject matter hereof and thereof, and there  are no promises, undertakings, representations or warranties by any Agent or any Lender relative to subject matter  hereof not expressly set forth or referred to herein or in the other Loan Documents.                                                  104  





 






       11.11   GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF  THE  PARTIES  UNDER  THIS  AGREEMENT  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  AND  INTERPRETED  IN  ACCORDANCE  WITH,  THE  LAW  OF  THE  STATE  OF  NEW  YORK  WITHOUT  REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF  ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.         11.12   Submission  To  Jurisdiction;  Waivers.   Each  of  the  parties  hereto  hereby  irrevocably  and  unconditionally:                         (a)    submits for itself and its property in any legal action or proceeding relating to this                 Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement                 of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New                 York sitting in the Borough of Manhattan, the courts of the United States for the Southern District                 of New York, and appellate courts from any thereof;                         (b)    consents that any such action or proceeding shall be brought in such courts and                 waives any objection that it may now or hereafter have to the venue of any such action or proceeding                 in any such court or that such action or proceeding was brought in an inconvenient court and agrees                 not to plead or claim the same;                         (c)    agrees that service of process in any such action or proceeding may be effected                 by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail),                 postage prepaid, to the address set forth in Section 11.2 or on the signature pages hereof, as the case                 may be, or at such other address of which the Administrative Agent shall have been notified pursuant                 thereto; and                         (d)    agrees that nothing herein shall affect the right to effect service of process in any                 other manner permitted by law or shall limit the right to sue in any other jurisdiction.          11.13   Acknowledgments.  The Borrower hereby acknowledges that:                         (a)    it has been advised by counsel in the negotiation, execution and delivery of this                 Agreement and the other Loan Documents;                         (b)    each Agent, each Lender and their 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 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                 stockholders or its affiliates, on the other.  The Loan Parties acknowledge and agree 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 stockholders or its 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                 stockholders or its 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 any Loan Party, its management, stockholders, creditors                 or any other Person.  Each Loan Party acknowledges and agrees that it has consulted its own legal                 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.  Each                 Loan Party agrees that it will not claim that any Lender has rendered advisory services of any nature                                                  105  





 






               or  respect,  or  owes  a  fiduciary  or  similar  duty  to  such  Loan  Party,  in  connection  with  such                 transaction or the process leading thereto; and                         (c)    no joint venture is created hereby or by the other Loan Documents or otherwise                 exists by virtue of the transactions contemplated hereby among the Lenders or among the Borrower                 and the Lenders.          11.14   Releases of Guarantees and Liens.                    (a)    Notwithstanding anything to the contrary contained herein or in any other Loan Document,  each of the Administrative Agent and the Collateral Agent is hereby irrevocably authorized by each Secured Party  (without requirement of notice to or consent of any Secured Party except as expressly required by Section 11.1) to  take any action requested by the Borrower having the effect of releasing any Collateral or Guarantee Obligations (i)  to the extent necessary to permit consummation of any Disposition (other than a sale or transfer to a Loan Party) not  prohibited by any Loan Document (including, without limitation, (A) the release of any Subsidiary Guarantor from its  obligations if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder and (B) the release  of any Collateral to the extent such Collateral becomes an Excluded Asset or that has been consented to in accordance  with  Section  11.1;  provided,  that  no  such  release  shall  occur  if  (x)  such  Subsidiary  Guarantor  continues  to  be  a  guarantor in respect of any Junior Financing or Incremental Facility or (y) such Collateral continues to secure any  Junior Financing or Incremental Facility or (ii) under the circumstances described in clause (b) below.                  (b)    At such time as (i) the Loans, the Reimbursement Obligations and the other Obligations  (other than Unasserted Contingent Obligations and any amount owing under Specified Hedge Agreements or any  Specified Cash Management Agreement) shall have been paid in full or Cash Collateralized and (ii) the Commitments  have  been  terminated  and  no  Letters  of  Credit  shall  be  outstanding  (or  shall  have  been  Cash  Collateralized  or  backstopped to the reasonable satisfaction of the Issuing Bank), the Collateral shall be released from the Liens created  by the Security Documents, and the Security Documents and all obligations (other than those expressly stated to  survive such termination) of the Administrative Agent, the Collateral Agent and each Loan Party under the Security  Documents shall terminate, all without delivery of any instrument or performance of any act by any Person.  At such  time, the Collateral Agent shall take such actions as are reasonably necessary, at the cost of the Borrower, to effect  each release described in this Section 11.14 in accordance with the relevant provisions of the Security Documents.          11.15   Confidentiality.  Each Agent and each Lender agrees to keep confidential all non-public information  provided to it by any Loan Party pursuant to this Agreement that is designated by such Loan Party as confidential in  accordance with its customary procedures; provided, that nothing herein shall prevent any Agent or any Lender from  disclosing any such information (a) to any Agent, any other Lender, any Affiliate of a Lender or any Approved Fund  (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of  such information and instructed to keep such information confidential) other than any Disqualified Institution, (b)  subject to an agreement to comply with confidentiality provisions at least as restrictive as the provisions of this Section  11.15, to any actual or prospective Transferee or any direct or indirect, actual or prospective, counterparty to any  Hedge Agreement, or any swap, derivative or securitization transaction relating to the Borrower and its Obligations  (or any professional advisor to such counterparty) or to any credit insurance provider relating to the Borrower and its  Obligations, (c) to its employees, directors, members, partners, agents, attorneys, accountants and other professional  advisors or those of any of its affiliates (it being understood that the Person to whom such disclosure is made will be  informed of the confidential nature of such information and instructed to keep such information confidential), (d) upon  the request or demand of any Governmental Authority, (e) in response to any order of any court or other Governmental  Authority or as may otherwise be required pursuant to any Requirement of Law, (f) if requested or required to do so  in connection with any litigation or similar proceeding, (g) that has been publicly disclosed (other than as a result of  a disclosure in violation of this Section 11.15), (h) to the National Association of Insurance Commissioners or any  similar organization or any nationally recognized rating agency that requires access to information about a Lender’s  investment portfolio in connection with ratings issued with respect to such Lender or (i) in connection with the exercise  of  any  remedy  hereunder  or  under  any  other  Loan  Document;  provided,  that,  unless  specifically  prohibited  by  applicable law or court order, each Lender shall notify the Borrower of any request by any Governmental Authority  or representative thereof (other than any such request in connection with any examination of the financial condition  or other routine examination of such Lender by such Governmental Authority) for disclosure of any such non-public                                                 106  





 






information prior to disclosure of such information.  For the avoidance of doubt, in no event shall any disclosure of  any non-public information be made to Person that is a Disqualified Institution at the time of disclosure.          11.16   WAIVERS  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 LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  OR  THE  TRANSACTIONS  CONTEMPLATED  HEREBY  OR  THEREBY  (WHETHER  BASED  ON  CONTRACT,  TORT  OR  ANY  OTHER  THEORY).   EACH  PARTY  HERETO  (A)  CERTIFIES  THAT  NO  REPRESENTATIVE,  AGENT  OR  ATTORNEY  OF  ANY  OTHER  PERSON  HAS  REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT  SUCH  OTHER  PERSON  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  AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND  CERTIFICATIONS IN THIS SECTION 11.16.         11.17   Patriot Act Notice.  Each Lender and the Administrative Agent (for itself and not on behalf of any  Lender) hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it may be 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 or the Administrative Agent, as applicable, to  identify such Loan Party in accordance with the Patriot Act.          11.18   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.          11.19   Acknowledgement and Consent to Bail-In of EEA Financial Institutions.                  (a)    Notwithstanding anything to the contrary in any Loan Document or in any other agreement,         arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of         any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured,         may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and         consents to, and acknowledges and agrees to be bound by:                         (i)    the application of any Write-Down and Conversion Powers by an EEA Resolution                 Authority to any such liabilities arising hereunder which may be payable to it by any party hereto                 that is an EEA Financial Institution; and                         (ii)   the effects of any Bail-in Action on any such liability, including, if applicable:                                (A)     a reduction in full or in part or cancellation of any such liability;                                (B)     a conversion of all, or a portion of, such liability  into shares or other                        instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge                        institution that may be issued to it or otherwise conferred on it, and that such shares or                        other instruments of ownership will be accepted by it in lieu of any rights with respect to                        any such liability under this Agreement or any other Loan Document; or                                (C)     the variation of the terms of such liability  in connection with the exercise                        of the write-down and conversion powers of any EEA Resolution Authority.          11.20   Certain ERISA Matters.                                                   107  





 






               (a)    Each Lender (x) represents and warrants, as of the date such Person became a Lender party  hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases  being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for  the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:                         (i)    such Lender is not using “plan assets” (within the meaning of 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 sub-sections (b) through                 (g)  of  Part  I of  PTE 84-14  and  (D)  to  the  best  knowledge  of  such  Lender,  the  requirements  of                 subsection  (a)  of Part I of  PTE  84-14  are  satisfied  with  respect  to  such  Lender’s  entrance  into,                 participation  in,  administration  of  and  performance  of  the  Loans,  the  Letters  of  Credit,  the                 Commitments and this Agreement, or                         (iv)   such  other  representation,  warranty  and  covenant  as  may  be  agreed  in  writing                 between the Administrative Agent, in its sole discretion, and such Lender.                  (b)    In addition, unless either (1) sub-clause (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 sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of  the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender  party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent  and  not,  for  the  avoidance  of  doubt,  to  or  for  the  benefit  of  the  Borrower  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).          11.21   Acknowledgement  Regarding  Any  Supported  QFCs.   To  the  extent  that  the  Loan  Documents  provide support, through a guarantee or otherwise, for any swap contract or any other agreement or instrument that is  a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and  agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal  Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with  the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC  and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any  Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States  or any other state of the United States):                                                   108  





 






               (a)    In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the  benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC  Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such  Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution  Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property)  were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC  Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default  Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that  may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default  Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents  were governed by the laws of the United 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.          11.22   No Advisory or Fiduciary Responsibility. In connection with all aspects of each Transaction, each  of the  Loan Parties acknowledges and agrees, and acknowledges its  Affiliates’  understanding, that: (a) the credit  facility  provided  for  hereunder  and  any  related  arranging  or  other  services  in  connection  therewith  (including  in  connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s- length commercial transaction between the Loan Parties and their Affiliates, on the one hand, and the Administrative  Agent  and  the  Joint  Lead  Arrangers,  on  the  other  hand,  and  the  Loan  Parties  are  capable  of  evaluating  and  understanding and understands and accepts the terms, risks and conditions of the Transactions and by the other Loan  Documents (including any amendment, waiver or other modification hereof or thereof); (b) in connection with the  process leading to such transaction, the Administrative Agent and the Joint Lead Arrangers each are and have been  acting solely as a principal and are not the financial advisor, agent or fiduciary, for any Loan Party or any of their  Affiliates, stockholders, creditors or employees or any other Person; (c) neither the Administrative Agent nor any of  the Joint Lead Arrangers have assumed or will assume an advisory, agency or fiduciary responsibility in favor of any  Loan  Party  with  respect  to  any  of  the  Transactions  or  the  process  leading  thereto,  including  with  respect  to  any  amendment,  waiver  or  other  modification  hereof  or  of  any  other  Loan  Document  (irrespective  of  whether  the  Administrative Agent or any of the Joint Lead Arrangers have advised or are currently advising any Loan Party or any  of  its  Affiliates  on  other  matters)  and  neither  the  Administrative  Agent  nor  any  of  the  Lead  Arrangers  have  any  obligation  to  any  Loan  Party  or  any  of  their  Affiliates  with  respect  to  the  Transactions  except  those  obligations  expressly set forth herein and in the other Loan Documents; (d) the Administrative Agent and the Joint Lead Arrangers  and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from  those of the Loan Parties and their Affiliates, and neither the Administrative Agent nor any of the Joint Lead Arrangers  have any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and  (e)  the  Administrative  Agent  and  the  Joint  Lead  Arrangers  have  not  provided  and  will  not  provide  any  legal,  accounting, regulatory or tax advice with respect to any of the Transactions (including any amendment, waiver or  other  modification  hereof  or  of  any  other  Loan  Document)  and  the  Loan  Parties  have  consulted  their  own  legal,  accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each of the Loan Parties hereby waives  and releases, to the fullest extent permitted by law, any claims that it may have against the Administrative Agent, the  Joint Lead Arrangers and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in  connection with any aspects of any transaction contemplated by the Loan Documents.                             [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]                                                   109  





 






        IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered  by their proper and duly authorized officers as of the day and year first above written.                                                   LANTHEUS MEDICAL IMAGING, INC.,                                          as Borrower                                                                                                                              By:  /s/ Robert Marshall                                            Name: Robert Marshall                                              Title: Chief Financial Officer and Treasurer                                           LANTHEUS HOLDINGS, INC.,                                          as Holdings                                                                                                                              By:  /s/ Robert Marshall                                            Name: Robert Marshall                                              Title: Chief Financial Officer and Treasurer                                      [SIGNATURE PAGE TO CREDIT AGREEMENT]      





 






                          WELLS FARGO BANK, N.A.,            as Administrative Agent, Collateral Agent, Issuing Lender and            a Lender                                    By:  /s/ Jonathan Antonio              Name: Jonathan Antonio                Title: Vice President                      [SIGNATURE PAGE TO CREDIT AGREEMENT]                                  





 






                          CITIZENS BANK, N.A.,            as a Lender                                    By:  /s/ Aman Patel                 Name: Aman Patel                Title: Vice President                                                                                                           [SIGNATURE PAGE TO CREDIT AGREEMENT]                                  





 






                          JPMORGAN CHASE BANK, N.A.,            as a Lender                                    By:    /s/ Alicia Schreibstein                Name: Alicia Schreibstein                  Title: Executive Director   [SIGNATURE PAGE TO CREDIT AGREEMENT]                                  





 






                          BMO HARRIS BANK N.A.,            as a Lender                                    By:    /s/ Eric Oppenheimer                        Name: Eric Oppenheimer             Title: Managing Director   [SIGNATURE PAGE TO CREDIT AGREEMENT]                                  





 






                          BANK OF THE WEST,            as a Lender                                    By:    /s/ Harry Yergey               Name: Harry Yergey             Title: Managing Director             By: /s/ Michael Weinert                Name: Michael Weinert             Title: Director                              [SIGNATURE PAGE TO CREDIT AGREEMENT]                                  





 






                          HSBC Bank USA, N.A.,            as a Lender                                    By:    /s/ Jeffrey Sullivan                   Name: Jeffrey Sullivan                  Title: Senior Vice President   [SIGNATURE PAGE TO CREDIT AGREEMENT]                                  





 






                          Manufacturers and Traders Trust Company,            as a Lender                                    By:    /s/ Dan Lobdell                    Name: Dan Lobdell                  Title: Vice President   [SIGNATURE PAGE TO CREDIT AGREEMENT]                                  





 






                          The Huntington National Bank,            as a Lender                                    By:   /s/ David Tholt               Name: David Tholt                  Title: Senior Vice President   [SIGNATURE PAGE TO CREDIT AGREEMENT]                                  





 






                          MUFG BANK, LTD.,            as a Lender                                    By: /s/ Kevin Wood                Name: Kevin Wood             Title: Director                                               [SIGNATURE PAGE TO CREDIT AGREEMENT]                                  





 






                              Schedule 1.1                               COMMITMENTS               Initial Term Lenders             Initial Term Commitment WELLS FARGO BANK, N.A.                             $27,750,000 CITIZENS BANK, N.A.                                $25,000,000  JPMORGAN CHASE BANK, N.A.                          $25,000,000  BMO HARRIS BANK N.A.                               $22,500,000  BANK OF THE WEST                                   $22,500,000  HSBC BANK USA, NATIONAL ASSOCIATION                $22,500,000  MANUFACTURERS AND TRADERS TRUST  COMPANY                                            $22,500,000  THE HUNTINGTON NATIONAL BANK                       $16,125,000  MUFG BANK, LTD.                                    $16,125,000  Total:                                            $200,000,000            Initial Revolving Lenders        Initial Revolving Commitment WELLS FARGO BANK, N.A.                             $27,750,000 CITIZENS BANK, N.A.                                $25,000,000  JPMORGAN CHASE BANK, N.A.                          $25,000,000  BMO HARRIS BANK N.A.                               $22,500,000  BANK OF THE WEST                                   $22,500,000  HSBC BANK USA, NATIONAL ASSOCIATION                $22,500,000  MANUFACTURERS AND TRADERS TRUST  COMPANY                                            $22,500,000  THE HUNTINGTON NATIONAL BANK                       $16,125,000  MUFG BANK, LTD.                                    $16,125,000  Total:                                            $200,000,000 





 






                                            Schedule 5.4                         CONSENTS,    AUTHORIZATIONS,     FILINGS AND NOTICES  None.                                                      2  





 






                                                 Schedule 5.15                                                   SUBSIDIARIES    (a) Subsidiaries:                     Entity Name                               Owner                 Jurisdiction     Ownership                                                                                                     Percentage  LANTHEUS MEDICAL IMAGING, INC.                   Lantheus Holdings, Inc.           Delaware          100%  LANTHEUS MI REAL ESTATE, LLC                     Lantheus Medical Imaging, Inc.  Delaware            100%  Lantheus MI Radiopharmaceuticals, Inc.  Lantheus Medical Imaging, Inc.  Puerto Rico                  100%  Lantheus MI Canada, Inc.                         Lantheus Medical Imaging, Inc.     Canada           100%  Lantheus MI UK Limited                           Lantheus Medical Imaging, Inc. England and Wales    100%  Lantheus EU Limited                              Lantheus Medical Imaging, Inc.     Ireland  100%       (b) Joint Ventures: None.     .                                                                                                             3 





 






                               Schedule 5.19                            UCC FILING JURISDICTIONS                                     Jurisdiction of            Entity Name                                    Filing Office                                    Organization  Lantheus Holdings, Inc.       Delaware            Secretary of State   Lantheus Medical Imaging, Inc. Delaware          Secretary of State   Lantheus MI Real Estate, LLC Delaware            Secretary of State                                        4  





 






                                     Schedule 8.2                                  EXISTING INDEBTEDNESS           1. Indebtedness related to the Liens listed on Schedule 8.3.           2. Guarantee by Lantheus Holdings, Inc. of obligations under that certain Lease Agreement,              dated as of February 15, 1995 (as amended, restated amended and restated, supplemented              and/or otherwise modified from time to time), by and among Lantheus MI Canada, Inc.,              as assignee of the lease, and Tealco Management Inc., as landlord.            3. Indebtedness in respect of that certain Intercompany Promissory Note, dated as of              November 6, 2013, by and among Lantheus Medical Imaging, Inc., a Delaware              corporation (the “Payor”) and Lantheus MI Radiopharmaceuticals, Inc., a Puerto Rican              corporation (the “Payee”).            4. Indebtedness in connection with the following Capital Lease(s) outstanding as of the              Closing Date:             Entity              Lender               Type of Debt           Balance  Lantheus Medical Imaging, Inc.  Ricoh USA, Inc. Capital Lease  $65,612 Total:                                                                       $65,612                                            5  





 






                                                      Schedule 8.3                                                       EXISTING LIENS       Liens related to the Indebtedness listed on item 2 of Schedule 8.2 and the following Liens:                                 Type                                  of         Secured                     Original   Original     Amdt.       Amdt.      Debtor       Jurisdiction Filing        Party         Collateral  File Date File Number   File Date  File Number                                Found   Lantheus Medical                     Thermo Fisher                  Delaware     UCC                         Equipment   09/16/2014  2014 3700366  n/a     n/a  Imaging, Inc.                        Financial Services, Inc.                                        CT Corporation  Lantheus Medical                  Delaware     UCC     System, as          Equipment   01/28/2019  2019 0627716  n/a     n/a  Imaging, Inc.                                       representative                                                              6  





 






                               Schedule 8.5                                DISPOSITIONS  None.                                       7  





 






                            Schedule 8.7                         EXISTING INVESTMENTS  1. Investments listed on Schedule 5.15.  2. Guarantee by Lantheus Holdings, Inc. of obligations under that certain Lease Agreement,     dated as of February 15, 1995 (as amended, restated amended and restated, supplemented     and/or otherwise modified from time to time), by and among Lantheus MI Canada, Inc.,     as assignee of the lease, and Tealco Management Inc., as landlord.                                    8  





 






                                            Schedule 8.9                                    TRANSACTIONS WITH AFFILIATES  None.                                                       9  





 






                                            Schedule 8.14                          CLAUSES RESTRICTING SUBSIDIARY DISTRIBUTIONS  None.                                                      10  





 






                                                                   EXHIBIT A                                    [FORM OF]                           ASSIGNMENT AND ASSUMPTION                                   [_______, 20[_]]         Reference is made to that certain Credit Agreement, dated as of June 27, 2019 (as amended,  restated,  amended  and  restated,  supplemented  or  otherwise  modified  from  time  to  time,  the  “Credit  Agreement”),  among  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation  (the  “Borrower”), LANTHEUS HOLDINGS, INC., a Delaware corporation, as Holdings, the several banks  and  other  financial  institutions  or  entities  from  time  to  time  parties  thereto  (each,  a  “Lender”  and  collectively, the “Lenders”), and WELLS FARGO BANK, N.A., as administrative agent and collateral  agent (in such capacities, and together with its successors and permitted assigns in such capacities, the  “Administrative  Agent”  and  the  “Collateral  Agent,”  respectively)  and  Issuing  Lender.   Capitalized  terms  used  herein  that  are  not  defined  herein  shall  have  the  meanings  given  to  them  in  the  Credit  Agreement.         [The][Each]  Assignor  identified  on  Schedule  l  hereto  ([the][each,  an]  “Assignor”)  and  [the][each] Assignee identified on Schedule 1 hereto ([the][each, an] “Assignee”) agree as follows:         1.    [The][Each]  Assignor  hereby  irrevocably  sells  and  assigns  to  [the  Assignee][the  respective  Assignees]  without  recourse  to  [the][any]  Assignor,  and  [the][each]  Assignee  hereby  irrevocably purchases and assumes from [the Assignor][the respective Assignors] without recourse to  [the][any] Assignor, as of the Assignment Effective Date (as defined below), the interest[s] described in  Schedule 1  hereto  ([the][each,  an]  “Assigned  Interest”)  in  and  to  [the  Assignor’s][the  respective  Assignors’] rights and obligations under the Credit Agreement with respect to the Facilities contained in  the Credit Agreement as are set forth on Schedule 1 hereto, in the principal amount for the Facilities as  set forth on Schedule 1 hereto.         2.    [The][Each]  Assignor  (a)  makes  no  representation  or  warranty  and  assumes  no  responsibility  with  respect  to  any  statements,  warranties or  representations  made  in  or in connection  with  the  Credit  Agreement  or  with  respect  to  the  execution,  legality,  validity,  enforceability,  genuineness,  sufficiency  or  value  of  the  Credit  Agreement,  any  other  Loan  Document  or  any  other  instrument or document furnished pursuant thereto, other than that (i) [the][such] Assignor is the legal  and  beneficial  owner  of  [the][the  relevant]  Assigned  Interest,  (ii)  [the][such]  Assignor  has  full  organizational  power  and  authority,  and  has  taken  all  action  necessary,  to  execute  and  deliver  this  Assignment  and  Assumption  and  to  consummate  the  transactions  contemplated  hereby  and  (iii)  the  interest being assigned by [the][such] Assignor hereunder is free and clear of any lien, encumbrance or  other adverse claim; (b) makes no representation or warranty and assumes no responsibility with respect  to the financial condition of the Borrower, any of its respective Subsidiaries or any other obligor or the  performance or observance by the Borrower, any of its respective Subsidiaries or any other obligor of  any  of  their  respective  obligations  under  the  Credit  Agreement  or  any  other  Loan  Document  or  any  other instrument or document furnished pursuant hereto or thereto; and (c) attaches any Notes held by it  evidencing  the  Facilities  and  (i)  requests  that  the  Administrative  Agent,  upon  request  by  [the][any]  Assignee, exchange the attached Notes, if any, for a new Note or Notes payable to [the][the relevant]  Assignee  and  (ii)  if  [the][any]  Assignor  has  retained  any  interest  in  the  Facilities,  requests  that  the  Administrative Agent exchange the attached Notes, if any, for a new Note or Notes payable to [the][the  relevant] Assignor, in each case, in amounts which reflect the assignment being made hereby (and after  giving effect to any other assignments which have become effective on the Assignment Effective Date).         3.    [The][Each] Assignee (a) represents and warrants that it is legally authorized to enter  into this Assignment and Assumption and has full organizational power and authority, and has taken all                                       Ex. A-1  





