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EXECUTION VERSION  1  150558160_4  FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT  (this “Amendment”), dated as of December 23, 2021, among FEDERAL SIGNAL CORPORATION, a  Delaware corporation (“US Borrower”), FST CANADA INC., an Ontario corporation (“FST Canada”  and, together with the US Borrower, the “Borrowers”), each of the Lenders (as defined below) party  hereto and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent (in such  capacity, the “Administrative Agent”). Unless otherwise indicated, all capitalized terms used herein and  not otherwise defined herein shall have the respective meanings provided such terms in the Credit  Agreement referred to below.  The Borrowers, the lenders party thereto (the “Lenders”), and the Administrative Agent have  entered into that certain Second Amended and Restated Credit Agreement, dated as of July 30, 2019 (as  amended, restated, supplemented or modified prior to the date hereof, the “Existing Credit Agreement”).   The Borrowers have requested, and subject to the terms and conditions set forth herein, the Administrative  Agent and the Lenders party hereto have agreed to amend certain provisions of the Credit Agreement as  more specifically set forth herein.  In consideration of the foregoing and for other good and valuable consideration, the receipt and  sufficiency of which are hereby acknowledged, it is agreed as follows:   1. Amendments.  Subject to the terms and conditions set forth herein and the effectiveness  of this Amendment in accordance with its terms, the parties hereto agree that:  (a) the Existing Credit Agreement is hereby amended, (a) to delete red or green  stricken text (indicated textually in the same manner as the following examples: stricken text and  stricken text) and (b) to add the blue or green double-underlined text (indicated textually in the  same manner as the following examples: double-underlined text and double-underlined text), in  each case, as set forth in the conformed copy of the Credit Agreement attached as Annex A  hereto; and  (b) Exhibits B, D and E to the Credit Agreement are hereby amended in their entirety  to read as set forth in the attached Annex B hereto.  2. Conditions to Effectiveness.  This Amendment shall be deemed to be effective upon (a)  the Administrative Agent receiving counterparts of this Amendment executed by the Administrative  Agent, the Lenders and the Borrowers and  (b) unless otherwise agreed to by the Administrative Agent,  the Administrative Agent being paid or reimbursed for all reasonable fees and out-of-pocket charges and  other expenses incurred in connection with this Amendment, including, without limitation, the reasonable  documented fees of counsel for the Administrative Agent.   3. Effect of Amendments.  The execution, delivery and effectiveness of this Amendment  shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any  Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any  provision of any of the Loan Documents.  Except as expressly provided herein, the Credit Agreement and  the other Loan Documents shall remain unmodified and in full force and effect.   4. Representations and Warranties/No Default.  By its execution hereof,   (a) each Borrower represents and warrants that after giving effect to this Amendment  (i) the representations and warranties contained in the Credit Agreement and each other Loan  





 






  2  150558160_4  Document (including this Amendment) are true and correct in all material respects on and as of  the date hereof (except to the extent that any such representation and warranty is qualified by  materiality or reference to Material Adverse Effect, in which case such representation and  warranty shall be true, correct and complete in all respects), other than any such representations  or warranties that, by their express terms, refer to an earlier date, in which case they shall have  been true and correct in all material respects on and as of such earlier date (except to the extent  that any such representation and warranty is qualified by materiality or reference to Material  Adverse Effect, in which case such representation and warranty shall be true, correct and  complete in all respects), and (ii) no Default or Event of Default has occurred and is continuing as  of the effective date hereof or will occur after giving effect to this Amendment; and  (b) each Borrower hereby certifies, represents and warrants to the Administrative  Agent, for the benefit of the Secured Parties, that (a) it is duly authorized to execute and deliver  this Amendment, and to perform its obligations under this Amendment; (b) this Amendment has  been duly executed and delivered on behalf of its duly authorized representative; (c) this  Amendment constitutes its legal, valid, and binding obligation, enforceable against it in  accordance with its terms, except as enforceability thereof may be limited by bankruptcy,  insolvency, reorganization, fraudulent transfer, moratorium, or other similar laws affecting  creditors’ rights generally and general principles of equity (regardless of whether such  enforceability is considered in a proceeding at law or in equity); and (d) its execution, delivery  and performance of this Amendment do not violate or constitute a breach of (i) any of its articles  of incorporation (or corporate charter or other similar organizational documents) or its bylaws (or  similar document), (ii) any material agreement or instrument to which such party is a party, or  (iii) any Applicable Law to which it or its properties or operations is subject.   5. Acknowledgment and Consent.  By its execution hereof, each Borrower  (a) acknowledges and consents to all of the terms and conditions of this Amendment, (b) affirms all of its  obligations under the Loan Documents and acknowledges that the covenants, representations, warranties  and other obligations set forth in the Credit Agreement, the Notes and the other Loan Documents to which  it is a party remain in full force and effect, (c) affirms that each of the Liens granted in or pursuant to the  Loan Documents are valid and subsisting, (d) agrees that this Amendment shall in no manner impair or  otherwise adversely affect any of the Liens granted in or pursuant to the Loan Documents and (e) agrees  that this Amendment and all documents executed in connection herewith do not operate to reduce or  discharge such Person’s obligations under the Loan Documents.   6. Miscellaneous.  THIS AMENDMENT SHALL BE GOVERNED BY, AND  CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.  This  Amendment may be executed in any number of counterparts and by the different parties hereto on  separate counterparts, each of which counterparts when executed and delivered shall be an original, but  all of which shall together constitute one and the same instrument. Delivery by facsimile or electronic  transmission of an executed counterpart of a signature page to this Amendment shall be effective as  delivery of an original executed counterpart of this Amendment.  The words “execution,” “signed,”  “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures  or electronic records, each of which shall be of the same legal effect, validity or enforceability as a  manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the  extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global  and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other  similar state laws based on the Uniform Electronic Transactions Act.  This Amendment is the entire  agreement, and supersedes any prior agreements and contemporaneous oral agreements, of the parties  concerning its subject matter.  This Amendment is a Loan Document and is subject to the terms and  conditions of the Credit Agreement.  This Amendment shall be binding on and inure to the benefit of the  parties and their heirs, beneficiaries, successors and permitted assigns.  





 






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  Federal Signal Corporation  First Amendment to Second Amended and Restated Credit Agreement  Signature Page  IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to  execute and deliver this Amendment as of the date first above written.      BORROWERS:  FEDERAL SIGNAL CORPORATION, as US Borrower  By:  _________________________________________   Name:    Title:        By:  _________________________________________   Name:    Title:          FST CANADA INC., as a Non-US Borrower  By:  _________________________________________   Name:    Title:      [Signature Pages Continue] 





 






    Federal Signal Corporation  First Amendment to Second Amended and Restated Credit Agreement  Signature Page  WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Administrative Agent, Swingline Lender, Issuing  Lender and a Lender      By: ___________________________________  Name:   Title:      





 






    Federal Signal Corporation  First Amendment to Second Amended and Restated Credit Agreement  Signature Page    JPMORGAN CHASE BANK, N.A., as a Lender      By: ___________________________________  Name:       JPMORGAN CHASE BANK, N.A. TORONTO  BRANCH, as a Lender      By: ___________________________________  Name:            





 






    Federal Signal Corporation  First Amendment to Second Amended and Restated Credit Agreement  Signature Page    KEYBANK NATIONAL ASSOCIATION, as a Lender      By: ___________________________________  Name:   Title:               





 






    Federal Signal Corporation  First Amendment to Second Amended and Restated Credit Agreement  Signature Page  PNC BANK, NATIONAL ASSOCIATION, as a Lender      By: ___________________________________  Name:        





 






    Federal Signal Corporation  First Amendment to Second Amended and Restated Credit Agreement  Signature Page  TRUIST BANK (successor by merger to SunTrust  Bank), as a Lender      By: ___________________________________  Name:        





 






    Federal Signal Corporation  First Amendment to Second Amended and Restated Credit Agreement  Signature Page  U.S. BANK NATIONAL ASSOCIATION, as a Lender      By: ___________________________________  Name:     





 






  150558160_4  ANNEX A    Amended Credit Agreement      [See attached]    





 






FINAL VERSION  152003688_8  Published CUSIP Numbers: 31396DAF5  Revolving Credit CUSIP Number: 31396DAG3      $500,000,000  SECOND AMENDED AND RESTATED CREDIT AGREEMENT  (as amended by that certain First Amendment dated as of December 23, 2021)  dated as of July 30, 2019,   by and among  FEDERAL SIGNAL CORPORATION,  as US Borrower,  FST CANADA INC.,  as a Non-US Borrower,  certain other Foreign Subsidiaries of US Borrower   from time to time parties hereto as Non-US Borrowers,  the Lenders referred to herein,   as Lenders,  WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Administrative Agent,   Swingline Lender and Issuing Lender,  JPMORGAN CHASE BANK, N.A.  as Syndication Agent,  KEYBANK NATIONAL ASSOCIATION,  PNC BANK, NATIONAL ASSOCIATION  and  TRUIST BANK  as Documentation Agents    WELLS FARGO SECURITIES, LLC,  and  JPMORGAN CHASE BANK, N.A.,  as Joint Lead Arrangers and Joint Bookrunners  





 






TABLE OF CONTENTS    Page     -i-     152003688_8  ARTICLE I DEFINITIONS ............................................................................................................ 1  Section 1.1 Definitions ............................................................................................................ 1  Section 1.2 Other Definitions and Provisions ........................................................................ 35  Section 1.3 Accounting Terms ............................................................................................... 36  Section 1.4 UCC Terms ......................................................................................................... 36  Section 1.5 Rounding ............................................................................................................. 36  Section 1.6 References to Agreement and Laws ................................................................... 36  Section 1.7 Times of Day ...................................................................................................... 37  Section 1.8 Letter of Credit Amounts .................................................................................... 37  Section 1.9 Guarantees .......................................................................................................... 37  Section 1.10 Covenant Compliance Generally ........................................................................ 37  Section 1.11 Exchange Rates; Currency Equivalents .............................................................. 37  Section 1.12 Change of Currency ............................................................................................ 38  Section 1.13 Limited Condition Acquisitions .......................................................................... 38  Section 1.14 Divisions ............................................................................................................. 39  Section 1.15 Rates ................................................................................................................... 39  ARTICLE II REVOLVING CREDIT FACILITY ......................................................................... 40  Section 2.1 Revolving Credit Loans ...................................................................................... 40  Section 2.2 Swingline Loans ................................................................................................. 40  Section 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans........ 42  Section 2.4 Repayment and Prepayment of Revolving Credit and Swingline Loans ............ 43  Section 2.5 Reserved ............................................................................................................. 44  Section 2.6 Termination of Revolving Credit Facility ........................................................... 44  ARTICLE III LETTER OF CREDIT FACILITY ........................................................................... 44  Section 3.1 L/C Facility ......................................................................................................... 44  Section 3.2 Procedure for Issuance of Letters of Credit ........................................................ 45  Section 3.3 Commissions and Other Charges ........................................................................ 46  Section 3.4 L/C Participations ............................................................................................... 46  Section 3.5 Reimbursement Obligation of the US Borrower ................................................ 47  Section 3.6 Obligations Absolute .......................................................................................... 48  Section 3.7 Effect of Letter of Credit Application ................................................................. 49  Section 3.8 Resignation of Issuing Lenders ........................................................................... 49  





 






TABLE OF CONTENTS  (continued)  Page    ii  152003688_8  Section 3.9 Reporting of Letter of Credit Information and L/C Commitment ...................... 49  Section 3.10 Letters of Credit Issued for Subsidiaries ............................................................. 50  ARTICLE IV RESERVED .............................................................................................................. 50  ARTICLE V GENERAL LOAN PROVISIONS ............................................................................ 50  Section 5.1 Interest ................................................................................................................ 50  Section 5.2 Notice and Manner of Conversion or Continuation of Loans ............................. 51  Section 5.3 Fees ..................................................................................................................... 52  Section 5.4 Manner of Payment ............................................................................................. 52  Section 5.5 Evidence of Indebtedness ................................................................................... 53  Section 5.6 Sharing of Payments by Lenders ........................................................................ 54  Section 5.7 Administrative Agent’s Clawback ...................................................................... 54  Section 5.8 Changed Circumstances ...................................................................................... 55  Section 5.9 Indemnity ............................................................................................................ 57  Section 5.10 Increased Costs ................................................................................................... 57  Section 5.11 Taxes ................................................................................................................... 59  Section 5.12 Mitigation Obligations; Replacement of Lenders ............................................... 62  Section 5.13 Incremental Loans ............................................................................................... 63  Section 5.14 Cash Collateral .................................................................................................... 66  Section 5.15 Defaulting Lenders ............................................................................................. 67  Section 5.16 Non-US Borrowers ............................................................................................. 69  Section 5.17 Designated Lenders ............................................................................................. 70  ARTICLE VI CONDITIONS OF CLOSING AND BORROWING ............................................... 70  Section 6.1 Conditions to Closing and Initial Extensions of Credit ...................................... 70  Section 6.2 Conditions to All Extensions of Credit ............................................................... 74  ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES .......... 75  Section 7.1 Organization; Power; Qualification .................................................................... 75  Section 7.2 Ownership ........................................................................................................... 75  Section 7.3 Authorization; Enforceability ............................................................................. 75  Section 7.4 Compliance of Agreement, Loan Documents and Borrowing with Laws,  Etc ....................................................................................................................... 76  Section 7.5 Compliance with Law; Governmental Approvals .............................................. 76  Section 7.6 Tax Returns and Payments ................................................................................. 76  Section 7.7 Intellectual Property Matters .............................................................................. 77  





 






TABLE OF CONTENTS  (continued)  Page    iii  152003688_8  Section 7.8 Environmental Matters ....................................................................................... 77  Section 7.9 Employee Benefit Matters .................................................................................. 78  Section 7.10 Margin Stock ...................................................................................................... 79  Section 7.11 Government Regulation ...................................................................................... 79  Section 7.12 Reserved ............................................................................................................. 80  Section 7.13 Employee Relations ............................................................................................ 80  Section 7.14 Burdensome Provisions ...................................................................................... 80  Section 7.15 Financial Statements ........................................................................................... 80  Section 7.16 No Material Adverse Change ............................................................................. 80  Section 7.17 Solvency ............................................................................................................. 80  Section 7.18 Title to Properties................................................................................................ 80  Section 7.19 Litigation ............................................................................................................. 80  Section 7.20 Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions ............... 80  Section 7.21 Absence of Defaults ............................................................................................ 81  Section 7.22 Senior Indebtedness Status ................................................................................. 81  Section 7.23 Disclosure ........................................................................................................... 81  ARTICLE VIII AFFIRMATIVE COVENANTS ............................................................................... 81  Section 8.1 Financial Statements and Budgets ...................................................................... 82  Section 8.2 Certificates; Other Reports ................................................................................. 82  Section 8.3 Notice of Litigation and Other Matters ............................................................... 84  Section 8.4 Preservation of Corporate Existence and Related Matters .................................. 84  Section 8.5 Maintenance of Property and Licenses ............................................................... 85  Section 8.6 Insurance ............................................................................................................. 85  Section 8.7 Accounting Methods and Financial Records ...................................................... 85  Section 8.8 Payment of Taxes and Other Obligations ........................................................... 85  Section 8.9 Compliance with Laws and Approvals ............................................................... 85  Section 8.10 Environmental Laws ........................................................................................... 86  Section 8.11 Compliance with ERISA .................................................................................... 86  Section 8.12 Compliance with Agreements ............................................................................. 86  Section 8.13 Visits and Inspections ......................................................................................... 86  Section 8.14 Additional Subsidiaries ....................................................................................... 86  Section 8.15 Reserved ............................................................................................................. 88  





 






TABLE OF CONTENTS  (continued)  Page    iv  152003688_8  Section 8.16 Use of Proceeds .................................................................................................. 88  Section 8.17 Reserved ............................................................................................................. 88  Section 8.18 Compliance with Anti-Corruption Laws; Beneficial Ownership  Regulation; Anti-Money Laundering Laws and Sanctions ................................. 88  Section 8.19 Corporate Governance ........................................................................................ 88  Section 8.20 Further Assurances ............................................................................................. 88  Section 8.21 Post-Closing Matters ........................................................................................... 89  ARTICLE IX NEGATIVE COVENANTS ...................................................................................... 89  Section 9.1 Indebtedness ....................................................................................................... 89  Section 9.2 Liens ................................................................................................................... 90  Section 9.3 Investments ......................................................................................................... 92  Section 9.4 Fundamental Changes ......................................................................................... 94  Section 9.5 Asset Dispositions............................................................................................... 95  Section 9.6 Restricted Payments ............................................................................................ 96  Section 9.7 Transactions with Affiliates ................................................................................ 97  Section 9.8 Accounting Changes; Organizational Documents .............................................. 98  Section 9.9 Payments and Modifications of Subordinated Indebtedness .............................. 98  Section 9.10 No Further Negative Pledges; Restrictive Agreements ...................................... 98  Section 9.11 Nature of Business .............................................................................................. 99  Section 9.12  Reserved ............................................................................................................ 99  Section 9.13 Sale Leasebacks .................................................................................................. 99  Section 9.14 Reserved ............................................................................................................. 99  Section 9.15 Financial Covenants ............................................................................................ 99  Section 9.16 Disposal of Subsidiary Interests ....................................................................... 100  Section 9.17 Canadian Defined Benefit Plans ....................................................................... 100  ARTICLE X DEFAULT AND REMEDIES ................................................................................ 100  Section 10.1 Events of Default .............................................................................................. 100  Section 10.2 Remedies ........................................................................................................... 102  Section 10.3 Rights and Remedies Cumulative; Non-Waiver; etc ........................................ 102  Section 10.4 Crediting of Payments and Proceeds ................................................................ 103  Section 10.5 Administrative Agent May File Proofs of Claim .............................................. 105  Section 10.6 Credit Bidding .................................................................................................. 105  ARTICLE XI THE ADMINISTRATIVE AGENT ....................................................................... 106  





 






TABLE OF CONTENTS  (continued)  Page    v  152003688_8  Section 11.1 Appointment and Authority .............................................................................. 106  Section 11.2 Rights as a Lender ............................................................................................. 106  Section 11.3 Exculpatory Provisions ..................................................................................... 107  Section 11.4 Reliance by the Administrative Agent .............................................................. 108  Section 11.5 Delegation of Duties ......................................................................................... 108  Section 11.6 Resignation of Administrative Agent ............................................................... 108  Section 11.7 Non-Reliance on Administrative Agent and Other Lenders ............................. 109  Section 11.8 No Other Duties, Etc ......................................................................................... 109  Section 11.9 Collateral and Guaranty Matters ....................................................................... 110  Section 11.10 Secured Hedge Agreements and Secured Cash Management Agreements ...... 110  Section 11.11 Erroneous Payments ......................................................................................... 110  ARTICLE XII MISCELLANEOUS ................................................................................................ 111  Section 12.1 Notices .............................................................................................................. 111  Section 12.2 Amendments, Waivers and Consents ............................................................... 113  Section 12.3 Expenses; Indemnity ......................................................................................... 115  Section 12.4 Right of Setoff .................................................................................................. 117  Section 12.5 Governing Law; Jurisdiction, Etc ..................................................................... 118  Section 12.6 Waiver of Jury Trial .......................................................................................... 118  Section 12.7 Reversal of Payments ........................................................................................ 119  Section 12.8 Injunctive Relief ............................................................................................... 119  Section 12.9 Successors and Assigns; Participations ............................................................ 119  Section 12.10 Treatment of Certain Information; Confidentiality ........................................... 123  Section 12.11 Performance of Duties ...................................................................................... 124  Section 12.12 All Powers Coupled with Interest ..................................................................... 124  Section 12.13 Survival ............................................................................................................. 124  Section 12.14 Titles and Captions ........................................................................................... 124  Section 12.15 Severability of Provisions ................................................................................. 125  Section 12.16 Counterparts; Integration; Effectiveness; Electronic Execution ....................... 125  Section 12.17 Term of Agreement ........................................................................................... 125  Section 12.18 USA PATRIOT Act; Anti-Money Laundering Laws ....................................... 125  Section 12.19 Independent Effect of Covenants ...................................................................... 125  Section 12.20 No Advisory or Fiduciary Responsibility ......................................................... 126  





 






TABLE OF CONTENTS  (continued)  Page    vi  152003688_8  Section 12.21 Amendment and Restatement; No Novation .................................................... 126  Section 12.22 Inconsistencies with Other Documents ............................................................. 127  Section 12.23 Anti-Money Laundering Legislation ................................................................ 127  Section 12.24 Maximum Amount ............................................................................................ 127  Section 12.25 Judgment Currency ........................................................................................... 128  Section 12.26 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ....... 128  Section 12.27 Certain ERISA Matters ..................................................................................... 129  Section 12.28 Acknowledgement Regarding Any Support QFCs ........................................... 130      EXHIBITS  Exhibit A-1 - Form of Revolving Credit Note   Exhibit A-2 - Form of Swingline Note  Exhibit A-3 - Form of Non-US Revolving Credit Note   Exhibit B - Form of Notice of Borrowing  Exhibit C - Form of Notice of Account Designation  Exhibit D - Form of Notice of Prepayment  Exhibit E - Form of Notice of Conversion/Continuation   Exhibit F - Form of Officer’s Compliance Certificate  Exhibit G - Form of Assignment and Assumption  Exhibit H-1 - Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Lenders)  Exhibit H-2 - Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Participants)  Exhibit H-3 - Form of U.S. Tax Compliance Certificate (Foreign Participant Partnerships)  Exhibit H-4 - Form of U.S. Tax Compliance Certificate (Foreign Lender Partnerships)  Exhibit I - Form of Notice of Non-US Borrower    SCHEDULES  Schedule 1.1(a) - Existing Letters of Credit  Schedule 1.1(b) - Commitments and Commitment Percentages  Schedule 7.1 - Jurisdictions of Organization and Qualification   Schedule 7.2 - Subsidiaries and Capitalization  Schedule 7.6 - Tax Matters  Schedule 7.9 - ERISA Plans  Schedule 7.13 - Labor and Collective Bargaining Agreements   Schedule 7.18 - Real Property  Schedule 8.21 - Post-Closing Matters  Schedule 9.1 - Existing Indebtedness  Schedule 9.2 - Existing Liens  Schedule 9.3 - Existing Loans, Advances and Investments   Schedule 9.7 - Transactions with Affiliates    





 






  1  152003688_8  SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 30, 2019, by  and among FEDERAL SIGNAL CORPORATION, a Delaware corporation (“US Borrower”), FST  CANADA INC. (“FST Canada”) , an Ontario corporation, and certain Foreign Subsidiaries of US Borrower  joined from time to time as a Borrower pursuant to Section 5.16 (collectively, the “Non-US Borrowers”  and each a “Non-US Borrower”, together with the US Borrower, collectively the “Borrowers”), the lenders  who are party to this Agreement and the lenders who may become a party to this Agreement pursuant to  the terms hereof, as Lenders, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national  banking association, as Administrative Agent for the Lenders.  STATEMENT OF PURPOSE  A. The US Borrower, certain financial institutions as lenders and Wells Fargo as  Administrative Agent entered into the Amended and Restated Credit Agreement, dated as of January 27,  2016 (as amended, the “Existing Credit Agreement”).  B. The parties wish to amend and restate the Existing Credit Agreement in its entirety.  C. The parties hereto intend that this Agreement and the Loan Documents executed in  connection herewith not effect a novation of the obligations of the US Borrower under the Existing Credit  Agreement but merely a restatement, and where applicable, an amendment to the terms governing said  obligations.  NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which  are hereby acknowledged by the parties hereto, such parties hereby agree as follows:  ARTICLE I  DEFINITIONS  SECTION 1.1 Definitions.  The following terms when used in this Agreement shall have the  meanings assigned to them below:  “2008 Sale-Leaseback Transaction” means, collectively, (a) those certain sale-leaseback  transactions entered into by the US Borrower pursuant to that certain Lease, dated July 2, 2008 by and  between Elgin Sweeper Company and CenterPoint Properties Trust for the lease of 1300 W. Bartlett Road,  Elgin, IL and that certain Agreement of Purchase and Sale related thereto and (b) that certain Lease, dated  July 2, 2008 by and between Federal Signal Corporation and CenterPoint Properties Trust for the lease of  2645 Federal Signal Drive, University Park, IL and that certain Agreement of Purchase and Sale related  thereto.   “Acquisition” means any acquisition, or any series of related acquisitions, consummated on or after  the date of this Agreement, by which any Credit Party or any of its Subsidiaries (a) acquires any business  or all or substantially all of the assets of any Person, or business unit, line of business or division thereof,  whether through purchase of assets, exchange, issuance of stock or other equity or debt securities, merger,  reorganization, amalgamation, division or otherwise or (b) directly or indirectly acquires (in one transaction  or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the  securities of a corporation which have ordinary voting power for the election of members of the board of  directors or the equivalent governing body (other than securities having such power only by reason of the  happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership  interests of a partnership or limited liability company.   