 






action  necessary,  to  execute  and  deliver  this  Assignment  and  Assumption  and  to  consummate  the  transactions  contemplated  hereby;  (b)  confirms  that  it  has received  a  copy  of  the  Credit  Agreement,  together with copies of the most recent financial statements delivered pursuant to Section 7.1 thereof  and such other documents and information as it has deemed appropriate to make its own credit analysis  and decision to enter into this Assignment and Assumption; (c) agrees that it will, independently and  without  reliance  upon  [the][any]  Assignor,  the  Agents  or  any  other  Lender  and  based  on  such  documents and information as it shall deem appropriate at the time, continue to make its own credit  decisions in taking or not taking action under the Credit Agreement, the other Loan Documents or any  other  instrument  or  document  furnished  pursuant  hereto  or  thereto;  (d)  appoints  and  authorizes  the  Agents to take such action as agent on its behalf and to exercise such powers and discretion under the  Credit Agreement, the other Loan Documents or any other instrument or document furnished pursuant  hereto or thereto as are delegated to the Agents by the terms thereof, together with such powers as are  incidental thereto; (e) agrees that it will be bound by the provisions of the Credit Agreement and will  perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are  required to be performed by it as a Lender including, if it is organized under the laws of a jurisdiction  outside the United States, its obligations pursuant to Section 4.10(e)(B) of the Credit Agreement; (f)  confirms  that  it  satisfies  the  requirements  set  forth  in  Section  11.6(b)  of  the  Credit  Agreement;  (g)  represents and warrants that it is sophisticated with respect to decisions to acquire assets of the type  represented by [the][the relevant] Assigned Interest and either it, or the person exercising discretion in  making its decision to acquire [the][the relevant] Assigned Interest, is experienced in acquiring assets of  such  type;  and  (h)  if  it  is  a  Foreign  Lender,  attached  to  the  Assignment  and  Assumption  is  any  documentation required to be delivered by it pursuant to Sections 4.10(e)(B) and 11.6(e) of the Credit  Agreement, duly completed and executed by [the][such] Assignee.         4.    The effective date of this Assignment and Assumption shall be the Effective Date of  Assignment  and  Assumption  or  the  Trade  Date  described  in  Schedule  1  hereto  (the  “Assignment  Effective Date”).  Following the execution of this Assignment and Assumption, it will be delivered to  the Administrative Agent for acceptance by it and recording by the Administrative Agent pursuant to  the Credit Agreement, effective as of the Assignment Effective Date (which shall not, unless otherwise  agreed to  by  the  Administrative  Agent,  be earlier than  five  (5)  Business  Days  after  the  date of such  acceptance and recording by the Administrative Agent).         5.    Upon such acceptance and recording,  from  and  after the  Assignment  Effective  Date,  the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including  payments  of  principal,  interest,  fees  and  other  amounts)  to  [the][the  relevant]  Assignor  for  amounts  which have accrued to but excluding the Assignment Effective Date and to [the][the relevant] Assignee  for amounts which have accrued from and after the Assignment Effective Date.         6.    From and after the Assignment Effective Date, (a) [the][each] Assignee shall be a party  to the Credit Agreement and, to the extent provided in this Assignment and Assumption, have the rights  and obligations of a Lender thereunder and under the other Loan Documents and shall be bound by the  provisions  thereof  and  (b)  [the][each]  Assignor  shall,  to  the  extent  provided  in  this  Assignment  and  Assumption, relinquish its rights and be released from its obligations under the Credit Agreement, (and,  to  the  extent  this  Assignment  and  Assumption  covers  all  of  [the][such]  Assignor’s  rights  and  obligations  under  the  Credit  Agreement,  [the][such] Assignor  shall  cease  to  be  a  party  to  the  Credit  Agreement but shall continue to be entitled to the benefits of Sections 4.9, 4.10, 4.11 and the indemnity  provisions of Section 11.5 of the Credit Agreement; provided, to the extent applicable, that [the][such]  Assignor  continues  to  comply  with  the  requirements  of  Sections  4.10(e)(A)  and  (B)  of  the  Credit  Agreement).                                        Ex. A-2  





 






      This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties  hereto and their respective successors and assigns.  This Assignment and Assumption may be executed  by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts  taken  together  shall  be  deemed  to  constitute  one  and  the  same  instrument.  Delivery  of an  executed  signature  page  of  this  Assignment  and  Assumption  by  facsimile  transmission  or  electronic  mail  (in  “.pdf” or similar format) shall be effective as delivery of a manually executed counterpart hereof. This  Assignment and Assumption and the rights and obligations of the parties under this Assignment and  Assumption  shall  be  governed  by,  and  construed  and  interpreted  in  accordance  with,  the  law  of  the  State of New York without regard to conflict of law principles that would result in the application of  any law other than the law of the State of New York.                 [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]                                        Ex. A-3  





 






      IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption to be  executed  as  of  the  date  first  above  written  by  their  respective  duly  authorized  officers  on  Schedule  1  hereto.                                             ASSIGNOR[S]                                             [NAME OF ASSIGNOR]                                             By:                                                 Name:                                               Title:                                             [NAME OF ASSIGNOR]                                             By:                                                 Name:                                               Title:                                        Ex. A-4  





 






[THE][EACH] ASSIGNEE HAS EXAMINED THE LIST OF DISQUALIFIED INSTITUTIONS AND  (I) REPRESENTS AND WARRANTS THAT (A) IT IS NOT IDENTIFIED ON SUCH LIST AND (B)  IT  IS  NOT  AN  AFFILIATE  OF  ANY  INSTITUTION  IDENTIFIED  ON  SUCH  LIST  AND  (II)  ACKNOWLEDGES THAT ANY ASSIGNMENT MADE TO AN AFFILIATE OF A DISQUALIFIED  INSTITUTION SHALL BE SUBJECT TO SECTION 11.6 OF THE CREDIT AGREEMENT.                                             ASSIGNEE[S]                                             [NAME OF ASSIGNEE]                                             By:                                                 Name:                                               Title:                                             [NAME OF ASSIGNEE]                                             By:                                                 Name:                                               Title:                                        Ex. A-5  





 






ACCEPTED:   WELLS FARGO BANK, N.A.,   as Administrative Agent   By:       Name:      Title:   [CONSENTED TO]:1  [LANTHEUS MEDICAL IMAGING, INC.,   as Borrower]   By:       Name:      Title:   [WELLS FARGO BANK, N.A.,  as Administrative Agent]   By:       Name:      Title:   [WELLS FARGO BANK, N.A.,  as Issuing Lender]   By:       Name:      Title:    1  See Section 11.6(b) of the Credit Agreement to determine whether the consent of the Borrower, Issuing Lender  and/or Administrative Agent is required.                                      Ex. A-6  





 






                                  Schedule 1 to                              Assignment and Assumption   Name of Assignor[s]:      Name of Assignee[s]:       [Effective Date of Assignment and Assumption] [Trade Date]2:                                                Aggregate Amount of                                                Commitment/Loans                   Facility Assigned              for all Lenders             [Term Facility/ Revolving Facility]             [Commitment/Loan]                                          [$               ]                        Principal                Commitment/Loans                   Amount Assigned             Percentage Assigned3            $[               ]           [     .**        ]%                 [Name of Assignee[s]]              [Name of Assignor[s]]         By:                                By:            Name:                             Name:            Title:                            Title:          By:                                By:            Name:                             Name:            Title:                            Title:     2  To be completed if Assignor[s] and Assignee[s] intend that the minimum assignment amount is to be    determined as of the Trade Date.  3  Calculate the Commitment/Loans Percentage that is assigned to at least 9 decimal places and show as a    percentage of the aggregate Commitments/Loans of all Lenders.                                      Ex. A-7  





 






                                                                    EXHIBIT B                                     [FORM OF]                             COMPLIANCE CERTIFICATE                                    [______, 20[  ]]         This Compliance Certificate is delivered pursuant to that certain Credit Agreement, dated as of  June 27, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from  time  to  time,  the  “Credit Agreement”), among  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation (the “Borrower”), LANTHEUS HOLDINGS, INC., a Delaware corporation, as Holdings, the  several banks  and  other financial institutions  or  entities from  time  to  time  parties  thereto  and  WELLS  FARGO BANK, N.A., as administrative agent and collateral agent (in such capacities, and together with  its successors and permitted assigns in such capacities, the “Administrative Agent” and the “Collateral  Agent,” respectively) and Issuing Lender.  Capitalized terms used herein that are not defined herein shall  have the meanings given to them in the Credit Agreement.           The undersigned hereby certifies on behalf of the Borrower, in [his][her] capacity as [               ]  of the Borrower, and not individually, and without assuming any personal liability, as follows:         1.    I am the duly elected, qualified and acting [ ] of the Borrower.         2.    I have reviewed and am familiar with the contents of this Compliance Certificate.         3.    I have reviewed the terms of the Credit Agreement and the other Loan Documents and  have made or caused to be made under my supervision, a review in reasonable detail of the transactions  and condition of the Group Members during the accounting period covered by the financial statements to  be delivered pursuant to Section 7.1[(a)/(b)] of the Credit Agreement for the fiscal [quarter/year] ended  [               ], attached hereto as Attachment 1 (the “Financial Statements”).  Such review did not disclose,  and I have no knowledge of the existence, as of the date of this Compliance Certificate, of any Default or  Event of Default[, except as set forth below].         4.    Attached  hereto  as  Attachment  2  are  the  computations  showing  compliance  with  the  covenants set forth in Section 8.1 of the Credit Agreement.         5.    To the extent not previously disclosed and delivered to the Administrative Agent and the  Collateral Agent, attached hereto as Attachment 3 is a listing of any Intellectual Property which is the  subject  of  a  United  States  federal  registration  or  federal  application  (including  Intellectual  Property  included in the Collateral which was theretofore unregistered and becomes the subject of a United States  federal registration or federal application) acquired by any Loan Party [since the date of the most recent  list delivered pursuant to this Section 5][since the Closing Date].         6.                [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]                                        Ex. B-1  





 






      IN  WITNESS  WHEREOF,  I,  the  undersigned,  have  executed  this  Compliance  Certificate  on  behalf of the Borrower as of the date first written above.                                       LANTHEUS MEDICAL IMAGING, INC.                                       By:                                           Name:                                           Title:                                         Ex. B-2  





 






                                       Attachment 1 to                                   Compliance Certificate   FINANCIAL STATEMENTS           [Attached]             Ex. B-3  





 






                                                                  Attachment 2 to                                                              Compliance Certificate                TOTAL NET LEVERAGE RATIO AND INTEREST COVERAGE RATIO   The information described herein pertains to the period from [               ], 20[   ] to [               ], 20[   ].                                      [Attached]                                        Ex. B-4  





 






                                       Attachment 3 to                                   Compliance Certificate   INTELLECTUAL PROPERTY           [Attached]             Ex. B-5  





 






                                                                  EXHIBIT B-1                                     [FORM OF]                                BORROWING NOTICE                                   [_______, 20[_]]1  WELLS FARGO BANK, N.A.,  as Administrative Agent under the  Credit Agreement referred to below  Attention: Syndication Agency Services  1525 West W.T. Harris Blvd.  Charlotte, NC 28262  MAC D1109-019  Fax: (704) 590-2703)  Email: Agencyservices.requests@wellsfargo.com Telephone: (704) 590-3481         Re:   Lantheus Medical Imaging, Inc.         Reference  is  made  to  that  certain  Credit  Agreement,  dated  as  of  June  27,  2019  (as  amended,  restated,  amended  and  restated,  supplemented  or  otherwise  modified  from  time  to  time,  the  “Credit  Agreement”),  among  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation  (the  “Borrower”), LANTHEUS HOLDINGS, INC., a Delaware corporation, as Holdings, the several banks  and  other  financial  institutions  or  entities  from  time  to  time  parties  thereto  (each,  a  “Lender”  and  collectively, the “Lenders”), and WELLS FARGO BANK, N.A., as administrative agent and collateral  agent (in such capacities, and together with its successors and permitted assigns in such capacities, the  “Administrative Agent” and the “Collateral Agent,” respectively) and Issuing Lender.  Capitalized terms  used herein that are not defined herein shall have the meanings given to them in the Credit Agreement.         The  Borrower  hereby  gives  you  irrevocable  notice,  pursuant  to  Section  [2.2][3.2][3.3]  of  the  Credit Agreement of its request of a borrowing (the “Proposed Borrowing”) under the Credit Agreement  and, in that connection, sets forth the following information:         1.    The date of the Proposed Borrowing is [__], 20[__] (the “Borrowing Date”).         2.    The aggregate principal amount of [Term Loans][Revolving Loans][Swingline Loans] is  $[          ],  of  which  $[          ]  consists  of  Base  Rate  Loans  and  $[          ]  consists  of  Eurodollar  Loans  having an initial Interest Period of [       ] months.         [The undersigned hereby certifies as to the following:    1   Notice must be received by the Administrative Agent prior to (a) in the case of any Initial Term Loans or Initial     Revolving Loans, (i) 11:00 a.m., New York City time, three (3) Business Days prior to the requested Borrowing     Date in the case of Eurodollar Loans or (ii) 11:00 a.m., New York City time, on the requested Borrowing Date     in the case of Base Rate Loans and (b) in the case of any Swingline Loans, 1:00 p.m., New York City time, on     the requested Borrowing Date; provided, that any such notice of a borrowing of Base Rate Loans to finance     payments required to be made pursuant to Section 3.5 of the Credit Agreement may be given not later than 1:00     p.m., New York City time, on the date of the proposed borrowing.                                      Ex. B-1-1  





 






      (i)   each of the representations and warranties made by any Loan Party in or pursuant to the  Loan Documents are true and correct in all material respects on and as of the Borrowing Date as if made  on  and  as  of  the Borrowing  Date, except to the  extent made  as  of  a specific  date, in  which  case  such  representation and warranty shall be true and correct in all material respects on and as of such specific  date; and         (ii)  no Default or Event of Default has occurred and is continuing on the Borrowing Date or  after giving effect to the extensions of credit requested to be made on the Borrowing Date.]2        To the extent the Borrower requests funding arrangements to fund a Eurodollar Loan above (such  request for a Eurodollar Loan being the “Funding Arrangements”), the Borrower hereby agrees to comply  with  the  provisions  set  forth  in  Section  4.11  of  the  Credit  Agreement  with  respect  to  the  Funding  Arrangements and, to the extent provided in such Section 4.11, the Borrower agrees to compensate each  of the Lenders and the Administrative Agent upon written request for all losses, costs and expenses (other  than losses of profits) which such Lenders and the Administrative Agent sustain as a result of the Funding  Arrangements, whether or not any such Eurodollar Loan is ever made as contemplated by such Funding  Arrangements and whether or not the Credit Agreement is executed and delivered by the intended parties  thereto.                 [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]    2 Subject to “SunGard” or “certain funds” conditionality pursuant to Sections 2.4(d) and 3.16(d).                                     Ex. B-1-2  





 






 LANTHEUS MEDICAL IMAGING, INC.    By:      Name:     Title:    Ex. B-1-3  





 






                                                  EXHIBIT C                  [FORM OF]   GUARANTEE AND COLLATERAL AGREEMENT                    [Attached]                     Ex. C-1  





 






                                            Execution Version    GUARANTEE AND COLLATERAL AGREEMENT                   made by          LANTHEUS HOLDINGS, INC.,     LANTHEUS MEDICAL IMAGING, INC.,      LANTHEUS MI REAL ESTATE, LLC and          and the other signatories hereto                   in favor of           WELLS FARGO BANK, N.A.,              as Collateral Agent              Dated as of June 27, 2019  





 






                             TABLE OF CONTENTS                                                                             Page   SECTION 1. DEFINED TERMS ................................................................................................................. 1       1.1 Definitions. ................................................................................................................................ 1       1.2 Other Definitional Provisions. ................................................................................................... 7 SECTION 2. GUARANTEE ........................................................................................................................ 7       2.1 Guarantee. .................................................................................................................................. 7       2.2 Reimbursement, Contribution and Subrogation ......................................................................... 8       2.3 Amendments, etc. with respect to the Guaranteed Obligations. .............................................. 10       2.4 Guarantee Absolute and Unconditional.. ................................................................................. 10       2.5 Reinstatement. .......................................................................................................................... 11       2.6 Payments. ................................................................................................................................. 11       2.7 Keepwell. ................................................................................................................................. 11 SECTION 3. GRANT OF SECURITY INTEREST................................................................................... 11 SECTION 4. REPRESENTATIONS AND WARRANTIES ..................................................................... 13       4.1 Representations in Credit Agreement. ..................................................................................... 13       4.2 Title; No Other Liens. .............................................................................................................. 13       4.3 Perfected Liens......................................................................................................................... 13       4.4 Jurisdiction of Organization; Chief Executive Office .............................................................. 14       4.5 Inventory and Equipment. ........................................................................................................ 14       4.6 Farm Products. ......................................................................................................................... 14       4.7 Investment Related Property. ................................................................................................... 14       4.8 Receivables. ............................................................................................................................. 15       4.9 Intellectual Property. ................................................................................................................ 15       4.10 Commercial Tort Claims. ....................................................................................................... 16 SECTION 5. COVENANTS ...................................................................................................................... 16       5.1 Covenants in Credit Agreement. .............................................................................................. 16       5.2 Delivery and Control of Instruments, Chattel Paper, Negotiable Documents,              Investment Property and Letter-of-Credit Rights. ............................................................ 16       5.3 Maintenance of Insurance. ....................................................................................................... 17       5.4 [Intentionally omitted]. ............................................................................................................ 17       5.5 Maintenance of Perfected Security Interest; Further Documentation. ..................................... 17       5.6 Changes in Locations, Name, etc. ............................................................................................ 17       5.7 [Intentionally omitted]. ............................................................................................................ 18                                        i  





 






      5.8 Investment Property, Pledged Equity Interests and Deposit Accounts. ................................... 18       5.9 Receivables.. ............................................................................................................................ 19       5.10 Intellectual Property ............................................................................................................... 19       5.11 [Intentionally omitted]. .......................................................................................................... 20       5.12 [Intentionally omitted]. .......................................................................................................... 20       5.13 Commercial Tort Claims. ....................................................................................................... 20 SECTION 6. REMEDIAL PROVISIONS .................................................................................................. 20       6.1 Certain Matters Relating to Receivables. ................................................................................. 20       6.2 Communications with Obligors; Grantors Remain Liable....................................................... 21       6.3 Investment Property. ................................................................................................................ 21       6.4 Proceeds to be Turned Over to Collateral Agent.. ................................................................... 22       6.5 Application of Proceeds.. ......................................................................................................... 22       6.6 UCC and Other Remedies.. ...................................................................................................... 23       6.7 Registration Rights................................................................................................................... 23       6.8 Deficiency. ............................................................................................................................... 24       6.9 Intellectual Property. ................................................................................................................ 24 SECTION 7. THE COLLATERAL AGENT ............................................................................................. 25       7.1 Collateral Agent’s Appointment as Attorney-in-Fact, etc. ...................................................... 25       7.2 Duty of Collateral Agent .......................................................................................................... 26       7.3 Financing Statements.. ............................................................................................................. 27       7.4 Authority, Immunities and Indemnities of Collateral Agent. .................................................. 27       7.5 Intellectual Property Filings.. ................................................................................................... 27 SECTION 8. MISCELLANEOUS ............................................................................................................. 27       8.1 Amendments in Writing ........................................................................................................... 27       8.2 Notices. .................................................................................................................................... 27       8.3 No Waiver by Course of Conduct; Cumulative Remedies.. .................................................... 27       8.4 Enforcement Expenses; Indemnification. ................................................................................ 28       8.5 Successors and Assigns.. .......................................................................................................... 28       8.6 Set-Off. .................................................................................................................................... 28       8.7 Counterparts.. ........................................................................................................................... 28       8.8 Severability.. ............................................................................................................................ 29       8.9 Section Headings.. ................................................................................................................... 29       8.10 Integration. ............................................................................................................................. 29       8.11 GOVERNING LAW. ............................................................................................................. 29       8.12 Submission To Jurisdiction; Waivers.   ................................................................................. 29                                        ii  





 






      8.13 Acknowledgements. ............................................................................................................... 30       8.14 Additional Grantors. .............................................................................................................. 30       8.15 Releases. ................................................................................................................................ 30       8.16 WAIVER OF JURY TRIAL .................................................................................................. 31  ANNEXES   Annex I     Form of Assumption Agreement  Annex II-A  Form of Copyright Security Agreement  Annex II-B  Form of Patent Security Agreement  Annex II-C  Form of Trademark Security Agreement  Annex III   Form of Pledge Supplement                                          iii  





 






      GUARANTEE  AND  COLLATERAL  AGREEMENT,  dated  as  of  June  27,  2019,  made  by  LANTHEUS  HOLDINGS,  INC.,  a  Delaware  corporation  (“Holdings”),  LANTHEUS  MEDICAL  IMAGING, INC., a Delaware corporation (the “Borrower”), and LANTHEUS MI REAL ESTATE, LLC,  a Delaware limited liability company (“LMI Real Estate”, and together with Holdings, the Borrower and  any other entity that may become a party hereto as provided herein, the “Grantors” and, excluding the  Borrower, the “Guarantors”), in favor WELLS FARGO BANK, N.A. (“Wells Fargo”), as collateral agent  (in such capacity, and together with its successors and permitted assigns in such capacity, the “Collateral  Agent”) for the Secured Parties (as defined in the Credit Agreement referred to below).                                     RECITALS         WHEREAS, pursuant to that certain Credit Agreement, dated as of the date hereof (as amended,  restated,  amended  and  restated,  supplemented  or  otherwise  modified  from  time  to  time,  the  “Credit  Agreement”), among the Borrower, Holdings, the several lenders from time to time parties thereto (the  “Lenders”) and Wells Fargo, as administrative agent (in such capacity, and together with its successors and  permitted assigns in such capacity, the “Administrative Agent”), Collateral Agent and Issuing Lender, the  Lenders have severally agreed to make extensions of credit to the Borrower upon the terms and subject to  the conditions set forth therein;         WHEREAS, the Borrower and Holdings are members of an affiliated group of companies that  includes each other Grantor;         WHEREAS, the proceeds of the extensions of credit under the Credit Agreement and, to the extent  applicable, the financial accommodations under the Specified Hedge Agreements and the Specified Cash  Management Agreements will be used, in part, to enable the Borrower to effect the Transactions, including  the payment of fees and expenses related thereto;         WHEREAS,  the  Borrower  and  the  other  Grantors  are  engaged  in  related  businesses,  and  each  Grantor will derive substantial direct and indirect benefit from the making of the extensions of credit under  the Credit Agreement and, to the extent applicable, the providing of financial accommodations under the  Specified Hedge Agreements and the Specified Cash Management Agreements; and         WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective  extensions  of  credit  to  the  Borrower  under  the  Credit  Agreement  and,  to  the  extent  applicable,  of  the  Qualified Counterparties to provide financial accommodations under the Specified Hedge Agreements and  the  Specified  Cash  Management  Agreements,  that the  Grantors  shall  have  executed  and  delivered  this  Agreement to the Collateral Agent for the benefit of the Secured Parties;         NOW, THEREFORE, in consideration of the premises set forth above and in order to induce the  Agents  and  the  Lenders  to  enter  into  the  Credit  Agreement  and  to  induce  the  Lenders  to  make  their  respective extensions of credit to the Borrower thereunder and to induce the Qualified Counterparties to  enter into the Specified Hedge Agreements and the Specified Cash Management Agreements and provide  financial accommodation, each  Grantor  hereby agrees  with the  Collateral  Agent,  for  the benefit of the  Secured Parties, as follows:         SECTION 1.  DEFINED TERMS         1.1  Definitions.         (a)  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall  have the meanings given to them in the Credit Agreement, and the following terms are used herein as  





 






defined in the New York UCC (and if defined in more than one Article of the New York UCC, shall have  the meaning given in Article 8 or 9 thereof): Accounts, Chattel Paper, Commercial Tort Claims, Deposit  Accounts, Documents, Equipment, Fixtures, General Intangibles, Goods, Instruments, Inventory, Letter- of-Credit Rights, Money, Negotiable Documents, Securities Accounts, Securities Entitlements, Supporting  Obligations, Tangible Chattel Paper and Uncertificated Security.         (b)  The following terms shall have the following meanings:         “Administrative Agent”:  as defined in the recitals to this Agreement.         “Agreement”:  this Guarantee and Collateral Agreement, as the same may be amended, restated,  amended and restated, supplemented or otherwise modified from time to time.         “Borrower”:  as defined in the recitals to this Agreement.          “Collateral”:  as defined in Section 3.         “Collateral Account”: any collateral account established by the Collateral Agent as provided in  Section 6.1.         “Collateral Agent”:  as defined in the preamble to this Agreement.         “Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended  from time to time, and any successor statute.         “Copyright Licenses”:  all written agreements entered into by any Grantor pursuant to which such  Grantor grants or obtains any right with respect to any Copyright, including, without limitation, any rights  to  print,  publish,  copy,  distribute,  create  derivative  works,  or  otherwise  exploit  and  sell  copyrighted  materials, and the right to prepare for sale, sell and advertise for sale, all Inventory now or hereafter covered  by such Copyrights, together with any and all (i) amendments, modifications, renewals, extensions, and  supplements thereof, (ii) income, fees, royalties, damages, claims and payments now or hereafter due and/or  payable thereunder and with respect thereto including, without limitation, damages and payments for past,  present and future breaches or other violations with respect thereto and (iii) rights to sue for past, present  and future breaches or violations thereof.         “Copyright Security Agreement”:  an agreement substantially in the form of Annex II-A hereto.         “Copyrights”:  collectively, copyrights (whether registered or unregistered in the United States or  any other country or any political subdivision thereof) and all mask works (as such term is defined in 17  U.S.C.  Section 901, et seq.), including, without limitation, each registered copyright identified on Schedule  8 to the Perfection Certificate, together with any and all (i) registrations and applications therefor, (ii) rights  and privileges arising under applicable law with respect to such copyrights, (iii) renewals and extensions  thereof  and  amendments  thereto,  (iv) income,  fees,  royalties,  damages,  claims  and  payments  now  or  hereafter due and/or payable thereunder and with respect thereto, including, without limitation, damages,  claims  and  payments  for  past,  present  and  future  infringements,  misappropriations  or  other  violations  thereof, (v) rights to sue or otherwise recover for past, present and future infringements, misappropriations  or other violations thereof and (iv) rights corresponding thereto throughout the world.         “Credit Agreement”:  as defined in the recitals to this Agreement.                                          2  