 






  2  152003688_8  “Adjusted Eurocurrency Rate” means, as to any Loan denominated in any applicable currency  (other than Sterling) for any Interest Period, a rate per annum determined by the Administrative Agent  pursuant to the following formula:    “Administrative Agent” means Wells Fargo, in its capacity as Administrative Agent hereunder, and  any successor thereto appointed pursuant to Section 11.6.  “Administrative Agent’s Office” means, with respect to any currency, the office of the  Administrative Agent specified in or determined in accordance with the provisions of Section 12.1(c) with  respect to such currency.  “Administrative Questionnaire” means an administrative questionnaire in a form supplied by the  Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.  “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with the  Person specified.  “Agreement” means this Second Amended and Restated Credit Agreement.  “Agreement Currency” has the meaning assigned thereto in Section 12.25.  “Alternative Currency” means the Euro, Sterling and the Canadian Dollar.  “Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in  Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the  Administrative Agent or the applicable Issuing Lender, as applicable, at such time on the basis of the Spot  Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative  Currency with Dollars.  “Alternative Currency Sublimit” means an amount equal to the lesser of the Revolving Credit  Commitment and the Dollar Equivalent of $200,000,000. The Alternative Currency Sublimit is part of, and  not in addition to, the Revolving Credit Commitment.  “AML Legislation” has the meaning assigned thereto in Section 12.23.  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction from time to time  concerning or relating to bribery or corruption, including, without limitation, the United States Foreign  Corrupt Practices Act of 1977 and the rules and regulations thereunder and the U.K. Bribery Act of 2010  and the rules and regulations thereunder.  “Anti-Money Laundering Laws” means any and all laws, statutes, regulations or obligatory  government orders, decrees, ordinances or rules related to terrorism financing, money laundering, any  predicate crime to money laundering or any financial record keeping, including any applicable provision of  Adjusted Eurocurrency Rate   = Eurocurrency Rate for such currency for such Interest Period   1.00 - Eurocurrency Reserve Percentage  





 






  3  152003688_8  the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank  Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).    “Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances,  rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of Governmental  Authorities and all orders and decrees of all courts and arbitrators.  “Applicable Margin” means the corresponding percentages per annum as set forth below based on  the Consolidated Total Net Leverage Ratio:  Pricing  Level  Consolidated Total Net Leverage  Ratio  Commitment  Fee  Eurocurrency  Rate and  SONIA Daily  Rate +  Base Rate +  I Greater than 3.00 to 1.00 0.250% 1.750% 0.750%  II Greater than 2.50 to 1.00, but less than  or equal to 3.00 to 1.00  0.225% 1.500% 0.500%  III Greater than 2.00 to 1.00, but less than  or equal to 2.50 to 1.00  0.200% 1.375% 0.375%  IV Greater than 1.50 to 1.00 but less than  or equal to 2.00 to 1.00  0.150% 1.125% 0.125%  V Less than or equal to 1.50 to 1.00 0.100% 1.000% 0.000%  The Applicable Margin shall be determined and adjusted quarterly on the date five (5) Business Days after  the day on which the US Borrower provides an Officer’s Compliance Certificate pursuant to Section 8.2(a)  for the most recently ended fiscal quarter of the US Borrower (each such date, a “Calculation Date”);  provided that (a) the Applicable Margin shall be based on Pricing Level V until the first Calculation Date  occurring after September 30, 2019 and, thereafter the Pricing Level shall be determined by reference to  the Consolidated Total Net Leverage Ratio as of the last day of the most recently ended fiscal quarter of  the US Borrower preceding the applicable Calculation Date, and (b) if the US Borrower fails to provide an  Officer’s Compliance Certificate when due as required by Section 8.2(a) for the most recently ended fiscal  quarter of the US Borrower preceding the applicable Calculation Date, the Applicable Margin from the date  on which such Officer’s Compliance Certificate was required to have been delivered shall be based on  Pricing Level I until such time as such Officer’s Compliance Certificate is provided, at which time the  Pricing Level shall be determined by reference to the Consolidated Total Net Leverage Ratio as of the last  day of the most recently ended fiscal quarter of the US Borrower preceding such Calculation Date. Except  as provided in the foregoing sentence, the applicable Pricing Level shall be effective from one Calculation  Date until the next Calculation Date. Any adjustment in the Pricing Level shall be applicable to all  Extensions of Credit then existing or subsequently made or issued.  Notwithstanding the foregoing, in the event that any financial statement or Officer’s Compliance Certificate  delivered pursuant to Section 8.1 or 8.2(a) is shown to be inaccurate (regardless of whether (i) this  Agreement is in effect, (ii) any Commitments are in effect, or (iii) any Extension of Credit is outstanding  when such inaccuracy is discovered or such financial statement or Officer’s Compliance Certificate was  delivered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable  Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable  Period, then (A) the US Borrower shall promptly (and in any case within five (5) Business Days) deliver to  the Administrative Agent a corrected Officer’s Compliance Certificate for such Applicable Period, (B) the  Applicable Margin for such Applicable Period shall be determined as if the Consolidated Total Net  Leverage Ratio in the corrected Officer’s Compliance Certificate were applicable for such Applicable  Period, and (C) the US Borrower shall promptly (and in any case within five (5) Business Days) and  





 






  4  152003688_8  retroactively be obligated to pay to the Administrative Agent the accrued additional interest and fees owing  as a result of such increased Applicable Margin for such Applicable Period, which payment shall be  promptly applied by the Administrative Agent in accordance with Section 5.4. Nothing in this paragraph  shall limit the rights of the Administrative Agent and Lenders with respect to Sections 5.1(b) and 10.2 nor  any of their other rights under this Agreement or any other Loan Document. The US Borrower’s obligations  under this paragraph shall survive the termination of the Commitments and the repayment of all other  Obligations hereunder.  The Applicable Margins set forth above shall be increased as, and to the extent, required by Section 5.13.  “Applicable Time” means, with respect to any borrowings and payments in any Alternative  Currency, the local time in the place of settlement for such Alternative Currency as may be determined by  the Administrative Agent or an Issuing Lender, as the case may be, to be necessary for timely settlement  on the relevant date in accordance with normal banking procedures in the place of payment.  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Arrangers” means Wells Fargo Securities, LLC, and JPMorgan Chase Bank, N.A. in their  capacities as joint lead arrangers and joint bookrunners.  “Asset Disposition” means the sale, transfer, license, lease or other disposition of any Property  (including any division or disposition of Capital Stock) by any Credit Party or any Subsidiary thereof (or  the granting of any option or other right to do any of the foregoing), and any issuance of Capital Stock by  any Subsidiary of the US Borrower to any Person that is not a Credit Party or any Subsidiary thereof. The  term “Asset Disposition” shall not include (a) the sale of inventory in the ordinary course of business, (b)  the transfer of assets to the US Borrower or any Subsidiary Guarantor pursuant to any other transaction  permitted pursuant to Section 9.4, (c) the write-off, discount, sale or other disposition of defaulted or past-  due receivables and similar obligations in the ordinary course of business and not undertaken as part of an  accounts receivable financing transaction, (d) the disposition of any Hedge Agreement, (e) dispositions of  Investments in cash and Cash Equivalents, (f) the transfer by any Credit Party of its assets to any other  Credit Party, (g) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided  that in connection with any new transfer, such Credit Party shall not pay more than an amount equal to the  fair market value of such assets as determined in good faith at the time of such transfer) and (h) the transfer  by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary.  “Assignment and Assumption” means an assignment and assumption entered into by a Lender and  an Eligible Assignee (with the consent of any party whose consent is required by Section 12.9), and  accepted by the Administrative Agent, in substantially the form attached as Exhibit G or any other form  approved by the Administrative Agent.  “Attributable Indebtedness” means, on any date of determination, (a) in respect of any Finance  Lease Obligation of any Person, the capitalized amount thereof that would appear on a balance sheet of  such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease,  the capitalized amount or principal amount of the remaining lease payments under the relevant lease that  would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such  lease were accounted for as a Finance Lease Obligation.  “Available Amount” means, at any date of determination (the applicable “Available Amount  Reference Date”), an amount equal to, without duplication:  





 






  5  152003688_8  (x) the sum of the cumulative amount of 50% of (i) the Consolidated Net Income, plus (ii)  non-cash charges in an amount not to exceed $10,000,000 to the extent deducted in determining  Consolidated Net Income, minus (iii) non-cash gains against in an amount not to exceed $10,000,000 to the  extent included in determining Consolidated Net Income, in each case for each fiscal quarter after the  Closing Date and on or prior to the Available Amount Reference Date;  minus:  (y) the sum of:  (i) a cumulative amount of 100% of (i) the Consolidated Net Loss, plus (ii) non-cash  charges in an amount not to exceed $10,000,000 to the extent deducted in determining Consolidated  Net Loss, minus (iii) non-cash gains against in an amount not to exceed $10,000,000 to the extent  included in determining Consolidated Net Loss, in each case for each fiscal quarter after the Closing  Date and on or prior to the Available Amount Reference Date; plus  (ii) the aggregate amount of the Restricted Payments made pursuant to Section 9.6(f)  after the Closing Date and on or prior to the Available Amount Reference Date; plus  (iii) the aggregate amount of the Investments made pursuant to Section 9.3(o) after the  Closing Date and on or prior to the Available Amount Reference Date.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article  55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law, regulation, rule or requirement for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of  the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or  rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment  firms or other financial institutions or their affiliates (other than through liquidation, administration or other  insolvency proceedings).  “Bankruptcy Code” means 11 U.S.C. §§ 101 et seq.  “Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus  0.50% and (c) the Adjusted Eurocurrency Rate for Dollars for an Interest Period of one month plus 1%;  each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in  the Prime Rate, the Federal Funds Rate or the Adjusted Eurocurrency Rate for Dollars (provided that clause  (c) shall not be applicable during any period in which the Adjusted Eurocurrency Rate for Dollars is  unavailable or unascertainable).  “Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate as provided  in Section 5.1(a). All Base Rate Loans are only available to the US Borrower and Loans denominated in  Dollars.  “Benchmark” means, initially, with respect to any (a) Obligations, interest, fees, commissions or  other amounts denominated in, or calculated with respect to Dollars, the USD LIBOR Rate; provided that  if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark  Replacement Date have occurred with respect to the USD LIBOR Rate or the then-current Benchmark, then  





 






  6  152003688_8  “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark  Replacement has become effective pursuant to Section 5.8(c), (b) Obligations, interest, fees, commissions  or other amounts denominated in, or calculated with respect to, Sterling, SONIA; provided that if a  Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to  SONIA or the then-current Benchmark for such Currency, then “Benchmark” means the applicable  Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to  Section 5.8(c), (c) Obligations, interest, fees, commissions or other amounts denominated in, or calculated  with respect to, Euros, EURIBOR; provided that if a Benchmark Transition Event and its related  Benchmark Replacement Date have occurred with respect to EURIBOR or the then-current Benchmark for  such Currency, then “Benchmark” means the applicable Benchmark Replacement to the extent that such  Benchmark Replacement has become effective pursuant to Section 5.8(c) and (d) Obligations, interest, fees,  commissions or other amounts denominated in, or calculated with respect to, Canadian Dollars, CDOR;  provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred  with respect to CDOR or the then-current Benchmark for such Currency, then “Benchmark” means the  applicable Benchmark Replacement to the extent that such Benchmark Replacement has become effective  pursuant to Section 5.8(c).  “Benchmark Replacement” means the sum of: (a) the alternate benchmark rate that has been  selected by the Administrative Agent and the US Borrower giving due consideration to (i) any selection or  recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant  Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of  interest as a replacement to the then existing Benchmark for syndicated credit facilities and (b) the  Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined  would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this  Agreement.   “Benchmark Replacement Adjustment” means, with respect to any replacement of the then existing  Benchmark with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread  adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or  negative value or zero) that has been selected by the Administrative Agent and the US Borrower giving due  consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or  determining such spread adjustment, for the replacement of the then existing Benchmark with the applicable  Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then- prevailing market convention for determining a spread adjustment, or method for calculating or determining  such spread adjustment, for the replacement of the then existing Benchmark with the applicable Unadjusted  Benchmark Replacement for syndicated credit facilities at such time.   “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the definition of  “Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making  payments of interest and other administrative matters) that the Administrative Agent decides may be  appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the  administration thereof by the Administrative Agent in a manner substantially consistent with market  practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not  administratively feasible or if the Administrative Agent determines that no market practice for the  administration of the Benchmark Replacement exists, in such other manner of administration as the  Administrative Agent decides is reasonably necessary in connection with the administration of this  Agreement).   “Benchmark Replacement Date” means the earlier to occur of the following events with respect to  the then existing Benchmark:   





 






  7  152003688_8  (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later  of (i) the date of the public statement or publication of information referenced therein and (ii) the date on  which the administrator of the applicable Benchmark permanently or indefinitely ceases to provide the  applicable Benchmark; and   (b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the  public statement or publication of information referenced therein.    “Benchmark Transition Event” means the occurrence of one or more of the following events with  respect to the then existing Benchmark:   (a) a public statement or publication of information by or on behalf of the administrator of the  applicable Benchmark announcing that such administrator has ceased or will cease to provide the applicable  Benchmark, permanently or indefinitely; provided that, at the time of such statement or publication, there  is no successor administrator that will continue to provide the applicable Benchmark;   (b) a public statement or publication of information by the regulatory supervisor for the  administrator of the applicable Benchmark, the central bank for the currency of the applicable Benchmark,  an insolvency official with jurisdiction over the administrator for the applicable Benchmark, a resolution  authority with jurisdiction over the administrator for the applicable Benchmark or a court or an entity with  similar insolvency or resolution authority over the administrator for the applicable Benchmark, which states  that the administrator of the applicable Benchmark has ceased or will cease to provide the applicable  Benchmark permanently or indefinitely; provided that, at the time of such statement or publication, there is  no successor administrator that will continue to provide the applicable Benchmark; or   (c) a public statement or publication of information by the regulatory supervisor for the  administrator of the applicable Benchmark announcing that the applicable Benchmark is no longer  representative.   “Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the  earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a  public statement or publication of information of a prospective event, the 90th  day prior to the expected  date of such event as of such public statement or publication of information (or if the expected date of such  prospective event is fewer than 90 days after such statement or publication, the date of such statement or  publication) and (b) in the case of an Early Opt-in Election, the date specified by Section 5.8(c)(i).   “Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related  Benchmark Replacement Date have occurred with respect to the then existing Benchmark and solely to the  extent that the then existing Benchmark has not been replaced with a Benchmark Replacement, the period  (a) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no  Benchmark Replacement has replaced the then existing Benchmark for all purposes hereunder in  accordance with Section 5.8(c) and (b) ending at the time that a Benchmark Replacement has replaced the  then existing Benchmark for all purposes hereunder pursuant to Section 5.8(c).  “Beneficial Ownership Certification” means a certification regarding beneficial ownership as  required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 CFR § 1010.230.  “BIA” means the Bankruptcy and Insolvency Act (Canada).  





 






  8  152003688_8  “Borrowers” has the meaning assigned thereto in the Preamble.  “Business Day” means any day other than a Saturday, Sunday or other day on which commercial  banks are authorized to close under the Applicable Laws of, or are in fact closed in, the state where the  Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:  (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated  in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such  Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in  respect of any such Eurocurrency Rate Loan, means any such day that is also a Eurocurrency Banking Day;   (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated  in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such  Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in  respect of any such Eurocurrency Rate Loan, means a TARGET Day;   (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated  in Canadian Dollars, any fundings, disbursements, settlements and payments in Canadian Dollars in respect  of any such Eurocurrency Rate Loan, or any other dealings in Canadian Dollars to be carried out pursuant  to this Agreement in respect of any such Eurocurrency Rate Loan, any day that is a Business Day described  in clause (a) and on which banks are open for business in Toronto, Canada;  (d) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated  in a currency other than Dollars, Canadian Dollars or Euro, means any such day on which dealings in  deposits in the relevant currency are conducted by and between banks in the London or other applicable  offshore interbank market for such currency; and   (e) if such day relates to any fundings, disbursements, settlements and payments in a currency  other than Dollars, Canadian Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a  currency other than Dollars, Canadian Dollars or Euro, or any other dealings in any currency other than  Dollars, Canadian Dollars or Euro to be carried out pursuant to this Agreement in respect of any such  Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are  open for foreign exchange business in the principal financial center of the country of such currency.  “Calculation Date” has the meaning assigned thereto in the definition of Applicable Margin.  “Canadian Credit Party” means any Borrower and any Subsidiary of US Borrower incorporated,  organized or formed under the federal or provincial laws of Canada including, without limitation, FST  Canada.  “Canadian Defined Benefit Plan” means any Canadian Plan which contains a “defined benefit  provision” as defined in subsection 147.1(1) of the ITA.  “Canadian Dollar” or “CAD” means the lawful currency of Canada.  “Canadian Multiemployer Plan” means a “multi-employer pension plan” as defined by Canadian  Pension Laws and registered in accordance with Canadian Pension Laws and as to which any Credit Party  or any Subsidiary thereof is making, and shall not include any Multiemployer Plan, Employee Benefit Plan,  Pension Plan or Canadian Statutory Plan.  