 






      “Excluded Swap Obligation”:  with respect to any Guarantor, any Swap Obligation if, and to the  extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a  security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the  Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission  (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any  reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the  regulations thereunder at the time the Guarantee 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 Guarantee or security interest is or becomes illegal.          “Foreign  Subsidiary  Voting  Stock”:   the  voting  Capital  Stock  of  any  Foreign  Subsidiary  or  Disregarded Domestic Person, as applicable.         “Grantor”:  as defined in the preamble to this Agreement.         “Guarantor  Obligations”:   with  respect to  any  Guarantor, all  obligations  and  liabilities  of such  Guarantor  with  respect  to  the  Facilities  which  may  arise  under  or  in  connection  with  this  Agreement  (including  Section 2)  or  any  other  Loan  Document  or  Specified  Hedge  Agreement  or  Specified  Cash  Management Agreement to which such Guarantor is a party, in each case, whether on account of guarantee  obligations, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and  disbursements of counsel to any Agent or to any Lender to the extent required to be paid pursuant to the  Credit Agreement) or otherwise (including all interest and fees arising or incurred as provided in the Loan  Documents or any Specified Hedge Agreement or any Specified Cash Management Agreement after the  commencement  of  any  bankruptcy  case  or  insolvency,  reorganization,  liquidation  or  like  proceeding,  whether or not a claim for such obligations is allowed in such case or proceeding); provided, that with  respect to any Guarantor at any time, the definition of “Guarantor Obligations” shall exclude Excluded  Swap Obligations with respect to such Guarantor at such time.         “Guarantors”: as defined in the preamble to this Agreement.         “Holdings”: as defined in the recitals to this Agreement.         “Intellectual Property”:   the  collective reference  to Copyrights,  Patents, Trademarks and Trade  Secrets.         “Intellectual  Property  Licenses”:   the  collective  reference  to  the  Copyright  Licenses,  Patent  Licenses, Trademark Licenses, and Trade Secret Licenses.         “Intercompany Note”:  any promissory note evidencing loans or other monetary obligations owing  to any Grantor by any Group Member.         “Investment Property”:  the collective reference to (i) all “investment property” as such term is  defined in Section 9-102(a)(49) of the New York UCC (other than Excluded Assets) and (ii) whether or not  constituting “investment property” as so defined, all Pledged Notes and all Pledged Equity Interests.         “Issuers”:  the collective reference to each issuer of any Investment Property or Pledged Equity  Interests purported to be pledged hereunder.         “Lenders”: as defined in the recitals to this Agreement.                                         3  





 






      “New York UCC”:  the Uniform Commercial Code as from time to time in effect in the State of  New York.         “Patent License”:  all written agreements pursuant to which a Grantor grants or obtains any right  to any Patent, including, without limitation, any rights to manufacture, use, import, export, distribute, offer  for sale or sell any invention or design covered by a Patent, and the right to prepare for sale, sell and  advertise  for  sale,  all  Inventory  now  or  hereafter  covered  by  such  Patents,  together  with  any  and  all  (i) amendments, modifications, renewals, extensions, and supplements thereof, (ii) income, fees, royalties,  damages, and payments now and hereafter due and/or payable under or and with respect to any of the  foregoing,  including,  without  limitation,  damages,  claims  and  payments  for  past,  present  and  future  breaches  and  other  violations  thereof  and  (iii) rights  and  remedies  to  sue  for  past,  present  and  future  breaches and other violations of any of the foregoing.         “Patent Security Agreement”:  an agreement substantially in the form of Annex II-B hereto.         “Patents”:  collectively, patents, patent applications, certificates of inventions, industrial designs  (whether issued or applied-for in the United States or any other country or any political subdivision thereof),  including, without limitation, each issued patent and patent application identified on Schedule 8 to the  Perfection Certificate, together with any and all (i) inventions, designs and improvements described and  claimed  therein,  (ii) reissues,  divisions,  continuations,  extensions  and  continuations-in-part  thereof  and  amendments thereto, (iii) income, fees, royalties, damages, and payments now and hereafter due and/or  payable under or with respect to any of the foregoing, including, without limitation, damages, claims and  payments  for  past,  present  and  future  infringements,  misappropriations  and  other  violations  thereof,  (iv) rights  and  remedies  to  sue  for  past,  present  and  future  infringements,  misappropriations  and  other  violations  of  any  of  the foregoing  and  (v) rights,  priorities,  and  privileges  corresponding to  any  of the  foregoing throughout the world.         “Perfection Certificate”: the perfection certificate delivered by the Grantors to the Administrative  Agent on the date hereof, completed and supplemented with the schedules and attachments contemplated  thereby, and duly executed by a Responsible Officer of each Grantor.         “Pledged Alternative Equity Interests”:  all participation or other interests in any equity or profits  of any business entity and the certificates, if any, representing such interests, all dividends, distributions,  cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time  received, receivable or otherwise distributed in respect of or in exchange for any or all of such interests and  any  other  warrant,  right  or  option  to  acquire  any  of  the  foregoing;  provided,  however,  that  Pledged  Alternative  Equity  Interests  shall  not  include  any  Pledged  Notes,  Pledged  Stock,  Pledged  Partnership  Interests, and Pledged LLC Interests or Excluded Assets.         “Pledged  Equity  Interests”:   all  Pledged  Stock,  Pledged  LLC  Interests,  Pledged  Partnership  Interests and Pledged Alternative Equity Interests.         “Pledged LLC Interests”:  all interests owned by any Grantor in any limited liability company  (including  those  listed  on  Schedule  6(a)  to  the  Perfection  Certificate)  and  the  certificates,  if  any,  representing such limited liability company interests and any interest of any Grantor on the books and  records  of  such  limited  liability  company  or  on  the  books  and  records  of  any  securities  intermediary  pertaining to such interest, and all dividends, distributions, cash, warrants, rights, options, instruments,  securities and other property or proceeds from time to time received, receivable or otherwise distributed in  respect of or in exchange for any or all of such limited liability company interests and any other warrant,  right or option to acquire any of the foregoing; provided, that in no event shall Pledged LLC Interests  include Excluded Assets.                                        4  





 






      “Pledged  Notes”:   any  Intercompany  Notes  at  any  time  issued  to  any  Grantor  and  any  other  promissory notes at any time issued to or owned, held or acquired by any Grantor evidencing indebtedness  which  is  in  excess  of  $600,000  individually  or  $3,000,000  in  the  aggregate  (including  those  listed  on  Schedule 7 to the Perfection Certificate).          “Pledged Partnership Interests”:  all interests owned by any Grantor in any general partnership,  limited partnership, limited liability partnership or other partnership (including those listed on Schedule  6(a) to the Perfection Certificate) and the certificates, if any, representing such partnership interests and any  interest of any Grantor on the books and records of such partnership or on the books and records of any  securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights,  options, instruments, securities and other property or proceeds from time to time received, receivable or  otherwise distributed in respect of or in exchange for any or all of such partnership interests and any other  warrant, right or option to acquire any of the foregoing; provided, that in no event shall Pledged Partnership  Interests include Excluded Assets.         “Pledged Stock”:  all shares, stock certificates, options, interests or rights of any nature whatsoever  in respect of the Capital Stock of any Person (including those listed on Schedule 6(a) to the Perfection  Certificate) at any time issued or granted to or owned, held or acquired by any Grantor, and the certificates,  if any, representing such shares and any interest of such Grantor in the entries on the books of the Issuer of  such shares or on the books and records of any securities intermediary pertaining to such shares, and all  dividends,  distributions,  cash,  warrants,  rights,  options,  instruments,  securities  and  other  property  or  proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for  any or all of such shares and any other warrant, right or option to acquire any of the foregoing; provided,  that in no event shall Pledged Stock include Excluded Assets.         “Proceeds”:  all “proceeds” as such term is defined in Section 9-102(a)(64) of the New York UCC,  including, in any event, all dividends, returns of capital and other distributions and income from Investment  Property and all collections thereon and payments with respect thereto.         “PTO”:  the United States Patent and Trademark Office and any substitute or successor agency.         “Qualified ECP Guarantor”:  in respect of any Swap Obligation, each Loan Party that has total  assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest  becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible  contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and  can cause another person to qualify as an “eligible contract participant” at such time by entering into a  keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.         “Receivable”:  any right to payment for goods sold or leased or for services rendered, whether or  not such right is evidenced by an Instrument or Chattel Paper and whether or not it has been earned by  performance (including all Accounts).         “Secured Obligations”:  with respect to the Borrower, the Obligations of the Borrower and, with  respect to any Guarantor, the Guarantor Obligations; provided, that, with respect to any Guarantor at any  time, the definition of “Secured Obligations” shall exclude Excluded Swap Obligations with respect to such  Guarantor  at  such  time;  provided  further,  that  that  the  Secured  Obligations  shall  no  longer  include  Obligations with respect to Specified Hedge Agreements or Specified Cash Management Agreements on  the Termination Date.         “Securities Act”:  the Securities Act of 1933, as amended.                                         5  





 






      “Swap Obligation”:  with respect to any Guarantor, 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.         “Termination Date”:  the date when all outstanding Commitments have been terminated and all the  Secured Obligations (other than Unasserted Contingent Obligations and any amount owing under Specified  Hedge Agreements or any Specified Cash Management Agreements) have been paid in full.         “Trade Secret License”:  with respect to any Grantor, any written agreement pursuant to which such  Grantor grants or obtains any right to use any Trade Secret, including the right to prepare for sale, sell and  advertise  for  sale,  all  Inventory  now  or  hereafter  covered  by  such  Trade  Secrets,  together  with  all  (i) amendments, modifications, renewals, extensions, and supplements thereof, (ii) income, fees, royalties,  damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto  including,  without  limitation,  damages  and  payments  for  past,  present  and  future  breaches  or  other  violations with respect thereto and (iii) rights to sue for past, present and future breaches or violations  thereof.         “Trade  Secrets”:   (i)  all  trade  secrets,  confidential  information,  know-how  and  proprietary  processes, designs, inventions, technology, and proprietary methodologies, algorithms, and information,  including rights in Software, (ii) income, fees, royalties, damages, claims and payments now or hereafter  due  and/or  payable  thereunder  and  with  respect  thereto  including,  without  limitation,  damages  and  payments for past, present and future infringements, misappropriations or other violations with respect  thereto and (iii) rights to sue for past, present and future infringements, misappropriations or violations  thereof.         “Trademark License”:  any written agreement pursuant to which a Grantor grants or obtains any  right to use any Trademark, and the right to prepare for sale, sell and advertise for sale, all Inventory now  or  hereafter  covered  by  such  Trademarks,  together  with  all  (i) amendments,  modifications,  renewals,  extensions, and supplements thereof, (ii) income, fees, royalties, damages and payments now and hereafter  due and/or payable under or with respect to any of the foregoing, including, without limitation, damages,  claims  and  payments  for  past,  present  and  future  breaches  or  other  violations  thereof  and  (iii) rights,  priorities, and privileges and remedies to sue for past, present and future breaches and other violations of  any of the foregoing.         “Trademark Security Agreement”:  an agreement substantially in the form of Annex II-C hereto.         “Trademarks”:   collectively,  all  trademarks,  service  marks,  certification  marks,  trade  names,  corporate names, company names, business names, slogans, logos, trade dress, Internet domain names, and  other source identifiers, whether registered or unregistered in the United States or any other country or any  political  subdivision  thereof,  together  with  any  and  all  (i) registrations  and  applications  for  any  of  the  foregoing, including, without limitation, each registration and application identified on Schedule 8 to the  Perfection Certificate, (ii) goodwill connected with the use thereof and symbolized thereby, (iii) rights and  privileges arising under applicable law with respect to the use of any of the foregoing, (iv)  extensions and  renewals  thereof and amendments  thereto, (v) income, fees, royalties,  damages  and  payments  now  and  hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation,  damages, claims and payments for past, present or future infringements, dilutions, misappropriations or  other violations thereof, (vi) rights and remedies to sue for past, present and future infringements, dilutions,  misappropriations and other violations of any of the foregoing and (vii) rights, priorities, and privileges  corresponding to any of the foregoing throughout the world.         “UCC”:  the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction.                                        6  





 






      “Unasserted  Contingent  Obligations”:   at  any  time,  contingent  Obligations  for  taxes,  costs,  indemnifications, reimbursements, damages and other liabilities (excluding (a) Obligations in respect of the  principal of, and interest and premium (if any) on, and fees and expenses relating to, any Obligation and  (b) contingent reimbursement obligations in respect of amounts that may be payable upon termination of a  Specified Hedge Agreement or a Specified Cash Management Agreement) in respect of which no claim or  demand  for  payment  has  been  made  (or,  in  the  case  of  Obligations  for  indemnification,  no  notice  for  indemnification has been issued by the Indemnitee) at such time.         1.2  Other Definitional Provisions.         (a)  As used herein and in any certificate or other document made or delivered pursuant hereto,  (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly  defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under  GAAP or, in the case of any Foreign Subsidiary, other accounting standards, if applicable, (ii) the words  “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”,  (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or  suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) the words  “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all  tangible and intangible assets and properties of every type and nature and (v) references to agreements or  other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or  Contractual Obligations as amended, supplemented, amended and restated, restated or otherwise modified  from time to time (subject to any applicable restrictions hereunder).         (b)  The words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import when  used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this  Agreement, and Section and Schedule references are to this Agreement unless otherwise specified.         (c)  The meanings given to terms defined herein shall be equally applicable to both the singular and  plural forms of such terms.         (d)  Where the context requires, terms relating to the Collateral or any part thereof, when used in  relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.         (e)  The expressions “payment in full”, “paid in full” and any other similar terms or phrases when  used herein with respect to any Obligation shall mean (i) the payment in full of such Obligation in cash in  immediately available funds, (ii) that no Letters of Credit shall be outstanding (or that they shall have been  Cash Collateralized or backstopped pursuant to arrangements reasonably satisfactory to the Issuing Lender),  (iii)  with  respect  to  obligations  under  any  Specified  Hedge  Agreements  or  under  any  Specified  Cash  Management Agreements with any Qualified Counterparty, such obligations are terminated or secured by  a collateral arrangement reasonably satisfactory to the Qualified Counterparty in its sole discretion and (iv)  that all commitments to extend credit under the Loan Documents shall have been terminated.         SECTION 2.  GUARANTEE         2.1  Guarantee.         (a)  Each  of  the  Guarantors  hereby,  jointly  and  severally,  unconditionally  and  irrevocably,  guarantees to the Administrative Agent, for the benefit of the Secured Parties, the prompt and complete  payment and performance by the Borrower and the Loan Parties when due (whether at the stated maturity,  by  acceleration  or  otherwise)  of  each  and  all  of  the  Obligations  (other  than  the  Obligations  of  such  Guarantor) (the “Guaranteed Obligations”); provided, that obligations of any Loan Party under or in respect                                        7  





 






of any Specified Hedge Agreement or any Specified Cash Management Agreement shall be guaranteed  only to the extent that, and for so long as, the other Obligations are so guaranteed.         (b)  Each  Guarantor  shall  be  liable  under  its  guarantee  set  forth  in  Section 2.1(a),  without  any  limitation as to amount, for all present and future Guaranteed Obligations, including specifically all future  increases  in  the  outstanding  amount  of  the  Loans  or  Reimbursement  Obligations  under  the  Credit  Agreement and other future increases in the Guaranteed Obligations, whether or not any such increase is  committed, contemplated or provided for by the Loan Documents or other applicable documents governing  such Guaranteed Obligations on the date hereof; provided, that (i) enforcement of such guarantee against  such Guarantor will be limited as necessary to limit the recovery under such guarantee to the maximum  amount which may be recovered without causing such enforcement or recovery to constitute a fraudulent  transfer  or  fraudulent  conveyance  under  any  applicable  law,  including  any  applicable  federal  or  state  fraudulent transfer or fraudulent conveyance law (after giving effect, to the fullest extent permitted by law,  to the reimbursement and contribution rights set forth in Section 2.2) and (ii) to the fullest extent permitted  by applicable law, the foregoing clause (i) shall be for the benefit solely of creditors and representatives of  creditors of each Guarantor and not for the benefit of such Guarantor or the holders of any Capital Stock in  such Guarantor.  For the avoidance of doubt, the application of the provisions of this Section 2.1(b) or any  similar  provisions in  any other Loan  Document:  (x) is  automatic  to the  extent applicable,  (y) is  not an  amendment or modification of this Agreement, any other Loan Document or any other applicable document  governing Guaranteed Obligations and (z) does not require the consent or approval of any Person.         (c)  The guarantee contained in this Section 2.1 (i) shall remain in full force and effect until all the  Guaranteed  Obligations  and  the  obligations  of  each  Guarantor  under  the  guarantee  contained  in  this  Section 2.1 have been paid in full (other than Unasserted Contingent Obligations), notwithstanding that  from time to time during the term of the Credit Agreement the Borrower may be free from any Obligations,  (ii) unless  released  as  provided  in  clause  (iii) below,  shall  survive  the  repayment  of  the  Loans  and  Reimbursement Obligations under the Credit Agreement, the termination of commitments to extend credit  under the Credit Agreement, and the release of the Collateral and remain enforceable as to all Guaranteed  Obligations that survive such repayment, termination and release and (iii) shall be released when and as set  forth in Section 8.15(a) or (b).         (d)  No payment made by the Guarantors, any other guarantor or any other Person or received or  collected by any Secured Party from the Borrower, any of the Guarantors, any other guarantor or any other  Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or  from time to time in reduction of or in payment of the Guaranteed Obligations shall be deemed to modify,  reduce,  release  or  otherwise  affect  the  liability  of  any  Guarantor  hereunder  in  respect  of  any  other  Guaranteed Obligations then outstanding or thereafter incurred.         2.2  Reimbursement, Contribution and Subrogation.  In case any payment is made on account of  the  Guaranteed  Obligations  by  any  Grantor  or  is  received  or  collected  on  account  of  the  Guaranteed  Obligations from any Grantor or its property:         (a)  If such payment is made by the Borrower or from its property, the Borrower shall not be entitled  (i) to demand or enforce reimbursement or contribution in respect of such payment from any other Grantor  or (ii) to be subrogated to any claim, interest, right or remedy of any Secured Party against any other Person,  including any other Grantor or its property.         (b)  If  such  payment  is  made  by  the  Borrower  or  from  its  property  in  satisfaction  of  the  reimbursement right of any Guarantor set forth in Section 2.2(c), the Borrower shall not be entitled (i) to  demand or enforce reimbursement or contribution in respect of such payment from any other Grantor or                                         8  





 






(ii) to be subrogated to any claim, interest, right or remedy of any Secured Party against any other Person,  including any other Grantor or its property.         (c)  If such payment is made by a Guarantor or from its property, such Guarantor shall be entitled,  subject  to  and  upon  payment  in  full  of  all  outstanding  Secured  Obligations  (other  than  Unasserted  Contingent Obligations), (i) to demand and enforce reimbursement for the full amount of such payment  from the Borrower and (ii) to demand and enforce contribution in respect of such payment from each other  Guarantor which has not paid its fair share of such payment, as necessary to ensure that (after giving effect  to any enforcement of reimbursement rights provided hereby) each Guarantor pays its fair share of the  unreimbursed  portion  of  such  payment.   For  this  purpose,  the  fair  share  of  each  Guarantor  as  to  any  unreimbursed payment shall be determined based on an equitable apportionment of such unreimbursed  payment among all Guarantors based on the relative value of their assets (net of their liabilities, other than  Secured Obligations) and any other equitable considerations deemed appropriate by the court.         (d)  If  and  whenever  any  right  of  reimbursement  or  contribution  becomes  enforceable  by  any  Guarantor against any other Guarantor under Section 2.2(c), such Guarantor shall be entitled, subject to and  upon  payment  in  full  of  all  outstanding  Secured  Obligations  (other  than  Unasserted  Contingent  Obligations), to be subrogated (equally and ratably with all other Guarantors entitled to reimbursement or  contribution from any other Guarantor under Section 2.2(c)) to any security interest that may then be held  by the Collateral Agent upon any Collateral granted to it in this Agreement.  To the fullest extent permitted  under applicable law, such right of subrogation shall be enforceable solely against the Borrower and the  Guarantors, and not against the Secured Parties, and neither the Administrative Agent nor any other Secured  Party shall have any duty whatsoever to warrant, ensure or protect any such right of subrogation or to obtain,  perfect,  maintain,  hold,  enforce  or  retain  any  Collateral  for  any  purpose  related  to  any  such  right  of  subrogation.  If subrogation is demanded in writing by any Guarantor, then (subject to and upon payment  in  full  of  all  outstanding  Secured  Obligations  (other  than  Unasserted  Contingent  Obligations)),  the  Administrative Agent shall deliver to the Guarantors making such demand, or to a representative of such  Guarantors  or  of  the  Guarantors  generally,  an  instrument  reasonably  satisfactory  to  the  Administrative  Agent and such Guarantors transferring, on a quitclaim basis without (to the fullest extent permitted under  applicable law) any recourse, representation, warranty or obligation whatsoever, whatever security interest  the Administrative Agent then may hold in whatever Collateral may then exist that was not previously  released or disposed of by the Administrative Agent in accordance with the terms of the Loan Documents.         (e)  All rights and claims arising under this Section 2.2 or based upon or relating to any other right  of reimbursement, indemnification, contribution or subrogation that may at any time arise or exist in favor  of  any  Guarantor as  to  any  payment on  account of  the Secured  Obligations  made  by  it  or  received  or  collected from its property shall be fully subordinated in all respects to the prior payment in full of all of  the  Secured  Obligations  (other  than  Unasserted  Contingent  Obligations).   Until  payment  in  full  of the  Secured Obligations (other than Unasserted Contingent Obligations), no Guarantor shall demand or receive  any  collateral  security,  payment  or  distribution  whatsoever  (whether  in  cash,  property  or  securities  or  otherwise) on account of any such right or claim.  If any such payment or distribution is made or becomes  available to any Guarantor, such payment or distribution shall be delivered by the person making such  payment or distribution directly to the Administrative Agent, for application to the payment of the Secured  Obligations  in  accordance  with  Section 6.5.   If  any  such  payment  or  distribution  is  received  by  any  Guarantor, it shall be held by such Guarantor in trust, as trustee of an express trust for the benefit of the  Secured Parties, and shall forthwith be transferred and delivered by such Guarantor to the Administrative  Agent, substantially in the form received and, if necessary, duly endorsed.         (f)  The  obligations  of  the  Guarantors  under  the  Loan  Documents  and  any  Specified  Hedge  Agreements and any Specified Cash Management Agreements, including their liability for the Secured  Obligations and the enforceability of the security interests granted thereby, are not contingent upon the                                        9  





 






validity, legality, enforceability, collectibility or sufficiency of any right of reimbursement, contribution or  subrogation  arising  under  this  Section 2.2.   To  the  fullest  extent  permitted  under  applicable  law,  the  invalidity,  insufficiency,  unenforceability  or  uncollectibility  of  any  such  right  shall  not  in  any  respect  diminish, affect or impair any such obligation or any other claim, interest, right or remedy at any time held  by any Secured Party against any Guarantor or its property.  The Secured Parties make no representations  or warranties in respect of any such right and shall, to the fullest extent permitted under applicable law,  have no duty to assure, protect, enforce or ensure any such right or otherwise relating to any such right.         (g)  Each Guarantor reserves any and all other rights of reimbursement, contribution or subrogation  at any time available to it as against any other Guarantor, but (i) the exercise and enforcement of such rights  shall be subject to this Section 2.2 and (ii) to the fullest extent permitted by applicable law, neither the  Administrative Agent nor any other Secured Party shall ever have any duty or liability whatsoever in respect  of any such right.         2.3  Amendments, etc. with respect to the Guaranteed Obligations.  To the fullest extent permitted  by  applicable  law,  each  Guarantor  shall  remain  obligated  hereunder  notwithstanding  that,  without  any  reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any  demand for payment of any of the Guaranteed Obligations made by any Secured Party may be rescinded  by such Secured Party and any of the Guaranteed Obligations continued, and the Guaranteed Obligations,  or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee  therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed,  extended, amended, modified, accelerated, compromised, waived, surrendered or released by any Secured  Party, and the Credit Agreement and the other Loan Documents, any Specified Hedge Agreement, any  Specified Cash Management Agreement and any other documents executed and delivered in connection  therewith may be amended, restated, amended and restated, supplemented, replaced, refinanced, otherwise  modified or terminated, in whole or in part, as the Administrative Agent (or the requisite Secured Parties)  may deem reasonably advisable from time to time, and any collateral security, guarantee or right of offset  at  any  time  held  by  any  Secured  Party  for  the  payment  of  the  Guaranteed  Obligations  may  be  sold,  exchanged, waived, surrendered or released.  No Secured Party shall have any obligation to protect, secure,  perfect or insure any Lien at any time held by it as security for the Guaranteed Obligations or for the  guarantee  contained  in this  Section 2  or  any  property  subject thereto,  except  to  the  extent  required  by  applicable law or any Loan Document.         2.4  Guarantee Absolute and Unconditional.  To the fullest extent permitted by applicable law, each  Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed  Obligations and notice of or proof of reliance by any Secured Party upon the guarantee contained in this  Section 2 or acceptance of the guarantee contained in this Section 2.  The Guaranteed Obligations, and each  of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended,  amended or waived, in reliance upon the guarantee contained in this Section 2.  All dealings between the  Borrower and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise  shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained  in  this  Section 2.   To  the  fullest  extent  permitted  by  applicable  law,  each  Guarantor  waives  diligence,  presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or  any of the Guarantors with respect to the Guaranteed Obligations.  Each Guarantor understands and agrees  that the guarantee contained in this Section 2 shall be construed, to the fullest extent permitted by applicable  law, as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity or  enforceability of the Credit Agreement or any other Loan Document, any Specified Hedge Agreement, any  Specified Cash Management Agreement, any of the Guaranteed Obligations or any other collateral security  therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any  Secured Party, (b) any defense, set-off or counterclaim (other than a defense of payment or performance)  which may at any time be available to or be asserted by the Borrower or any other Person against any                                        10  