 






  9  152003688_8  “Canadian Pension Laws” means the Pension Benefits Act (Ontario), the ITA and any other  Canadian federal or provincial pension benefits standards legislation, and the respective regulations  thereunder, applicable to a Canadian Plan.  “Canadian Pension Plan” means any “registered pension plans” as defined under Section 248(1) or  the ITA or any other registered or unregistered pension plan that is a pension plan for the purpose of  Canadian Pension Laws and which is maintained, funded, or administered for the employees or former  employees of any Credit Party or any Subsidiary thereof, and shall not include any Pension Plan,  Multiemployer Plan, Canadian Multiemployer Plan or Canadian Statutory Plan.  “Canadian Plans” means any Canadian Multiemployer Plans or Canadian Pension Plans.  “Canadian Statutory Plan” means any retirement savings or benefit plan that a Canadian Credit  Party is required by Canadian federal or provincial statutes to participate in or contribute to in respect of its  employees, including, without limitation, the Canada Pension Plan, the Quebec Pension Plan and plans  administered by a governmental body pursuant to Canadian health, workplace safety insurance and  employment insurance legislation.  “Capital Expenditures” means, with respect to the US Borrower and its Subsidiaries on a  Consolidated basis, for any period, (a) the additions to property, plant and equipment and other capital  expenditures that are (or would be) set forth in a consolidated statement of cash flows of such Person for  such period prepared in accordance with GAAP and (b) Finance Lease Obligations during such period, but  excluding expenditures for the restoration, repair or replacement of any fixed or capital asset which was  destroyed or damaged, in whole or in part, to the extent financed by the proceeds of an insurance policy  maintained by such Person.  “Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case of an association  or business entity, any and all shares, interests, participations, rights or other equivalents (however  designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or  limited), (d) in the case of a limited liability company, membership interests, (e) any other interest or  participation that confers on a Person the right to receive a share of the profits and losses of, or distributions  of assets of, the issuing Person and (f) any and all warrants, rights or options to purchase any of the  foregoing.  “Cash Collateralize” means, to deposit in a Controlled Account or to pledge and deposit with, or  deliver to the Administrative Agent, or directly to the applicable Issuing Lender (with notice thereof to the  Administrative Agent), for the benefit of one or more of the Issuing Lenders, the Swingline Lender or the  Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of  L/C Obligations or Swingline Loans, cash or deposit account balances or, if the Administrative Agent and  the applicable Issuing Lender and the Swingline Lender shall agree, in their sole discretion, other credit  support, in each case pursuant to documentation in form and substance satisfactory to the Administrative  Agent, such Issuing Lender and the Swingline Lender, as applicable. “Cash Collateral” shall have a  meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit  support.  “Cash Equivalents” means, collectively, (a) marketable direct obligations issued or unconditionally  guaranteed by the United States or any agency thereof maturing within one hundred twenty (120) days from  the date of acquisition thereof, (b) commercial paper maturing no more than one hundred twenty (120) days  from the date of creation thereof and currently having the highest rating obtainable from either S&P or  Moody’s (or, if at any time either S&P or Moody’s are not rating such fund, an equivalent rating from  another nationally recognized statistical rating agency), (c) certificates of deposit maturing no more than  





 






  10  152003688_8  one hundred twenty (120) days from the date of creation thereof issued by commercial banks incorporated  under the laws of the United States, each having combined capital, surplus and undivided profits of not less  than $500,000,000 and having a rating of “A” or better by S&P or “A2” or better from Moody’s (or, if at  any time either S&P or Moody’s are not rating such fund, an equivalent rating from another nationally  recognized statistical rating agency); provided that the aggregate amount invested in such certificates of  deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for  any one such bank, (d) time deposits maturing no more than thirty (30) days from the date of creation  thereof with commercial banks or savings banks or savings and loan associations each having membership  either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the  maximum amounts of insurance thereunder or (e) savings or similar accounts (including those invested in  money markets) with any Lender party to this Agreement or any commercial bank or trust company having,  or which is the principal banking subsidiary of a bank holding company having, a long-term unsecured debt  rating of at least “A” or the equivalent thereof from S&P or “A2” or the equivalent thereof from Moody’s.   “Cash Management Agreement” means any agreement to provide cash management services,  including treasury, depository, overdraft, credit or debit card (including non-card electronic payables and  purchasing cards), electronic funds transfer and other cash management arrangements.  “Cash Management Bank” means any Person that, (a) at the time it enters into a Cash Management  Agreement with a Credit Party, is a Lender, an Affiliate of a Lender, the Administrative Agent or an  Affiliate of the Administrative Agent, or (b) at the time it (or its Affiliate) becomes a Lender (including on  the Closing Date), is a party to a Cash Management Agreement with a Credit Party, in each case in its  capacity as a party to such Cash Management Agreement.  “CCAA” means the Companies’ Creditors Arrangement Act (Canada).  “CDOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.  “Change in Control” means an event or series of events by which:  (a) (i) 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  or entity 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, except that a “person”  or “group” shall be deemed to have “beneficial ownership” of all Capital Stock that such “person” or  “group” has the right to acquire, whether such right is exercisable immediately or only after the passage of  time (such right, an “option right”)), directly or indirectly, of more than thirty percent (30%) of the Capital  Stock of the US Borrower entitled to vote in the election of members of the board of directors (or equivalent  governing body) of the US Borrower or (ii) a majority of the members of the board of directors (or other  equivalent governing body) of the US Borrower shall not constitute Continuing Directors;   (b) the US Borrower shall cease to beneficially own and control, directly or indirectly, 100%  on a fully diluted basis of the economic and voting interest in the Capital Stock of each Guarantor (other  than in a transaction permitted by Section 9.4); or  (c) there shall have occurred under any indenture or other instrument evidencing any  Indebtedness or Capital Stock in excess of $50,000,000 any “change in control” or similar event (as set  forth in the indenture, agreement or other evidence of such Indebtedness) obligating the US Borrower or  any of its Subsidiaries to repurchase, redeem or repay all or any part of the Indebtedness or Capital Stock  provided for therein.  





 






  11  152003688_8  “Change in Law” means the occurrence, after the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,  regulation or treaty or in the administration, interpretation, implementation or application thereof by any  Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether  or not having the force of law) by any Governmental Authority; provided that notwithstanding anything  herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,  rules, guidelines or directives thereunder or issued in connection therewith or in implementation thereof  and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements,  the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States  or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a  “Change in Law”, regardless of the date enacted, adopted, implemented or issued.  “CIPO” means the Canadian Intellectual Property Office.  “Class” means, when used in reference to any Loan, whether such Loan is a Revolving Credit Loan  or Swingline Loan and, when used in reference to any Revolving Credit Commitment.  “Closing Date” means the date of this Agreement.  “Code” means the Internal Revenue Code of 1986, and the rules and regulations promulgated  thereunder.  “Collateral” means the collateral security for the Secured Obligations pledged or granted pursuant  to the Security Documents.  “Commitment Fee” has the meaning assigned thereto in Section 5.3(a).  “Commitment Percentage” means, as to any Lender, such Lender’s Revolving Credit Commitment  Percentage.  “Commitments” means, collectively, as to all Lenders, the Revolving Credit Commitments of such  Lenders.  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).  “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by  net income (however denominated) or that are franchise Taxes or branch profits Taxes.  “Consolidated” means, when used with reference to financial statements or financial statement  items of any Person, such statements or items on a consolidated basis in accordance with applicable  principles of consolidation under GAAP.  “Consolidated EBITDA” means, for any period, the sum of the following determined on a  Consolidated basis, without duplication, for the US Borrower and its Subsidiaries in accordance with  GAAP: (a) Consolidated Net Income (excluding effects of non-cash adjustments resulting from application  of purchase accounting in relation to any Permitted Acquisition) for such period plus (b) the sum of the  following, without duplication, to the extent deducted in determining Consolidated Net Income for such  period: (i) income and franchise taxes, (ii) Consolidated Interest Expense, (iii) amortization, depreciation  and non-cash compensation charges, non-cash restructuring and non-cash impairment charges (except to  the extent that such non-cash charges are reserved for cash charges to be taken prior to the Revolving Credit  Maturity Date) and other non-cash charges subject to the consent of the Administrative Agent, and (iv)  





 






  12  152003688_8  solely for purposes of determining compliance with the financial covenants set forth in Section 9.15 during  each of the Fiscal Years ending after January 1, 2019 and before January 1, 2024, deferred gains resulting  from the 2008 Sale-Leaseback Transaction in an amount not to exceed $1,900,000 in any Fiscal Year and  $8,750,000 in the aggregate for all such Fiscal Years less (c) the sum of the following, without duplication,  to the extent included in determining Consolidated Net Income for such period: (i) interest income and (ii)  non-cash gains and income.  Consolidated EBITDA shall include EBITDA from Permitted Acquisitions on  a Pro Forma Basis and shall exclude EBITDA from dispositions on a Pro Forma Basis.   “Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a)  Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior  to such date to (b) Consolidated Interest Expense paid in cash for the period of four (4) consecutive fiscal  quarters ending on or immediately prior to such date.  “Consolidated Interest Expense” means, for any period, the sum of the following determined on a  Consolidated basis, without duplication, for the US Borrower and its Subsidiaries in accordance with  GAAP, interest expense (including, without limitation, interest expense attributable to Finance Lease  Obligations and all payment obligations, net of receipts, pursuant to Hedge Agreements related to  Indebtedness for such period.  “Consolidated Net Income” or “Consolidated Net Loss” means, for any period, the net income (or  loss) of the US Borrower and its Subsidiaries for such period, determined on a Consolidated basis, without  duplication, in accordance with GAAP; provided, that in calculating Consolidated Net Income of the US  Borrower and its Subsidiaries for any period, there shall be excluded (a) the net income (or loss) of any  Person (other than a Subsidiary which shall be subject to clause (c) below), in which any Borrower or any  of its Subsidiaries has a joint interest with a third party, except to the extent such net income is actually  paid in cash to the US Borrower or any of its Subsidiaries by dividend or other distribution during such  period, (b) the net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the  US Borrower or any of its Subsidiaries or is merged into or consolidated with the US Borrower or any of  its Subsidiaries or that Person’s assets are acquired by the US Borrower or any of its Subsidiaries except to  the extent included pursuant to the foregoing clause (a), (c) the net income (if positive), of any Subsidiary  to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary to the  US Borrower or any of its Subsidiaries of such net income (i) is not at the time permitted by operation of  the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental  regulation applicable to such Subsidiary or (ii) would be subject to any taxes payable on such dividends or  distributions, but in each case only to the extent of such prohibition or taxes and (d) any gain or loss from  Asset Dispositions during such period.  “Consolidated Total Indebtedness” means, as of any date of determination with respect to the US  Borrower and its Subsidiaries on a Consolidated basis without duplication, the sum of all Indebtedness of  the US Borrower and its Subsidiaries excluding (i) commercial letters of credit, (ii) up to $25,000,000 of  standby letters of credit exposure pertaining to workers compensation insurance and (iii) up to $25,000,000  of performance and warranty bonds and standby letters of credit that operate as performance and warranty  bonds incurred in the ordinary course of business. Notwithstanding the foregoing, and solely for purposes  of calculating “Consolidated Total Indebtedness”, all net obligations of any Person pursuant to clause (h)  of the definition of “Indebtedness” shall be limited to net obligations of such Person under any Hedge  Agreement that has been terminated but not paid.  “Consolidated Total Net Leverage Ratio” means, as of any date of determination, the ratio of (a)  Consolidated Total Indebtedness on such date minus all unrestricted cash and Cash Equivalents on such  date in an aggregate amount not to exceed $50,000,000 in each case that is held in deposit accounts in the  United States owned by and under the control of the US Borrower or any of its Subsidiaries and not subject  





 






  13  152003688_8  to any restriction as to its use to, (b) Consolidated EBITDA for the period of four (4) consecutive fiscal  quarters ending on or immediately prior to such date; provided that for purposes of determining unrestricted  domestic cash and Cash Equivalents of the US Borrower and its Subsidiaries for purposes of the incurrence  test to permit Indebtedness under Section 9.1(i), the cash proceeds of such Indebtedness shall be excluded  from the cash netting described above.  “Continuing Directors” means the directors of the US Borrower on the Closing Date and each other  director (or equivalent) of the US Borrower, if, in each case, such other Person’s nomination for election to  the board of directors of the US Borrower is approved by at least 51% of the then Continuing Directors.  “Control” means the possession, directly or indirectly, of the power to direct or cause the direction  of the management or policies of a Person, whether through the ability to exercise voting power, by contract  or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.  “Controlled Account” means each deposit account and securities account that is subject to an  account control agreement in form and substance reasonably satisfactory to the Administrative Agent and  each of the applicable Issuing Lenders that is entitled to Cash Collateral hereunder at the time such control  agreement is executed.  “Covenant Holiday” has the meaning assigned thereto in Section 9.15(a)(ii).  “Credit Facility” means, collectively, the Revolving Credit Facility, the Swingline Facility and the  L/C Facility.  “Credit Parties” means, collectively, the Borrowers and the Subsidiary Guarantors.  “Criminal Code Section” has the meaning assigned thereto in Section 12.24.  “Debtor Relief Laws” means the Bankruptcy Code of the United States of America, the BIA, the  CCAA and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,  moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the  United States, Canada or other applicable jurisdictions from time to time in effect.  “Default” means any of the events specified in Section 10.1 which with the passage of time, the  giving of notice or any other condition, would constitute an Event of Default.  “Default Rate” has the meaning assigned thereto in Section 5.1(b).  “Defaulting Lender” means, subject to Section 5.15(b), any Lender that (a) has failed to (i) fund all  or any portion of the Revolving Credit Loans, participations in L/C Obligations or participations in  Swingline Loans required to be funded by it hereunder within two Business Days of the date such Loans or  participations were required to be funded hereunder unless such Lender notifies the Administrative Agent  and the US Borrower in writing that such failure is the result of such Lender’s determination that one or  more conditions precedent to funding (each of which conditions precedent, together with any applicable  default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the  Administrative Agent, any 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 Business Days of the date when due, (b) has notified the US Borrower, the  Administrative Agent, any Issuing Lender or the Swingline Lender in writing that it does not intend to  comply with its funding obligations hereunder, or has made a public statement to that effect (unless such  writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such  





 






  14  152003688_8  position is based on such Lender’s determination that a condition precedent to funding (which condition  precedent, together with any applicable default, shall be specifically identified in such writing or public  statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the  Administrative Agent or the US Borrower, to confirm in writing to the Administrative Agent and the US  Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender  shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation  by the Administrative Agent and the US Borrower), or (d) has, or has a direct or indirect parent company  that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a  receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar  Person charged with reorganization or liquidation of its business or assets, including the FDIC or any other  state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action;  provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of  any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental  Authority so long as such ownership interest does not result in or provide such Lender with immunity from  the jurisdiction of courts within the United States or from the enforcement of judgments or writs of  attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate,  disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the  Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through  (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a  Defaulting Lender (subject to Section 5.15(b)) upon delivery of written notice of such determination to the  US Borrower, each Issuing Lender, the Swingline Lender and each Lender.  “Designated Lender” has the meaning assigned thereto in Section 5.17.  “Disqualified Capital Stock” means any Capital Stock that, by their terms (or by the terms of any  security or other Capital Stock into which they are convertible or for which they are exchangeable) or upon  the happening of any event or condition, (a) matures or is mandatorily redeemable (other than solely for  Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise (except as a result of a change  of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of  control or asset sale event shall be subject to the prior repayment in full of the Loans and all other  Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the  option of the holder thereof (other than solely for Qualified Capital Stock) (except as a result of a change  of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of  control or asset sale event shall be subject to the prior repayment in full of the Loans and all other  Obligations that are accrued and payable and the termination of the Commitments), in whole or in part, (c)  provides for the scheduled payment of dividends in cash or (d) is or become convertible into or  exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock,  in each case, prior to the date that is 91 days after the Revolving Loan Maturity Date; provided that if such  Capital Stock is issued pursuant to a plan for the benefit of the US Borrower or its Subsidiaries or by any  such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely  because they may be required to be repurchased by the US Borrower or its Subsidiaries in order to satisfy  applicable statutory or regulatory obligations.  “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars,  such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent  amount thereof in Dollars as determined by the Administrative Agent or the applicable Issuing Lender, as  applicable, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation  Date) for the purchase of Dollars with such Alternative Currency.  “Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency of the United States.  





 






  15  152003688_8  “Domestic Subsidiary” means any Subsidiary organized under the laws of any political subdivision  of the United States.  “Early Opt-in Election” means the occurrence of (a) the joint election by the Administrative  Agent and the Borrower to incorporate or adopt a new benchmark interest rate to replace the then  existing Benchmark for the USD LIBOR Rate for Dollars, and (b) the provision by the  Administrative Agent of written notice of such election to the Lenders.   “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition or (c) any financial institution established in an EEA Member Country which is a subsidiary of  an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with  its parent.  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein and Norway.  “EEA Resolution Authority” means any public administrative authority or any Person entrusted  with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any credit institution or investment firm established in any EEA Member  Country.  “Electronic Record” has the meaning assigned to that term in, and shall be interpreted in accordance  with, 15 U.S.C. 7006.  “Electronic Signature” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 15 U.S.C. 7006.  “Eligible Assignee” means any Person that meets the requirements to be an assignee under Section  12.9(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 12.9(b)(iii)).  “Employee Benefit Plan” means (a) any employee benefit plan within the meaning of Section 3(3)  of ERISA that is maintained for employees of any Credit Party or any ERISA Affiliate or (b) any Pension  Plan or Multiemployer Plan that has at any time within the preceding five (5) years been maintained, funded  or administered for the employees of any Credit Party or any current or former ERISA Affiliate. For the  avoidance of doubt, the term “Employee Benefit Plan” shall not include any Canadian Plan, any Canadian  benefit plans or any Canadian Statutory Plans.   “Environmental Claims” means any and all administrative, regulatory or judicial actions, suits,  demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation,  investigations (other than internal reports prepared by any Person in the ordinary course of business and  not in response to any third party action or request of any kind) or proceedings relating in any way to any  actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or  any approval given, under any such Environmental Law, including, without limitation, any and all claims  by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or  damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from  Hazardous Materials or arising from alleged injury or threat of injury to public health or the environment.  “Environmental Laws” means any and all federal, foreign, state, provincial and local laws, statutes,  ordinances, codes, rules, standards and regulations, permits, licenses, approvals, interpretations and orders  





 






  16  152003688_8  of courts or Governmental Authorities, relating to the protection of public health or the environment,  including, but not limited to, requirements pertaining to the manufacture, processing, distribution, use,  treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or  remediation of Hazardous Materials.  “ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and  regulations thereunder.  “ERISA Affiliate” means any Person who together with any Credit Party or any of its Subsidiaries  is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section  4001(b) of ERISA.  “Erroneous Payment” has the meaning assigned thereto in Section 11.11(a).  “Erroneous Payment Deficiency Assignment” has the meaning assigned thereto in Section  11.11(d).  “Erroneous Payment Impacted Class” has the meaning assigned thereto in Section 11.11(d).  “Erroneous Payment Return Deficiency” has the meaning assigned thereto in Section 11.11(d).  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor thereto), as in effect from time to time.  “EURIBOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.  “EURIBOR Rate” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.  “Euro” and “€” mean the single currency of the Participating Member States.  “Eurocurrency Banking Day” means, (a) for Obligations, interest, fees, commissions or other  amounts denominated in, or calculated with respect to Dollars, a London Banking Day, (b) for Obligations,  interest, fees, commissions or other amounts denominated in, or calculated with respect to Canadian  Dollars, a London Banking Day which is also a day on which banks are open for business in Toronto,  Canada, and (c) for Obligations, interest, fees, commissions or other amounts denominated in, or calculated  with respect to, Euros, a TARGET Day; provided, that for purposes of notice requirements in Sections  2.3(a), 2.4(c), and 5.2, in each case, such day is also a Business Day.  “Eurocurrency Rate” means, subject to the implementation of a Benchmark Replacement in  accordance with Section 5.8(c):  (a) for any Eurocurrency Rate Loan for any Interest Period:  (i) denominated in Dollars, the rate of interest per annum equal to the London  interbank offered rate for deposits in Dollars (“USD LIBOR”) as administered by the IBA, or a  comparable or successor administrator approved by the Administrative Agent, for a period  comparable to the applicable Interest Period (in each case, the “USD LIBOR Rate”), at  approximately 11:00 a.m. (London time) on the Rate Determination Date;  (ii) denominated in Euros, the rate of interest per annum equal to the Euro Interbank  Offered Rate (“EURIBOR”) as administered by the European Money Markets Institute, or a  comparable or successor administrator approved by the Administrative Agent, for a period  





 






  17  152003688_8  comparable to the applicable Interest Period (in each case, the “EURIBOR Rate”), at approximately  11:00 a.m. (Brussels time) on the Rate Determination Date; and  (iii) denominated in Canadian Dollars, the rate of interest per annum determined on the  basis of the rate for deposits in Canadian Dollars equal to the Canadian Dealer Offered Rate  (“CDOR”) for a period equal to the applicable Interest Period which appears on the applicable  Reuters Screen Page (or any applicable successor page) at approximately 10:00 a.m. (Toronto,  Ontario time) on the Rate Determination Date. If, for any reason, such rate does not appear on the  applicable Reuters Screen Page (or any applicable successor page), then “CDOR” shall be  determined by the Administrative Agent to be the arithmetic average of the rate per annum at which  deposits in Canadian Dollars would be offered by first class banks in the Ontario interbank market  to the Administrative Agent at approximately 10:00 a.m. (Toronto, Ontario time) on the Rate  Determination Date; and  (b) for any rate calculation with respect to a Base Rate Loan on any date, the rate of interest  per annum equal to USD LIBOR as administered by the IBA, or a comparable or successor administrator  approved by the Administrative Agent, for a period comparable to one month, at approximately 11:00 a.m.  (London time) two (2) Eurocurrency Banking Days prior to the date of such calculation.  Each calculation by the Administrative Agent of the Eurocurrency Rate shall be conclusive and  binding for all purposes, absent manifest error.  Notwithstanding the foregoing, (x) in no event shall the Eurocurrency Rate (including any  Benchmark Replacement with respect thereto) be less than 0% and (y) unless otherwise specified in any  amendment to this Agreement entered into in accordance with Section 5.8(c), in the event that a Benchmark  Replacement with respect to any Eurocurrency Rate is implemented then all references herein to such  Eurocurrency Rate shall be deemed references to such Benchmark Replacement.  “Eurocurrency Rate Loan” means any Loan bearing interest at a rate based on the Adjusted  Eurocurrency Rate other than pursuant to clause (c) of the definition of “Base Rate”.  “Eurocurrency Reserve Percentage” means, for any day, the percentage which is in effect for such  day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for  determining the maximum reserve requirement (including, without limitation, any basic, supplemental or  emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member  bank of the Federal Reserve System in New York City or any other reserve ratio or analogous requirement  of any central banking or financial regulatory authority imposed in respect of the maintenance of the  Commitments or the funding of the Loans.  The Adjusted Eurocurrency Rate for each outstanding Loan  shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve  Percentage.  “Event of Default” means any of the events specified in Section 10.1; provided that any requirement  for passage of time, giving of notice, or any other condition, has been satisfied.  “Exchange Act” means the Securities Exchange Act of 1934.  “Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and  to the extent that, all or a portion of the liability of such Credit Party for or the guarantee of such Credit  Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any  liability or 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  





 






  18  152003688_8  interpretation of any thereof) by virtue of such Credit Party’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 liability for or the guarantee of such Credit Party or the grant of such security interest becomes effective  with respect to such Swap Obligation (such determination being made after giving effect to any applicable  keepwell, support or other agreement for the benefit of the applicable Credit Party, including under Section  15 of the Subsidiary Guaranty Agreement). 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 for the reasons  identified in the immediately preceding sentence of this definition.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or  required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by  net income (however denominated), franchise Taxes, branch profits Taxes and capital Taxes, in each case,  (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office  or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax  (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender,  Canadian or United States federal withholding Taxes imposed on amounts payable to or for the account of  such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on  the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant  to an assignment request by the US Borrower under Section 5.12(b)) or (ii) such Lender changes its Lending  Office, except in each case to the extent that, pursuant to Section 5.11, amounts with respect to such Taxes  were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to  such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s  failure to comply with Section 5.11(g) and (d) any United States federal withholding Taxes imposed under  FATCA.  “Existing Credit Agreement” has the meaning assigned thereto in the Statement of Purpose.  “Existing Letters of Credit” means those letters of credit existing on the Closing Date and identified  on Schedule 1.1(a).  “Extensions of Credit” means, as to any Lender at any time, (a) an amount equal to the sum of (i)  the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding, (ii)  such Lender’s Revolving Credit Commitment Percentage of the L/C Obligations then outstanding and (iii)  such Lender’s Revolving Credit Commitment Percentage of the Swingline Loans then outstanding, or (b)  the making of any Loan or participation in any Letter of Credit by such Lender, as the context requires.  “Facility Office” means the office designated by the applicable Lender through which such Lender  will perform its obligations under this Agreement.  “FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards  Board.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any  amended or successor version that is substantively comparable and not materially more onerous to comply  with), any current or future regulations or official interpretations thereof and any agreements entered into  pursuant to Section 1471(b)(1) of the Code.  “FDIC” means the Federal Deposit Insurance Corporation.  





 






  19  152003688_8  “Federal Funds Rate” means, 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 Reserve Bank of New York on the Business Day next succeeding such day, provided that if  such rate is not so published for any day which is a Business Day, the Federal Funds Rate for such day shall  be the average of the quotation for such day on such transactions received by the Administrative Agent  from three federal funds brokers of recognized standing selected by the Administrative Agent.  Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall be deemed  to be zero for purposes of this Agreement.  “Fee Letters” means (a) the engagement letter agreement dated July 11, 2019 between the US  Borrower and Wells Fargo Securities, LLC and (b) the fee letter between the US Borrower and JPMorgan  Chase Bank, N.A.  “Finance Lease Obligations” of any Person means, subject to Section 1.3(b), 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 finance leases on a balance sheet of such Person under GAAP, and the amount of such  obligations shall be the capitalized amount thereof determined in accordance with GAAP.  “First Tier Foreign Subsidiary” means any Foreign Subsidiary that is a “controlled foreign  corporation” within the meaning of Section 957 of the Code and the Capital Stock of which are owned  directly by any Credit Party.  “Fiscal Year” means the fiscal year of the US Borrower and its Subsidiaries ending on December  31.  “Flood Insurance Laws” means, collectively, (a) the National Flood Insurance Act of 1968, (b) the  Flood Disaster Protection Act of 1973, (c) the National Flood Insurance Reform Act of 1994, (d) the Flood  Insurance Reform Act of 2004 and (e) the Biggert-Waters Flood Insurance Reform Act of 2012, as each of  the foregoing is now or hereafter in effect and any successor statute to any of the foregoing.  “Foreign Lender” means (a) if a Borrower is a U.S. Person, a Lender that is not a U.S. Person, and  (b) if a Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction  other than that in which such Borrower is resident for tax purposes.  “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.  “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing  Lender, such Defaulting Lender’s Revolving Credit Commitment Percentage of the outstanding L/C  Obligations with respect to Letters of Credit issued by such Issuing Lender, other than such L/C Obligations  as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash  Collateralized in accordance with the terms hereof and (b) with respect to the Swingline Lender, such  Defaulting Lender’s Revolving Credit Commitment Percentage of outstanding Swingline Loans other than  Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other  Lenders or Cash Collateralized in accordance with the terms hereof.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in  the ordinary course of its activities.  





 






  20  152003688_8  “GAAP” means generally accepted accounting principles in the United States set forth in the  opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified  Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or  such other principles as may be approved by a significant segment of the accounting profession in the  United States, that are applicable to the circumstances as of the date of determination, consistently applied.  “Governmental Approvals” means all authorizations, consents, approvals, permits, licenses and  exemptions of, and all registrations and filings with or issued by, any Governmental Authorities.  “Governmental Authority” means the government of the United States, Canada or any other nation,  or of any political subdivision thereof, whether state, provincial or local, and any agency, authority,  instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,  judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including  any supra- national bodies such as the European Union or the European Central Bank).  “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise,  of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other  obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and  including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply  funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance  or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property,  securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the  payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition  or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other  obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support  such Indebtedness or obligation or (e) for the purpose of assuming in any other manner the obligee in respect  of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee  against loss in respect thereof (whether in whole or in part); provided that the term “Guarantee” shall not  include endorsements for collection or deposit, in each case, in the ordinary course of business, or  customary and reasonable indemnity obligations in connection with any disposition of assets permitted  under this Agreement (other than any such obligations with respect to Indebtedness).  “Hazardous Materials” means any substances or materials (a) which are or become defined as  hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or mixtures or toxic  substances under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable, infectious,  radioactive, carcinogenic, mutagenic or otherwise harmful to public health or the environment and are or  become regulated by any Governmental Authority, (c) the presence of which require investigation or  remediation under any Environmental Law or common law, (d) the discharge or emission or release of  which requires a permit or license under any Environmental Law or other Governmental Approval, (e)  which are deemed by a Governmental Authority to constitute a nuisance or a trespass which pose a health  or safety hazard to Persons or neighboring properties, or (f) which contain, without limitation, asbestos,  polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived  substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.  “Hedge Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative  transactions, forward rate transactions, commodity swaps, commodity options, forward commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward bond or forward bond price or forward bond index transactions, interest rate options, forward  foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  





 






  21  152003688_8  foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b)  any and all transactions of any kind, and the related confirmations, which are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement.  “Hedge Bank” means any Person that, (a) at the time it enters into a Hedge Agreement with a Credit  Party permitted under Article IX, is a Lender, an Affiliate of a Lender, the Administrative Agent or an  Affiliate of the Administrative Agent or (b) at the time it (or its Affiliate) becomes a Lender (including on  the Closing Date), is a party to a Hedge Agreement with a Credit Party, in each case in its capacity as a  party to such Hedge Agreement.  “Hedge Termination Value” means, in respect of any one or more Hedge Agreements, after taking  into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a)  for any date on or after the date such Hedge Agreements have been closed out and termination value(s)  determined in accordance therewith, such termination value(s), and (b) for any date prior to the date  referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge  Agreements, as determined based upon one or more mid-market or other readily available quotations  provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate  of a Lender).  “IBA” has the meaning assigned thereto in Section 1.15.  “Increased Amount Date” has the meaning assigned thereto in Section 5.13(a).  “Incremental Lender” has the meaning assigned thereto in Section 5.13(a).  “Incremental Loan Commitments” has the meaning assigned thereto in Section 5.13(a)(ii).  “Incremental Loans” has the meaning assigned thereto in Section 5.13(a)(ii).  “Incremental Revolving Credit Commitment” has the meaning assigned thereto in Section  5.13(a)(ii).  “Incremental Revolving Credit Increase” has the meaning assigned thereto in Section 5.13(a)(ii).  “Incremental Term Loan” has the meaning assigned thereto in Section 5.13(a)(i).  “Incremental Term Loan Commitment” has the meaning assigned thereto in Section 5.13(a)(i).  “Indebtedness” means, with respect to any Person at any date and without duplication, the sum of  the following:  (a) all liabilities, obligations and indebtedness for borrowed money including, but not limited  to, obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person;  (b) all obligations to pay the deferred purchase price of property or services of any such Person  (including, without limitation, all payment obligations under non-competition, earn-out or similar  agreements, solely to the extent accounted for as a liability on the financial statements pursuant to GAAP),  except trade payables arising in the ordinary course of business not more than one hundred fifty (150) days  





 






  22  152003688_8  past due, or that are currently being contested in good faith by appropriate proceedings and with respect to  which reserves in conformity with GAAP have been provided for on the books of such Person;  (c) the Attributable Indebtedness of such Person with respect to such Person’s Finance Lease  Obligations and Synthetic Leases (regardless of whether accounted for as indebtedness under GAAP);  (d) all obligations of such Person under conditional sale or other title retention agreements  relating to property purchased by such Person to the extent of the value of such property (other than  customary reservations or retentions of title under agreements with suppliers entered into in the ordinary  course of business);  (e) all Indebtedness of any other Person secured by a Lien on any asset owned or being  purchased by such Person (including indebtedness arising under conditional sales or other title retention  agreements except trade payables arising in the ordinary course of business), whether or not such  indebtedness shall have been assumed by such Person or is limited in recourse;  (f) all obligations, contingent or otherwise, of any such Person relative to the face amount of  letters of credit, whether or not drawn, including, without limitation, any Reimbursement Obligation, and  banker’s acceptances issued for the account of any such Person;  (g) all obligations of any such Person in respect of Disqualified Capital Stock;  (h) all net obligations of such Person under any Hedge Agreements; and  (i) all Guarantees of any such Person with respect to any of the foregoing.  For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any  partnership or joint venture (other than a joint venture that is itself a corporation or limited liability  company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly  made non-recourse to such Person. The amount of any net obligation under any Hedge Agreement on any  date shall be deemed to be the Hedge Termination Value thereof as of such date. The amount of obligations  in respect of any Disqualified Capital Stock shall be valued, in the case of a redeemable preferred interest,  at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends that  are past due.  “Indemnitee” has the meaning assigned thereto in Section 12.3(b).   “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes and (b) to the extent not  otherwise described in clause (a), Other Taxes.  “Information” has the meaning assigned thereto in Section 12.10.  “Initial Issuing Lenders” means Wells Fargo and JPMC.  “Insurance and Condemnation Event” means the receipt by any Credit Party or any of its  Subsidiaries of any cash insurance proceeds or condemnation award payable by reason of theft, loss,  physical destruction or damage, taking or similar event with respect to any of their respective Property.  “Interest Payment Date” means (a) as to any Base Rate Loan, the last Business Day of each March,  June, September and December and the Revolving Credit Maturity Date and (b) as to any SONIA Daily  Rate Loan, the last Business Day of each calendar month.  





 






  23  152003688_8  “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date  such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and  ending on the date one (1), three (3), six (6) or twelve (12) months thereafter, in each case as selected by  the applicable Borrower in its Notice of Borrowing or Notice of Conversion/Continuation and subject to  availability; provided that:  (a) the Interest Period shall commence on the date of advance of or conversion to any  Eurocurrency Rate Loan and, in the case of immediately successive Interest Periods, each successive  Interest Period shall commence on the date on which the immediately preceding Interest Period expires;  (b) if any Interest Period would otherwise expire on a day that is not a Business Day, such  Interest Period shall expire on the next succeeding Business Day; provided that if any Interest Period with  respect to a Eurocurrency Rate Loan would otherwise expire on a day that is not a Business Day but is a  day of the month after which no further Business Day occurs in such month, such Interest Period shall  expire on the immediately preceding Business Day;  (c) any Interest Period with respect to a Eurocurrency Rate Loan 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 the relevant calendar  month at the end of such Interest Period;  (d) no Interest Period shall extend beyond the Revolving Credit Maturity Date;  (e) there shall be no more than ten (10) Interest Periods in effect at any time;   (f) Eurocurrency Rate Loans denominated in Canadian Dollars shall only be available for  Interest Periods of one (1) or three (3) months; and  (g) no tenor that has been removed pursuant to Section 5.8(c)(iv) may be selected.  “Investment” has the meaning assigned thereto in Section 9.3.  “IPO” means an initial public offering of Capital Stock by the US Borrower registered with the  Securities Exchange Commission under the Securities Act of 1933.  “IRS” means the United States Internal Revenue Service.  “ISP” means the International Standby Practices, International Chamber of Commerce Publication  No. 590 (or such later version thereof as may be in effect at the applicable time).  “Issuing Lender” means (a) with respect to Letters of Credit issued hereunder on or after the Closing  Date, (i) the Initial Issuing Lenders and (ii) any other Revolving Credit Lender to the extent it has agreed  in its sole discretion to act as an “Issuing Lender” hereunder and that has been approved in writing by the  US Borrower and the Administrative Agent (such approval by the Administrative Agent not to be  unreasonably delayed or withheld) as an “Issuing Lender” hereunder, in each case in its capacity as issuer  of any Letter of Credit; provided that the total number of Issuing Lenders under this clause (a) shall not  exceed four (4) and (b) with respect to the Existing Letters of Credit, Wells Fargo or JPMC, each in its  capacity as issuer thereof.  “ITA” means the Income Tax Act (Canada).  





 






  24  152003688_8  “Judgment Currency” has the meaning assigned thereto in Section 12.25.  “JPMC” means JPMorgan Chase Bank, N.A.  “Knowledge” of or as it relates to the US Borrower or any Subsidiary, means the knowledge of a  Responsible Officer of such Person.  “L/C Commitment” means, as to any Issuing Lender, the obligation of such Issuing Lender to issue  Letters of Credit for the account of the US Borrower or one or more of its Subsidiaries from time to time  in an aggregate amount equal to (a) for each of the Initial Issuing Lenders, the amount set forth opposite  the name of each such Initial Issuing Lender on Schedule 1.1(b) and (b) for any other Issuing Lender  becoming an Issuing Lender after the Closing Date, such amount as separately agreed to in a written  agreement between the US Borrower and such Issuing Lender (which such agreement shall be promptly  delivered to the Administrative Agent upon execution), in each case of clauses (a) and (b) above, any such  amount may be changed after the Closing Date in a written agreement between the US Borrower and such  Issuing Lender (which such agreement shall be promptly delivered to the Administrative Agent upon  execution); provided that the L/C Commitment with respect to any Person that ceases to be an Issuing  Lender for any reason pursuant to the terms hereof shall be $0 (subject to the Letters of Credit of such  Person remaining outstanding in accordance with the provisions hereof).  “L/C Facility” means the letter of credit facility established pursuant to Article III.  “L/C Obligations” means at any time, an amount equal to the sum of (a) the aggregate undrawn  and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings  under Letters of Credit which have not then been reimbursed pursuant to Section 3.5.  “L/C Participants” means, with respect to any Letter of Credit, the collective reference to all the  Revolving Credit Lenders other than the applicable Issuing Lender.  “L/C Sublimit” means the lesser of (a) $75,000,000 and (b) the Revolving Credit Commitment.  “LCA Test Date” has the meaning assigned thereto in Section 1.13(a).    “Lender” means each Person executing this Agreement as a Lender on the Closing Date and any  other Person that shall have become a party to this Agreement as a Lender pursuant to an Assignment and  Assumption or pursuant to Section 5.13, other than any Person that ceases to be a party hereto as a Lender  pursuant to an Assignment and Assumption. The term “Lenders” shall include any Designated Lender.  Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.  “Lender Joinder Agreement” means a joinder agreement in form and substance reasonably  satisfactory to the Administrative Agent delivered in connection with Section 5.13.  “Lending Office” means, with respect to any Lender, the office of such Lender maintaining such  Lender’s Extensions of Credit, which office may include any Affiliate of such Lender or any domestic or  foreign branch or such Lender or such Affiliate.  “Letter of Credit Application” means an application, in the form specified by the applicable Issuing  Lender from time to time, requesting such Issuing Lender to issue a Letter of Credit.  “Letters of Credit” means the collective reference to letters of credit issued pursuant to Section 3.1  and the Existing Letters of Credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.  





 






  25  152003688_8  “License” has the meaning assigned thereto in Section 8.5(a).  “Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge, charge,  security interest, hypothecation or encumbrance of any kind in respect of such asset. For the purposes of  this Agreement, a Person shall be deemed to own subject to a Lien any asset which it has acquired or holds  subject to the interest of a vendor or lessor under any conditional sale agreement, Finance Lease Obligation  or other title retention agreement relating to such asset.  “Limited Condition Acquisition” means any Acquisition that (a) is not prohibited hereunder and  (b) is not conditioned on the availability of, or on obtaining, third-party financing.  “Loan Documents” means, collectively, this Agreement, each Note, the Letter of Credit  Applications, the Security Documents, the Subsidiary Guaranty Agreement, the Fee Letters, and each other  document, instrument, certificate and agreement executed and delivered by the Credit Parties or any of their  respective Subsidiaries in favor of or provided to the Administrative Agent or any Secured Party in  connection with this Agreement or otherwise referred to herein or contemplated hereby (excluding any  Secured Hedge Agreement and any Secured Cash Management Agreement).  “Loans” means the collective reference to the Revolving Credit Loans and the Swingline Loans,  and “Loan” means any of such Loans.  “London Banking Day” means any day on which dealings in Dollar deposits are conducted by and  between banks in the London interbank market.  “Material Adverse Effect” means, with respect to the US Borrower and its Subsidiaries, (a) a  material adverse effect on the operations, business, properties or condition (financial or otherwise) of such  Persons, taken as a whole, (b) a material impairment of the ability of the Credit Parties, taken as a whole,  to perform its obligations under the Loan Documents, (c) a material impairment of the rights and remedies  of the Administrative Agent or the Lenders under any Loan Document or (d) a material impairment of the  legality, validity, binding effect or enforceability against any Credit Party of any Loan Document to which  it is a party.  “Material Domestic Subsidiary” means any Domestic Subsidiary of the US Borrower that has either  (a) revenues that represent more than 10% of the Consolidated revenues of the US Borrower and its  Subsidiaries for the most recently ended four-quarter period for which financial statements have been  delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, or (b) assets that represent more than 10% of  the Consolidated total assets of the US Borrower and its Subsidiaries as of the end of such period; provided,  that to the extent all of the Domestic Subsidiaries not then party to the Subsidiary Guaranty, shall have at  any time in the aggregate (i) revenues in excess of 10% of the Consolidated revenues of the US Borrower  and its Subsidiaries for any such period or (ii) assets in excess of 10% of Consolidated total assets of the  US Borrower and its Subsidiaries as of the end of any such fiscal quarter, then the US Borrower shall  immediately designate as “Material Domestic Subsidiaries” such number of such Domestic Subsidiaries as  necessary to eliminate such excess.  “Material Foreign Subsidiary” means Federal Signal VAMA, S.A. and any other Foreign  Subsidiary that has either (a) assets in excess of 5% of the Consolidated total assets of the US Borrower  and its Subsidiaries as of the end of the most recently ended fiscal quarter for which financial statements  have been delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, or (b) revenues that represent more  than 5% of the Consolidated revenues of the US Borrower and its Subsidiaries as of the most recently ended  four-quarter period for which financial statements have been delivered pursuant to Section 8.1(a) or 8.1(b),  as applicable; provided, that to the extent all of the Foreign Subsidiaries not then designated as Material  





 






  26  152003688_8  Foreign Subsidiaries shall have at any time in the aggregate (i) assets in excess of 30% of the Consolidated  total assets of the US Borrower and its Subsidiaries as of the end of any such fiscal quarter or (ii) revenues  in excess of 30% of the Consolidated revenues of the US Borrower and its Subsidiaries for any such period,  then the US Borrower shall immediately designate as Material Foreign Subsidiaries such number of such  Foreign Subsidiaries as necessary to eliminate such excess. Notwithstanding anything to the contrary  contained herein, a Non-US Borrower shall be treated as a Material Foreign Subsidiary.  “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting  of cash or deposit account balances, an amount equal to 102% of the sum of (i) the Fronting Exposure of  the Issuing Lender with respect to Letters of Credit issued and outstanding at such time and (ii) the Fronting  Exposure of the Swingline Lender with respect to all Swingline Loans outstanding at such time and (b)  otherwise, an amount determined by the Administrative Agent and each of the Issuing Lenders that is  entitled to Cash Collateral hereunder at such time in their sole discretion.  “Moody’s” means Moody’s Investors Service, Inc.  “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA  to which any Credit Party or any ERISA Affiliate is making, or is accruing an obligation to make, or has  accrued an obligation to make contributions within the preceding seven (7) years. For the avoidance of  doubt, the term “Multiemployer Plan” shall not include any Canadian Plan, any Canadian benefit plans,  and any Canadian Statutory Plans.   “Non-Consenting Lender” means any Lender that does not approve any consent, waiver,  amendment, modification or termination that (a) requires the approval of all Lenders or all affected Lenders  in accordance with the terms of Section 12.2 and (b) has been approved by the Required Lenders.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.  “Non-Guarantor Subsidiary” means any Subsidiary of the US Borrower that is not a Subsidiary  Guarantor.  “Non-US Borrower” and “Non-US Borrowers” have the meanings assigned thereto in the  Preamble.  “Non-US Collateral” means any Collateral that is not US Collateral.  “Non-US Obligations” means the portion of the Secured Obligations evidenced by any Loan made  to, or for the benefit of, any Non-US Borrower, hereunder or under any other Loan Document and any  Secured Obligations relating thereto, together with any Secured Obligations of any Non-US Borrower under  any Secured Hedge Agreement or Secured Cash Management Agreement.  “Non-US Revolving Credit Note” means the promissory note with respect to each Alternative  Currency made by the applicable Non-US Borrower in favor of a Revolving Credit Lender evidencing the  Revolving Credit Loans made by such Revolving Credit Lender, substantially in the form attached as  Exhibit A-3, and any substitutes therefor, and any replacements, restatements, renewals or extension  thereof, in whole or in part.  “Notes” means the collective reference to the Revolving Credit Notes, the Non-US Revolving  Credit Notes and the Swingline Note.  