 






Secured Party or (c) any other circumstance whatsoever (with or without notice to or knowledge of the  Borrower or such Guarantor) which constitutes, or might be construed to constitute, an equitable or legal  discharge of the Borrower for the Obligations or of such Guarantor under the guarantee contained in this  Section 2, in  bankruptcy  or  in  any  other  instance.   When  making  any  demand  hereunder  or  otherwise  pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be  under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may  have against the Borrower, any other Guarantor or any other Person or against any collateral security or  guarantee for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by any  Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments  from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security  or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or  any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor  of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether  express, implied or available as a matter of law, of any Secured Party against any Guarantor.  For the  purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.         2.5  Reinstatement.  The guarantee contained in this Section 2 and the security interests created  hereunder shall be reinstated and shall remain in all respects enforceable to the extent that, at any time, any  payment of any of the Guaranteed Obligations is set aside, avoided or rescinded or must otherwise be  restored  or  returned  by  any  Secured  Party  upon  the  insolvency,  bankruptcy,  dissolution,  liquidation  or  reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver,  intervenor  or  conservator  of,  or  trustee  or  similar  officer  for,  the  Borrower  or  any  Guarantor  or  any  substantial part of its property, or otherwise, in whole or in part, and such reinstatement and enforceability  shall, to the fullest extent permitted by applicable law, be effective as fully as if such payment had not been  made.         2.6  Payments.  Each Guarantor hereby agrees to pay all amounts due and payable by it under this  Section 2 to the Administrative Agent without set-off or counterclaim in Dollars in immediately available  funds at the Funding Office specified in the Credit Agreement.         2.7  Keepwell.   Each  Qualified  ECP  Guarantor  hereby  jointly  and  severally  absolutely,  unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from  time to time by each other Loan Party to honor all of its obligations under this Section 2 in respect of Swap  Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section  2 for the maximum amount of such liability that can be hereby incurred without rendering its obligations  under this Section 2, or otherwise under this Section 2, voidable under applicable law relating to fraudulent  conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP  Guarantor under this Section shall remain in full force and effect until the Termination Date. Each Qualified  ECP Guarantor intends that this Section 2 constitute, and this Section 2 shall be deemed to constitute, a  “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section  1a(18)(A)(v)(II) of the Commodity Exchange Act.         SECTION 3.  GRANT OF SECURITY INTEREST         Each Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a security  interest in all of the following property now owned or at any time hereafter acquired by such Grantor or in  which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively,  the “Collateral”), as collateral security for the complete payment and performance when due (whether at  the stated maturity, by acceleration or otherwise) of all Secured Obligations:         (a)  all Accounts;                                        11  





 






      (b)  all Chattel Paper;         (c)  all Deposit Accounts;         (d)  all Documents;         (e)  all General Intangibles, including, without limitation, all Intellectual Property and Intellectual  Property Licenses;         (f)  all Goods, including, without limitation, all Equipment, Fixtures and Inventory;         (g)  all Instruments;         (h)  all Investment Property;         (i)  all Money;         (j)  all Capital Stock;         (k)  all  Commercial  Tort  Claims,  including,  without  limitation,  the  Commercial  Tort  Claims  described on Schedule 9 to the Perfection Certificate;         (l)  all Letter-of-Credit Rights;         (m)  all other personal property not otherwise described above;         (n)  all Supporting Obligations and products of any and all of the foregoing and all security interests  or other liens on personal or real property securing any of the foregoing;         (o)  all books and records (regardless of medium) pertaining to any of the foregoing; and         (p)  all Proceeds of any of the foregoing;   provided,  that  (i) this  Agreement  shall  not  constitute  a  grant  of  a  security  interest  in  and  the  term  “Collateral” shall not be deemed to include (A) any property to the extent that and for as long as such grant  of a security interest is prohibited by any applicable law, rule or regulation except to the extent that such  law, rule or regulation is ineffective under applicable law or principles of equity or would be ineffective  under Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC to prevent the attachment of the security  interest granted hereunder, (B) any contract, license or permit, to the extent it constitutes a breach or default  under or results in the termination of, or requires any consent not obtained under such contract, license or  permit, except to the extent that any such contract, license or permit is ineffective under applicable law or  principles of equity or would be ineffective under Sections 9-406, 9-407, 9-408 or 9-409 of the New York  UCC to prevent the attachment of the security interest granted hereunder, (C) any property owned by any  Grantor that is subject to a purchase money Lien or a capital lease permitted under the Credit Agreement if  the Contractual Obligation pursuant to which such Lien is granted (or in the document providing for such  capital lease) prohibits or requires the consent of any Person other than Borrower and its Affiliates which  has not been obtained as a condition to the creation of any other Lien on such equipment, and (D) to the  extent not otherwise excluded pursuant to clauses (A) through (C) above, any Excluded Assets; provided,  that, the grant of security interest hereunder, and the term “Collateral”, shall include all of the shares of  Capital  Stock,  limited  liability  interests,  partnership  interests  and  other  equity  interests  identified  on  Schedule 6(a) to the Perfection Certificate and (ii) the security interest granted hereby (A) shall attach at all                                         12  





 






times to all proceeds of such property (other than any proceeds subject to any condition described in clause  (i)), (B) if applicable, shall attach to such property immediately and automatically (without need for any  further grant or act) at such time as the condition described in clause (i) ceases to exist and (C) to the extent  severable shall in  any event, attach  to  all  rights in  respect  of  such  property that  are  not  subject to  the  applicable condition described in clause (i).  In addition to the foregoing, the following Collateral shall not  be required to be perfected, except, in each case, to the extent a security interest therein can be perfected  by the filing of a filing statement under the Uniform Commercial Code or other applicable law: (w) cash  and  Cash  Equivalents  (including  Money),  Deposit  Accounts,  Securities  Accounts  and  Commodities  Accounts  (including  Securities  Entitlements  and  related  assets),  (x)  other  assets  requiring  perfection  through control agreements, (y) vehicles and other assets subject to certificates of title and (z) Intellectual  Property established under laws of jurisdictions outside the United States.         SECTION 4.  REPRESENTATIONS AND WARRANTIES         Each Grantor hereby represents and warrants to each Secured Party that:         4.1  Representations in Credit Agreement.  In the case of each Guarantor, the representations and  warranties set forth in Section 5 of the Credit Agreement as they relate to such Guarantor or to the Loan  Documents to which such Guarantor is a party, each of which is hereby incorporated herein by reference,  are true and correct in all material respects, and each Secured Party shall be entitled to rely on each of them  as if they were fully set forth herein; provided, that each reference in each such representation and warranty  to the Borrower’s or any Loan Party’s knowledge shall, for the purposes of this Section 4.1, be deemed a  reference to such Guarantor’s knowledge.         4.2  Title; No Other Liens.  Except for the security interest granted to the Collateral Agent for the  benefit of the Secured Parties pursuant to the Loan Documents and the Liens permitted to exist on such  Grantor’s Collateral by the Loan Documents, such Grantor owns each item of Collateral, in all material  respects, granted by it free and clear of any Liens (other than Liens permitted by Section 8.3 of the Credit  Agreement and under the Security Documents).  No financing statement or other public notice with respect  to all or any part of the Collateral is on file or of record in any public office, except such as have been filed  in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Loan Documents or  in  respect  of  Liens  that  are  permitted  by  the  Loan  Documents  or  for  which  termination  statements,  assignments or releases authorized by the appropriate parties will be filed on the date hereof or, with respect  to  releases  of  Liens  in  Intellectual  Property  recorded  in  the  PTO  or  United  States  Copyright  Office,  delivered to the Collateral Agent for filing.         4.3  Perfected Liens.         (a)  The security interests granted pursuant to this Agreement upon completion of the filings and  other actions specified on Schedule 5 to the Perfection Certificate (which, in the case of all filings and other  documents referred to on such Schedule, have been delivered to the Collateral Agent in completed and,  where required, duly executed form), will constitute valid perfected security interests in all of the Collateral  in favor of the Collateral Agent, for the benefit of the Secured Parties, as collateral security for the Secured  Obligations, enforceable in accordance with the terms hereof (except to the extent otherwise permitted  herein and except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization,  moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable  principles (whether enforcement is sought by proceedings in equity or at law)) against all creditors of such  Grantor and are and will be prior to all other Liens on such Collateral, except for Liens which have priority  as permitted by the Credit Agreement, the Loan Documents or by operation of law; provided, that additional  filings with the PTO and United States Copyright Office may be required with respect to the perfection of  the  Collateral  Agent’s  Lien  on  registered  and  applied-for  United  States  Patents,  Trademarks,  and                                        13  





 






Copyrights, as applicable, acquired by Grantors after the date hereof and the perfection of the Collateral  Agent’s Lien on Intellectual Property established under the laws of jurisdictions outside the United States  may be subject to additional filings and registrations.         (b)  Each  Grantor  consents  to  the  grant  by  each  other  Grantor  of  the  security  interests  granted  hereby and the transfer of any Capital Stock or Investment Property to the Collateral Agent or its designee  upon  the  occurrence  and  during  the  continuance  of  an  Event  of  Default  and  to  the  substitution  of  the  Collateral Agent or its designee or the purchaser upon any foreclosure sale as the holder and beneficial  owner of the interest represented thereby.         4.4  Jurisdiction of Organization; Chief Executive Office.  On the date hereof, each Grantor’s exact  legal name and jurisdiction of organization are specified on Schedule 1(a) to the Perfection Certificate and  the location of such Grantor’s chief executive office or sole place of business or principal residence, as the  case may be, are specified on Schedule 2 to the Perfection Certificate.  On the date hereof, such Grantor is  organized  solely  under  the  law  of  the  jurisdiction  so  specified  and  has  not  filed  any  certificates  of  domestication,  transfer  or  continuance  in  any  other  jurisdiction.   Such  Grantor  has  furnished  to  the  Collateral Agent its Organizational Documents as in effect as of a date which is recent to the date hereof  and short-form or long-form, as applicable, good standing certificate as of a date which is recent to the date  hereof.         4.5  Inventory and Equipment.         (a)  On the date hereof, Schedule 4 to the Perfection Certificate sets forth all locations in the United  States where any Inventory and Equipment (other than goods in transit, goods being repaired by a third  party or goods that do not have a material value) are kept.         (b)  As of the date hereof, none of the Inventory or Equipment of such Grantor is in the possession  of an issuer of a negotiable document (as defined in Section 7-104 of the New York UCC).         4.6  Farm Products.  None of the Collateral constitutes, or is the Proceeds of, Farm Products.         4.7  Investment Related Property.         (a)  On  the  date  hereof,  Schedule  6(a)  to  the  Perfection  Certificate  (as  such  Schedule  may  be  amended or supplemented from time to time) sets forth all of the Pledged Stock, Pledged LLC Interests and  Pledged  Partnership  Interests,  respectively,  owned  by  any  Grantor  and  such  Pledged  Equity  Interests  constitute the percentage of issued and outstanding shares of stock, percentage of membership interests,  percentage of  partnership interests or  percentage  of  beneficial interest  of the  respective  Issuers  thereof  indicated on such Schedule.  On the date hereof, Schedule 7 to the Perfection Certificate (as such Schedule  may be amended or supplemented from time to time) sets forth under the heading “Promissory Notes” all  of the Pledged Notes owned by any Grantor and to the knowledge of such Grantor all of such Pledged Notes  have  been  duly  authorized,  authenticated  or  issued,  and  delivered  and  are  the legal,  valid  and  binding  obligations  of  the  Issuers  thereof  enforceable  in  accordance  with  their  terms,  subject  to  applicable  bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and  subject to general principals of equity, regardless of whether considered in a proceeding in equity or at law,  and constitute all of the issued and outstanding intercompany indebtedness evidenced by an instrument  owing to such Grantor that is required to be pledged to the Collateral Agent, for the benefit of the Secured  Parties, pursuant to the terms hereof and the other Loan Documents.           (b)  The shares of Pledged Equity Interests pledged by such Grantor hereunder constitute all of the  issued and outstanding shares of all classes of Capital Stock in each Issuer owned by such Grantor or, in                                        14  





 






the case of Foreign Subsidiary Voting Stock, 65% of the outstanding first tier Foreign Subsidiary Voting  Stock of each relevant Issuer.         (c)  All the shares of the Pledged Equity Interests have been duly and validly issued and are fully  paid and nonassessable.         (d)  Such  Grantor  is  the  record  and  beneficial  owner  of  the  Investment  Property  and  Deposit  Accounts pledged by it hereunder in all material respects, free of any Liens, except Liens permitted to exist  on the Collateral by the Loan Documents, and, as of the date hereof, there are no outstanding warrants,  options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with  respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Equity  Interests.         4.8  Receivables.  As of the date hereof, no amount payable to such Grantor under or in connection  with any Receivables in excess of $600,000 in any instance or $3,000,000 in the aggregate is evidenced by  any Instrument or Chattel Paper which has not been delivered to the Collateral Agent pursuant to terms of  this Agreement.         4.9  Intellectual Property.         (a)  As of the date hereof, Schedule 8 to the Perfection Certificate sets forth a true and accurate list  of all United States registrations of and applications for Patents, Trademarks, and Copyrights owned by the  Grantor that are registered or applied-for in the PTO or United States Copyright Office (excluding any  United States Patent, Trademark or Copyright that has expired or been abandoned or that is an Excluded  Asset).         (b)  With respect to all Intellectual Property listed on Schedule 8 to the Perfection Certificate that  is owned by a Grantor as of the date hereof, except as could not reasonably be expected to have a Material  Adverse Effect, such Grantor is the owner of the entire right, title, and interest in and to such Intellectual  Property, free and clear of all Liens (other than Liens permitted by the Loan Documents).  To the knowledge  of the Grantor, such Grantor owns or is validly licensed to use all other Intellectual Property necessary for  the conduct of its business as currently conducted, free and clear of all Liens (other than Liens permitted  by the Loan Documents), except as could not reasonably be expected to have a Material Adverse Effect.         (c)  All  registrations  and  applications  for  Copyrights,  Patents  and  Trademarks  included  in  the  Collateral are standing in the name of a Grantor and are subsisting and in full force and effect, and to the  Grantor’s knowledge, valid and enforceable, except as could not reasonably be expected to have a Material  Adverse Effect.         (d)  Such Grantor has performed all acts and has paid all renewal, maintenance, and other fees  required to maintain each and every registration and application of Intellectual Property included in the  Collateral in full force and effect, except as could not reasonably be expected to have a Material Adverse  Effect.         (e)  Except as set forth in Schedule 8 to the Perfection Certificate as of the date hereof, no holding,  decision, or judgment has been rendered in any action or proceeding against a Grantor before any court,  administrative or other governmental authority, challenging the validity or enforceability of any Intellectual  Property included in the Collateral, or such Grantor’s right to register, own or use such Intellectual Property,  and no such action or proceeding against any Grantor is pending or, to the Grantors’ knowledge, threatened  in writing, in each case, except as could not reasonably be expected to have a Material Adverse Effect.                                         15  





 






      (f)  Such Grantor is not a party to or otherwise bound by any settlement or consent agreement,  covenant not to sue, non-assertion assurance, release or other similar agreement affecting such Grantor's  rights to own or use any Intellectual Property, in each case, except as could not, individually or in the  aggregate, reasonably be expected to have a Material Adverse Effect.         (g)  With respect to each Copyright License, Trademark License, Patent License, and Trade Secret  License:  (i) such agreement constitutes a legal, valid and binding obligation of such Grantor and represents  the entire agreement between the respective licensor and licensee with respect to the subject matter of such  license; (ii) such Grantor has not received any written notice of termination or cancellation under such  license; (iii) such Grantor has not received any written notice of a breach or default under such license,  which breach or default has not been cured; and (iv) such Grantor is not in breach or default in any material  respect, and no event has occurred that, with notice and/or lapse of time, would constitute such a breach or  default or otherwise permit termination, modification or acceleration under such agreement, in each case,  except as could not reasonably be expected to have a Material Adverse Effect.         (h)  Except as could not reasonably be expected to have a Material Adverse Effect, such Grantor  has taken commercially reasonable steps to protect in all material respects: (i) the confidentiality of its  material Trade Secrets and confidential information and (ii) its interest in its material Intellectual Property  owned by such Grantor.         4.10  Commercial Tort Claims.  As of the date hereof, such Grantor has no Commercial Tort Claims  in excess of $600,000 individually or $3,000,000 in the aggregate in value other than those described on  Schedule 9 to the Perfection Certificate.         SECTION 5.  COVENANTS         Each Grantor covenants and agrees with the Secured Parties that, from and after the date of this  Agreement until the Collateral is released pursuant to Section 8.15(a):         5.1  Covenants in Credit Agreement.  Such Grantor shall take, or refrain from taking, as the case  may be, each action that is necessary to be taken or not taken, so that no breach of the covenants in the  Credit Agreement pertaining to actions to be taken, or not taken, by such Grantor will result.         5.2  Delivery  and  Control  of  Instruments,  Chattel  Paper,  Negotiable  Documents,  Investment  Property and Letter-of-Credit Rights.         (a)  If any of the Collateral of such Grantor is or shall become evidenced or represented by any  Instrument (other than checks to be deposited in the ordinary course of business), Negotiable Document or  Tangible Chattel Paper, in each case, having a face amount of $600,000 in any instance or $3,000,000 in  the aggregate, such Instrument, Negotiable Documents or Tangible Chattel Paper shall, together with the  delivery of the next applicable Compliance Certificate pursuant to Section 7.2(a) of the Credit Agreement  (or such longer period as to which the Collateral Agent may agree), be delivered to the Collateral Agent,  duly indorsed in a manner reasonably satisfactory to the Collateral Agent, to be held as Collateral pursuant  to this Agreement and all of such property owned by any Grantor as of the date hereof shall be delivered  on the date hereof.         (b)  If any of the Collateral of such Grantor is or shall become evidenced or represented by an  Uncertificated Security, such Grantor shall promptly notify the Collateral Agent thereof, and shall (and  with respect to any Issuer that is not a Wholly Owned Subsidiary use commercially reasonable efforts to)  cause the Issuer thereof to register the Collateral Agent as the registered owner of such Uncertificated  Security, upon the occurrence and during the continuance of an Event of Default.  This clause (b) shall not                                        16  





 






apply to Uncertificated Securities having a value of less than $600,000 individually or $3,000,000 in the  aggregate.         5.3  Maintenance of Insurance.         (a)  Such  Grantor  will  maintain  insurance  policies  (i) in  accordance  with  the  requirements  of  Section 7.5 of the Credit Agreement and (ii) naming the Collateral Agent on behalf of the Secured Parties  as additional insured under liability insurance policies to the extent reasonably requested by the Collateral  Agent.         (b)  In  accordance  with  the  requirements  of  Section  7.10(e)  of  the  Credit  Agreement,  all  such  insurance  shall  (unless  otherwise  reasonably  agreed  to  by  the  Collateral  Agent)  (i) provide  that  no  cancellation, material reduction in amount or material change in coverage thereof shall be effective until at  least  thirty  (30) days  after  receipt  by  the  Collateral  Agent  of  written  notice  thereof,  and  (ii) name  the  Collateral Agent as additional insured party (with respect to liability insurance, other than with respect to  liability insurance for directors and officers) and/or loss payee (with respect to property insurance).         5.4  [Intentionally omitted].         5.5  Maintenance of Perfected Security Interest; Further Documentation.         (a)  Such Grantor shall maintain the security interest created by this Agreement in such Grantor’s  Collateral (other than Intellectual Property, if any, established under laws of jurisdictions outside the United  States) as a security interest having at least the perfection and priority described in Section 4.3 and shall  defend such security interest against the claims and demands of all Persons whomsoever, subject to the  rights  of  such  Grantor  under  the  Loan  Documents,  including  such  Grantor’s  rights  to  dispose  of  the  Collateral.         (b)  At any time and from time to time, upon the written request of the Collateral Agent, and at the  sole expense of such Grantor, such Grantor will promptly and duly execute and deliver, and have recorded,  such further instruments and documents, including, without limitation, a completed pledge supplement,  substantially in the form of Annex III attached hereto, and take such further actions necessary or as the  Collateral  Agent  may  reasonably  request  consistent  with  this  Agreement  for  the  purpose  of  creating,  perfecting, ensuring the priority of, protecting or enforcing the Collateral Agent’s security interest in the  Collateral or otherwise conferring or preserving the full benefits of this Agreement and of the interests,  rights and powers herein granted.         5.6  Changes in Locations, Name, etc.  Such Grantor will promptly furnish to the Collateral Agent  (and in any event within thirty (30) days of such change or such longer period of time reasonably acceptable  to  the  Collateral  Agent)  written  notice  of,  and  deliver  to  the  Collateral  Agent  all  additional  financing  statements and other documents (executed where appropriate) reasonably requested by the Collateral Agent  to maintain the validity, perfection and priority of the security interests provided for herein, any of the  following actions:               (i)   any change in its jurisdiction of organization from that referred to in Schedule 1(d)        to the Perfection Certificate; or               (ii)  any change in its (x) name or (y) identity or corporate structure to such an extent        that any financing statement filed by the Collateral Agent in connection with this Agreement would        become misleading.                                         17  





 






      5.7  [Intentionally omitted].         5.8  Investment Property, Pledged Equity Interests and Deposit Accounts.         (a)  If such Grantor shall become entitled to receive or shall receive any certificate (including any  certificate representing a stock dividend or a distribution in connection with any reclassification, increase  or  reduction  of  capital,  any  certificate  issued  in  connection  with  any  reorganization,  or  any  certificate  representing Pledged LLC  Interests issued by any Subsidiary after the date hereof), option or rights in  respect of the Pledged Equity Interests, including whether in addition to, in substitution of, as a conversion  of, or in exchange for, any Pledged Equity Interests, or otherwise in respect thereof, such Grantor shall  accept the same as the agent of the Secured Parties, hold the same in trust for the Secured Parties and deliver  the same forthwith to the Collateral Agent substantially in the form received, duly indorsed by such Grantor  to the Collateral Agent, if required, together with an undated stock power or equivalents covering such  certificate duly executed in blank by such Grantor, to be held by the Collateral Agent, subject to the terms  hereof, as additional collateral security for the Secured Obligations; provided, that in no event shall there  be pledged Excluded Assets.  Any sums paid upon or in respect of the Investment Property or Pledged  Equity Interests upon the liquidation or dissolution of any Issuer thereof and received by a Grantor shall be  held by such Grantor hereunder as additional collateral security for the Secured Obligations and, in case  any distribution of capital shall be made on or in respect of the Investment Property or Pledged Equity  Interests or any property shall be distributed upon or with respect to the Investment Property or Pledged  Equity Interests pursuant to the recapitalization or reclassification of the capital of any Issuer or pursuant  to  the  reorganization  thereof,  to  the  extent  in  the  form  of  securities  or  instruments,  the  property  so  distributed shall, unless otherwise subject to a perfected security interest in favor of the Collateral Agent,  as provided hereunder, be delivered to the Collateral Agent to be held by it hereunder as additional collateral  security for the Secured Obligations.  If any sums of money or property so paid or distributed in respect of  the Investment Property or Pledged Equity Interests shall be received by such Grantor, such Grantor shall  hold such money in accordance with the Credit Agreement and the other Loan Documents.         (b)  Without the prior written consent of the Collateral Agent, such Grantor will not, except as  permitted by the Credit Agreement or the other Loan Documents, vote to enable, or take any other action  to permit, any Issuer of Pledged Equity Interests to issue any stock or other equity securities of any nature  or to issue any other securities convertible into or granting the right to purchase or exchange for any stock  or other equity securities of any nature of any Issuer.         (c)  In the case of each Grantor which is an Issuer, such Grantor agrees that (i) it will be bound by  the terms of this Agreement relating to the Investment Property or Pledged Equity Interests (that constitutes  Collateral hereunder) issued by it and will comply with such terms insofar as such terms are applicable to  it and (ii) it will take all actions required or reasonably requested by the Collateral Agent to enable or permit  each  Grantor  to  comply  with  Sections  6.3(c)  and  6.7  as  to  all  Investment  Property  or  Pledged  Equity  Interests issued by it.         (d)  Each Grantor acknowledges and agrees that to the extent that any Pledged Partnership Interest  or Pledged LLC Interest now or in the future owned by such Grantor and pledged hereunder is a “security”  within the meaning of Article 8 of the New York UCC and is governed by Article 8 of the New York UCC,  such interest shall be certificated and each such interest shall at all times hereafter continue to be such a  security and represented by such certificate delivered to the Collateral Agent pursuant to the terms hereof.   Each Grantor further acknowledges and agrees that with respect to any Pledged Partnership Interest or  Pledged LLC Interest now or in the future owned by such Grantor and pledged hereunder that is not a  “security” within the meaning of Article 8 of the New York UCC, such Grantor shall at no time elect to  treat any such interest as a “security” within the meaning of Article 8 of the New York UCC, nor shall such  interest  be  represented  by  a  certificate,  unless  such  Grantor  provides  prior  written  notification  to  the                                        18  