 






  27  152003688_8  “Notice of Account Designation” has the meaning assigned thereto in Section 2.3(b).  “Notice of Borrowing” has the meaning assigned thereto in Section 2.3(a).  “Notice of Conversion/Continuation” has the meaning assigned thereto in Section 5.2.  “Notice of Non-US Borrower” means a Notice of Non-US Borrower and Assumption Agreement,  in substantially the form of Exhibit I hereto.  “Notice of Prepayment” has the meaning assigned thereto in Section 2.4(c).  “Obligations” means, in each case, whether now in existence or hereafter arising: (a) the principal  of and interest on (including interest accruing after the filing of any bankruptcy or similar petition) the  Loans, (b) the L/C Obligations and (c) all other fees and commissions (including attorneys’ fees), charges,  indebtedness, loans, liabilities, financial accommodations, obligations, covenants and duties owing by the  Credit Parties and each of their respective Subsidiaries to the Lenders, the Issuing Lender or the  Administrative Agent, in each case under any Loan Document, with respect to any Loan or Letter of Credit  of every kind, nature and description, direct or indirect, absolute or contingent, due or to become due,  contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any note and including  interest and fees that accrue after the commencement by or against any Credit Party or any Subsidiary  thereof of any proceeding under any Debtor Relief Laws, naming such Person as the debtor in such  proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.  “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.  “Officer’s Compliance Certificate” means a certificate of the chief financial officer or the treasurer  of the US Borrower substantially in the form attached as Exhibit F.  “Operating Lease” means, as to any Person as determined in accordance with GAAP, any lease of  Property (whether real, personal or mixed) by such Person as lessee which is not a finance lease.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in any  other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan  or Loan Document).  “Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing  or similar Taxes that arise from any payment made under, from the execution, delivery, performance,  enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with  respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with  respect to an assignment (other than an assignment made pursuant to Section 5.12).  “Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the  greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the  Issuing Lender, or the Swingline Lender, as the case may be, in accordance with banking industry rules on  interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the  rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount  approximately equal to the amount with respect to which such rate is being determined, would be offered  





 






  28  152003688_8  for such day by a branch or Affiliate of the Administrative Agent in the applicable offshore interbank market  for such currency to major banks in such interbank market.   “Participant” has the meaning assigned thereto in Section 12.9(d).  “Participant Register” has the meaning assigned thereto in Section 12.9(d).  “Participating Member State” means any member state of the European Union that has the Euro as  its lawful currency in accordance with legislation of the European Union relating to Economic and  Monetary Union.  “PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law  October 26, 2001)).  “Payment Recipient” has the meaning assigned thereto in Section 11.11(a).  “PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.  “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is  subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is maintained,  funded or administered for the employees of any Credit Party or any ERISA Affiliate, (b) has at any time  within the preceding five (5) years been maintained, funded or administered for the employees of any Credit  Party or any current or former ERISA Affiliates or (c) any Credit Party or any ERISA Affiliate has any  liability (contingent or otherwise). For the avoidance of doubt, the term “Pension Plan” shall not include  any Canadian Plan, any Canadian benefit plans, and any Canadian Statutory Plans.   “Permitted Acquisition” means any Acquisition that meets all of the following requirements, which  in the case of a Limited Condition Acquisition shall be subject to Section 1.13:  (a) no less than three (3) 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 US Borrower shall have  delivered written notice of such Acquisition to the Administrative Agent and the Lenders, which notice  shall include the proposed closing date of such Acquisition;  (b) the board of directors or other similar governing body of the Person to be acquired shall  have approved such Acquisition (and, if requested, the Administrative Agent shall have received evidence,  in form and substance reasonably satisfactory to the Administrative Agent, of such approval);  (c) if such Acquisition is a merger or consolidation, any Borrower or a Subsidiary Guarantor  shall be the surviving Person and no Change in Control shall have been effected thereby;  (d) if the Permitted Acquisition Consideration for any such Acquisition exceeds $100,000,000,  no later than three (3) 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 US Borrower, to the extent requested by the  Administrative Agent, shall have delivered to the Administrative Agent a duly completed Officer’s  Compliance Certificate showing compliance with the financial covenants set forth in Section 9.15 pursuant  to Section 9.3(g); and  (e) no Default or Event of Default shall have occurred and be continuing both before and  immediately after giving effect to such Acquisition and any Indebtedness incurred in connection therewith.  





 






  29  152003688_8  “Permitted Acquisition Consideration” means the aggregate amount of the purchase price,  including, but not limited to, any assumed debt, earn-outs (valued at the amount accounted for as a liability  on the financial statements pursuant to GAAP), deferred payments, or Capital Stock of the US Borrower  (net of the applicable acquired company’s cash and cash equivalents balance), to be paid on a singular basis  in connection with any applicable Permitted Acquisition as set forth in the applicable Permitted Acquisition  Documents executed by the US Borrower or any of its Subsidiaries in order to consummate the applicable  Permitted Acquisition.  “Permitted Acquisition Diligence Information” means with respect to any Acquisition proposed by  the US Borrower or any Subsidiary Guarantor, to the extent applicable, historical financial statements and  income tax returns for the most recent three year period and lien search results (except to the extent that  any such information is (a) subject to any confidentiality agreement, unless mutually agreeable  arrangements can be made to preserve such information as confidential, (b) classified or (c) subject to any  attorney-client privilege).  “Permitted Acquisition Documents” means with respect to any Acquisition proposed by any  Borrower or any Subsidiary Guarantor, the purchase agreement, sale agreement, merger agreement or other  agreement evidencing such Acquisition including disclosure schedules thereto, and any amendment,  modification or supplement to any of the foregoing.  “Permitted Liens” means the Liens permitted pursuant to Section 9.2.  “Person” means any natural person, corporation, limited liability company, trust, joint venture,  association, company, partnership, Governmental Authority or other entity.  “Platform” means Debt Domain, Intralinks, SyndTrak or a substantially similar electronic  transmission system.  “PPSA” means the Personal Property Security Act (Ontario) or any similar legislation of any  province or territory in Canada.  “Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to  time by the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of  the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge  that the rate announced publicly by the Administrative Agent as its prime rate is an index or base rate and  shall not necessarily be its lowest or best rate charged to its customers or other banks.  “Pro Forma Basis” means, for purposes of calculating Consolidated EBITDA for any period during  which one or more Specified Transactions occurs, that such Specified Transaction (and all other Specified  Transactions that have been consummated during the applicable period) shall be deemed to have occurred  as of the first day of the applicable period of measurement and all income statement items (whether positive  or negative) attributable to the Property or Person disposed of in an Asset Disposition shall be excluded and  all income statement items (whether positive or negative) attributable to the Property or Person acquired in  a Permitted Acquisition shall be included (provided that such income statement items to be included are  reflected in financial statements or other financial data reasonably acceptable to the Administrative Agent  and supported by a quality of earnings report issued by an independent certified public accounting firm or  a certified analysis of a Responsible Officer of the US Borrower, in either case, the results of which shall  be reasonably satisfactory to the Administrative Agent).  “Property” means 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.  





 






  30  152003688_8  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor,  as any such exemption may be amended from time to time.   “Qualified Capital Stock” means any Capital Stock that are not Disqualified Capital Stock.  “Rate Determination Date” means (i) the first day of such Interest Period with respect to  Eurocurrency Rate Loans denominated in Canadian Dollars and (ii) two (2) Eurocurrency Banking Days  prior to the commencement of such Interest Period with respect to Eurocurrency Rate Loans denominated  in Dollars or Euro (or such other day as is generally treated as the rate fixing day by market practice in such  interbank market, as determined by the Administrative Agent; provided that to the extent such market  practice is not administratively feasible for the Administrative Agent, such other day as otherwise  reasonably determined by the Administrative Agent).  “Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Lender, as  applicable.  “Register” has the meaning assigned thereto in Section 12.9(c).  “Reimbursement Obligation” means the obligation of the US Borrower to reimburse any Issuing  Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit issued by such Issuing Lender.  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of  such Person and of such Person’s Affiliates.  “Relevant Governmental Body” means for any Benchmark, (a) the central bank for the currency in  which the applicable Benchmark is denominated or any central bank or other supervisor which is  responsible for supervising either the applicable Benchmark or the administrator of the applicable  Benchmark or (b) any working group or committee officially endorsed or convened by (i) the central bank  for the currency in which the applicable Benchmark is denominated, (ii) any central bank or other supervisor  which is responsible for supervising either the applicable Benchmark or the administrator of the applicable  Benchmark, (iii) a group of those central banks or other supervisors or (iv) the Financial Stability Board or  any part thereof.   “Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more  than fifty percent (50%) of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any  Defaulting Lender shall be disregarded in determining Required Lenders at any time.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” means, as to any Person, the chief executive officer, president, chief  financial officer, controller, treasurer or assistant treasurer of such Person or any other officer of such Person  designated in writing by the US Borrower and reasonably acceptable to the Administrative Agent; provided  that, to the extent requested thereby, the Administrative Agent shall have received a certificate of such  Person certifying as to the incumbency and genuineness of the signature of each such officer. Any document  delivered hereunder or under any other Loan Document that is signed by a Responsible Officer of a Person  shall be conclusively presumed to have been authorized by all necessary corporate, limited liability  company, partnership and/or other action on the part of such Person and such Responsible Officer shall be  conclusively presumed to have acted on behalf of such Person.  





 






  31  152003688_8  “Restricted Payment” has the meaning assigned thereto in Section 9.6.  “Revaluation Date” means with respect to any Loan, each of the following: (i) each date of a  borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency or SONIA Daily Rate  Loan, but only as to the amount so borrowed on such date, (ii) each date of a continuation of a Eurocurrency  Rate Loan denominated in an Alternative Currency pursuant to Section 5.2, but only as to the amount so  continued on such date, (iii) each date of issuance of a Letter of Credit denominated in an Alternative  Currency (or an amendment of any such Letter of Credit having the effect of increasing the amount thereof),  but only as to the Letter of Credit so issued, amended or extended on such date, (iv) each date of any  payment by an Issuing Lender under any Letter of Credit denominated in an Alternative Currency, but only  as to the Letter of Credit that is paid on such date, and (v) such additional dates as the Administrative Agent  or an Issuing Lender shall determine or the Required Lenders shall require.  “Revolving Credit Commitment” means (a) as to any Revolving Credit Lender, the obligation of  such Revolving Credit Lender to make Revolving Credit Loans to, and to purchase participations in L/C  Obligations and Swingline Loans for the account of, the Borrowers hereunder in an aggregate principal  amount at any time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s  name on the Register, as such amount may be modified at any time or from time to time pursuant to the  terms hereof (including, without limitation, Section 5.13) and (b) as to all Revolving Credit Lenders, the  aggregate commitment of all Revolving Credit Lenders to make Revolving Credit Loans, as such amount  may be modified at any time or from time to time pursuant to the terms hereof (including, without limitation,  Section 5.13). The aggregate Revolving Credit Commitment of all the Revolving Credit Lenders on the  Closing Date shall be $500,000,000. The Revolving Credit Commitment of each Revolving Credit Lender  on the Closing Date is set forth opposite the name of such Lender on Schedule 1.1(b).  “Revolving Credit Commitment Percentage” means, with respect to any Revolving Credit Lender  at any time, the percentage of the total Revolving Credit Commitments of all the Revolving Credit Lenders  represented by such Revolving Credit Lender’s Revolving Credit Commitment. If the Revolving Credit  Commitments have terminated or expired, the Revolving Credit Commitment Percentages shall be  determined based upon the Revolving Credit Commitments most recently in effect, giving effect to any  assignments. The initial Revolving Credit Commitment Percentage of each Revolving Credit Lender is set  forth opposite the name of such Lender on Schedule 1.1(b).  “Revolving Credit Exposure” means, as to any Revolving Credit Lender at any time, the aggregate  principal amount at such time of its outstanding Revolving Credit Loans and such Revolving Credit  Lender’s participation in L/C Obligations and Swingline Loans at such time.  “Revolving Credit Facility” means the revolving credit facility established pursuant to Article II  (including any increase in such revolving credit facility established pursuant to Section 5.13).  “Revolving Credit Lenders” means, collectively, all of the Lenders with a Revolving Credit  Commitment or if the Revolving Credit Commitment has been terminated, all Lenders having Revolving  Credit Exposure.  “Revolving Credit Loan” means any revolving loan made to a Borrower pursuant to Section 2.1,  and all such revolving loans collectively as the context requires.  “Revolving Credit Maturity Date” means the earliest to occur of (a) July 30, 2024, (b) the date of  termination of the entire Revolving Credit Commitment by the Borrowers pursuant to Section 2.5, and (c)  the date of termination of the Revolving Credit Commitment pursuant to Section 10.2(a).  





 






  32  152003688_8  “Revolving Credit Note” means a promissory note made by the US Borrower in favor of a  Revolving Credit Lender evidencing the Revolving Credit Loans made by such Revolving Credit Lender,  substantially in the form attached as Exhibit A-1, and any substitutes therefor, and any replacements,  restatements, renewals or extension thereof, in whole or in part.  “Revolving Credit Outstandings” means the sum of (a) with respect to Revolving Credit Loans, the  Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any  borrowings and prepayments or repayments of Revolving Credit Loans, occurring on such date; plus (b)  with respect to Swingline Loans, on any date, the aggregate outstanding principal amount thereof in Dollars  after giving effect to any borrowings and prepayments or repayments of Swingline Loans, occurring on  such date plus (c) with respect to any L/C Obligations on any date, the aggregate outstanding amount thereof  in Dollars on such date after giving effect to any Extensions of Credit occurring on such date and any other  changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any  reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the  maximum amount available for drawing under Letters of Credit taking effect on such date.  “Revolving Extensions of Credit” means (a) any Revolving Credit Loan then outstanding, (b) any  Letter of Credit then outstanding or (c) any Swingline Loan then outstanding.  “S&P” means Standard & Poor’s Rating Service, a division of S&P Global Inc. and any successor  thereto.  “Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately  available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day  or other funds as may be determined by the Administrative Agent or an Issuing Lender, as applicable, to be  customary in the place of disbursement or payment for the settlement of international banking transactions  in the relevant Alternative Currency.  “Sanctioned Country” means at any time, a country, region or territory which is itself the subject  or target of any Sanctions.  “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of  designated Persons maintained by OFAC, the U.S. Department of State, Global Affairs Canada, the United  Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions  authority, (b) any Person operating, organized or resident in a Sanctioned Country, or (c) any Person more  than 50% owned or controlled by any such Person or Persons described in clauses (a) and (b).  “Sanctions” means any and all economic or financial sanctions, sectoral sanctions, secondary  sanctions, trade embargoes and restrictions and anti-terrorism laws, including but not limited to those  imposed, administered or enforced from time to time by the U.S. government (including those administered  by OFAC or the U.S. Department of State), the Canadian government, the United Nations Security Council,  the European Union, Her Majesty’s Treasury, or other relevant sanctions authority in any jurisdiction in  which (a) the US Borrower or any of its Subsidiaries or Affiliates is located or conducts business, (b) in  which any of the proceeds of the Extensions of Credit will be used, or (c) from which repayment of the  Extensions of Credit will be derived.    “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.  “Secured Cash Management Agreement” means any Cash Management Agreement between or  among any Credit Party and any Cash Management Bank.  





 






  33  152003688_8  “Secured Hedge Agreement” means any Hedge Agreement between or among any Credit Party and  any Hedge Bank.  “Secured Obligations” means, collectively, (a) the Obligations and (b) all existing or future  payment and other obligations owing by any Credit Party under (i) any Secured Hedge Agreement (other  than an Excluded Swap Obligation) and (ii) any Secured Cash Management Agreement.  “Secured Parties” means, collectively, the Administrative Agent, the Lenders (including  Designated Lenders), the Issuing Lenders, the Hedge Banks, the Cash Management Banks, each co-agent  or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 11.5, any other  holder from time to time of any of any Secured Obligations and, in each case, their respective successors  and permitted assigns.  “Securities Pledge Agreement” means the second amended and restated securities pledge  agreement of even date herewith executed by the Credit Parties in favor of the Administrative Agent, for  the ratable benefit of the Secured Parties, which shall be in form and substance acceptable to the  Administrative Agent, as amended, restated, supplemented or otherwise modified from time to time.  “Security Agreement” means the second amended and restated security agreement of even date  herewith executed by the Credit Parties in favor of the Administrative Agent, for the ratable benefit of the  Secured Parties, which shall be in form and substance acceptable to the Administrative Agent, as amended,  restated, supplemented or otherwise modified from time to time.  “Security Documents” means the collective reference to the Security Agreement, the Securities  Pledge Agreement, and each other agreement or writing hereafter delivered to Administrative Agent  pursuant to which any Credit Party pledges or grants a security interest in any Property or assets securing  the Secured Obligations.  “Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on  such date (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 not less than the amount that will be required to pay the probable liability of such Person on its debts as  they become absolute and matured, (c) such Person does not intend to, and does not believe that it will,  incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d)  such Person is not engaged in business or a transaction, and is not about to engage in business or a  transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such  Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature  in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as  the amount that, in the light of all the facts and circumstances existing at such time, represents the amount  that can reasonably be expected to become an actual or matured liability.  “SONIA” means, for each day any Loan denominated in Sterling is outstanding, a rate equal to the  Sterling Overnight Index Average as administered by the SONIA Administrator.  “SONIA Adjustment” means percentage equal to 0.0326% (3.26 basis points) per annum.  “SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling  Overnight Index Average).   





 






  34  152003688_8  “SONIA Administrator’s Website” means the Bank of England’s website, currently at  http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average  identified as such by the SONIA Administrator from time to time.   “SONIA Daily Rate” means, for any day, with respect to any Credit Extension denominated in  Sterling, the rate per annum equal to the sum of (a) SONIA for the day (such day, a “SONIA Determination  Day”) that is four (4) Business Days prior to (i) if such day is a Business Day, such day or (ii) if such day  is not a Business Day, the Business Day immediately preceding such day, in each case, as such SONIA is  published by the SONIA Administrator on the SONIA Administrator’s Website; provided that if by 5:00  p.m. (London time) on the second (2nd) Business Day immediately following any SONIA Determination  Day, SONIA in respect of such SONIA Determination Day has not been published on the SONIA  Administrator’s Website, then SONIA for such SONIA Determination Day will be SONIA as published in  respect of the first preceding Business Day for which SONIA was published on the SONIA Administrator’s  Website; provided further that SONIA as determined pursuant to this proviso shall be utilized for purposes  of calculation of SONIA Daily Rate for no more than three (3) consecutive days and (b) the SONIA  Adjustment.  Any change in the SONIA Daily Rate due to a change in SONIA shall be effective from and  including the effective date of such change in SONIA without notice to the Borrowers.  “SONIA Daily Rate Loan” means a Loan that bears interest at a rate based on the SONIA Daily  Rate.  All SONIA Daily Rate Loans must be denominated in Sterling.  “Specified Transactions” means (a) any Asset Disposition, (b) any Permitted Acquisition and (c)  the Transactions.  “Spot Rate” for a currency means the rate determined by the Administrative Agent or an Issuing  Lender, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the  purchase by such Person of such currency with another currency through its principal foreign exchange  trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the  foreign exchange computation is made; provided that the Administrative Agent or an Issuing Lender, as  applicable, may obtain such spot rate from another financial institution designated by the Administrative  Agent or such Issuing Lender if the Person acting in such capacity does not have as of the date of  determination a spot buying rate for any such currency; provided further that an Issuing Lender may use  such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any  Letter of Credit denominated in an Alternative Currency.  “Sterling” or “£” means the lawful currency of the United Kingdom.  “Subordinated Indebtedness” means the collective reference to any Indebtedness incurred by the  US Borrower or any of its Subsidiaries that is subordinated in right and time of payment to the Obligations  on terms and conditions satisfactory to the Administrative Agent.  “Subsidiary” means as to any Person, any corporation, partnership, limited liability company or  other entity of which more than fifty percent (50%) of the outstanding Capital Stock having ordinary voting  power to elect a majority of the board of directors (or equivalent governing body) or other managers of such  corporation, partnership, limited liability company or other entity is at the time owned by (directly or  indirectly) or the management is otherwise controlled by (directly or indirectly) such Person (irrespective  of whether, at the time, Capital Stock of any other class or classes of such corporation, partnership, limited  liability company or other entity shall have or might have voting power by reason of the happening of any  contingency). Unless otherwise qualified, references to “Subsidiary” or “Subsidiaries” herein shall refer to  those of the Borrower.  





 






  35  152003688_8  “Subsidiary Guarantors” means, collectively, all direct and indirect Material Domestic Subsidiaries  of the US Borrower in existence on the Closing Date or which become a party to the Subsidiary Guaranty  Agreement pursuant to Section 8.14.  “Subsidiary Guaranty Agreement” means the second amended and restated guaranty of even date  herewith executed by the US Borrower and the Subsidiary Guarantors in favor of the Administrative Agent,  for the ratable benefit and the Secured Parties, which shall be in form and substance acceptable to the  Administrative Agent.  “Swap Obligation” means, 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.  “Sweep Arrangement” has the meaning assigned thereto in Section 2.2(a).  “Swingline Commitment” means the lesser of (a) $25,000,000 and (b) the Revolving Credit  Commitment.  “Swingline Facility” means the swingline facility established pursuant to Section 2.2.  “Swingline Lender” means Wells Fargo in its capacity as swingline lender hereunder or any  successor thereto.  “Swingline Loan” means any swingline loan made by the Swingline Lender to the US Borrower  pursuant to Section 2.2, and all such swingline loans collectively as the context requires.  “Swingline Note” means a promissory note made by the US Borrower in favor of the Swingline  Lender evidencing the Swingline Loans made by the Swingline Lender, substantially in the form attached  as Exhibit A-2, and any substitutes therefor, and any replacements, restatements, renewals or extension  thereof, in whole or in part.  “Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan  or similar off-balance sheet financing product where such transaction is considered borrowed money  indebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP.  “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer  payment system which utilizes a single shared platform and which was launched on November 19, 2007.  “TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be  operative, such other payment system, if any, determined by the Administrative Agent to be a suitable  replacement) is open for the settlement of payments in Euro.  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, fines, additions to tax or penalties applicable thereto.  “Termination Event” means the occurrence of any of the following which, individually or in the  aggregate, has resulted or could reasonably be expected to result in liability of the US Borrower in an  aggregate amount in excess of the Threshold Amount: (a) a “Reportable Event” described in Section 4043  of ERISA, or (b) the withdrawal of any Credit Party or any ERISA Affiliate from a Pension Plan during a  plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation  





 






  36  152003688_8  of operations that is treated as such a withdrawal under Section 4062(e) of ERISA, or (c) the termination  of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension  Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay  all plan liabilities, or (d) the institution of proceedings to terminate, or the appointment of a trustee with  respect to, any Pension Plan by the PBGC, or (e) any other event or condition which would constitute  grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to  administer, any Pension Plan, or (f) the imposition of a Lien pursuant to Section 430(k) of the Code or  Section 303 of ERISA, or (g) the determination that any Pension Plan or Multiemployer Plan is considered  an at-risk plan or plan in endangered or critical status with the meaning of Sections 430, 431 or 432 of the  Code or Sections 303, 304 or 305 of ERISA or (h) the partial or complete withdrawal of any Credit Party  or any ERISA Affiliate from a Multiemployer Plan if withdrawal liability is asserted by such plan, or (i)  any event or condition which results in the reorganization or insolvency of a Multiemployer Plan under  Sections 4245 of ERISA, or (j) any event or condition which results in the termination of a Multiemployer  Plan under Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a  Multiemployer Plan under Section 4042 of ERISA, or (k) the imposition of any liability under Title IV of  ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any  Credit Party or any ERISA Affiliate.  “Threshold Amount” means $20,000,000.  “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments and  Revolving Credit Exposure of such Lender at such time.  “Trade Date” has the meaning assigned thereto in Section 12.9(h)(i).  “Transaction Costs” means all transaction fees, charges and other amounts related to the  Transactions and any Permitted Acquisitions (including, without limitation, any financing fees, merger and  acquisition fees, legal fees and expenses, due diligence fees or any other fees and expenses in connection  therewith), in each case to the extent paid within six (6) months of the closing of the Credit Facility or such  Permitted Acquisition, as applicable, and approved by the Administrative Agent in its reasonable discretion.  “Transactions” means, collectively, (a) the repayment in full of all Indebtedness outstanding under  the Existing Credit Agreement, (b) the initial Extensions of Credit and (c) the payment of the Transaction  Costs incurred in connection with the foregoing.  “UCC” means the Uniform Commercial Code as in effect in the State of Illinois.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA  Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation  Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time)  promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions  and investment firms, and certain affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative authority  having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the  Benchmark Replacement Adjustment.  





 






  37  152003688_8  “Uniform Customs” means the Uniform Customs and Practice for Documentary Credits,  International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect  at the applicable time).  “United States” means the United States of America.  “US Borrower” has the meaning in the Preamble.  “US Collateral” means Collateral granted by the US Borrower and the Subsidiary Guarantors  (excluding voting Capital Stock of a Foreign Subsidiary in excess of 65% of the outstanding voting Capital  Stock of such Foreign Subsidiary).  “US Obligations” means Secured Obligations other than Non-US Obligations.  “U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30)  of the Code.  “U.S. Tax Compliance Certificate” has the meaning assigned thereto in Section 5.11(g).  “USD LIBOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.  “USD LIBOR Rate” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.  “Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.  “Wholly-Owned” means, with respect to a Subsidiary, that all of the Capital Stock of such  Subsidiary are, directly or indirectly, owned or controlled by any Borrower and/or one or more of its  Wholly-Owned Subsidiaries (except for directors’ qualifying shares or other shares required by Applicable  Law to be owned by a Person other than such Borrower and/or one or more of its Wholly- Owned  Subsidiaries).  “Withholding Agent” means the US Borrower and the Administrative Agent.  “Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail- In Legislation for the applicable EEA Member Country, which write-down and conversion powers are  described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers  of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change  the form of a liability of any UK Financial Institution or any contract or instrument under which that liability  arises, to convert all or part of that liability into shares, securities or obligations of that person or any other  person, to provide that any such contract or instrument is to have effect as if a right had been exercised  under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.  SECTION 1.2 Other Definitions and Provisions.  With reference to this Agreement and each  other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) the definitions  of terms herein shall apply equally to the singular and plural forms of the terms defined, (b) whenever the  context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms,  (c) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without  limitation”, (d) the word “will” shall be construed to have the same meaning and effect as the word “shall”,  (e) any reference herein to any Person shall be construed to include such Person’s successors and assigns,  





 






  38  152003688_8  (f) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer  to this Agreement in its entirety and not to any particular provision hereof, (g) all references herein to  Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and  Exhibits and Schedules to, this Agreement, (h) the words “asset” and “property” shall be construed to have  the same meaning and effect and to refer to any and all tangible and intangible assets and properties,  including cash, securities, accounts and contract rights, (i) the term “documents” includes any and all  instruments, documents, agreements, certificates, notices, reports, financial statements and other writings,  however evidenced, whether in physical or electronic form and (j) in the computation of periods of time  from a specified date to a later specified date, the word “from” means “from and including;” the words “to”  and “until” each mean “to but excluding;” and the word “through” means “to and including”  SECTION 1.3 Accounting Terms.  (a) All accounting terms not specifically or completely defined herein shall be construed in  conformity with, and all financial data (including financial ratios and other financial calculations) required  to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP, applied on a  consistent basis, as in effect from time to time and in a manner consistent with that used in preparing the  audited financial statements required by Section 8.1(a), except as otherwise specifically prescribed herein.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the  computation of any financial covenant) contained herein, Indebtedness of the US 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.  (b) If at any time any change in GAAP would affect the computation of any financial ratio or  requirement set forth in any Loan Document, and either the US Borrower or the Required Lenders shall so  request, the Administrative Agent, the Lenders and the US Borrower shall negotiate in good faith to amend  such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject  to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement  shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the US  Borrower shall provide to the Administrative Agent and the Lenders financial statements and other  documents required under this Agreement or as reasonably requested hereunder setting forth a  reconciliation between calculations of such ratio or requirement made before and after giving effect to such  change in GAAP. For the avoidance of doubt, (i) notwithstanding any change in GAAP pursuant to FASB  ASC 842 that would require lease obligations that would have been treated as Operating Leases for purposes  of GAAP prior to the effectiveness of FASB ASC 842 to be classified and accounted for as finance leases  or otherwise reflected on Credit Parties’ and their Subsidiaries’ consolidated balance sheet, such obligations  shall continue to be treated as Operating Leases for all purposes under this Agreement and the other Loan  Documents and (ii) any lease that was entered into after the effectiveness of FASB ASC 842 that would  have been considered an Operating Lease under GAAP prior to the effectiveness of FASB ASC 842 shall  be treated as an Operating Lease for all purposes under this Agreement and the other Loan Documents.   Notwithstanding any other provision contained in this Agreement, for purposes of determining compliance  with any covenant (including the computation of any financial covenant) contained herein, so long as the  following properties are not owned by US Borrower or any of its Subsidiaries, any long term lease entered  into after the Closing Date by Elgin Sweeper Company for 1300 W. Bartlett Road, Elgin, IL and/or by  Federal Signal Corporation for 2645 Federal Signal Drive, University Park, IL shall be treated as an  Operating Lease irrespective of whether it is to be classified and accounted for as a finance lease for GAAP  purposes.  SECTION 1.4 UCC Terms.  Terms defined in the UCC in effect on the Closing Date and not  otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided by those  





 






  39  152003688_8  definitions. Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the UCC  then in effect.  SECTION 1.5 Rounding.  Any financial ratios required to be maintained pursuant to this  Agreement shall be calculated by dividing the appropriate component by the other component, carrying the  result to one place more than the number of places by which such ratio or percentage is expressed herein  and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).  SECTION 1.6 References to Agreement and Laws.  Unless otherwise expressly provided  herein, (a) any definition or reference to formation documents, governing documents, agreements  (including the Loan Documents) and other contractual documents or instruments shall be deemed to include  all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but  only to the extent that such amendments, restatements, extensions, supplements and other modifications are  not prohibited by any Loan Document; and (b) any definition or reference to any Applicable Law, including,  without limitation, AML Legislation, Anti-Corruption Laws, Anti-Money Laundering Laws, the  Bankruptcy Code, the BIA, the CCAA, the Code, the Commodity Exchange Act, ERISA, the Exchange  Act, the ITA, the PATRIOT Act, the Securities Act of 1933, the UCC, the PPSA, the Investment Company  Act of 1940, the Interstate Commerce Act, the Trading with the Enemy Act of the United States or any of  the foreign assets control regulations of the United States Treasury Department, shall include all statutory  and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such  Applicable Law.  SECTION 1.7 Times of Day.  Unless otherwise specified, all references herein to times of day  shall be references to Eastern time (daylight or standard, as applicable), except with respect to any  borrowings and payments in Euro, such references shall mean London, England time, unless otherwise  notified by the Administrative Agent.  SECTION 1.8 Letter of Credit Amounts.  Unless otherwise specified, all references herein to  the amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such  Letter of Credit in Dollars after giving effect to all increases thereof contemplated by such Letter of Credit  or the Letter of Credit Application therefor (at the time specified therefor in such applicable Letter of Credit  or Letter of Credit Application and as such amount may be reduced by (a) any permanent reduction of such  Letter of Credit or (b) any amount in Dollars which is drawn, reimbursed and no longer available under  such Letter of Credit).  SECTION 1.9 Guarantees.  Unless otherwise specified, the amount of any Guarantee shall be  the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum  amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying  such Guarantee.  SECTION 1.10 Covenant Compliance Generally.  For purposes of determining compliance  under Sections 9.1, 9.2, 9.3, 9.5 and 9.6, any amount in a currency other than Dollars will be converted to  Dollars in a manner consistent with that used in calculating Consolidated Net Income in the most recent  annual financial statements of the US Borrower and its Subsidiaries delivered pursuant to Section 8.1(a) or  Section 6.1(f), as applicable. Notwithstanding the foregoing, for purposes of determining compliance with  Sections 9.1, 9.2 and 9.3, with respect to any amount of Indebtedness or Investment in a currency other  than Dollars, no breach of any basket contained in such sections shall be deemed to have occurred solely  as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is  incurred; provided that for the avoidance of doubt, the foregoing provisions of this Section 1.10 shall  otherwise apply to such Sections, including with respect to determining whether any Indebtedness or  Investment may be incurred at any time under such Sections.  





 






  40  152003688_8  SECTION 1.11 Exchange Rates; Currency Equivalents.  (a) The Administrative Agent or the applicable Issuing Lender shall determine the Spot Rates  as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and  Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as  of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the  applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements  delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise  provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan  Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent.  (b) Wherever in this Agreement in connection with a Revolving Loan Commitment,  borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or a SONIA Daily Rate  Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum  or multiple amount, is expressed in Dollars, but such Revolving Loan Commitment or Eurocurrency Rate  Loan or SONIA Daily Rate Loan or Letter of Credit is denominated in an Alternative Currency, such  amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest  unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the  Administrative Agent or the applicable Issuing Lender, as the case may be.  SECTION 1.12 Change of Currency.  (a) Each obligation of the Borrowers to make a payment  denominated in the national currency unit of any member state of the European Union that adopts the Euro  as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption.  If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this  Agreement in respect of that currency shall be inconsistent with any convention or practice in the London  interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be  replaced by such convention or practice with effect from the date on which such member state adopts the  Euro as its lawful currency; provided that if any Revolving Loan Commitment in the currency of such  member state is outstanding immediately prior to such date, such replacement shall take effect, with respect  to such Revolving Loan Commitment, at the end of the then current Interest Period.  (b) Each provision of this Agreement shall be subject to such reasonable changes of  construction as the Administrative Agent may from time to time specify to be appropriate to reflect the  adoption of the Euro by any member state of the European Union and any relevant market conventions or  practices relating to the Euro.  SECTION 1.13 Limited Condition Acquisitions.  In the event that the US Borrower notifies the  Administrative Agent in writing that any proposed Acquisition is a Limited Condition Acquisition and that  the US Borrower wishes to test the conditions under this Agreement to such Acquisition and the  Indebtedness that is to be used to finance such Acquisition in accordance with this Section 1.13, then, the  following provisions shall apply:  (a) any condition to such Limited Condition Acquisition or such Indebtedness that requires  that no Default or Event of Default shall have occurred and be continuing at the time of such Limited  Condition Acquisition or the incurrence of such Indebtedness, shall be satisfied if (i) no Default or Event  of Default shall have occurred and be continuing on the date the definitive agreement governing such  Limited Condition Acquisition is entered into (the “LCA Test Date”) and (ii) no Event of Default under  any of Section 10.1(a), 10.1(b), 10.1(i) or 10.1(j) shall have occurred and be continuing both immediately  before and immediately after giving effect to such Limited Condition Acquisition and any Indebtedness  incurred in connection therewith (including any such additional Indebtedness);  





 






  41  152003688_8  (b) any condition to such Limited Condition Acquisition or such Indebtedness that any of the  representations and warranties in this Agreement and the other Loan Documents shall be true and correct  at the time of consummation of such Limited Condition Acquisition or the incurrence of such Indebtedness  shall be deemed satisfied if (i) as of the LCA Test Date, such representations and warranties in this  Agreement and the other Loan Documents are true and correct in all material respects (except for any  representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which  such representation and warranty shall be true and correct in all respects), or if such representation speaks  as of an earlier date, as of such earlier date and (ii) as of the date of consummation of such Limited Condition  Acquisition, (A) the representations and warranties under the relevant definitive agreement governing 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 US Borrower or its applicable Subsidiary has the right to terminate  its obligations under such agreement or otherwise decline to close such Limited Condition Acquisition as  a result of a breach of such representations and warranties or the failure of those representations and  warranties to be true and correct and (B) the representations and warranties set forth in (or substantially  similar to) Section 7.1(a), Section 7.3, Section 7.4, Section 7.10, Section 7.11, Section 7.17 and Section  7.20 shall be true and correct in all material respects (except for any representation and warranty that is  qualified by materiality or reference to Material Adverse Effect, which such representation and warranty  shall be true and correct in all respects);  (c) any financial ratio test or condition to be tested in connection with such Limited Condition  Acquisition and the availability of such Indebtedness will be tested as of the LCA Test Date, in each case,  after giving effect to the relevant Limited Condition Acquisition and related incurrence of Indebtedness, on  a Pro Forma Basis where applicable, and, for the avoidance of doubt, (i) such ratios and baskets shall not  be tested at the time of consummation of such Limited Condition Acquisition and (ii) if any of such ratios  are exceeded or conditions are not met following the LCA Test Date, but prior to the closing of such Limited  Condition Acquisition, as a result of fluctuations in such ratio or amount (including due to fluctuations in  Consolidated EBITDA of the US Borrower or the Person subject to such Limited Condition Acquisition),  at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have  been exceeded and such conditions will not be deemed unmet as a result of such fluctuations solely for  purposes of determining whether the relevant transaction or action is permitted to be consummated or taken;  (d) except as provided in the next sentence, in connection with any subsequent calculation of  any ratio or basket on or following the relevant LCA Test Date and prior to the earlier of the date on which  such Limited Condition Acquisition is consummated and 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 calculated 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 the Applicable Margin and determining whether or not the US  Borrower is in compliance with the financial covenants set forth in Section 9.15 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 1.14 Divisions.  For all purposes under the Loan Documents, in connection with any  division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s  laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or  liability of a different Person, then it shall be deemed to have been transferred from the original Person to  





 






  42  152003688_8  the subsequent Person, and (b) 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.  SECTION 1.15 Rates.  The interest rate on Loans denominated in Dollars or an Alternative  Currency may be determined by reference to a benchmark rate that is, or may in the future become, the  subject of regulatory reform or cessation.  Regulators have signaled the need to use alternative reference  rates for some of these benchmark rates and, as a result, such benchmark rates may cease to comply with  applicable laws and regulations, may be permanently discontinued or the basis on which they are calculated  may change.  The London interbank offered rate, which may be one of the benchmark rates with reference  to which the interest rate on Loans may be determined, is intended to represent the rate at which contributing  banks may obtain short-term borrowings from each other in the London interbank market.  On March 5,  2021, the ICE Benchmark Administration (“IBA”), the administrator of the London interbank offered rate,  and the Financial Conduct Authority (the “FCA”), the regulatory supervisor of IBA, announced in public  statements (the “Announcements”) that the final publication or representativeness date for the London  interbank offered rate for: (a) Sterling and Euros will be December 31, 2021, (b) Dollars for 1-week and 2- month tenor settings will be December 31, 2021 and (c) Dollars for overnight, 1-month, 3-month, 6-month  and 12-month tenor settings will be June 30, 2023.  No successor administrator for IBA was identified in  such Announcements.  As a result, it is possible that commencing immediately after such dates, the London  interbank offered rate for such currencies and tenors may no longer be available or may no longer be deemed  a representative reference rate upon which to determine the interest rate on applicable Loans.  There is no  assurance that the dates set forth in the Announcements will not change or that IBA or the FCA will not  take further action that could impact the availability, composition or characteristics of any London interbank  offered rate.  Public and private sector industry initiatives have been and continue, as of the date hereof, to  be underway to implement new or alternative reference rates to be used in place of London interbank offered  rates.  In the event that the London interbank offered rate or any other then-current Benchmark is no longer  available or in certain other circumstances set forth in Section 5.8(c), such Section 5.8(c) provides a  mechanism for determining an alternative rate of interest.  The Administrative Agent will notify the US  Borrower, pursuant to Section 5.8(c), of any change to the reference rate upon which the interest rate on  Loans is based.  However, the Administrative Agent does not warrant or accept any responsibility for, and  shall not have any liability with respect to, (i) the continuation of, administration of, submission of,  calculation of or any other matter related to the London interbank offered rate, the rates in the definition of  “Eurocurrency Rate” or “SONIA Daily Rate” or any Benchmark, any component definition thereof or rates  referenced in the definition thereof  or with respect to any alternative, successor or replacement rate thereto  (including any then-current Benchmark or any Benchmark Replacement), including whether the  composition or characteristics of any such alternative, successor or replacement rate (including any  Benchmark Replacement), as it may or may not be adjusted pursuant to Section 5.8(c), will be similar to,  or produce the same value or economic equivalence of,  or have the same volume or liquidity as, such  Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (ii) the effect,  implementation or composition of any Benchmark Replacement Conforming Changes.  The Administrative  Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of a  Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or any  relevant adjustments thereto and such transactions may be adverse to the Borrower.  The Administrative  Agent may select information sources or services in its reasonable discretion to ascertain any Benchmark,  any component definition thereof or rates referenced in the definition thereof, in each case pursuant to the  terms of this Agreement, and shall have no liability to the US Borrower, any Lender or any other person or  entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential  damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity),  for any error or calculation of any such rate (or component thereof) provided by any such information  source or service.  