 






Administrative Agent of such election and such interest is thereafter represented by a certificate that is  promptly delivered to the Administrative Agent pursuant to the terms hereof.         5.9  Receivables. Upon the occurrence and during the continuance of an Event of Default and the  receipt of notice from the Collateral Agent pursuant to this Section 5.9, except in the ordinary course of  business, such  Grantor  will not  (i) grant  any  extension  of the  time  of  payment  of  any  Receivable, (ii)  compromise or settle any Receivable for less than the full amount thereof, (iii) release, wholly or partially,  any Person liable for the payment of any Receivable, (iv) allow any credit or discount whatsoever on any  Receivable or (v) amend, supplement or modify any Receivable in any manner that would materially and  adversely affect the value thereof.         5.10  Intellectual  Property.   (a)  On  a  continuing  basis,  each  Grantor  shall,  at  its  sole  cost  and  expense:               (i)   promptly following its knowledge thereof, notify the Collateral Agent of (1) the        institution of any proceeding in any court, administrative or other governmental body or in the PTO        or the United States Copyright Office, or any adverse determination in any such proceeding (other        than  with respect  to  routine  or  immaterial  office actions  or other  similar determinations in  the        ordinary course of prosecution before the PTO or the United States Copyright Office), regarding        the  validity  or  enforceability  of  any  Intellectual  Property  included  in  the  Collateral,  or  such        Grantor’s right to register, own or use such Intellectual Property; or (2) any events which may        reasonably be expected to materially and adversely affect the value of any Intellectual Property        included in the Collateral or the rights and remedies of the Collateral Agent in relation thereto,        except  to  the  extent  that  any  such  event  or  matter  described  in  clauses  (1) or  (2) could  not        reasonably be expected to have a Material Adverse Effect;               (ii)  not take any act or omit to take any commercially reasonable act whereby any        material Intellectual Property included in the Collateral may be abandoned, forfeited, dedicated to        the public, invalidated, lapsed or materially impaired in any way other than in the ordinary course        of business or as consistent with such Grantor’s past practice;               (iii) take  commercially  reasonable  actions  to  protect  against  and  prosecute        infringements, dilutions, misappropriations, and other violations of material Intellectual Property        included in the Collateral (including, without limitation, commencement of a suit), and not settle        or compromise any pending or future litigation or administrative proceeding with respect to any        Intellectual Property, except as shall be consistent with commercially reasonable business judgment        or in a manner that would not reasonably be expected to cause a Material Adverse Effect;               (iv)  not grant any exclusive license to any other Person of any material Intellectual        Property included in the Collateral that would materially detract from the value of the Collateral        (taking into account the value of the license as well) or materially interfere with the ordinary course        of business of the Borrower or any of its Subsidiaries, other than in the ordinary course of business        or as expressly permitted by the Credit Agreement and the other Loan Documents;               (v)   use a commercially appropriate standard of quality (which may be consistent with        such Grantor’s past practices) in connection with any Trademarks material to the business of such        Grantor, except as could not reasonably be expected to have a Material Adverse Effect;               (vi)  adequately control the quality of goods and services offered by any licensees of its        Trademarks, except as could not reasonably be expected to have a Material Adverse Effect;                                         19  





 






            (vii) take  commercially  reasonable  steps  to  protect  the  secrecy  of all  of its  material        Trade Secrets, except as could not reasonably be expected to have a Material Adverse Effect; and               (viii) not deliver, license or make available the source code for any software included in        the Collateral to any Person who is not an employee or contractor of such Grantor, and not subject        any software included in the Collateral to the terms of any “open source” or other similar license        that provides for any source code of such software to be disclosed, licensed, publicly distributed,        or dedicated to the public, except as could not reasonably be expected to have a Material Adverse        Effect.         (b)  If any Grantor shall, at any time after the date hereof, obtain any ownership or other rights in  and to any additional Intellectual Property, then the provisions of this Agreement shall automatically apply  thereto and any such Intellectual Property shall automatically constitute Collateral and shall be subject to  the security interest created by this Agreement, without further action by any party (except as expressly set  forth in Section 3 hereof).  Further, each Grantor shall comply with the requirements of Section 7.2(a) of  the  Credit  Agreement  and  each  Grantor  authorizes  the  Collateral  Agent  to  modify  this  Agreement  by  amending Schedule 8 to the Perfection Certificate to include any United States applications or registrations  for  Patents,  Trademarks  and  Copyrights  included  in  the  Collateral  (but  the  failure  to  so  modify  such  Schedules  shall  not  be  deemed  to  affect  the  Collateral  Agent’s  security  interest  in  or  lien  upon  such  Intellectual Property).         (c)  Such Grantor agrees to, together with the delivery of the next applicable Compliance Certificate  pursuant to Section 7.2(a) of the Credit Agreement (or such longer period as to which the Collateral Agent  may agree), execute a Copyright Security Agreement in substantially the form of Annex II-A, a Patent  Security  Agreement  in  substantially  the  form  of  Annex  II-B  and  a  Trademark  Security  Agreement  in  substantially the form of Annex II-C, as applicable based on the type of Intellectual Property on Schedule  8 to the Perfection Certificate, as such schedule may be modified from time to time in accordance with  Section 5.10(b), in order to record the security interest granted herein to the Collateral Agent for the benefit  of the Secured Parties with the PTO and the United States Copyright Office, as applicable.         (d)  Upon the reasonable request of the Collateral Agent, such Grantor shall execute and deliver,  and use its commercially reasonable efforts to cause to be filed, registered or recorded with the PTO or the  United States Copyright Office, as applicable, any and all agreements, instruments, documents, and papers  which the Collateral Agent may reasonably request to evidence, create, record, preserve, protect or perfect  the Collateral Agent’s security interest in any applications or registrations for Patents, Trademarks and  Copyrights included in the Collateral.         5.11  [Intentionally omitted].         5.12  [Intentionally omitted].         5.13  Commercial Tort Claims.  With respect to any Commercial Tort Claims in excess of $600,000  individually or $3,000,000 in the aggregate in value, each Grantor shall, together with the delivery of the  next applicable Compliance Certificate pursuant to Section 7.2(a) of the Credit Agreement (or such longer  period as to which the Collateral Agent may agree), deliver to the Collateral Agent a completed pledge  supplement, substantially in the form of Annex III attached hereto.         SECTION 6.  REMEDIAL PROVISIONS         6.1  Certain Matters Relating to Receivables.                                         20  





 






      (a)  Upon  the  occurrence  and  during  the  continuance  of  an  Event  of  Default,  at  the  Collateral  Agent’s reasonable request and at the expense of the relevant Grantor, such Grantor shall furnish to the  Collateral Agent reports showing reconciliations, aging and test verifications of, and trial balances for, its  material Receivables.         (b)  If required by the Collateral Agent at any time after the occurrence and during the continuance  of an Event of Default, any payments of Receivables, when collected by any Grantor, (i) shall be forthwith  (and, in any event, within three (3) Business Days of receipt by such Grantor) deposited by such Grantor in  the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a Collateral  Account maintained under the sole dominion and control of the Collateral Agent, subject to withdrawal by  the Collateral Agent for the account of the Secured Parties only as provided in Section 6.5 and (ii) until so  turned over, shall be held by such Grantor for the Collateral Agent and the Secured Parties.           (c)  Upon  the  occurrence  and  during  the  continuance  of  an  Event  of  Default,  upon  the  written  request of the Collateral Agent, each Grantor shall deliver to the Collateral Agent all original and other  documents evidencing, and relating to, the agreements and transactions which gave rise to the Receivables,  including all original orders, invoices and shipping receipts.         6.2  Communications with Obligors; Grantors Remain Liable.         (a)  The Collateral Agent may at any time after the occurrence and during the continuance of an  Event  of  Default communicate  with  obligors  under  the  Receivables  to  verify  to the  Collateral  Agent’s  reasonable satisfaction the existence, amount and terms of any Receivables.         (b)  At  any  time  after  the  occurrence  and  during  the  continuance  of  an  Event  of  Default,  the  Collateral Agent may (and each Grantor at the request of the Collateral Agent shall) notify obligors on the  Receivables that the Receivables have been assigned to the Collateral Agent for the benefit of the Secured  Parties and that payments in respect thereof shall be made directly to the Collateral Agent.         (c)  Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each  of such Grantor’s Receivables to observe and perform in all material respects the conditions and obligations  to be observed and performed by it thereunder, in accordance with the terms of any written agreement  giving rise thereto.  No Secured Party shall have any obligation or liability under any Receivable (or any  agreement giving rise thereto) by reason of or arising out of this Agreement or the receipt by any Secured  Party of any payment relating thereto, nor shall any Secured Party be obligated in any manner to perform  any of the obligations of any Grantor under or pursuant to any Receivable (or any agreement giving rise  thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any payment  received by it or as to the sufficiency of any performance by any party thereunder, to present or file any  claim, to take any action to enforce any performance or to collect the payment of any amounts which may  have been assigned to it or to which it may be entitled at any time or times.         6.3  Investment Property.         (a)  Unless an Event of Default has occurred and is continuing and the Collateral Agent has given  notice  to  the  relevant  Grantor  of  the  Collateral  Agent’s  intent  to  exercise  its  rights  pursuant  to  Section 6.3(b), each Grantor may receive all cash dividends paid in respect of the Pledged Stock and all  payments made in respect of the Pledged Notes to the extent permitted in the Credit Agreement, and may  exercise all voting and corporate or other organizational rights with respect to Investment Property.         (b)  If an Event of Default shall occur and be continuing and the Collateral Agent shall give notice  of its intent to exercise such rights to the relevant Grantor or Grantors, (i) the Collateral Agent shall have                                        21  





 






the right to receive any and all cash dividends, payments or other Proceeds paid in respect of the Investment  Property and shall make application thereof to the Secured Obligations in the order set forth in Section 6.5  and (ii) any or all of the Investment Property shall be registered in the name of the Collateral Agent or its  nominee, and the Collateral Agent or its nominee may thereafter exercise (A) all voting, corporate and other  rights pertaining to such Investment Property at any meeting of shareholders of the relevant Issuer or Issuers  or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights,  privileges  or  options  pertaining  to  such  Investment  Property  as  if  it  were  the  absolute  owner  thereof  (including the right to exchange, at its discretion, any and all of the Investment Property upon the merger,  consolidation,  reorganization,  recapitalization  or  other  fundamental  change  in  the  corporate  or  other  organizational structure of any Issuer, or upon the exercise by any Grantor or the Collateral Agent of any  right, privilege or option pertaining to such Investment Property, and in connection therewith, the right to  deposit and deliver any and all of the Investment Property with any committee, depositary, transfer agent,  registrar  or  other  designated  agency  upon  such  terms  and  conditions  as  the  Collateral  Agent  may  determine), all without liability except to account for property actually received by it, but the Collateral  Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be  responsible for any failure to do so or delay in so doing.         (c)  Each Grantor hereby authorizes and instructs each Issuer of any Investment Property pledged  by such Grantor hereunder to, and any such Issuer party hereto agrees to, after receipt by an Issuer or obligor  of any instructions from the Collateral Agent in writing, to (i) comply with any such instructions without  any other or further instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully  protected in so complying and (ii) pay any dividends or other payments with respect to the Investment  Property  directly  to the  Collateral  Agent.   The  Collateral  Agent agrees  that  it  shall  not  send  any  such  instruction  unless  (A) an  Event  of  Default  has  occurred  and  is  continuing  and  (B) such  instruction  is  otherwise in accordance with the terms of this Agreement.         6.4  Proceeds to be Turned Over to Collateral Agent.  In addition to the rights of the Secured Parties  specified in Section 6.1 with respect to payments of Receivables, if an Event of Default shall occur and be  continuing and the Collateral Agent has instructed any Grantor to do so, all Proceeds received by such  Grantor consisting of cash, checks and other near-cash items shall be held by such Grantor in trust for the  Secured Parties, segregated from other funds of such Grantor, and shall, forthwith upon receipt by such  Grantor, be turned over to the Collateral Agent substantially in the form received by such Grantor (duly  indorsed by such Grantor to the Collateral Agent, if required).         6.5  Application of Proceeds.  Upon the occurrence and during the continuance of an Event of  Default,  the  Collateral  Agent  shall  apply  all  or  any  part  of  Proceeds  constituting  Collateral,  and  any  proceeds of the guarantee set forth in Section 2, in payment of the Secured Obligations in the following  order:  first,  to unpaid  and unreimbursed  costs,  expenses  and  fees  of  the  Administrative  Agent and  the  Collateral Agent (including to reimburse ratably any other Secured Parties which have advanced any of the  same to the Collateral Agent), second, to the Administrative Agent, for application by it toward payment  of all amounts then due and owing and remaining unpaid in respect of the Secured Obligations, pro rata  among the Secured Parties according to the amount of the Secured Obligations then due and owing and  remaining unpaid to the Secured Parties, and third, to the Administrative Agent, for application by it toward  prepayment of the Secured Obligations, pro rata among the Secured Parties according to the amount of the  Secured Obligations then held by the Secured Parties.  Any balance of such Proceeds remaining after the  Secured Obligations (other than Unasserted Contingent Obligations) have been paid in full, shall be paid  over to the Borrower or to whomsoever may be lawfully entitled to receive the same.  For purposes of this  Section, to the extent that any Obligation is unmatured or unliquidated (other than Unasserted Contingent  Obligations) at the time any distribution is to be made pursuant to the second clause above, the Collateral  Agent shall allocate a portion of the amount to be distributed pursuant to such clause for the benefit of the  Secured  Parties  holding  such  Secured  Obligations  and  shall  hold  such  amounts  for  the  benefit  of  such                                        22  





 






Secured Parties until such time as such Secured Obligations become matured or liquidated at which time  such amounts shall be distributed to the holders of such Secured Obligations to the extent necessary to pay  such Secured Obligations in full (with any excess to be distributed in accordance with this Section as if  distributed at such time).  In making determinations and allocations required by this Section, the Collateral  Agent  may  conclusively  rely  upon  information  provided  to  it  by  the  holder  of  the  relevant  Secured  Obligations (which, in the case of the immediately preceding sentence shall be a reasonable estimate of the  amount of the Secured Obligations) and shall not be required to, or be responsible for, ascertaining the  existence of or amount of any Secured Obligations.         6.6  UCC and Other Remedies.  If an Event of Default shall occur and be continuing, the Collateral  Agent may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any  other Loan Document, all rights and remedies of a secured party under the New York UCC or any other  applicable law or in equity.  Without limiting the generality of the foregoing, to the fullest extent permitted  by applicable law, the Collateral Agent, without demand of performance or other demand, presentment,  protest, advertisement or notice of any kind (except any notice required by this Agreement or required by  law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses,  advertisements  and  notices  are  hereby  waived),  may  in  such  circumstances  forthwith  collect,  receive,  appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign,  give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or  contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange,  broker’s board or office of any Agent or any Secured Party or elsewhere upon such terms and conditions  as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery  without assumption of any credit risk.  Any Secured Party shall have the right upon any such public sale or  sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any  part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity  is hereby waived and released.  Each Grantor further agrees, at the Collateral Agent’s request, to assemble  the  Collateral  and  make  it  available  to  the  Collateral  Agent  at places  which the  Collateral  Agent  shall  reasonably select, whether at such Grantor’s premises or elsewhere.  The Collateral Agent shall apply the  net proceeds of any action taken by it pursuant to this Section 6.6, after deducting all reasonable costs and  expenses incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral  or  in  any  way  relating  to  the  Collateral  or  the  rights  of  the  Collateral  Agent  and  the  Secured  Parties  hereunder, including reasonable attorneys’ fees and disbursements (to the extent payable in accordance  with Section 11.5 of the Credit Agreement), to the payment in whole or in part of the Secured Obligations,  in  such  order as  set  forth  in  Section 6.5,  and  only  after  such  application  and  after the  payment  by  the  Collateral Agent of any other amount required by any provision of law, including Section 9-615(a)(3) of  the UCC, need the Collateral Agent account for the surplus, if any, to any Grantor.  To the extent permitted  by  applicable  law,  each  Grantor  waives  all  claims,  damages  and  demands  it  may  acquire  against  any  Secured Party arising out of the exercise of any rights hereunder other than any such claims, damages and  demands that may arise from the bad faith, gross negligence or willful misconduct of, or material breach of  any Loan Documents by such Secured Party or its controlled affiliates, officers or employees acting on  behalf of such Secured Party or any of its controlled affiliates.  If any notice of a proposed sale or other  disposition of Collateral is required by law, such notice shall be deemed reasonable and proper if given at  least ten (10) days before such sale or other disposition.         6.7  Registration Rights.         (a)  Each Grantor recognizes that the Collateral Agent may be unable to effect a public sale of any  or all the Pledged Stock, by reason of certain prohibitions contained in the Securities Act and applicable  state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a  restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities  for their own account for investment and not with a view to the distribution or resale thereof.  Each Grantor                                        23  





 






acknowledges and agrees that any such private sale may result in prices and other terms less favorable than  if  such  sale  were  a  public  sale  and,  notwithstanding  such  circumstances,  to  the  extent  permitted  by  applicable law, agrees that any such private sale shall be deemed to have been made in a commercially  reasonable manner.  The Collateral Agent shall be under no obligation to delay a sale of any of the Pledged  Stock for the period of time necessary to permit the Issuer thereof to register such securities for public sale  under the Securities Act, or under applicable state securities laws, even if such Issuer would agree to do so.         (b)  Each Grantor agrees to use its best efforts to do or cause to be done all such other acts as may  be necessary to make such sale or sales of all or any portion of the Pledged Stock pursuant to this Section 6.7  valid and binding and in compliance with any and all other applicable Requirements of Law.  Each Grantor  further agrees that a breach of any of the covenants contained in this Section 6.7 will cause irreparable  injury to the Secured Parties, that the Secured Parties have no adequate remedy at law in respect of such  breach  and,  as  a  consequence,  that  each  and  every  covenant  contained  in  this  Section 6.7  shall  be  specifically enforceable against such Grantor, and to the fullest extent permitted by applicable law, such  Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of  such covenants except for a defense that no Event of Default has occurred or is continuing under the Credit  Agreement.         6.8  Deficiency.  Each Grantor shall remain liable for any deficiency if the proceeds of any sale or  other disposition of the Collateral are insufficient to pay its Secured Obligations and the reasonable and  documented fees and disbursements of any attorneys employed by the Collateral Agent or any Secured  Party  to  collect  such  deficiency  (to  the  extent  payable  in  accordance  with  Section  11.5  of  the  Credit  Agreement).         6.9  Intellectual Property.         (a)  At any time after the occurrence and during the continuance of an Event of Default, upon the  written demand of the Collateral Agent, each Grantor shall execute and deliver to the Collateral Agent an  assignment or assignments, in favor of the Collateral Agent or its designee, of such Grantor’s right, title,  and  interest  in,  to  and  under  the  Intellectual  Property  included  in  the  Collateral  in  recordable  form  as  applicable, and such other documents as are necessary or appropriate to carry out the intent and purposes  hereof.         (b)  Upon the occurrence and during the continuance of any Event of Default, the Collateral Agent  shall have the right, but shall in no way be obligated, to file applications for protection of the Intellectual  Property included in the Collateral and/or to bring suit in the name of any Grantor, the Collateral Agent or  the Secured Parties, to enforce the Intellectual Property included in the Collateral.  In the event of such suit,  each Grantor shall, at the request of the Collateral Agent, do any and all lawful acts, including joinder as a  party, and execute any and all documents requested by the Collateral Agent in aid of such enforcement, and  the Grantors shall promptly reimburse and indemnify the Collateral Agent for all out-of-pocket costs and  expenses incurred by the Collateral Agent in the exercise of its rights under this Section 6.9(b) (to the extent  payable in accordance with Section 11.5 of the Credit Agreement). In the event that the Collateral Agent  shall elect not to bring suit to enforce the Intellectual Property included in the Collateral, each Grantor  agrees, at the request of the Collateral Agent, to take all actions necessary, whether by suit, proceeding or  other  action,  to  prevent  and/or  obtain  a  recovery  for  the  infringement  or  other  violation  of  rights  in,  diminution in value of, or other damage to any of the Intellectual Property included in the Collateral by any  Person, in each case, in accordance with Section 5.10(a)(iii).         (c)  Solely  for  the  purpose  of  enabling  the  Collateral  Agent  to  exercise  rights  and  remedies  hereunder, after the occurrence and during the continuance of an Event of Default and at such time as the  Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants                                        24  





 






to the Collateral Agent a non-exclusive license and sublicense (in each case, exercisable without payment  of royalties or other compensation to such Grantor) to make, have made, use, sell, copy, distribute, perform,  make derivative works, publish, and exploit in any other manner for which an authorization from the owner  of  such  Intellectual  Property  would  be  required  under  applicable  Requirements  of  Law,  with  rights  of  sublicense, any of the Intellectual Property and Intellectual Property Licenses included in the Collateral  now or hereafter owned by or licensed to such Grantor, wherever the same may be located; provided, that  (i) the applicable Grantor shall have such rights of quality control and inspection which are reasonably  necessary  under  applicable  Requirements  of  Law  to  maintain  the  validity  and  enforceability  of  such  Trademarks, (ii) subject to preexisting exclusive licenses and those granted after the date hereof that are  Permitted Liens, any sublicenses duly granted by Collateral Agent under this license grant shall survive in  accordance with their terms as direct licenses of the Grantor, in the event of the subsequent cure of any  Event of Default that gave rise to the exercise of the Collateral Agent’s rights and remedies, and (iii) the  license shall be irrevocable until the termination of the Credit Agreement, or as to Collateral as to which  the Lien is released under Section 8.15(b), at such time as the sale, transfer or disposal occurs; provided,  that it only may be exercised during the continuance of an Event of Default.  The foregoing license shall  include access to all media in which any of the licensed items may be recorded or stored and to all computer  programs used for the compilation or printout hereof.         SECTION 7.  THE COLLATERAL AGENT         7.1  Collateral Agent’s Appointment as Attorney-in-Fact, etc.         (a)  Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent and any officer  or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable  power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own  name, for the purpose of carrying out the terms of this Agreement, to, during the continuance of an Event  of Default, take any and all appropriate actions and to execute any and all documents and instruments which  may  be necessary  or  reasonably  desirable  to accomplish  the  purposes of  this  Agreement,  and,  without  limiting the generality of the foregoing, each Grantor hereby gives the Collateral Agent the power and right,  on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following  when an Event of Default shall be continuing:               (i)   in the name of such Grantor or its own name, or otherwise, take possession of and        indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of        moneys due under any Receivable or contract of such Grantor or with respect to any other Collateral        of such Grantor and file any claim or take any other action or proceeding in any court of law or        equity or otherwise deemed appropriate by the Collateral Agent for the purpose of collecting any        and all such moneys due under any Receivable or contract of such Grantor or with respect to any        other Collateral of such Grantor whenever payable;               (ii)  in the case of any Intellectual Property, execute and deliver, and have recorded,        any and all agreements, instruments, documents and papers as the Collateral Agent may reasonably        request  to  evidence  the  Secured  Parties’  security  interest  in  such  Intellectual  Property  and  the        goodwill connected with the use thereof or symbolized thereby and the general intangibles of such        Grantor represented thereby;               (iii) pay  or  discharge  taxes and  Liens levied or  placed  on  or threatened  against the        Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all        or any part of the premiums therefor and the costs thereof;                                         25  





 






            (iv)  execute,  in  connection  with  any  sale  provided  for  in  Section 6.6  or  6.7,  any        endorsements,  assignments  or  other  instruments  of  conveyance  or  transfer  with  respect  to  the        Collateral; and               (v)   (A) direct any party liable for any payment under any of the Collateral to make        payment of any and all moneys due or to become due thereunder directly to the Collateral Agent        or as the Collateral Agent shall direct; (B) ask or demand for, collect, and receive payment of and        receipt for, any and all moneys, claims and other amounts due or to become due at any time in        respect of or arising out of any Collateral of such Grantor; (C) sign and indorse any invoices, freight        or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments,        verifications, notices and other documents in connection with any of the Collateral of such Grantor;        (D) commence and prosecute any suits, actions or proceedings at law or in equity in any court of        competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right        in respect of any Collateral of such Grantor; (E) defend any suit, action or proceeding brought        against such Grantor with respect to any Collateral; (F) settle, compromise or adjust any such suit,        action or proceeding and, in connection therewith, give such discharges or releases as the Collateral        Agent may deem appropriate; (G) subject to any permitted licenses and reserved rights permitted        under the Loan Documents, assign any Copyright, Patent or Trademark (along with the goodwill        of the business connected with the use of or symbolized by any Trademark), throughout the world        for such term or terms, on such conditions, and in such manner, as the Collateral Agent shall in its        sole discretion determine; and (H) generally, sell, transfer, pledge and make any agreement with        respect to or otherwise deal with any of the Collateral of such Grantor as fully and completely as        though  the  Collateral  Agent  were  the  absolute  owner  thereof  for  all  purposes,  and  do,  at  the        Collateral Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts        and things which the Collateral Agent deems necessary to protect, preserve or realize upon the        Collateral of such Grantor and the Secured Parties’ security interests therein and to effect the intent        of this Agreement, all as fully and effectively as such Grantor might do.   The Collateral Agent agrees that it will not exercise any rights under the power of attorney provided for in  this Section 7.1(a) unless an Event of Default has occurred and is continuing.         (b)  If any Grantor fails to perform or comply with any of its agreements contained herein, the  Collateral Agent, during the continuance of an Event of Default, at its option, but without any obligation so  to do, may perform or comply with, or cause performance or compliance with, such agreement.         (c)  Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by  virtue hereof.  All powers, authorizations and agencies contained in this Agreement are coupled with an  interest and are irrevocable as to each Grantor until this Agreement is terminated and all security interests  created hereby with respect to the Collateral of such Grantor are released.         7.2  Duty  of  Collateral  Agent.   The  Collateral  Agent’s  sole  duty  with  respect  to  the  custody,  safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the New  York UCC or otherwise, shall be to deal with it in the same manner as the Collateral Agent deals with  similar property for its own account.  Neither the Collateral Agent, any Secured Party nor any of their  respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize  upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise  dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action  whatsoever with regard to the Collateral or any part thereof.  The powers conferred on the Secured Parties  hereunder are solely to protect the Secured Parties’ interests in the Collateral and shall not impose any duty  upon any Secured Parties to exercise any such powers.  The Secured Parties shall be accountable only for  amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of                                        26  