 






  43  152003688_8  ARTICLE II  REVOLVING CREDIT FACILITY  SECTION 2.1 Revolving Credit Loans.  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, each Revolving Credit Lender severally agrees to make  Revolving Credit Loans (i) in Dollars or in one or more Alternative Currencies to the US Borrower or (ii)  in one or more Alternative Currencies to the Non-US Borrowers, from time to time from the Closing Date  to, but not including, the Revolving Credit Maturity Date as requested by the US Borrower in accordance  with the terms of Section 2.3; provided, that (a) the Revolving Credit Outstandings shall not exceed the  Revolving Credit Commitment, (b) the Revolving Credit Exposure of any Revolving Credit Lender shall  not at any time exceed such Revolving Credit Lender’s Revolving Credit Commitment and (c) the aggregate  Revolving Credit Outstandings denominated in Alternative Currencies shall not exceed the Alternative  Currency Sublimit. Each Revolving Credit Loan by a Revolving Credit Lender shall be in a principal  amount equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the  aggregate principal amount of Revolving Credit Loans requested on such occasion. Subject to the terms  and conditions hereof, the Borrowers may borrow, repay and reborrow Revolving Credit Loans hereunder  until the Revolving Credit Maturity Date.  SECTION 2.2 Swingline Loans.  (a) Availability.  Subject to the terms and conditions of this Agreement and the other Loan  Documents, including, without limitation, Section 6.2(e) of this Agreement, 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, make Swingline Loans in Dollars to the US Borrower from time to time  from the Closing Date to, but not including, the Revolving Credit Maturity Date; provided, that (i) after  giving effect to any amount requested, the Revolving Credit Outstandings shall not exceed the Revolving  Credit 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. Notwithstanding any  provision herein to the contrary, the Swingline Lender and the US Borrower may agree that the Swingline  Facility may be used to automatically draw and repay Swingline Loans (subject to the limitations set forth  herein) pursuant to cash management arrangements between the US Borrower and the Swingline Lender  (the “Sweep Arrangement”). Principal and interest on Swingline Loans deemed requested pursuant to the  Sweep Arrangement shall be paid pursuant to the terms and conditions agreed to between the US Borrower  and the Swingline Lender (without any deduction, setoff or counterclaim whatsoever). The borrowing and  disbursement provisions set forth in Section 2.3 and any other provision hereof with respect to the timing  or amount of payments on the Swingline Loans (other than Section 2.4(a)) shall not be applicable to  Swingline Loans made and prepaid pursuant to the Sweep Arrangement. Unless sooner paid pursuant to the  provisions hereof or the provisions of the Sweep Arrangement, the principal amount of the Swingline Loans  shall be paid in full, together with accrued interest thereon, on the Revolving Credit Maturity Date.  (b) Refunding.  (i) The Swingline Lender, at any time and from time to time in its sole and absolute  discretion may, on behalf of the US 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 Credit Lender to make, and each Revolving Credit Lender hereby agrees  to make, a Revolving Credit Loan as a Base Rate Loan in an amount equal to such Revolving Credit  Lender’s Revolving Credit Commitment Percentage of the aggregate amount of the Swingline  Loans outstanding on the date of such notice, to repay the Swingline Lender. Each Revolving Credit  Lender shall make the amount of such Revolving Credit Loan available to the Administrative Agent  





 






  44  152003688_8  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 Credit 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 Credit Lender’s  obligation to fund its respective Revolving Credit Commitment Percentage of a Swingline Loan  shall be affected by any other Revolving Credit Lender’s failure to fund its Revolving Credit  Commitment Percentage of a Swingline Loan, nor shall any Revolving Credit Lender’s Revolving  Credit Commitment Percentage be increased as a result of any such failure of any other Revolving  Credit Lender to fund its Revolving Credit Commitment Percentage of a Swingline Loan.  (ii) The US Borrower shall pay to the Swingline Lender on demand, and in any event  on the Revolving Credit Maturity Date, in immediately available funds the amount of such  Swingline Loans to the extent amounts received from the Revolving Credit Lenders are not  sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In  addition, the US Borrower irrevocably authorizes the Administrative Agent to charge any account  maintained by the US Borrower with the Swingline Lender (up to the amount available therein) in  order to immediately pay the Swingline Lender the amount of such Swingline Loans to the extent  amounts received from the Revolving Credit 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 US Borrower from  the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be  ratably shared among all the Revolving Credit Lenders in accordance with their respective  Revolving Credit Commitment Percentages.  (iii) If for any reason any Swingline Loan cannot be refinanced with a Revolving Credit  Loan pursuant to Section 2.2(b)(i), each Revolving Credit Lender shall, on the date such Revolving  Credit Loan was to have been made pursuant to the notice referred to in Section 2.2(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  Credit Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of  Swingline Loans then outstanding. Each Revolving Credit 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 Credit  Lender such Revolving Credit 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 Credit 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 Credit 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 Credit  Lender will return to the Swingline Lender any portion thereof previously distributed to it by the  Swingline Lender.  (iv) Each Revolving Credit Lender’s obligation to make the Revolving Credit Loans  referred to in Section 2.2(b)(i) and to purchase participating interests pursuant to Section 2.2(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 Credit Lender or  the US Borrower may have against the Swingline Lender, the US 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 Article VI, (C) any adverse change in  





 






  45  152003688_8  the condition (financial or otherwise) of the US Borrower, (D) any breach of this Agreement or any  other Loan Document by the US Borrower, any other Credit Party or any other Revolving Credit  Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to  any of the foregoing.  (v) If any Revolving Credit 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 Credit  Lender pursuant to the foregoing provisions of this Section 2.2(b) by the time specified in Section  2.2(b)(i) or 2.2(b)(iii), as applicable, the Swingline Lender shall be entitled to recover from such  Revolving Credit 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 Rate, plus any administrative, processing or similar fees customarily  charged by the Swingline Lender in connection with the foregoing. If such Revolving Credit Lender  pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such  Revolving Credit Lender’s Revolving Credit Loan or Swingline Participation Amount, as the case  may be. A certificate of the Swingline Lender submitted to any Revolving Credit Lender (through  the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be  conclusive absent manifest error.  (c) Defaulting Lenders.  Notwithstanding anything to the contrary contained in this  Agreement, this Section 2.2 shall be subject to the terms and conditions of Section 5.14 and Section 5.15.  SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans.  (a) Requests for Borrowing.  The applicable Borrower shall give the Administrative Agent  irrevocable prior written notice substantially in the form of Exhibit B (a “Notice of Borrowing”) not later  than 11:00 a.m. (i) on the same Business Day as each Base Rate Loan and each Swingline Loan, (ii) at least  three (3) Eurocurrency Banking Days before each Eurocurrency Rate Loan denominated in Dollars or  Canadian Dollars, (iii) at least four (4) Eurocurrency Banking Days before each Eurocurrency Rate Loan  denominated in Alternative Currencies (other than Canadian Dollars) and (iv) at least four (4) Business  Days before each SONIA Daily Rate Loan of its intention to borrow, specifying (A) the date of such  borrowing, which shall be a Business Day, (B) the name of the Borrower, (C) the amount of such borrowing,  which shall be, (x) with respect to Base Rate Loans (other than Swingline Loans) in an aggregate principal  amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof, (y) with respect to Eurocurrency  Rate Loans and SONIA Daily Rate Loans, in an aggregate principal amount of $5,000,000 (or, if such Loan  is denominated in an Alternative Currency, 5,000,000 units of such currency) or a whole multiple of  $1,000,000 (or, if such Loan is denominated in an Alternative Currency, 1,000,000 units of such currency)  in excess thereof and (z) with respect to Swingline Loans in an aggregate principal amount of $500,000 or  a whole multiple of $100,000 in excess thereof (or, in each case, the remaining amount of the Revolving  Credit Commitment or the Swingline Commitment, as applicable), (D) whether such Loan is to be a  Revolving Credit Loan or Swingline Loan, (E) in the case of a Revolving Credit Loan to be made in Dollars  whether the Loans are to be Eurocurrency Rate Loans or Base Rate Loans, (F) in the case of a Revolving  Credit Loan which is a Eurocurrency Rate Loan, the currency to be borrowed and (G) in the case of a  Eurocurrency Rate Loan, the duration of the Interest Period applicable thereto; provided that if the  applicable Borrower wishes to request Eurocurrency Rate Loans having an Interest Period of twelve months  in duration, such notice must be received by the Administrative Agent not later than 11:00 a.m. three (3)  Eurocurrency Banking Days prior to the requested date of such borrowing, whereupon the Administrative  Agent shall give prompt notice to the Revolving Credit Lenders of such request and determine whether the  requested Interest Period is acceptable to all of them. If the applicable Borrower fails to specify a type of  Loan in a Notice of Borrowing, then the applicable Loans shall be made as Base Rate Loans denominated  





 






  46  152003688_8  in Dollars; provided, however, with respect to a Loan denominated in an Alternative Currency, such Loans  shall be made as Eurocurrency Rate Loans with an Interest Period of one month or SONIA Daily Rate  Loans, as applicable. If the applicable Borrower fails to specify a currency in a Notice of Borrowing then  the Loan so requested shall be made in Dollars. If the applicable Borrower requests a borrowing of  Eurocurrency Rate Loans in any such Notice of Borrowing, but fails to specify an Interest Period, it will be  deemed to have specified an Interest Period of one month. A Notice of Borrowing received after 11:00 a.m.  shall be deemed received on the next Business Day. The Administrative Agent shall promptly notify the  Revolving Credit Lenders of each Notice of Borrowing.  (b) Disbursement of Revolving Credit and Swingline Loans.  Following receipt of a Notice of  Borrowing, the Administrative Agent shall promptly notify each Lender of the amount (and currency) of  its Revolving Credit Commitment Percentage of the Revolving Credit Loans. Not later than 1:00 p.m. on  the proposed borrowing date, and not later than the Applicable Time specified by the Administrative Agent  in the case of any Revolving Credit Loan in an Alternative Currency, (i) each Revolving Credit Lender will  make available to the Administrative Agent, for the account of the applicable Borrower, at the office of the  Administrative Agent in funds immediately available to the Administrative Agent, such Revolving Credit  Lender’s Revolving Credit Commitment Percentage of the Revolving Credit Loans denominated in Dollars  or the Alternative Currency to be made on such borrowing date and (ii) the Swingline Lender will make  available to the Administrative Agent, for the account of the US Borrower, at the office of the  Administrative Agent in funds denominated in Dollars immediately available to the Administrative Agent,  the Swingline Loans to be made on such borrowing date. Each Borrower hereby irrevocably authorizes the  Administrative Agent to disburse the proceeds of each borrowing requested pursuant to this Section in  immediately available funds by crediting or wiring such proceeds to the deposit account of the US Borrower  identified in the most recent notice substantially in the form attached as Exhibit C (a “Notice of Account  Designation”) delivered by the US Borrower to the Administrative Agent or as may be otherwise agreed  upon by the US Borrower and the Administrative Agent from time to time. Subject to Section 5.7 hereof,  the Administrative Agent shall not be obligated to disburse the portion of the proceeds of any Revolving  Credit Loan requested pursuant to this Section to the extent that any Revolving Credit Lender has not made  available to the Administrative Agent its Revolving Credit Commitment Percentage of such Loan.  Revolving Credit Loans to be made for the purpose of refunding Swingline Loans shall be made by the  Revolving Credit Lenders as provided in Section 2.2(b).  SECTION 2.4 Repayment and Prepayment of Revolving Credit and Swingline Loans.  (a) Repayment on Termination Date.  The US Borrower hereby agrees to repay the outstanding  principal amount of all (i) Revolving Credit Loans in full on the Revolving Credit Maturity Date and (ii)  all Swingline Loans in accordance with Section 2.2(b) (but, in any event, no later than the Revolving Credit  Maturity Date), together, in each case, with all accrued but unpaid interest thereon. Each Non US Borrower  hereby agrees to repay the outstanding principal amount of Non-US Revolving Credit Loans borrowed by  such Non US Borrower on the Revolving Credit Maturity Date, together, in each case, with all accrued but  unpaid interest thereon.  (b) Mandatory Prepayments.  If at any time the Revolving Credit Outstandings exceed the  Revolving Credit Commitment, the US Borrower agrees to repay immediately upon notice from the  Administrative Agent, by payment to the Administrative Agent for the account of the Revolving Credit  Lenders, Extensions of Credit in an amount equal to such excess with each such repayment applied first, to  the principal amount of outstanding Swingline Loans, second to the principal amount of outstanding  Revolving Credit Loans and third, with respect to any Letters of Credit then outstanding, a payment of Cash  Collateral into a Cash Collateral account opened by the Administrative Agent, for the benefit of the  Revolving Credit Lenders, in an amount equal to such excess (such Cash Collateral to be applied in  accordance with Section 10.2(b)). If the Administrative Agent notifies the US Borrower at any time that  





 






  47  152003688_8  the Outstanding Amount of all Loans denominated in Alternative Currencies at such time exceeds an  amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days  after receipt of such notice, the US Borrower or the Non-US Borrowers solely as to their Non-US  Obligations, as applicable, shall prepay Loans in an aggregate amount sufficient to reduce such Outstanding  Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit  then in effect.  (c) Optional Prepayments.  The Borrowers may at any time and from time to time prepay  Revolving Credit Loans and Swingline Loans, in whole or in part, with irrevocable prior written notice to  the Administrative Agent substantially in the form attached as Exhibit D (a “Notice of Prepayment”) given  not later than 11:00 a.m. (i) on the same Business Day of the intended prepayment of each Base Rate Loan  and each Swingline Loan, (ii) at least three (3) Eurocurrency Banking Days before the intended prepayment  of each Eurocurrency Rate Loan denominated in Dollars or Canadian Dollars, (iii) four (4) Eurocurrency  Banking Days before the intended prepayment of each Eurocurrency Rate Loan denominated in Alternative  Currencies (other than Canadian Dollars) and (iv) four (4) Business Days before the intended prepayment  of each SONIA Daily Rate Loan, specifying the date and amount of prepayment and whether the  prepayment is of Eurocurrency Rate Loans, Base Rate Loans, SONIA Daily Rate Loans, Swingline Loans  or a combination thereof, and, if of a combination thereof, the amount allocable to each. Upon receipt of  such notice, the Administrative Agent shall promptly notify each Revolving Credit Lender. If any such  notice is given, the amount specified in such notice shall be due and payable on the date set forth in such  notice. Partial prepayments shall be in an aggregate amount of $3,000,000 or a whole multiple of  $1,000,000 in excess thereof with respect to Base Rate Loans (other than Swingline Loans), $5,000,000  (or, if such Loan is denominated in an Alternative Currency, 5,000,000 units of such currency) or a whole  multiple of $1,000,000 (or, if such Loan is denominated in an Alternative Currency, 1,000,000 units of such  currency) in excess thereof with respect to Eurocurrency Rate Loans (whether denominated in Dollars or  Alternative Currencies) and SONIA Daily Rate Loans and $500,000 or a whole multiple of $100,000 in  excess thereof with respect to Swingline Loans. A Notice of Prepayment received after 11:00 a.m. shall be  deemed received on the next Business Day. Each such repayment shall be accompanied by any amount  required to be paid pursuant to Section 5.9 hereof. Notwithstanding the foregoing, any Notice of a  Prepayment delivered in connection with any refinancing of all of the Credit Facility with the proceeds of  such refinancing or of any incurrence of Indebtedness or the occurrence of some other identifiable event or  condition, may be, if expressly so stated to be, contingent upon the consummation of such refinancing or  incurrence or occurrence of such other identifiable event or condition and may be revoked by the Borrowers  in the event such contingency is not met (provided that the failure of such contingency shall not relieve the  Borrowers from their obligations in respect thereof under Section 5.9).  (d) Limitation on Prepayment of Eurocurrency Rate Loans and SONIA Daily Rate Loans.  The  Borrowers may not prepay any Eurocurrency Rate Loan on any day other than on the last day of the Interest  Period applicable thereto or any SONIA Daily Rate Loan on the Interest Payment Date applicable thereto,  in each case unless such prepayment is accompanied by any amount required to be paid pursuant to Section  5.9 hereof.  (e) Hedge Agreements.  No repayment or prepayment of the Loans pursuant to this Section  shall affect any of the Borrowers’ obligations under any Hedge Agreement entered into with respect to the  Loans.  SECTION 2.5 Reserved.  SECTION 2.6 Termination of Revolving Credit Facility.  The Revolving Credit Facility and  the Revolving Credit Commitments shall terminate on the Revolving Credit Maturity Date.  





 






  48  152003688_8  ARTICLE III  LETTER OF CREDIT FACILITY  SECTION 3.1 L/C Facility.  (a) Availability.  Subject to the terms and conditions hereof, each Issuing Lender, in reliance  on the agreements of the Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue standby or  commercial Letters of Credit denominated in Dollars or one more Alternative Currencies in an aggregate  amount not to exceed its L/C Commitment for the account of the US Borrower or, subject to Section 3.10,  any Subsidiary thereof. Letters of Credit may be issued on any Business Day from the Closing Date to, but  not including the fifth (5th) Business Day prior to the Revolving Credit Maturity Date in such form as may  be approved from time to time by the applicable Issuing Lender; provided, that no Issuing Lender shall  issue any Letter of Credit if, after giving effect to such issuance, (a) the L/C Obligations would exceed the  L/C Sublimit, (b) the L/C Obligations would exceed the L/C Commitment with respect to each Issuing  Lender, (c) the Revolving Credit Outstandings would exceed the Revolving Credit Commitment or (d) the  Revolving Credit Outstandings denominated in Alternative Currencies would exceed the Alternative  Currency Sublimit. Each Letter of Credit shall (i) expire on a date no more than twelve (12) months after  the date of issuance or last renewal of such Letter of Credit (subject to automatic renewal for additional one  (1) year periods pursuant to the terms of the Letter of Credit Application or other documentation acceptable  to the applicable Issuing Lender), which date shall be no later than the fifth (5th) Business Day prior to the  Revolving Credit Maturity Date and (ii) be subject to the Uniform Customs, in the case of a commercial  Letter of Credit, or ISP, in the case of a standby Letter of Credit, in each case as set forth in the Letter of  Credit Application or as determined by the applicable Issuing Lender and, to the extent not inconsistent  therewith, the laws of the State of Illinois. No Issuing Lender shall at any time be obligated to issue any  Letter of Credit hereunder if (A) any order, judgment or decree of any Governmental Authority or arbitrator  shall by its terms purport to enjoin or restrain such Issuing Lender from issuing such Letter of Credit, or  any Applicable Law applicable to such Issuing Lender or (B) any request or directive (whether or not having  the force of law) from any Governmental Authority with jurisdiction over such Issuing Lender shall  prohibit, or request that such Issuing Lender refrain from, the issuance of letters of credit generally or such  Letter of Credit in particular or shall impose upon such Issuing Lender with respect to letters of credit  generally or such Letter of Credit in particular any restriction or reserve or capital requirement (for which  such Issuing Lender is not otherwise compensated) not in effect on the Closing Date, or any unreimbursed  loss, cost or expense that was not applicable, in effect or known to such Issuing Lender as of the Closing  Date and that such Issuing Lender in good faith deems material to it, or (C) the conditions set forth in  Section 6.2 are not satisfied. References herein to “issue” and derivations thereof with respect to Letters of  Credit shall also include extensions or modifications of any outstanding Letters of Credit, unless the context  otherwise requires. As of the Closing Date, each of the Existing Letters of Credit shall constitute, for all  purposes of this Agreement and the other Loan Documents, a Letter of Credit issued and outstanding  hereunder.  (b) Defaulting Lenders.  Notwithstanding anything to the contrary contained in this  Agreement, Article III shall be subject to the terms and conditions of Section 5.14 and Section 5.15.  SECTION 3.2 Procedure for Issuance of Letters of Credit.  The US Borrower may from time  to time request that any Issuing Lender issue, amend, renew or extend a Letter of Credit by delivering to  such Issuing Lender at its applicable office (with a copy to the Administrative Agent at the Administrative  Agent’s Office) a Letter of Credit Application therefor, completed to the satisfaction of such Issuing Lender,  and such other certificates, documents and other papers and information as such Issuing Lender or the  Administrative Agent may request (which information shall include the applicable currency in which such  Letter of Credit shall be denominated). Upon receipt of any Letter of Credit Application, the applicable  Issuing Lender shall, process such Letter of Credit Application and the certificates, documents and other  





 






  49  152003688_8  papers and information delivered to it in connection therewith in accordance with its customary procedures  and shall, subject to Section 3.1 and Article VI, promptly issue, amend, renew or extend the Letter of Credit  requested thereby (but in no event shall such Issuing Lender be required to issue any Letter of Credit earlier  than three (3) Business Days after its receipt of the Letter of Credit Application therefor and all such other  certificates, documents and other papers and information relating thereto) by issuing the original of such  Letter of Credit to the beneficiary thereof or as otherwise may be agreed by such Issuing Lender and the  US Borrower. The applicable Issuing Lender shall promptly furnish to the US Borrower and the  Administrative Agent a copy of such Letter of Credit and the Administrative Agent shall promptly notify  each Revolving Credit Lender of the issuance and upon request by any Lender, furnish to such Revolving  Credit Lender a copy of such Letter of Credit and the amount of such Revolving Credit Lender’s  participation therein.  SECTION 3.3 Commissions and Other Charges.  (a) Letter of Credit Commissions.  Subject to Section 5.15(a)(iii)(B), the US Borrower shall  pay to the Administrative Agent, for the account of the applicable Issuing Lender and the L/C Participants,  a letter of credit commission with respect to each Letter of Credit in the amount equal to (i) in the case of  commercial Letters of Credit, the Dollar Equivalent of the daily amount available to be drawn under such  commercial Letters of Credit times the Applicable Margin with respect to Revolving Credit Loans that are  Eurocurrency Rate Loans and (ii) in the case of standby Letters of Credit, the Dollar Equivalent of the daily  amount available to be drawn under such standby Letters of Credit times the Applicable Margin with respect  to Revolving Credit Loans that are Eurocurrency Rate Loans (determined, in each case, on a per annum  basis). Such commission shall be payable in Dollars quarterly in arrears on the last Business Day of each  calendar quarter (commencing with the first such date to occur after the issuance of such Letter of Credit),  on the Revolving Credit Maturity Date and thereafter on demand of the Administrative Agent. The  Administrative Agent shall, promptly following its receipt thereof, distribute to the applicable Issuing  Lender and the L/C Participants all commissions received pursuant to this Section 3.3 in accordance with  their respective Revolving Credit Commitment Percentages.  (b) Issuance Fee.  In addition to the foregoing commission, the US Borrower shall pay directly  to the applicable Issuing Lender, for its own account, an issuance fee with respect to each Letter of Credit  issued by such Issuing Lender as set forth in the Fee Letters executed by such Issuing Lender. Such issuance  fee shall be payable in Dollars quarterly in arrears on the last Business Day of each calendar quarter  commencing with the first such date to occur after the issuance of such Letter of Credit, on the Revolving  Credit Maturity Date and thereafter on demand of the applicable Issuing Lender.  (c) Other Fees, Costs, Charges and Expenses.  In addition to the foregoing fees and  commissions, the US Borrower shall pay or reimburse each Issuing Lender in Dollars for such normal and  customary fees, costs, charges and expenses as are incurred or charged by such Issuing Lender in issuing,  effecting payment under, amending or otherwise administering any Letter of Credit issued by it.  (d) The commissions, fees, charges, costs and expenses payable pursuant to this Section 3.3  shall be payable in Dollars (based on the Dollar amount of such fees), notwithstanding the applicable  currency in which the applicable Letter of Credit is denominated.  SECTION 3.4 L/C Participations.  (a) Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,  and, to induce each Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably  agrees to accept and purchase and hereby accepts and purchases from each Issuing Lender, on the terms  and conditions hereinafter stated, for such L/C Participant’s own account and risk an undivided interest  





 






  50  152003688_8  equal to such L/C Participant’s Revolving Credit Commitment Percentage in each Issuing Lender’s  obligations and rights under and in respect of each Letter of Credit issued by it hereunder and the amount  of each draft paid by such Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably  agrees with each Issuing Lender that, if a draft is paid under any Letter of Credit issued by such Issuing  Lender for which such Issuing Lender is not reimbursed in full by the US Borrower through a Revolving  Credit Loan or otherwise in accordance with the terms of this Agreement, such L/C Participant shall pay to  such Issuing Lender, in the applicable currency in which such Letter of Credit is denominated, upon demand  at such Issuing Lender’s address for notices specified herein an amount equal to such L/C Participant’s  Revolving Credit Commitment Percentage of the amount of such draft, or any part thereof, which is not so  reimbursed.  (b) Upon becoming aware of any amount required to be paid by any L/C Participant to any  Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made by  such Issuing Lender under any Letter of Credit, issued by it, such Issuing Lender shall notify the  Administrative Agent of such unreimbursed amount and the Administrative Agent shall notify each L/C  Participant (with a copy to the applicable Issuing Lender) of the amount and due date of such required  payment and such L/C Participant shall pay to the Administrative Agent, in the applicable currency in which  such Letter of Credit is denominated (which, in turn shall pay such Issuing Lender) the amount specified  on the applicable due date. If any such amount is paid to such Issuing Lender after the date such payment  is due, such L/C Participant shall pay to the Administrative Agent, which in turn shall pay such Issuing  Lender, in the applicable currency in which such Letter of Credit is denominated, on demand, in addition  to such amount, the product of (i) such amount, times (ii) the daily average Overnight Rate as determined  by the Administrative Agent during the period from and including the date such payment is due to the date  on which such payment is immediately available to such 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, plus  any administrative, processing or similar fees customarily charged by such Issuing Lender in connection  with the foregoing. A certificate of such Issuing Lender with respect to any amounts owing under this  Section shall be conclusive in the absence of manifest error. With respect to payment to such Issuing Lender  of the unreimbursed amounts described in this Section, if the L/C Participants receive notice that any such  payment is due (A) prior to 1:00 p.m. on any Business Day, such payment shall be due that Business Day,  and (B) after 1:00 p.m. on any Business Day, such payment shall be due on the following Business Day.  (c) Whenever, at any time after any Issuing Lender has made payment under any Letter of  Credit issued by it and has received from any L/C Participant its Revolving Credit Commitment Percentage  of such payment in accordance with this Section, such Issuing Lender receives any payment related to such  Letter of Credit (whether directly from the Administrative Agent or otherwise), or any payment of interest  on account thereof, such Issuing Lender will distribute to such L/C Participant its pro rata share thereof;  provided, that in the event that any such payment received by such Issuing Lender shall be required to be  returned by such Issuing Lender, such L/C Participant shall return to the Administrative Agent, which shall  in turn pay to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.  (d) Each L/C Participant’s obligation to make the Revolving Credit Loans referred to in  Section 3.4(b) and to purchase participating interests pursuant to Section 3.4(a) shall be absolute and  unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim,  recoupment, defense or other right that such Revolving Credit Lender or the US Borrower may have against  the Issuing Lender or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a  Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article VI,  (iii) any adverse change in the condition (financial or otherwise) of the US Borrower, (iv) any breach of  this Agreement or any other Loan Document by the US Borrower, any other Credit Party or any other  Revolving Credit Lender or (v) any other circumstance, happening or event whatsoever, whether or not  similar to any of the foregoing.  