 






their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act  hereunder, except, in the case of the Collateral Agent only in respect of its own gross negligence or willful  misconduct, to the extent required by applicable law.         7.3  Financing Statements.  Each Grantor hereby authorizes the filing of any financing statements  or  continuation  statements,  and  amendments  to  financing  statements,  or  any  similar  document  in  any  jurisdictions  and  with  any  filing  offices  as  the  Collateral  Agent  may  reasonably  determine,  in  its  sole  discretion, are necessary or advisable to perfect or otherwise protect the security interest granted to the  Collateral Agent herein.  Such financing statements may describe the Collateral in the same manner as  described herein or may contain an indication or description of collateral that describes such property in  any other manner as the Collateral Agent may reasonably determine, in its sole discretion, is necessary,  advisable  or  prudent  to  ensure  the  perfection  of  the  security  interest  in  the  Collateral  granted  to  the  Collateral Agent herein, including describing such property as “all assets” or “all personal property” or  using words of similar import and may add thereto “whether now owned or hereafter acquired”.  Each  Grantor hereby ratifies and authorizes the filing by the Collateral Agent of any financing statement with  respect to the Collateral made prior to the date hereof.         7.4  Authority, Immunities and Indemnities of Collateral Agent.  Each Grantor acknowledges, and,  by acceptance of the benefits hereof, each Secured Party agrees, that the rights and responsibilities of the  Collateral Agent under this Agreement with respect to any action taken by the Collateral Agent or the  exercise or non-exercise by the Collateral Agent of any option, voting right, request, judgment or other  right or remedy provided for herein or resulting or arising out of this Agreement shall, as among the Secured  Parties, be governed by the Credit Agreement and that the Collateral Agent shall have, in respect thereof,  all rights, remedies, immunities and indemnities granted to it in the Credit Agreement.  By acceptance of  the benefits hereof, each Secured Party that is not a Lender agrees to be bound by the provisions of the  Credit  Agreement  applicable  to  the  Collateral  Agent,  including  Section 10  thereof,  as  fully  as  if  such  Secured Party were a Lender.  The Collateral Agent shall be conclusively presumed to be acting as agent  for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be  under any obligation, or entitlement, to make any inquiry respecting such authority.         7.5  Intellectual Property Filings.  Each Grantor hereby authorizes the Collateral Agent to execute  and/or  submit  filings  with  the  PTO  or  United  States  Copyright  Office  (or  any  successor  office)  as  applicable, including the Copyright Security Agreement, the Patent Security Agreement, and the Trademark  Security Agreement, or other comparable documents, and to take such other actions as may be required  under  applicable  law  for  the  purpose  of  perfecting,  recording,  confirming,  continuing,  enforcing  or  protecting the security interest granted by such Grantor hereunder, without the signature of such Grantor,  naming such Grantor, as debtor, and the Collateral Agent, as secured party.         SECTION 8.  MISCELLANEOUS         8.1  Amendments in Writing.  None of the terms or provisions of this Agreement may be waived,  amended,  supplemented  or  otherwise  modified  except  in  accordance  with  Section 11.1  of  the  Credit  Agreement.         8.2  Notices.  All notices, requests and demands to or upon the Collateral Agent or any Grantor  hereunder shall be effected in the manner, and addressed to such parties at the notices addresses, provided  for in Section 11.2 of the Credit Agreement.         8.3  No Waiver by Course of Conduct; Cumulative Remedies.  No Secured Party shall by any act  (except  by  a  written  instrument  pursuant  to  Section 8.1),  delay,  indulgence,  omission  or  otherwise  be  deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of                                        27  





 






Default.  No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right,  power or privilege hereunder shall operate as a waiver thereof.  No single or partial exercise of any right,  power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other  right, power or privilege.  A waiver by any Secured Party of any right or remedy hereunder on any one  occasion shall not be construed as a bar to any right or remedy which such Secured Party would otherwise  have on any future occasion.  The rights and remedies herein provided are cumulative, may be exercised  singly or concurrently and are not exclusive of any other rights or remedies provided by law.         8.4  Enforcement Expenses; Indemnification.         (a)  Each  Grantor  agrees  to  pay,  or  reimburse  each  Secured  Party  for,  all  its  reasonable  and  documented costs and out-of-pocket expenses incurred in connection with collecting against such Grantor  under  the  guarantee  contained  in  Section 2  or  otherwise  enforcing  or  preserving  any  rights  under  this  Agreement and the other Loan Documents to which such Grantor is a party, including the reasonable and  invoiced  fees  and  disbursements  of  counsel,  on  the  terms  set  forth  in  Section  11.5(a)(ii)  of  the  Credit  Agreement.         (b)  Each  Grantor  agrees  to  pay,  and  to  hold  the  Secured  Parties  harmless  from,  any  and  all  liabilities,  obligations,  losses,  damages,  penalties,  actions,  judgments,  suits,  costs,  expenses  or  disbursements  of  any  kind  or  nature  whatsoever  with  respect  to  the  execution,  delivery,  enforcement,  performance  and  administration  of this Agreement  on  the terms  set  forth  in  Section 11.5 of the  Credit  Agreement.         (c)  The agreements in this Section shall survive repayment of the Secured Obligations and all other  amounts payable under the Credit Agreement and the other Loan Documents.         8.5  Successors and Assigns.  This Agreement shall be binding upon the successors and permitted  assigns  of  each  Grantor  and  shall  inure  to  the  benefit  of  the  Secured  Parties  and  their  successors  and  permitted assigns; provided, that no Grantor may assign, transfer or delegate any of its rights or obligations  under this Agreement without the prior written consent of the Collateral Agent and, unless so consented to,  each such assignment, transfer or delegation by any Grantor shall be void.         8.6  Set-Off.  Each Grantor hereby irrevocably authorizes each Secured Party at any time and from  time to time while an Event of Default shall have occurred and be continuing, without notice to such Grantor  or any other Grantor, any such notice being expressly waived by each Grantor, to set-off and appropriate  and apply any and all deposits (general or special, time or demand, provisional or final), in any currency,  and any other credits, indebtedness or claims, in any currency, in each case, whether direct or indirect (other  than Unasserted Contingent Obligations), matured or unmatured, at any time held or owing by such Secured  Party to or for the credit or the account of such Grantor, or any part thereof in such amounts as such Secured  Party may elect, against and on account of the obligations and liabilities of such Grantor to such Secured  Party hereunder and claims of every nature and description of such Secured Party against such Grantor, in  any  currency,  whether  arising  hereunder,  under  the  Credit  Agreement,  any  other  Loan  Document,  any  Specified Hedge Agreement, any Specified Cash Management Agreement or otherwise, as such Secured  Party  may  elect.   Each  Secured  Party  shall  notify  such  Grantor  promptly  of  any  such  set-off  and  the  application made by such Secured Party of the proceeds thereof; provided, that the failure to give such  notice shall not affect the validity of such set-off and application.  The rights of each Secured Party under  this  Section  are  in  addition  to  other  rights  and  remedies (including other rights of  set-off)  which  such  Secured Party may have.         8.7  Counterparts.   This  Agreement  may  be  executed  by  one  or  more  of  the  parties  to  this  Agreement on any number of separate counterparts, and all of said counterparts taken together shall be                                        28  





 






deemed  to  constitute  one  and  the  same  instrument.   Delivery  of  an  executed  signature  page  of  this  Agreement  by  facsimile  transmission  or  electronic  transmission  (in  “.pdf”  or  similar  format)  shall  be  effective as delivery of a manually executed counterpart hereof.  A set of the copies of this Agreement  signed by all the parties shall be lodged with the Borrower, the Administrative Agent and the Collateral  Agent.         8.8  Severability.  Any provision of this Agreement which is prohibited or unenforceable in any  jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability  without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any  jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.         8.9  Section  Headings.   The  Section  headings  used  in  this  Agreement  are  for  convenience  of  reference  only  and  are  not  to  affect  the  construction  hereof  or  be  taken  into  consideration  in  the  interpretation hereof.         8.10  Integration.  This Agreement and the other Loan Documents represent the entire agreement  of the Grantors and the Secured Parties with respect to the subject matter hereof and thereof, and there are  no promises, undertakings, representations or warranties by any Secured Party relative to subject matter  hereof and thereof not expressly set forth or referred to herein or in the other Loan Documents.         8.11  GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS  OF  THE  PARTIES  UNDER  THIS  AGREEMENT  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF  NEW  YORK  WITHOUT  REGARD  TO  CONFLICT  OF  LAW  PRINCIPLES  THAT  WOULD  RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF  NEW YORK.         8.12  Submission  To  Jurisdiction;  Waivers.   Each  of  the  parties  hereto  hereby  irrevocably  and  unconditionally:         (a)  submits for itself and its property in any legal action or proceeding relating to this Agreement  and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment  in respect thereof, to the exclusive jurisdiction of the courts of the State of New York sitting in the Borough  of Manhattan, the courts of the United States for the Southern District of New York, and appellate courts  from any thereof;         (b)  consents that any such action or proceeding shall be brought in such courts and waives any  objection that it may now or hereafter have to the venue of any such action or proceeding in any such court  or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the  same;         (c)  agrees that service of process in any such action or proceeding may be effected by mailing a  copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to  the address set forth in Section 11.2 of the Credit Agreement or on the signature pages thereof, as the case  may be, or at such other address of which the other parties hereto shall have been notified pursuant thereto;         (d)  agrees that nothing herein shall affect the right to effect service of process in any other manner  permitted by law or shall limit the right to sue in any other jurisdiction; and                                          29  





 






      (e)  waives, to the fullest extent permitted by applicable law, any right it may have to claim or  recover  in  any  legal  action  or  proceeding  referred  to  in  this  Section  any  special,  indirect,  exemplary,  punitive or consequential damages.         8.13  Acknowledgements.  Each Grantor hereby acknowledges that:         (a)  it has been advised by counsel in the negotiation, execution and delivery of this Agreement and  the other Loan Documents to which it is a party;         (b)  no Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in  connection with this Agreement or any of the other Loan Documents, and the relationship between the  Grantors, on the one hand, and the Secured Parties, on the other hand, in connection herewith or therewith  is solely that of debtor and creditor; and         (c)  no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue  of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured  Parties.         8.14  Additional Grantors.  Each Subsidiary of the Borrower that is required to become a party to  this Agreement pursuant to Section 7.10 of the Credit Agreement shall become a Grantor for all purposes  of this Agreement upon execution and delivery by such Subsidiary of an assumption agreement in the form  of Annex I hereto.  The execution and delivery of such assumption agreement shall not require the consent  of any Grantor hereunder.  The rights and obligations of each Grantor hereunder shall remain in full force  and effect notwithstanding the addition of any new Grantor as a party to this Agreement.         8.15  Releases.         (a)  On the Termination Date, the Collateral shall automatically be released from the Liens created  hereby,  and  this  Agreement  and  all  obligations  (other  than  those  expressly  stated  to  survive  such  termination) of the Collateral Agent and each Grantor hereunder shall automatically terminate, all without  delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall  automatically revert to the Grantors.  At the request and sole expense of any Grantor following any such  termination, the Collateral Agent shall deliver to such Grantor any Collateral held by the Collateral Agent  hereunder,  execute  and  deliver  to  such  Grantor  such  documents  (in  form  and  substance  reasonably  satisfactory to the Collateral Agent) and take such further actions as such Grantor may reasonably request  to evidence such termination.         (b)  If any of the Collateral is sold, transferred or otherwise disposed of by any Grantor (other than  to another Grantor) in a transaction permitted by the Credit Agreement, then the Lien created pursuant to  this Agreement in such Collateral shall be automatically released, and the Collateral Agent, at the request  and sole expense of such Grantor, shall promptly execute and deliver to such Grantor all releases or other  documents reasonably necessary or desirable and in form reasonably satisfactory to the Collateral Agent  and take such further actions for the release of such Collateral (not including Proceeds thereof) from the  security  interests  created  hereby; provided,  that the Collateral  Agent shall  be  required  to  execute  such  release only if the Borrower and applicable Grantor shall have delivered to the Collateral Agent, at least  five (5) Business Days (or such shorter period of time acceptable to the Collateral Agent) prior to the date  of  the  proposed  release,  a  certificate  of  a  Responsible  Officer  with  request  for  release  identifying  the  relevant Collateral and certifying that such transaction is in compliance with the Credit Agreement and the  other Loan Documents.  At the request and sole expense of the Borrower, a Guarantor shall be released  from  its  obligations  hereunder  in  the  event  that  all  the  Capital  Stock  of  such  Guarantor  shall  be  sold,  transferred or otherwise disposed of in a transaction permitted by the Credit Agreement and the Collateral                                        30  





 






Agent, at the request and sole expense of such the Borrower, shall promptly execute and deliver to such  Borrower  all  releases  or  other  documents  reasonably  necessary  or  desirable  and  in  form  reasonably  satisfactory to the Collateral Agent and take such further actions for the release of such Guarantor; provided,  that the Collateral Agent shall be required to execute such release only if the Borrower shall have delivered  to the Collateral Agent, at least five (5) Business Days (or such shorter period of time acceptable to the  Collateral Agent) prior to the date of the proposed release, a certificate of a Responsible Officer of the  Borrower with request for release identifying the relevant Guarantor and certifying that such transaction is  in compliance with the Credit Agreement and the other Loan Documents.         8.16  WAIVER OF JURY TRIAL.  EACH GRANTOR AND, BY ACCEPTANCE OF THE  BENEFITS HEREOF, THE COLLATERAL AGENT AND EACH OTHER SECURED PARTY,  HEREBY  IRREVOCABLY  AND  UNCONDITIONALLY  WAIVES  TRIAL  BY  JURY  IN  ANY  LEGAL  ACTION OR PROCEEDING RELATING  TO  THIS  AGREEMENT  OR  ANY OTHER  LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.                      [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]                                          31  





 






      IN  WITNESS  WHEREOF,  each  of  the  undersigned  has  caused  this  Guarantee  and  Collateral  Agreement to be duly executed and delivered as of the date first above written.                                      LANTHEUS MEDICAL IMAGING, INC., as Borrower                                     LANTHEUS HOLDINGS, INC., as Holdings                                       By:                                           Name:                                          Title:                                       LANTHEUS MI REAL ESTATE, LLC, as Grantor                                       By:                                           Name:                                           Title:                         [SIGNATURE PAGE TO GUARANTEE AND COLLATERAL AGREEMENT]  





 






Agreed and Accepted:   WELLS FARGO BANK, N.A.,  as Collateral Agent   By:       Name:     Title:                        [SIGNATURE PAGE TO GUARANTEE AND COLLATERAL AGREEMENT]  





 






                                                                      Annex I to                                                     Guarantee and Collateral Agreement         ASSUMPTION  AGREEMENT  (this  “Assumption  Agreement”),  dated  as  of  [                    ],  20[__], is made by [                    ], a [                        ] ([the][each, an] “Additional Grantor”), in favor of  WELLS FARGO BANK, N.A. (“Wells Fargo”), as collateral agent (in such capacity, and together with its  successors and permitted assigns in such capacity, the “Collateral Agent”) for the benefit of the Secured  Parties (as defined in the Credit Agreement referred to below).  All capitalized terms used but not defined  herein shall have the meaning ascribed to them in such Credit Agreement.                                     RECITALS         WHEREAS, LANTHEUS MEDICAL IMAGING, INC., a Delaware corporation (the “Borrower”),  LANTHEUS HOLDINGS, INC. (“Holdings”), the Lenders, and Wells Fargo, as Administrative Agent,  Collateral Agent and Issuing Lender have entered into that certain Credit Agreement, dated as of June 27,  2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time,  the “Credit Agreement”);         WHEREAS, in connection with the Credit Agreement, Holdings, the Borrower and certain of its  Subsidiaries (other than the Additional Grantor) have entered into that certain Guarantee and Collateral  Agreement,  dated  as  of  June  27,  2019  (as  amended,  restated,  amended  and  restated,  supplemented  or  otherwise modified from time to time, the “Guarantee and Collateral Agreement”) in favor of the Collateral  Agent for the benefit of the Secured Parties;         WHEREAS, the Credit Agreement requires [the][each] Additional Grantor to become a party to  the Guarantee and Collateral Agreement; and         WHEREAS, [the][each] Additional Grantor has agreed to execute and deliver this Assumption  Agreement in order to become a party to the Guarantee and Collateral Agreement;         NOW, THEREFORE, IT IS AGREED:          1.    Collateral  Agreement.   By  executing  and  delivering  this  Assumption  Agreement,  [the][each] Additional Grantor, as provided in Section 8.14 of the Guarantee and Collateral Agreement,  hereby becomes a party to the Guarantee and Collateral Agreement as a Grantor thereunder with the same  force  and  effect  as  if  originally  named  therein  as  a Grantor and,  without  limiting  the  generality of the  foregoing, hereby expressly guarantees the Secured Obligations as set forth in Section 2 thereof, grants the  Collateral Agent, for the benefit of the Secured Parties, a security interest in all of its right, title and interest  in  the  Collateral  (as  defined  in  the  Guarantee  and  Collateral  Agreement)  as  collateral  security  for  the  complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise)  of all Secured Obligations as set forth in Section 3 thereof, and assumes all other obligations and liabilities  of  a  Grantor  set  forth  therein.   The  information  set  forth  in  Annex I-A  hereto  is  hereby  added  to  the  information set forth in Schedules [                    ]1 to the Perfection Certificate.  [The][Each] Additional  Grantor  hereby  represents  and  warrants  that  each  of  the  representations  and  warranties  contained  in  Section 4 of the Guarantee and Collateral Agreement is true and correct in all material respects on and as  the date hereof (after giving effect to this Assumption Agreement) as if made on and as of such date (except    1  Refer to each Schedule which needs to be supplemented.                                       A-I-1  





 






to the extent made as of a specific date, in which case such representation and warranty shall be true and  correct in all material respects on and as of such specific date).         2.    Financing Statements.  [The][Each] Additional Grantor hereby authorizes the filing of any  financing statements or continuation statements, and amendments to financing statements, or any similar  document in any jurisdictions and with any filing offices as the Collateral Agent may determine, in its sole  discretion, are necessary or advisable to perfect or otherwise protect the security interest granted to the  Collateral  Agent  herein,  except  with  respect  to  foreign  jurisdictions.   Such  financing  statements  may  describe the Collateral in the same manner as described herein or may contain an indication or description  of collateral that describes such property in any other manner as the Collateral Agent may determine, in its  sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the  Collateral granted to the Collateral Agent herein, including describing such property as “all assets” or “all  personal  property”  and  may  add  thereto  “whether  now  owned  or  hereafter  acquired.”   [The][Each]  Additional  Grantor  hereby  ratifies  and  authorizes  the  filing  by  the  Collateral  Agent  of  any  financing  statement with respect to the Collateral made prior to the date hereof.         3.    Intellectual  Property  Filings.   [The][Each]  Additional  Grantor  hereby  authorizes  the  Collateral Agent to execute and/or submit filings with the PTO or United States Copyright Office (or any  successor  office),  as  applicable,  including  this  Agreement,  a  Copyright  Security  Agreement,  a  Patent  Security  Agreement  and/or  a  Trademark  Security  Agreement  based  on  the  nature  of  the  Intellectual  Property owned by [the][such] Additional Grantor, or other comparable documents, and to take such other  actions  as  may  be  required  under  applicable  law  for  the  purpose  of  perfecting,  recording,  confirming,  continuing,  enforcing  or  protecting  the  security  interest  granted  by  [the][each]  Additional  Grantor  hereunder, without the signature of [the][such] Additional Grantor, naming [the][each] Additional Grantor,  as debtor, and the Collateral Agent, as secured party.         4.    GOVERNING  LAW.   THIS  ASSUMPTION  AGREEMENT  AND  THE  RIGHTS  AND OBLIGATIONS OF THE PARTIES UNDER THIS ASSUMPTION AGREEMENT SHALL  BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE  LAW  OF  THE  STATE  OF  NEW  YORK  WITHOUT  REGARD  TO  CONFLICT  OF  LAW  PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN  THE LAW OF THE STATE OF NEW YORK.  THE PROVISIONS OF SECTIONS 8.1, 8.3, 8.4, 8.5,  8.7, 8.8, 8.9, 8.10, 8.12, 8.13 AND 8.16 OF THE GUARANTEE AND COLLATERAL AGREEMENT  SHALL APPLY WITH LIKE EFFECT TO THIS ASSUMPTION AGREEMENT, AS FULLY AS  IF SET FORTH AT LENGTH HEREIN.                      [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]                                        A-I-2  





 






      IN WITNESS WHEREOF, [the][each of the] undersigned has caused this Assumption Agreement  to be duly executed and delivered as of the date first above written.                                       [ADDITIONAL GRANTOR[S]]                                       By:                                           Name:                                         Title:   Agreed and Accepted:   WELLS FARGO BANK, N.A.,   as Collateral Agent   By:       Name:     Title:                                        A-I-3  





 






                                                                   Annex II-A to                                                     Guarantee and Collateral Agreement                     FORM OF COPYRIGHT SECURITY AGREEMENT         This COPYRIGHT SECURITY AGREEMENT, dated as of [                    ], 20[   ] (“Copyright  Security Agreement”), made by [_____________________], a [______________ ______________] [ADD  FOR EACH OF THE SIGNATORIES HERETO] ([the][each, a] “Grantor”), is in favor of WELLS FARGO  BANK, N.A., as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties.                                 W I T N E S S E T H:         WHEREAS, [the][each] Grantor is party to that certain Guarantee and Collateral Agreement, dated  as of June 27, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from  time to time, the “Guarantee and Collateral Agreement”), in favor of the Collateral Agent, pursuant to which  [the][such] Grantor is required to execute and deliver this Copyright Security Agreement (capitalized terms  used but not otherwise defined herein shall have the meanings given to them in the Guarantee and Collateral  Agreement);         WHEREAS, pursuant to the terms of the Guarantee and Collateral Agreement, [the][each] Grantor  has created in favor of the Collateral Agent a security interest in the Copyright Collateral (as defined below);         NOW, THEREFORE, in consideration of the premises and to induce the Agents and the Lenders  to enter into the Credit Agreement and to induce the Lenders to make their respective extensions of credit  to the Borrower thereunder and to induce the Qualified Counterparties to enter into the Specified Hedge  Agreements and the Specified Cash Management Agreements and provide financial accommodation, each  Grantor hereby agrees with the Collateral Agent, for the benefit of the Secured Parties, as follows:         [The][Each] Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a  security interest in all of the following property now owned or at any time hereafter acquired by such  Grantor or in which [the][such] Grantor now has or at any time in the future may acquire any right, title or  interest  (collectively,  the  “Copyright  Collateral”),  as  collateral  security  for  the  complete  payment  and  performance  when  due  (whether  at  the  stated  maturity,  by  acceleration  or  otherwise)  of  all  Secured  Obligations:               (a)   the registered and applied-for Copyrights of [the][such] Grantor listed on Schedule        1 attached hereto; and               (b)   all Proceeds of any of the foregoing;   provided, that (i) this Copyright Security Agreement shall not constitute a grant of a security interest in any  property to the extent that and for as long as such grant of a security interest would be prohibited by the  terms of the Guarantee and Collateral Agreement; and (ii) the security interest granted hereby (A) shall  attach  at  all  times  to  all  proceeds  of  such  property,  (B) shall  attach  to  such  property  immediately  and  automatically (without need for any further grant or act) at such time as the condition described in clause (i)  ceases to exist and (C) to the extent severable, shall, in any event, attach to all rights in respect of such  property that are not subject to the applicable condition described in clause (i).         The security interest granted pursuant to this Copyright Security Agreement is granted concurrently  and in conjunction with security interest granted to the Collateral Agent pursuant to the Guarantee and                                      A-II-A-1  





 






Collateral Agreement and [the][each] Grantor hereby acknowledges and affirms that the rights and remedies  of the Collateral Agent with respect to the security interest in the Copyrights made and granted hereby are  more fully set forth in the Guarantee and Collateral Agreement.  In the event that any provision of this  Copyright Security Agreement is deemed to conflict with the Guarantee and Collateral Agreement, the  provisions of the Guarantee and Collateral Agreement shall govern.         The  term  of  this  Copyright  Security  Agreement  shall  be  co-terminus  with  the  Guarantee  and  Collateral Agreement. Upon termination of this Copyright Security Agreement, all liens on and security  interests  in  the  Copyright  Collateral  shall  be  deemed  automatically  released  upon  the  payment  and  performance of the Secured Obligations (other than any outstanding indemnification obligations). Upon the  termination of this Copyright Security Agreement, the Collateral Agent shall execute all documents, make  all filings, take all other actions reasonably requested by the Grantors to evidence and record the release of  the lien on and security interests in the Copyright Collateral granted herein, all at the Grantors’ sole cost  and expense.         [The][Each] Grantor hereby authorizes and requests that the United States Copyright Office record  this Copyright Security Agreement.         THIS COPYRIGHT SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS  OF  THE  PARTIES  UNDER  THIS  COPYRIGHT  SECURITY  AGREEMENT  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  AND  INTERPRETED  IN  ACCORDANCE  WITH,  THE  LAW  OF  THE  STATE  OF  NEW  YORK  WITHOUT  REGARD  TO  CONFLICT  OF  LAW  PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN  THE LAW OF THE STATE OF NEW YORK.         This Copyright Security Agreement may be executed by one or more of the parties to this Copyright  Security Agreement on any number of separate counterparts, and all of said counterparts taken together  shall be deemed to constitute one and the same instrument.  Delivery of an executed signature page of this  Copyright Security Agreement by facsimile transmission or electronic transmission (in “.pdf” or similar  format) shall be effective as delivery of a manually executed counterpart hereof.  A set of the copies of this  Copyright  Security  Agreement  signed  by  all  the  parties  shall  be  lodged  with  the  Borrower,  the  Administrative Agent and the Collateral Agent.                      [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]                                       A-II-A-2  





 






      IN  WITNESS  WHEREOF,  [the][each]  Grantor  has  caused  this  COPYRIGHT  SECURITY  AGREEMENT to be executed and delivered by its duly authorized officer as of the date first above written.                                       [ASSIGNOR]                                       By:                                           Name:                                         Title:   Accepted and Agreed:   WELLS FARGO BANK, N.A.,   as Collateral Agent   By:       Name:     Title:                                       A-II-A-3  





 






                     Schedule 1                      COPYRIGHTS                        Copyrights    Title of Work           Reg. No.   Reg. Date         Owner                          A-II-A-4  





 






                                                                   Annex II-B to                                                     Guarantee and Collateral Agreement                       FORM OF PATENT SECURITY AGREEMENT         This  PATENT  SECURITY  AGREEMENT,  dated  as  of  [                    ], 20[_] (“Patent Security  Agreement”),  made  by  [_____________________],  a  [______________][ADD  FOR  EACH  OF  THE  SIGNATORIES HERETO] ([the] [each, a] “Grantor”), is in favor of WELLS FARGO BANK, N.A., as  collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties.                                 W I T N E S S E T H:         WHEREAS, [the][each] Grantor is party to that certain Guarantee and Collateral Agreement, dated  as of June 27, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from  time to time, the “Guarantee and Collateral Agreement”), in favor of the Collateral Agent, pursuant to which  [the][each] Grantor is required to execute and deliver this Patent Security Agreement (capitalized terms  used but not otherwise defined herein shall have the meanings given to them in the Guarantee and Collateral  Agreement);         WHEREAS, pursuant to the terms of the Guarantee and Collateral Agreement, [the][each] Grantor  has created in favor of the Collateral Agent a security interest in the Patent Collateral (as defined below);         NOW, THEREFORE, in consideration of the premises and to induce the Agents and the Lenders  to enter into the Credit Agreement and to induce the Lenders to make their respective extensions of credit  to the Borrower thereunder and to induce the Qualified Counterparties to enter into the Specified Hedge  Agreements  and  the  Specified  Cash  Management  Agreements  and  provide  financial  accommodation,  [the][each]  Grantor  hereby  agrees  with  the  Collateral  Agent,  for  the  benefit  of  the  Secured  Parties,  as  follows:         [The][Each] Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a  security interest in all of the following property now owned or at any time hereafter acquired by such  Grantor or in which [the][such] Grantor now has or at any time in the future may acquire any right, title or  interest  (collectively,  the  “Patent  Collateral”),  as  collateral  security  for  the  complete  payment  and  performance  when  due  (whether  at  the  stated  maturity,  by  acceleration  or  otherwise)  of  all  Secured  Obligations:               (a)    the registered and applied-for Patents of [the][such] Grantor listed on Schedule 1        attached hereto; and               (b)   all Proceeds of any of the foregoing;   provided, that (i) this Patent Security Agreement shall not constitute a grant of a security interest in any  property to the extent that and for as long as such grant of a security interest would be prohibited by the  terms of the Guarantee and Collateral Agreement; and (ii) the security interest granted hereby (A) shall  attach  at  all  times  to  all  proceeds  of  such  property,  (B) shall  attach  to  such  property  immediately  and  automatically (without need for any further grant or act) at such time as the condition described in clause  (i) ceases to exist and (C) to the extent severable, shall, in any event, attach to all rights in respect of such  property that are not subject to the applicable condition described in clause (i).                                       A-II-B-1  





 






      The security interest granted pursuant to this Patent Security Agreement is granted concurrently  and in conjunction with security interest granted to the Collateral Agent pursuant to the Guarantee and  Collateral Agreement and [the][each] Grantor hereby acknowledges and affirms that the rights and remedies  of the Collateral Agent with respect to the security interest in the Patents made and granted hereby are more  fully set forth in the Guarantee and Collateral Agreement.  In the event that any provision of this Patent  Security Agreement is deemed to conflict with the Guarantee and Collateral Agreement, the provisions of  the Guarantee and Collateral Agreement shall govern.         The term of this Patent Security Agreement shall be co-terminus with the Guarantee and Collateral  Agreement. Upon termination of this Patent Security Agreement, all liens on and security interests in the  Patent Collateral shall be deemed automatically released upon the payment and performance of the Secured  Obligations (other than any outstanding indemnification obligations). Upon the termination of this Patent  Security Agreement, the Collateral Agent shall execute all documents, make all filings, take all other actions  reasonably requested by the Grantors to evidence and record the release of the lien on and security interests  in the Patent Collateral granted herein, all at the Grantors’ sole cost and expense.         [The][Each]  Grantor  hereby  authorizes  and  requests  that  the  Commissioner  of  Patents  and  Trademarks record this Patent Security Agreement.         THIS PATENT SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF  THE PARTIES UNDER THIS PATENT SECURITY AGREEMENT SHALL BE GOVERNED BY,  AND  CONSTRUED  AND  INTERPRETED  IN  ACCORDANCE  WITH,  THE  LAW  OF  THE  STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT  WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE  STATE OF NEW YORK.         This  Patent  Security  Agreement  may  be  executed  by  one  or  more of  the  parties  to  this  Patent  Security Agreement on any number of separate counterparts, and all of said counterparts taken together  shall be deemed to constitute one and the same instrument.  Delivery of an executed signature page of this  Patent Security Agreement by facsimile transmission or electronic transmission (in “.pdf” or similar format)  shall be effective as delivery of a manually executed counterpart hereof.  A set of the copies of this Patent  Security Agreement signed by all the parties shall be lodged with the Borrower, the Administrative Agent  and the Collateral Agent.                      [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]                                       A-II-B-2  





 






      IN  WITNESS  WHEREOF,  [the][each]  Grantor  has  caused  this  PATENT  SECURITY  AGREEMENT to be executed and delivered by its duly authorized officer as of the date first above written.                                       [ASSIGNOR]                                       By:                                           Name:                                         Title:   Accepted and Agreed:   WELLS FARGO BANK, N.A.,   as Collateral Agent   By:       Name:     Title:                                       A-II-B-3  





 






                         Schedule 1                            PATENTS                           Issued Patents                         Reg. No.          Reg. Date  Patent               (App. No.)        (App. date)          Owner                              A-II-B-4  





 






                                                                   Annex II-C to                                                     Guarantee and Collateral Agreement                     FORM OF TRADEMARK SECURITY AGREEMENT         This TRADEMARK SECURITY AGREEMENT, dated as of [                    ], 20[_] (“Trademark  Security Agreement”), made by [_____________________], a [______________] [ADD FOR EACH OF  THE SIGNATORIES HERETO] ([the][each, a] “Grantor”), is in favor of WELLS FARGO BANK, N.A.,  as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties.                                 W I T N E S S E T H:         WHEREAS, [the][each] Grantor is party to that certain Guarantee and Collateral Agreement, dated  as of June 27, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from  time to time, the “Guarantee and Collateral Agreement”), in favor of the Collateral Agent, pursuant to which  [the][each] Grantor is required to execute and deliver this Trademark Security Agreement (capitalized terms  used but not otherwise defined herein shall have the meanings given to them in the Guarantee and Collateral  Agreement);         WHEREAS, pursuant to the terms of the Guarantee and Collateral Agreement, [the][each] Grantor  has created in favor of the Collateral Agent a security interest in the Trademark Collateral (as defined  below);         NOW, THEREFORE, in consideration of the premises and to induce the Agents and the Lenders  to enter into the Credit Agreement and to induce the Lenders to make their respective extensions of credit  to the Borrower thereunder and to induce the Qualified Counterparties to enter into the Specified Hedge  Agreements  and  the  Specified  Cash  Management  Agreements  and  provide  financial  accommodation,  [the][each]  Grantor  hereby  agrees  with  the  Collateral  Agent,  for  the  benefit  of  the  Secured  Parties,  as  follows:         [The][Each] Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a  security interest in all of the following property now owned or at any time hereafter acquired by [the][such]  Grantor or in which [the][such] Grantor now has or at any time in the future may acquire any right, title or  interest  (collectively,  the  “Trademark  Collateral”),  as  collateral  security  for  the  complete  payment  and  performance  when  due  (whether  at  the  stated  maturity,  by  acceleration  or  otherwise)  of  all  Secured  Obligations:               (a)   the  registered  and  applied-for  Trademarks  of  [the][such]  Grantor  listed  on        Schedule 1 attached hereto; and               (b)   to the extent not covered by clause (a), all Proceeds of any of the foregoing;   provided, that (i) this Trademark Security Agreement shall not constitute a grant of a security interest in  any property to the extent that and for as long as such grant of a security interest would be prohibited by  the  terms  of  the  Guarantee  and  Collateral  Agreement,  including  in  any  applications  for  trademarks  or  service marks filed in the PTO pursuant to 15 U.S.C. § 1051 Section 1(b) unless and until evidence of use  of the mark in interstate commerce is submitted to and accepted by the PTO pursuant to 15 U.S.C. § 1051  Section 1(c) or Section 1(d); and (ii) the security interest granted hereby (A) shall attach at all times to all  proceeds of such property, (B) shall attach to such property immediately and automatically (without need  for any further grant or act) at such time as the condition described in clause (i) ceases to exist and (C) to                                       A-II-C-1  





 






the extent severable, shall, in any event, attach to all rights in respect of such property that are not subject  to the applicable condition described in clause (i).         The  security  interest  granted  pursuant  to  this  Trademark  Security  Agreement  is  granted  in  conjunction with security interest granted to the Collateral Agent pursuant to the Guarantee and Collateral  Agreement and [the][each] Grantor hereby acknowledges and affirms that the rights and remedies of the  Collateral Agent with respect to the security interest in the Trademarks made and granted hereby are more  fully set forth in the Guarantee and Collateral Agreement.  In the event that any provision of this Trademark  Security Agreement is deemed to conflict with the Guarantee and Collateral Agreement, the provisions of  the Guarantee and Collateral Agreement shall govern.         The  term  of  this  Trademark  Security  Agreement  shall  be  co-terminus  with  the  Guarantee  and  Collateral Agreement. Upon termination of this Trademark Security Agreement, all liens on and security  interests  in  the  Trademark  Collateral  shall  be  deemed  automatically  released  upon  the  payment  and  performance of the Secured Obligations (other than any outstanding indemnification obligations). Upon the  termination of this Trademark Security Agreement, the Collateral Agent shall execute all documents, make  all filings, take all other actions reasonably requested by the Grantors to evidence and record the release of  the lien on and security interests in the Trademark Collateral granted herein, all at the Grantors’ sole cost  and expense.         [The][Each]  Grantor  hereby  authorizes  and  requests  that  the  Commissioner  of  Patents  and  Trademarks record this Trademark Security Agreement.         THIS  TRADEMARK  SECURITY  AGREEMENT  AND  THE  RIGHTS  AND  OBLIGATIONS  OF  THE  PARTIES  UNDER  THIS  TRADEMARK  SECURITY  AGREEMENT  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  AND  INTERPRETED  IN  ACCORDANCE  WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF  LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER  THAN THE LAW OF THE STATE OF NEW YORK.         This  Trademark  Security  Agreement  may  be  executed  by  one  or  more  of  the  parties  to  this  Trademark Security Agreement on any number of separate counterparts, and all of said counterparts taken  together shall be deemed to constitute one and the same instrument.  Delivery of an executed signature page  of this Trademark Security Agreement by facsimile transmission or electronic transmission (in “.pdf” or  similar format) shall be effective as delivery of a manually executed counterpart hereof.  A set of the copies  of this Trademark Security Agreement signed by all the parties shall be lodged with the Borrower, the  Administrative Agent and the Collateral Agent.                      [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]                                        A-II-C-2  





 






      IN  WITNESS  WHEREOF,  [the][each]  Grantor  has  caused  this  TRADEMARK  SECURITY  AGREEMENT to be executed and delivered by its duly authorized officer as of the date first above written.                                       [ASSIGNOR]                                       By:                                           Name:                                         Title:   Accepted and Agreed:   WELLS FARGO BANK, N.A.,   as Collateral Agent   By:       Name:     Title:                                        A-II-C-3  





 






                        Schedule 1                         TRADEMARKS                           Trademarks                         Reg. No.     Reg. Date  Trademark             (App. No.)   (App. date)           Owner                              A-II-C-4  





 






                                                                    Annex III to                                                     Guarantee and Collateral Agreement         This PLEDGE SUPPLEMENT, dated as of [                    ] 20[__] (the “Pledge Supplement”), is  delivered  by  [                ],  a  [                        ]  [ADD  FOR  EACH  OF  THE  SIGNATORIES  HERETO]  ([the][each, a] “Grantor”), pursuant to the Guarantee and Collateral Agreement, dated as of June 27, 2019  (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the  “Guarantee and Collateral Agreement”), among LANTHEUS MEDICAL IMAGING, INC., a Delaware  corporation, LANTHEUS HOLDINGS, INC., a Delaware corporation, the other Grantors named therein  and WELLS FARGO BANK, N.A., as the Collateral Agent.  Capitalized terms used but not otherwise  defined herein shall have the meanings ascribed thereto in the Guarantee and Collateral Agreement.         [The][Each] Grantor hereby confirms the grant to the Collateral Agent set forth in the Guarantee  and Collateral Agreement of, and does hereby grant to the Collateral Agent, for the benefit of the Secured  Parties, a security interest in all of [the][such] Grantor’s right, title and interest in and to all Collateral to  secure the Secured Obligations, in each case, whether now or hereafter existing or in which [the][such]  Grantor now has or hereafter acquires an interest and wherever the same may be located.  [The][Each]  Grantor represents and warrants that the attached Supplements to the schedules to the Perfection Certificate  accurately  and  completely  set  forth  all  additional  information  required  pursuant  to  the  Guarantee  and  Collateral Agreement and hereby agrees that such Supplements to Schedules shall constitute part of the  Schedules to the Perfection Certificate.         [The][Each]  Grantor  hereby  authorizes  the  filing  of  any  financing  statements  or  continuation  statements, and amendments to financing statements, or any similar document in any jurisdictions and with  any filing offices as the Collateral Agent may determine, in its sole discretion, are necessary or advisable  to perfect or otherwise protect the security interest granted to the Collateral Agent, for the benefit of the  Secured  Parties,  herein,  except  with  respect  to  foreign  jurisdictions.   Such  financing  statements  may  describe the Collateral in the same manner as described herein or may contain an indication or description  of collateral that describes such property in any other manner as the Collateral Agent may determine, in its  sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the  Collateral granted to the Collateral Agent, for the benefit of the Secured Parties, herein, including describing  such  property  as  “all  assets”  or  “all  personal  property”  and  may  add  thereto  “whether  now  owned  or  hereafter acquired.”  [The][Each] Grantor hereby ratifies and authorizes the filing by the Collateral Agent  of any financing statement with respect to the Collateral made prior to the date hereof.         THIS PLEDGE SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  AND  INTERPRETED  IN  ACCORDANCE  WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF  LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER  THAN THE LAW OF THE STATE OF NEW YORK.                      [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]                                        A-III-1  





 






      IN  WITNESS  WHEREOF,  [the][each]  Grantor  has  caused  this  Pledge  Supplement  to  be  duly  executed and delivered by its duly authorized officer as of the date first written above.                                       [NAME OF GRANTOR]                                       By:                                           Name:                                         Title:                                        A-III-2  





 






                                   EXHIBIT D   [RESERVED]      Ex. D-1-1  





 






                                                                  EXHIBIT E-1                                     [FORM OF]                                    TERM NOTE         THIS  NOTE  AND  THE  OBLIGATIONS  REPRESENTED  HEREBY  MAY  NOT  BE  TRANSFERRED  EXCEPT  IN  COMPLIANCE  WITH  THE  TERMS  AND  PROVISIONS  OF  THE  CREDIT  AGREEMENT  REFERRED  TO  BELOW.   TRANSFERS  OF  THIS  NOTE  AND  THE  OBLIGATIONS  REPRESENTED  HEREBY  MUST  BE  RECORDED  IN  THE  REGISTER  MAINTAINED  BY  THE  ADMINISTRATIVE  AGENT  PURSUANT  TO  THE  TERMS  OF  SUCH  CREDIT AGREEMENT.   $                                                              New York, New York                                                                                   , 20         FOR  VALUE  RECEIVED,  the  undersigned,  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation  (the  “Borrower”),  hereby  unconditionally  promises  to  pay  to  [               ]  (the  “Lender”) or its registered assigns at the Funding Office specified in the Credit Agreement (as hereinafter  defined) in lawful money of the United States and in immediately available funds, the principal amount of  [             ] DOLLARS ([$         ]) or, if less, the unpaid principal amount of the Term Loan of the Lender  to the Borrower.  The principal amount shall be paid in the amounts and on the dates specified in Section  2.3 of the Credit Agreement.  The Borrower further agrees to pay interest in like money at such Funding  Office on the unpaid principal amount hereof from time to time outstanding at the rates and on the dates  specified in Section 4.5 of the Credit Agreement.         The holder of this Note is authorized to endorse on the schedules annexed hereto and made a part  hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, the  Type and amount of the Term Loan and the date and amount of each payment or prepayment of principal  with respect thereto, each conversion of all or a portion thereof to another Type, each continuation of all  or a portion thereof as the same Type and, in the case of Eurodollar Loans, the length of each Interest  Period with respect thereto.  Each such endorsement shall constitute prima facie evidence of the accuracy  of the information absent manifest error.  The failure to make any such endorsement or any error in any  such endorsement shall not affect the obligations of the Borrower in respect of the Term Loan.         This Note (a) is one of the Notes referred to in the Credit Agreement, dated as of June 27, 2019  (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the  “Credit Agreement”), among the Borrower, LANTHEUS HOLDINGS, INC., a Delaware corporation, as  Holdings, the several banks and other financial institutions or entities from time to time parties thereto  and WELLS FARGO BANK, N.A., as administrative agent and collateral agent (in such capacities, and  together with its successors and permitted assigns in such capacities, the “Administrative Agent” and the  “Collateral  Agent,”  respectively)  and  Issuing  Lender,  (b)  is  subject  to  the  provisions  of  the  Credit  Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the  Credit Agreement.  This Note is secured and guaranteed as provided in the Loan Documents.  Reference  is hereby made to the Loan Documents for a description of the properties and assets in which a security  interest  has  been  granted,  the  nature  and  extent  of  the  security  and  the  guarantees,  the  terms  and  conditions upon which the security interests and each guarantee were granted and the rights of the holder  of this Note in respect thereof.         Upon  the  occurrence  and  during  the  continuation  of  any  one  or  more  Events  of  Default,  all  principal and all accrued interest then remaining unpaid on this Note may become, or may be declared to  be, immediately due and payable, all as provided in the Credit Agreement.                                      Ex. E-1-1  





 






      All parties now and hereafter liable with respect to this Note, whether maker, principal, surety,  guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any  kind.         Unless  otherwise  defined  herein,  terms  defined  in  the  Credit  Agreement  and  used  herein  shall  have the meanings given to them in the Credit Agreement.         NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR  IN  THE  CREDIT  AGREEMENT,  THIS  NOTE  MAY  NOT  BE  TRANSFERRED  EXCEPT  PURSUANT  TO  AND  IN  ACCORDANCE  WITH  THE  REGISTRATION  AND  OTHER  PROVISIONS OF SECTION 11.6 OF THE CREDIT AGREEMENT.        THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS  NOTE  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  AND  INTERPRETED  IN  ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO  CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY  LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.                 [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]                                       Ex. E-1-2  





 






      IN WITNESS WHEREOF, the undersigned has caused this Note to be executed and delivered by  its proper and duly authorized officer as of the date set forth above.                                             LANTHEUS MEDICAL IMAGING, INC.,                                            as Borrower                                             By:                                               Name:                                              Title:                                       Ex. E-1-3  





 






                               Schedule A                                 to Term Note         LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS                                             Amount of                                 Amount of               Unpaid                       Amount                Base Rate           Amount of             Principal of           Principal                     Converted to             Loans                 Notation  Date     Base Rate             Base Rate              Balance of                     Base Rate            Converted to            Made By             Loans                 Loans                Base Rate                        Loans               Eurodollar                                  Repaid                Loans                                              Loans                                    Ex. E-1-4  





 






                                Schedule B                                  to Term Note          LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF                              EURODOLLAR LOANS                                Interest            Amount of                                       Amount of             Unpaid                     Amount   Period and           Eurodollar        Amount of                      Principal of          Principal                  Converted to Eurodollar           Loans             Notation Date   Eurodollar                     Eurodollar           Balance of                   Eurodollar Rate with           Converted           Made By           Loans                          Loans              Eurodollar                    Loans     Respect            to Base Rate                                         Repaid               Loans                               Thereto               Loans                                     Ex. E-1-5  





 






                                                                  EXHIBIT E-2                                     [FORM OF]                                 REVOLVING NOTE         THIS  NOTE  AND  THE  OBLIGATIONS  REPRESENTED  HEREBY  MAY  NOT  BE  TRANSFERRED  EXCEPT  IN  COMPLIANCE  WITH  THE  TERMS  AND  PROVISIONS  OF  THE  CREDIT  AGREEMENT  REFERRED  TO  BELOW.   TRANSFERS  OF  THIS  NOTE  AND  THE  OBLIGATIONS  REPRESENTED  HEREBY  MUST  BE  RECORDED  IN  THE  REGISTER  MAINTAINED  BY  THE  ADMINISTRATIVE  AGENT  PURSUANT  TO  THE  TERMS  OF  SUCH  CREDIT AGREEMENT.                                                                  New York, New York                                                                                   , 20         FOR  VALUE  RECEIVED,  the  undersigned,  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation  (the  “Borrower”),  hereby  unconditionally  promises  to  pay  to  [               ]  (the  “Lender”) or its registered assigns at the Funding Office specified in the Credit Agreement (as hereinafter  defined)  in  lawful  money  of  the  United  States  and  in  immediately  available  funds,  on  the  Initial  Revolving Termination Date, the principal amount of each Revolving Loan made by the Lender to the  Borrower.   The  Borrower  further  agrees  to  pay  interest  in  like  money  at  such  Funding  Office  on  the  unpaid principal amount hereof from time to time outstanding at the rates and on the dates specified in  Section 4.5 of the Credit Agreement.         The holder of this Note is authorized to endorse on the schedules annexed hereto and made a part  hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, the  Type  and  amount  of  each  Revolving  Loan  made  pursuant  to  the  Credit  Agreement  and  the  date  and  amount  of  each  payment  or  prepayment  of  principal  with  respect  thereto,  each  conversion  of  all  or  a  portion thereof to another Type, each continuation of all or a portion thereof as the same Type and, in the  case of Eurodollar Loans, the length of each Interest Period with respect thereto.  Each such endorsement  shall constitute prima facie evidence of the accuracy of the information absent manifest error.  The failure  to make any such endorsement or any error in any such endorsement shall not affect the obligations of the  Borrower in respect of any Revolving Loan.         This Note (a) is one of the Notes referred to in the Credit Agreement, dated as of June 27, 2019  (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the  “Credit Agreement”), among the Borrower, LANTHEUS HOLDINGS, INC., a Delaware corporation, as  Holdings, the several banks and other financial institutions or entities from time to time parties thereto  and WELLS FARGO BANK, N.A., as administrative agent and collateral agent (in such capacities, and  together with its successors and permitted assigns in such capacities, the “Administrative Agent” and the  “Collateral  Agent,”  respectively)  and  Issuing  Lender,  (b)  is  subject  to  the  provisions  of  the  Credit  Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the  Credit Agreement.  This Note is secured and guaranteed as provided in the Loan Documents.  Reference  is hereby made to the Loan Documents for a description of the properties and assets in which a security  interest  has  been  granted,  the  nature  and  extent  of  the  security  and  the  guarantees,  the  terms  and  conditions upon which the security interests and each guarantee were granted and the rights of the holder  of this Note in respect thereof.         Upon  the  occurrence  and  during  the  continuation  of  any  one  or  more  Events  of  Default,  all  principal and all accrued interest then remaining unpaid on this Note may become, or may be declared to  be, immediately due and payable, all as provided in the Credit Agreement.                                      Ex. E-2-1  





 






      All parties now and hereafter liable with respect to this Note, whether maker, principal, surety,  guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any  kind.         Unless  otherwise  defined  herein,  terms  defined  in  the  Credit  Agreement  and  used  herein  shall  have the meanings given to them in the Credit Agreement.         NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR  IN  THE  CREDIT  AGREEMENT,  THIS  NOTE  MAY  NOT  BE  TRANSFERRED  EXCEPT  PURSUANT  TO  AND  IN  ACCORDANCE  WITH  THE  REGISTRATION  AND  OTHER  PROVISIONS OF SECTION 11.6 OF THE CREDIT AGREEMENT.        THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS  NOTE  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  AND  INTERPRETED  IN  ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO  CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY  LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.                 [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]                                       Ex. E-2-2  





 






      IN WITNESS WHEREOF, the undersigned has caused this Note to be executed and delivered by  its proper and duly authorized officer as of the date set forth above.                                             LANTHEUS MEDICAL IMAGING, INC.,                                            as Borrower                                             By:                                               Name:                                              Title:                                       Ex. E-2-3  





 






                               Schedule A                               to Revolving Note         LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS                                             Amount of                                 Amount of               Unpaid                       Amount                Base Rate           Amount of             Principal of           Principal                     Converted to             Loans                 Notation  Date     Base Rate             Base Rate              Balance of                     Base Rate            Converted to            Made By             Loans                 Loans                Base Rate                        Loans               Eurodollar                                  Repaid                Loans                                              Loans                                    Ex. E-2-4  





 






                                Schedule B                                to Revolving Note          LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF                              EURODOLLAR LOANS                                Interest            Amount of                                       Amount of             Unpaid                     Amount   Period and           Eurodollar        Amount of                      Principal of          Principal                  Converted to Eurodollar           Loans             Notation Date   Eurodollar                     Eurodollar           Balance of                   Eurodollar Rate with           Converted           Made By           Loans                          Loans              Eurodollar                    Loans     Respect            to Base Rate                                         Repaid               Loans                               Thereto               Loans                                     Ex. E-2-5  





 






                                                                    EXHIBIT F                                     [FORM OF]                            JOINT CLOSING CERTIFICATE                                    June 27, 2019         This Joint Closing Certificate (this “Certificate”) is delivered pursuant to (i) that certain Credit  Agreement,  dated  as  of  the  date  hereof (as  amended,  restated, amended  and  restated, supplemented  or  otherwise modified from time to time, the “Credit Agreement”), by and among LANTHEUS MEDICAL  IMAGING, INC., a Delaware corporation (the “Borrower”), LANTHEUS HOLDINGS, INC., a Delaware  corporation  (“Holdings”),  the  several  banks  and  other  financial  institutions  from  time  to  time  parties  thereto (each, a “Lender” and individually and collectively, the “Lenders”), and WELLS FARGO BANK,  N.A, as administrative agent for the Lenders and collateral agent for the benefit of the Secured Parties.   Capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit  Agreement.         The undersigned, [          ], being the duly elected, qualified and acting [          ] of each of the  Borrower, Holdings and Lantheus MI Real Estate, LLC, a Delaware limited liability company (together  with  the  Borrower  and  Holdings,  each,  a  “Loan  Party”  and  collectively,  the  “Loan  Parties”),  hereby  certifies  on  behalf  of  each  Loan  Party,  in  such  capacity  as  an  officer  of  each  Loan  Party,  and  not  individually, and without assuming any personal liability as follows:         1.    Attached hereto as Exhibit A is a true and complete copy of the certificate of formation or  certificate of incorporation, as applicable, of each Loan Party (each, a “Charter Document”), together with  all amendments thereto, as in effect on the date hereof, certified as of a recent date by the Secretary of  State  of  each  such  Loan  Party’s  jurisdiction  of  organization.   Such  Charter  Documents  have  not  been  amended,  repealed,  modified  or  restated  since  the  date  of  the  last  amendment  thereto  shown  on  the  attached certificate, and such Charter Documents are in full force and effect on the date hereof, and no  action for any amendment to such Charter Documents or for the dissolution of any Loan Party has been  taken since such date.         2.    Attached  hereto  as  Exhibit  B  is  a  true  and  complete  copy  of  the  by-laws  or  limited  liability company agreement, as applicable, of each Loan Party (each, a “Governing Document”), as in  effect  at  all  times  since  the  adoption  thereof  to  and  including  the  date  hereof.   Such  Governing  Agreements have not been amended, repealed, modified or restated (other than as attached hereto) and  such Governing Agreements are in full force and effect on the date hereof.         3.    Attached  hereto  as  Exhibit  C  is  a  true  and  complete  copy  of  the  unanimous  written   consent [or resolutions, as applicable,] of the board of directors or sole member, as applicable, of each  Loan  Party  duly  executed  [or  adopted,  as  applicable,]  by  the  board  of  directors  or  sole  member,  as  applicable,  of  each  Loan  Party  (each,  an  “Authorizing  Document”), authorizing  (A)  in  the  case  of  the  Borrower,  the  borrowings  under  the  Credit  Agreement  and,  in  the  case  of  each  Loan  Party,  the  transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, (B) the  execution,  delivery  and  performance by  each  Loan  Party  of  each Loan  Document to  which  such  Loan  Party is or will be a party and the execution and delivery of the other documents to be delivered by such  Loan Party in connection with the Credit Agreement and any other Loan Documents to which such Loan  Party is or will be a party and (C) the execution and delivery of the other documents to be delivered by  such Loan Party in connection with the Credit Agreement.  Such Authorizing Document has not in any  way been amended, modified, revoked or rescinded and is in full force and effect on the date hereof.                                        Ex. F-1  





 






      4.    Attached  hereto  as  Exhibit  D  is  a  list  of  persons  who  are  now,  and  were,  as  of  the  execution and delivery of the Credit Agreement and the other Loan Documents, duly elected and qualified  officers  of  each  Loan  Party,  holding  the  offices  indicated  next  to  their  respective  names,  and  the  signatures appearing opposite their respective names are the true and genuine signatures of such officers,  and each such officer is duly authorized to execute and deliver, on behalf of such Loan Party, the Loan  Documents to which such Loan Party is a party and any certificate or other document to be delivered by  such Loan Party pursuant to such Loan Documents.                 [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]                                         Ex. F-2  





 






      IN WITNESS WHEREOF, the undersigned has executed and delivered this Certificate, in the  name of and on behalf of each Loan Party, to be effective as of the date first above written.                                          By:                                             Name:                                             Title:           I, the undersigned, [    ], being the duly elected, qualified and acting [  ]  of  each  Loan  Party, solely in my capacity as an officer of each Loan Party and not individually, and without assuming  any personal liability, do hereby certify that [           ] is the duly elected and qualified [        ] of  each Loan Party and that the signature set forth above is such officer’s true and genuine signature.         IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the date first above  written.                                           By:                                             Name:                                             Title:                                           Ex. F-3  





 






    EXHIBIT A   CHARTER DOCUMENTS      See attached.          Ex. F-4  





 






     EXHIBIT B   GOVERNING DOCUMENTS       See attached.           Ex. F-5  





 






     EXHIBIT C   AUTHORIZING DOCUMENT       See attached.           Ex. F-6  





 






                                  EXHIBIT D                                    INCUMBENCY                            LANTHEUS HOLDINGS, INC.                         LANTHEUS MEDICAL IMAGING, INC.                          LANTHEUS MI REAL ESTATE, LLC    NAME                  TITLE                           SIGNATURE   [                            ] [                            ]   [                            ] [                            ]                                        Ex. F-7  





 






                                                                    EXHIBIT G                                     [FORM OF]                                 SWINGLINE NOTE         THIS  NOTE  AND  THE  OBLIGATIONS  REPRESENTED  HEREBY  MAY  NOT  BE  TRANSFERRED  EXCEPT  IN  COMPLIANCE  WITH  THE  TERMS  AND  PROVISIONS  OF  THE  CREDIT  AGREEMENT  REFERRED  TO  BELOW.   TRANSFERS  OF  THIS  NOTE  AND  THE  OBLIGATIONS  REPRESENTED  HEREBY  MUST  BE  RECORDED  IN  THE  REGISTER  MAINTAINED  BY  THE  ADMINISTRATIVE  AGENT  PURSUANT  TO  THE  TERMS  OF  SUCH  CREDIT AGREEMENT.                                                                  New York, New York  $__________                                                    __________, 20___         FOR  VALUE  RECEIVED,  the  undersigned,  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation  (the  “Borrower”),  promises  to  pay  to  WELLS  FARGO  BANK,  NATIONAL  ASSOCIATION (the “Lender”), at the place and times provided in the Credit Agreement (as hereinafter  defined)  the  principal  sum  of  _______________  DOLLARS  ($__________)  or,  if  less,  the  principal  amount  of  all  Swingline  Loans  made  by  the  Lender  from  time  to  time  pursuant  to  that  certain  Credit  Agreement,  dated  as  of  June  27,  2019  (as  amended,  restated,  amended  and  restated,  supplemented  or  otherwise  modified  from  time  to  time,  the  “Credit  Agreement”)  by  and  among  the  Borrower,  LANTHEUS  HOLDINGS,  INC.,  a  Delaware  corporation,  as  Holdings,  the  several  banks  and  other  financial  institutions  or  entities  from  time  to  time  parties  thereto  and  Wells  Fargo  Bank,  National  Association,  as  administrative  agent  and  collateral  agent  (in  such  capacities,  and  together  with  its  successors  and  permitted  assigns  in  such  capacities,  the  “Administrative  Agent”  and  the  “Collateral  Agent,”  respectively)  and  Issuing  Lender.   Capitalized  terms  used  herein  and  not  defined  herein  shall  have the meanings assigned thereto in the Credit Agreement.         The holder of this Note is authorized to endorse on the schedules annexed hereto and made a part  hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, the  amount of each Swingline Loan made pursuant to the Credit Agreement and the date and amount of each  payment or prepayment of principal with respect thereto.  Each such endorsement shall constitute prima  facie evidence of the accuracy of the information absent manifest error.  The failure to make any such  endorsement  or  any  error  in  any  such  endorsement  shall  not affect  the  obligations  of  the  Borrower  in  respect of any Swingline Loan.                     This Note (a) is one of the Notes referred to in the Credit Agreement, (b) is subject to the  provisions of the Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or  in part as provided in the Credit Agreement.  This Note is secured and guaranteed as provided in the Loan  Documents.   Reference is hereby  made  to  the  Loan Documents  for  a  description  of the  properties and  assets  in  which  a  security  interest  has  been  granted,  the  nature  and  extent  of  the  security  and  the  guarantees, the terms and conditions upon which the security interests and each guarantee were granted  and the rights of the holder of this Note in respect thereof.         Upon  the  occurrence  and  during  the  continuation  of  any  one  or  more  Events  of  Default,  all  principal and all accrued interest then remaining unpaid on this Note may become, or may be declared to  be, immediately due and payable, all as provided in the Credit Agreement.                                       Ex. G-1  





 






      All parties now and hereafter liable with respect to this Note, whether maker, principal, surety,  guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any  kind.         Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall  have the meanings given to them in the Credit Agreement.         NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR  IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT  PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER  PROVISIONS OF SECTION 11.6 OF THE CREDIT AGREEMENT.          THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER  THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN  ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO  CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY  LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.                                       Ex. G-1-2  





 






      IN WITNESS WHEREOF, the undersigned has caused this Note to be executed and delivered by  its proper and duly authorized officer as of the date set forth above.                                       LANTHEUS MEDICAL IMAGING, INC.,                                      as Borrower                                       By:                                             Name:                                             Title:                                       Ex. G-1-3  





 






                            Schedule A                            to Swingline Note             LOANS AND REPAYMENTS OF SWINGLINE LOANS                                Amount of         Unpaid               Amount of       Principal of     Principal                                                                 Notation  Date          Swingline       Swingline       Balance of                                                                 Made By                 Loans           Loans          Swingline                                 Repaid          Loans                                  Ex. G-1  





 






                                                                    EXHIBIT H                                     [FORM OF]                              SOLVENCY CERTIFICATE                                    [     ], 20[   ]         The undersigned, [      ], a [senior financial officer] of LANTHEUS HOLDINGS, INC.,  a  Delaware  corporation  (“Holdings”),  and  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation (the “Borrower”), is familiar with the properties, businesses, assets and liabilities of Holdings  and  its  subsidiaries  and  is  duly  authorized  to  execute  this  certificate  (this  “Solvency  Certificate”)  on  behalf of Holdings.         This Solvency Certificate is delivered pursuant to Section 6.1(k) of that certain Credit Agreement,  dated as of June 27, 2019 (the “Credit Agreement”), among Holdings, the Borrower, the several banks  and  other  financial  institutions  or  entities  from  time  to  time  parties  thereto  (each,  a  “Lender”  and  collectively, the “Lenders”), and Wells Fargo Bank, N.A., as administrative agent and collateral agent (in  such  capacities,  and  together  with  its  successors  and  permitted  assigns  in  such  capacities,  the  “Administrative Agent” and the “Collateral Agent”, respectively) and Issuing Lender.  Capitalized terms  used herein that are not defined herein shall have the meanings given to them in the Credit Agreement.         As used herein, “Company” means Holdings and its Subsidiaries on a consolidated basis.         1.    The undersigned certifies, on behalf of Holdings and the Borrower and not in [his][her]  individual  capacity,  and  without  assuming  any  personal  liability,  that  [he][her]  has  made  such  investigation  and  inquiries  as  to  the  financial  condition  of  Holdings  and  its  Subsidiaries  as  the  undersigned deems necessary and prudent for the purposes of providing this Solvency Certificate.  The  undersigned  acknowledges  that the Administrative  Agent  and  the  Lenders  are  relying  on  the truth and  accuracy  of  this  Solvency  Certificate  in  connection  with  the  making  of  the  Loans  under  the  Credit  Agreement.         2.    The undersigned certifies, on behalf of Holdings and the Borrower and not in [his][her]  individual  capacity,  and  without  assuming  any  personal  liability,  that  (a)  the  financial  information,  projections  and  assumptions  which  underlie  and  form  the  basis  for  the  representations  made  in  this  Solvency  Certificate  were  made  in  good  faith  and  were  based  on  assumptions reasonably  believed  by  Holdings and the Borrower to be fair in light of the circumstances existing at the time made; and (b) for  purposes of providing this Solvency Certificate, the amount of contingent liabilities has been computed as  the amount that, in the light of all the facts and circumstances existing as of the date hereof, represents the  amount that can reasonably be expected to become an actual or matured liability.         BASED  ON  THE  FOREGOING,  the  undersigned  certifies,  on  behalf  of  Holdings  and  the  Borrower and not in his individual capacity, and without assuming any personal liability, that, on the date  hereof, after giving effect to the Transactions (and the Loans made or to be made and other obligations  incurred or to be incurred on the Closing Date):                (i)  the fair value of the property of the Company is greater than the total amount of        liabilities, including contingent liabilities, of the Company;               (ii)  the  present  fair  salable  value  of  the  assets  of  the  Company  is  greater  than  the        amount that will be required to pay the probable liability of the Company on the sum of its debts        and other liabilities, including contingent liabilities;                                       Ex. H-2  





 






                                                              EXHIBIT H         (iii)  the  Company  has  not,  does  not  intend  to,  and  does  not  believe  (nor  should  it  reasonably believe) that it will, incur debts or liabilities beyond the Company’s ability to pay such  debts and liabilities as they become due (whether at maturity or otherwise); and         (iv)  the Company does not have unreasonably small capital with which to conduct the  businesses in which it is engaged as such businesses are now conducted and are proposed to be  conducted following the Closing Date.           [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]                                  Ex. H-3  





 






      IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate as of the first  date written above, solely in his capacity as the Chief Financial Officer of Holdings and the Borrower and  not in his individual capacity.                                             LANTHEUS HOLDINGS, INC.                                             By:                                                  Name:                                               Title:                                             LANTHEUS MEDICAL IMAGING, INC.                                             By:                                                  Name                                               Title:                                        Ex. G-4  





 






                                   EXHIBIT I  [RESERVED]       Ex. I-1  





 






                                   EXHIBIT J  [RESERVED]       Ex. J-1  





 






                                   EXHIBIT K   [RESERVED]       Ex. K-1  





 






                                   EXHIBIT L  [RESERVED]       Ex. L-1  





 






                                  EXHIBIT M   [RESERVED]       Ex. M-1  





 






                                   EXHIBIT N  [RESERVED]       Ex. N-1  





 






                                   EXHIBIT O   [RESERVED]       Ex. O-1  





 






                                   EXHIBIT P   [RESERVED]       Ex. P-1  





 






                                                                  EXHIBIT Q-1                                     [FORM OF]                             TAX STATUS CERTIFICATE       (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)               Reference  is  made  to  that  certain  Credit  Agreement,  dated  as  of  June  27,  2019  (as  amended,  restated,  amended  and  restated,  supplemented  or  otherwise  modified  from  time  to  time,  the  “Credit  Agreement”),  among  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation  (the  “Borrower”), LANTHEUS HOLDINGS, INC., a Delaware corporation (“Holdings”), the several banks  and other financial institutions or entities from time to time parties thereto and WELLS FARGO BANK,  N.A., as Administrative Agent, Collateral Agent and Issuing Lender.  Capitalized terms used herein that  are not defined herein shall have the meanings given to them in the Credit Agreement.               Pursuant to the provisions of Section 4.10(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s)  evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the  meaning  of  Section 881(c)(3)(A)  of  the  Code,  (iii) it  is  not  a  ten  percent  shareholder  of  the  Borrower  within  the  meaning  of  Section 871(h)(3)(B)  of  the  Code,  (iv) it  is  not  a  controlled  foreign  corporation  related  to  the  Borrower  as  described  in  Section 881(c)(3)(C)  of  the  Code  and  (v)  no  payments  in  connection with any Loan Document are effectively connected with the undersigned’s conduct of a U.S.  trade or business.               The  undersigned  has  furnished  the  Administrative  Agent  and  the  Borrower  with  a  certificate of its non-United States person status on IRS Form W-8BEN-E or W-8BEN, as applicable.  By  executing this certificate, the undersigned agrees that (1) if the information provided on this certificate  changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent in writing,  and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with  a properly completed and currently effective certificate in either the calendar year in which each payment  is to be made to the undersigned, or in either of the two calendar years preceding such payments.    [NAME OF LENDER]   By:_______________________________    Name:    Title:   Date: [________] [__], 20[  ]                                       Ex. Q-1-1  





 






                                                                  EXHIBIT Q-2                                     [FORM OF]                             TAX STATUS CERTIFICATE      (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)               Reference  is  made  to  that  certain  Credit  Agreement,  dated  as  of  June  27,  2019  (as  amended,  restated,  amended  and  restated,  supplemented  or  otherwise  modified  from  time  to  time,  the  “Credit  Agreement”),  among  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation  (the  “Borrower”), LANTHEUS HOLDINGS, INC., a Delaware corporation (“Holdings”), the several banks  and other financial institutions or entities from time to time parties thereto and WELLS FARGO BANK,  N.A., as Administrative Agent, Collateral Agent and Issuing Lender.  Capitalized terms used herein that  are not defined herein shall have the meanings given to them in the Credit Agreement.               Pursuant to the provisions of Section 4.10(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it  is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,  (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the  Code,  (iv) it  is  not  a  controlled  foreign  corporation  related  to  the  Borrower  as  described  in  Section 881(c)(3)(C)  of  the  Code  and  (v)  no  payments  in  connection  with  any  Loan  Document  are  effectively connected with the undersigned’s conduct of a U.S. trade or business.               The undersigned has furnished its participating Lender with a certificate of its non-United  States person status on IRS Form W-8BEN-E or W-8BEN, as applicable.  By executing this certificate,  the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned  shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished  such Lender with a properly completed and currently effective certificate in either the calendar year in  which each payment is to be made to the undersigned, or in either of the two calendar years preceding  such payments.   [NAME OF PARTICIPANT]   By:_______________________________    Name:    Title:   Date: [________] [__], 20[  ]                                       Ex. Q-2-1  





 






                                                                  EXHIBIT Q-3                                     [FORM OF]                             TAX STATUS CERTIFICATE       (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)               Reference  is  made  to  that  certain  Credit  Agreement,  dated  as  of  June  27,  2019  (as  amended,  restated,  amended  and  restated,  supplemented  or  otherwise  modified  from  time  to  time,  the  “Credit  Agreement”),  among  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation  (the  “Borrower”), LANTHEUS HOLDINGS, INC., a Delaware corporation (“Holdings”), the several banks  and other financial institutions or entities from time to time parties thereto and WELLS FARGO BANK,  N.A., as Administrative Agent, Collateral Agent and Issuing Lender.  Capitalized terms used herein that  are not defined herein shall have the meanings given to them in the Credit Agreement.               Pursuant to the provisions of Section 4.10(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing  this  certificate,  (ii) its  direct  or  indirect  partners/members  are  the  sole  beneficial  owners  of  such  participation, (iii) neither the undersigned nor any of its direct or indirect partners/members claiming the  portfolio  interest  exemption  (“Applicable  Partners/Members”)  is  a  bank  within  the  meaning  of  Section 881(c)(3)(A)  of  the  Code,  (iv) none  of  its  Applicable  Partners/Members  is  a  ten  percent  shareholder  of  the  Borrower  within  the  meaning  of  Section 871(h)(3)(B)  of  the  Code,  (v) none  of  its  Applicable Partners/Members is a controlled foreign corporation related to the Borrower as described in  Section 881(c)(3)(C)  of  the  Code  and  (vi)  no  payments  in  connection  with  any  Loan  Document  are  effectively  connected  with  the  undersigned’s  or  its  Applicable  Partners’/Members’  conduct  of  a  U.S.  trade or business.               The  undersigned  has  furnished  its  participating  Lender  with  IRS  Form  W-8IMY  accompanied  by  one  of  the  following  forms  from  each  of  its  partners/members  claiming  the  portfolio  interest exemption: (i) an IRS Form W-8BEN-E or W-8BEN, as applicable, or (ii) an IRS Form W-8IMY  accompanied  by  an  IRS  Form  W-8BEN-E  or  W-8BEN,  as  applicable,  from  each  of  such  partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this  certificate,  the  undersigned  agrees  that  (1) if  the  information  provided  on  this  certificate  changes,  the  undersigned  shall  promptly  so  inform  such  Lender in  writing  and  (2) the undersigned shall have  at  all  times  furnished such  Lender  with  a  properly completed and  currently effective certificate in either the  calendar year in which each payment is to be made to the undersigned, or in either of the two calendar  years preceding such payments.   [NAME OF PARTICIPANT]   By:_______________________________    Name:    Title:   Date: [________] [__], 20[  ]                                       Ex. Q-3-1  





 






                                                                  EXHIBIT Q-4                                     [FORM OF]                             TAX STATUS CERTIFICATE          (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)               Reference  is  made  to  that  certain  Credit  Agreement,  dated  as  of  June  27,  2019  (as  amended,  restated,  amended  and  restated,  supplemented  or  otherwise  modified  from  time  to  time,  the  “Credit  Agreement”),  among  LANTHEUS  MEDICAL  IMAGING,  INC.,  a  Delaware  corporation  (the  “Borrower”), LANTHEUS HOLDINGS, INC., a Delaware corporation (“Holdings”), the several banks  and other financial institutions or entities from time to time parties thereto and WELLS FARGO BANK,  N.A., as Administrative Agent, Collateral Agent and Issuing Lender.  Capitalized terms used herein that  are not defined herein shall have the meanings given to them in the Credit Agreement.               Pursuant to the provisions of Section 4.10(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such  Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are  the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) neither  the  undersigned  nor  any  of  its  direct  or  indirect  partners/members  claiming  the  portfolio  interest  exemption (“Applicable Partners/Members”) is a bank within the meaning of Section 881(c)(3)(A) of the  Code, (iv) none of its Applicable Partners/Members is a ten percent shareholder of the Borrower within  the  meaning  of  Section 871(h)(3)(B)  of  the  Code,  (v) none  of  its  Applicable  Partners/Members  is  a  controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code  and  (vi)  no  payments  in  connection  with  any  Loan  Document  are  effectively  connected  with  the  undersigned’s or its Applicable Partners’/Members’ conduct of a U.S. trade or business.               The  undersigned  has  furnished  the  Administrative  Agent  and  the  Borrower  with  IRS  Form W-8IMY accompanied by one of the following forms from each of its partners/members claiming  the portfolio interest exemption: (i) an IRS Form W-8BEN-E or W-8BEN, as applicable or (ii) an IRS  Form W-8IMY accompanied by an IRS Form W-8BEN-E or W-8BEN, as applicable, from each of such  partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this  certificate,  the  undersigned  agrees  that  (1) if  the  information  provided  on  this  certificate  changes,  the  undersigned shall promptly so inform the Borrower and the Administrative Agent in writing, and (2) the  undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly  completed and currently effective certificate in either the calendar year in which each payment is to be  made to the undersigned, or in either of the two calendar years preceding such payments.   [NAME OF LENDER]   By:_______________________________    Name:    Title:   Date: [________] [__], 20[  ]                                       Ex. Q-4-1