 






  51  152003688_8  SECTION 3.5 Reimbursement Obligation of the US Borrower.    (a) (i) In the event of any drawing under any Letter of Credit, the US Borrower agrees to  reimburse (either with the proceeds of a Revolving Credit Loan as provided for in this Section or with funds  from other sources), in Same Day Funds, the applicable Issuing Lender on each date on which such Issuing  Lender notifies the US Borrower of the date and amount of a draft paid by it under any Letter of Credit for  the amount of (A) such draft so paid and (B) any amounts referred to in Section 3.3(c) incurred by such  Issuing Lender in connection with such payment.   (ii) In the case of a Letter of Credit denominated in an Alternative Currency, the US  Borrower shall reimburse such Issuing Lender in such Alternative Currency, unless (A) such  Issuing Lender (at its option) shall have specified in such notice that it will require reimbursement  in Dollars or (B) in the absence of any such requirement for reimbursement in Dollars, the US  Borrower shall have notified such Issuing Lender promptly following receipt of the notice of  drawing that the US Borrower will reimburse such Issuing Lender in Dollars.  In the case of any  such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative  Currency, such Issuing Lender shall notify the US Borrower of the Dollar Equivalent of the amount  of the drawing promptly following the determination thereof.  Not later than 11:00 a.m. on the date  of any payment by such Issuing Lender under a Letter of Credit to be reimbursed in Dollars, or the  Applicable Time on the date of any payment by such Issuing Lender under a Letter of Credit to be  reimbursed in an Alternative Currency, the US Borrower shall reimburse such Issuing Lender  through the Administrative Agent in an amount equal to the amount of such drawing and in the  applicable currency.  (b) Unless the US Borrower shall immediately notify such Issuing Lender that the US  Borrower intends to reimburse such Issuing Lender for such drawing from other sources or funds, the US  Borrower shall be deemed to have timely given a Notice of Borrowing to the Administrative Agent  requesting that the Revolving Credit Lenders make a Revolving Credit Loan funded in Dollars as a Base  Rate Loan on the applicable repayment date in the Dollar Equivalent of (i) such draft so paid and (ii) any  amounts referred to in Section 3.3(c) incurred by such Issuing Lender in connection with such payment  (including, without limitation, any and all costs, fees and other expenses incurred by the Issuing Lender in  effecting the payment of any Letter of Credit denominated in an Alternative L/C Currency), and the  Revolving Credit Lenders shall make a Revolving Credit Loan funded in Dollars as a Base Rate Loan in  such amount, the proceeds of which shall be applied to reimburse such Issuing Lender for the amount of  the related drawing and such fees and expenses. Each Revolving Credit Lender acknowledges and agrees  that its obligation to fund a Revolving Credit Loan in accordance with this Section to reimburse such Issuing  Lender for any draft paid under a Letter of Credit issued by it is absolute and unconditional and shall not  be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the  conditions set forth in Section 2.3(a) or Article VI. If the US Borrower has elected to pay the amount of  such drawing with funds from other sources and shall fail to reimburse such Issuing Lender as provided  above, or if the amount of such drawing is not fully refunded through a Base Rate Loan as provided above,  the unreimbursed amount of such drawing shall bear interest at the rate which would be payable on any  outstanding Base Rate Loans which were then overdue from the date such amounts become payable  (whether at stated maturity, by acceleration or otherwise) until paid in full.  (c) The US Borrower shall, upon demand from any Issuing Lender or L/C Participant, pay to  such Issuing Lender or L/C Participant, the amount of  (i) any loss or cost or increased cost incurred by  such Issuing Lender or L/C Participant, (ii) any reduction in any amount payable to or in the effective return  on the capital to such Issuing Lender or L/C Participant, (iii) any currency exchange loss, in each case that  such Issuing Lender or L/C Participant sustains as a result of the US Borrower’s repayment in Dollars of  any Letter of Credit denominated in an Alternative Currency.  A certificate of such Issuing Lender setting  





 






  52  152003688_8  forth in reasonable detail the basis for determining such additional amount or amounts necessary to  compensate such Issuing Lender shall be conclusively presumed to be correct save for manifest error.  SECTION 3.6 Obligations Absolute.  The US Borrower’s obligations under this Article III  (including, without limitation, the Reimbursement Obligation) shall be absolute and unconditional under  any and all circumstances and irrespective of any set off, counterclaim or defense to payment which the US  Borrower may have or have had against the applicable Issuing Lender or any beneficiary of a Letter of  Credit or any other Person. The US Borrower also agrees that the applicable Issuing Lender and the L/C  Participants shall not be responsible for, and the US Borrower’s Reimbursement Obligation under Section  3.5 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,  or any dispute between or among the US 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 US Borrower  against any beneficiary of such Letter of Credit or any such transferee or any adverse change in the relevant  exchange rates or in the availability of any applicable currency to the US Borrower or any applicable  Subsidiary or in the relevant currency markets generally. No Issuing Lender shall 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 issued by it, except for errors or omissions caused by  such Issuing Lender’s gross negligence or willful misconduct, as determined by a court of competent  jurisdiction by final nonappealable judgment. The US Borrower agrees that any action taken or omitted by  any Issuing Lender under or in connection with any Letter of Credit issued by it or the related drafts or  documents, if done in the absence of gross negligence or willful misconduct shall be binding on the US  Borrower and shall not result in any liability of such Issuing Lender or any L/C Participant to the US  Borrower. The responsibility of any Issuing Lender to the US Borrower in connection with any draft  presented for payment under any Letter of Credit issued to it 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) delivered under such Letter of Credit in connection with such presentment substantially  conforms to the requirements under such Letter of Credit.  SECTION 3.7 Effect of Letter of Credit Application.  To the extent that any provision of any  Letter of Credit Application related to any Letter of Credit is inconsistent with the provisions of this Article  III, the provisions of this Article III shall apply.  SECTION 3.8 Resignation of Issuing Lenders.  (a) Any Lender may at any time resign from its role as an Issuing Lender hereunder upon not  less than thirty (30) days prior notice to the US Borrower and the Administrative Agent (or such shorter  period of time as may be acceptable to the US Borrower and the Administrative Agent).  (b) Any resigning Issuing Lender shall retain all the rights, powers, privileges and duties of an  Issuing Lender hereunder with respect to all Letters of Credit issued by it that are outstanding as of the  effective date of its resignation as an Issuing Lender and all L/C Obligations with respect thereto (including,  without limitation, the right to require the Revolving Credit Lenders to take such actions as are required  under Section 3.4). Without limiting the foregoing, upon the resignation of a Lender as an Issuing Lender  hereunder, the US Borrower may, or at the request of such resigned Issuing Lender the US Borrower shall,  use commercially reasonable efforts to, arrange for one or more of the other Issuing Lenders to issue Letters  of Credit hereunder in substitution for the Letters of Credit, if any, issued by such resigned Issuing Lender  and outstanding at the time of such resignation, or make other arrangements satisfactory to the resigned  Issuing Lender to effectively cause another Issuing Lender to assume the obligations of the resigned Issuing  Lender with respect to any such Letters of Credit.  





 






  53  152003688_8  SECTION 3.9 Reporting of Letter of Credit Information and L/C Commitment.  At any time  that there is an Issuing Lender that is not also the financial institution acting as Administrative Agent, then  (a) on the last Business Day of each calendar month, (b) on each date that a Letter of Credit is amended,  terminated or otherwise expires, (c) on each date that a Letter of Credit is issued or the expiry date of a  Letter of Credit is extended, and (d) upon the request of the Administrative Agent, each Issuing Lender (or,  in the case of clauses (b), (c) or (d) of this Section, the applicable Issuing Lender) shall deliver to the  Administrative Agent a report setting forth in form and detail reasonably satisfactory to the Administrative  Agent information (including, without limitation, any reimbursement, Cash Collateral, or termination in  respect of Letters of Credit issued by such Issuing Lender) with respect to each Letter of Credit issued by  such Issuing Lender that is outstanding hereunder. In addition, each Issuing Lender shall provide notice to  the Administrative Agent of its L/C Commitment, or any change thereto, promptly upon it becoming an  Issuing Lender or making any change to its L/C Commitment. No failure on the part of any Issuing Lender  to provide such information pursuant to this Section 3.9 shall limit the obligations of the US Borrower or  any Revolving Credit Lender hereunder with respect to its reimbursement and participation obligations  hereunder.  SECTION 3.10 Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of  Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a  Domestic Subsidiary, the US Borrower shall be obligated to reimburse, or to cause the applicable Subsidiary  to reimburse, the applicable Issuing Lender hereunder for any and all drawings under such Letter of Credit.  The US Borrower hereby acknowledges that the issuance of Letters of Credit for the account of any of its  Subsidiaries inures to the benefit of the US Borrower and that the US Borrower’s business derives  substantial benefits from the businesses of such Subsidiaries.  ARTICLE IV  RESERVED  ARTICLE V  GENERAL LOAN PROVISIONS  SECTION 5.1 Interest.  (a) Interest Rate Options.  Subject to the provisions of this Section, at the election of the  applicable Borrower, (i) Revolving Credit Loans denominated in Dollars and, if applicable, Incremental  Term Loans, shall bear interest at (A) the Base Rate plus the Applicable Margin or (B) the Adjusted  Eurocurrency Rate plus the Applicable Margin, (ii) Revolving Credit Loans denominated in an Alternative  Currency (other than Sterling) shall bear interest at the Adjusted Eurocurrency Rate plus the Applicable  Margin (provided that the Adjusted Eurocurrency Rate shall not be available until three (3) Business Days  (or four (4) Business Days in the case of any Alternative Currency other than Canadian Dollars) after the  Closing Date unless the US Borrower has delivered to the Administrative Agent a letter in form and  substance reasonably satisfactory to the Administrative Agent indemnifying the Lenders in the manner set  forth in Section 5.9 of this Agreement), (iii) Revolving Credit Loans denominated in Sterling shall bear  interest at the SONIA Daily Rate plus the Applicable Margin and (iv) any Swingline Loan shall bear interest  at the Base Rate plus the Applicable Margin. The applicable Borrower shall select the rate of interest and  Interest Period, if any, applicable to any Loan at the time a Notice of Borrowing is given or at the time a  Notice of Conversion/Continuation is given pursuant to Section 5.2.  (b) Default Rate.  Subject to Section 10.3, (i) immediately upon the occurrence and during the  continuance of an Event of Default under Section 10.1(a), (b), (i) or (j), or (ii) at the election of the Required  Lenders, upon the occurrence and during the continuance of any other Event of Default, (A) the Borrowers  shall no longer have the option to request Eurocurrency Rate Loans, SONIA Daily Rate Loans, Swingline  





 






  54  152003688_8  Loans or Letters of Credit, (B) any or all of the then outstanding Eurocurrency Rate Loans denominated in  an Alternative Currency be prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent  thereof, on the last day of the then current Interest Period with respect thereto, (C) all outstanding  Eurocurrency Rate Loans shall bear interest at a rate per annum of two percent (2%) in excess of the rate  (including the Applicable Margin) then applicable to Eurocurrency Rate Loans until the end of the  applicable Interest Period and thereafter at a rate equal to two percent (2%) in excess of the rate (including  the Applicable Margin) then applicable to Base Rate Loans, (D) all outstanding SONIA Daily Rate Loans  shall bear interest at a rate per annum of two percent (2%) in excess of the rate (including the Applicable  Margin) then applicable to SONIA Daily Rate Loans until the next Interest Payment Date therefor and  thereafter shall automatically be converted to a Base Rate Loan denominated in Dollars (in an amount equal  to the Dollar Equivalent of the applicable Alternative Currency) immediately and shall, as of such  conversion, bear interest at a rate per annum of two percent (2%) in excess of the rate (including the  Applicable Margin) then applicable to Base Rate Loans, (E) all outstanding Base Rate Loans and other  Obligations arising hereunder or under any other Loan Document shall bear interest at a rate per annum  equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to Base  Rate Loans or such other Obligations arising hereunder or under any other Loan Document (such rate as  determined under clause (C), (D) or (E), as applicable, “Default Rate”) and (F) all accrued and unpaid  interest shall be due and payable on demand of the Administrative Agent. Interest shall continue to accrue  on the Obligations after the filing by or against the Borrowers of any petition seeking any relief in  bankruptcy or under any Debtor Relief Law.  (c) Interest Payment and Computation.  Interest on each Base Rate Loan shall be due and  payable in arrears on each Interest Payment Date applicable thereto commencing September 30, 2019;  interest on each SONIA Daily Rate Loan shall be due and payable in arrears on each Interest Payment Date  applicable thereto; and interest on each Eurocurrency Rate Loan shall be due and payable on the last day  of each Interest Period applicable thereto, and if such Interest Period extends over three (3) months, at the  end of each three (3) month interval during such Interest Period. All computations of interest for Base Rate  Loans when the Base Rate is determined by the Prime Rate shall be made on the basis of a year of 365 or  366 days, as the case may be, and actual days elapsed. All computations of interest for SONIA Daily Rate  Loans shall be made on the basis of a year of 365 days and actual days elapsed.  All other computations of  fees and interest provided hereunder shall be made on the basis of a 360-day year and actual days elapsed  (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365/366- day year) or, in the case of interest on Eurocurrency Rate Loans denominated in Alternative Currencies as  to which market practice differs from the foregoing, in accordance with such market practice. For the  purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee rate hereunder is calculated on  the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the  calendar year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by multiplying  such rate of interest or fee rate by the actual number of days in the calendar year of calculation and dividing  it by the number of days in the deemed year, (ii) the principle of deemed reinvestment of interest shall not  apply to any interest calculation hereunder and (iii) the rates of interest stipulated herein are intended to be  nominal rates and not effective rates or yields.  (d) Maximum Rate.  In no contingency or event whatsoever shall the aggregate of all amounts  deemed interest under this Agreement charged or collected pursuant to the terms of this Agreement exceed  the highest rate permissible under any Applicable Law which a court of competent jurisdiction shall, in a  final determination, deem applicable hereto. In the event that such a court determines that the Lenders have  charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder  shall automatically be reduced to the maximum rate permitted by Applicable Law and the Lenders shall at  the Administrative Agent’s option (i) promptly refund to the Borrowers any interest received by the Lenders  in excess of the maximum lawful rate or (ii) apply such excess to the principal balance of the Obligations.  It is the intent hereof that the Borrowers not pay or contract to pay, and that neither the Administrative  





 






  55  152003688_8  Agent nor any Lender receive or contract to receive, directly or indirectly in any manner whatsoever,  interest in excess of that which may be paid by the Borrowers under Applicable Law.  SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans.  Provided that no  Default or Event of Default has occurred and is then continuing, the Borrowers shall have the option, subject  to Section 5.1(a), to (a) convert at any time following the third Business Day after the Closing Date all or  any portion of any outstanding Base Rate Loans (other than Swingline Loans) in a principal amount equal  to $5,000,000 (or, if such Loan is denominated in an Alternative Currency, 5,000,000 units of such  currency) or any whole multiple of $1,000,000 (or, if such Loan is denominated in an Alternative Currency,  1,000,000 units of such currency) in excess thereof (or such lesser amount as shall represent all of the Base  Rate Loans then outstanding) into one or more Eurocurrency Rate Loans (whether in Dollars or any  Alternative Currency), (b) upon the expiration of any Interest Period, (i) convert all or any part of its  outstanding Eurocurrency Rate Loans denominated in Dollars in a principal amount equal to $3,000,000 or  a whole multiple of $1,000,000 in excess thereof (or such lesser amount as shall represent all of the  Eurocurrency Rate Loans then outstanding) into Base Rate Loans (other than Swingline Loans) or (ii)  continue such Eurocurrency Rate Loans (whether in Dollars or an Alternative Currency) as Eurocurrency  Rate Loans and (c) in the case of a SONIA Daily Rate Loan, upon the occurrence of the Interest Payment  Date therefor, continue any such SONIA Daily Rate Loan as a SONIA Daily Rate Loan. Whenever the  Borrowers desire to convert or continue Loans as provided above, the applicable Borrower shall give the  Administrative Agent irrevocable prior written notice in the form attached as Exhibit E (a “Notice of  Conversion/Continuation”) not later than 11:00 a.m. three (3) Business Days before the day on which a  proposed conversion or continuation of any such Loan in Dollars or Canadian Dollars (or four (4) Business  Days in the case of Euros or a SONIA Daily Rate Loan) is to be effective specifying (A) the Loans to be  converted or continued, and, in the case of any Eurocurrency Rate Loan to be converted or continued, the  last day of the Interest Period therefor, (B) the effective date of such conversion or continuation (which  shall be a Business Day), (C) the principal amount of such Loans to be converted or continued, and (D) the  Interest Period to be applicable to such converted or continued Eurocurrency Rate Loan and (E) the currency  of the Loans to be converted or continued. If the applicable Borrower fails to deliver a timely Notice of  Conversion/Continuation with respect to a SONIA Daily Rate Loan prior to the Interest Payment Date  therefor, then, unless such SONIA Daily Rate Loan is repaid as provided herein, such Borrower shall be  deemed to have selected that such SONIA Daily Rate Loan shall automatically continue as a SONIA Daily  Rate Loan as of such Interest Payment Date.  If the applicable Borrower fails to give a timely Notice of  Conversion/Continuation prior to the end of the Interest Period for any Eurocurrency Rate Loan, then the  applicable Eurocurrency Rate Loan shall be converted to a Base Rate Loan; provided, however, that in the  case of a failure to timely request a continuation of Eurocurrency Rate Loans denominated in an Alternative  Currency, such Loans shall be continued as Eurocurrency Rate Loans in their original currency with an  Interest Period of one month. Any such automatic conversion to a Base Rate Loan shall be effective as of  the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loan. If  the applicable Borrower requests a conversion to, or continuation of, Eurocurrency Rate Loans, but fails to  specify an Interest Period, it will be deemed to have specified an Interest Period of one month. No Loan  may be converted into or continued as a Loan denominated in a different currency, but instead must be  prepaid in the original currency of such Loan and reborrowed in the other currency. Notwithstanding  anything to the contrary herein, a Swingline Loan may not be converted to a Eurocurrency Rate Loan or a  SONIA Daily Rate Loan. The Administrative Agent shall promptly notify the affected Lenders of such  Notice of Conversion/Continuation and if no timely notice of a conversion or continuation is provided by  the applicable Borrower, the Administrative Agent shall notify each Lender of the details of any automatic  conversion to Base Rate Loans or the continuation of Loans denominated in an Alternative Currency, in  each case as described above.  SECTION 5.3 Fees.  





 






  56  152003688_8  (a) Commitment Fee.  Commencing on the Closing Date, subject to Section 5.15(a)(iii)(A),  the US Borrower shall pay to the Administrative Agent, for the account of the Revolving Credit Lenders, a  non-refundable commitment fee (the “Commitment Fee”) in Dollars at a rate per annum equal to the  Applicable Margin on the average daily unused portion of the Revolving Credit Commitment of the  Revolving Credit Lenders (other than the Defaulting Lenders, if any); provided, that the amount of  outstanding Swingline Loans shall not be considered usage of the Revolving Credit Commitment for the  purpose of calculating the Commitment Fee. The Commitment Fee shall be payable in arrears on the last  Business Day of each calendar quarter during the term of this Agreement commencing September 30, 2019  and ending on the date upon which all Obligations (other than contingent indemnification obligations not  then due) arising under the Revolving Credit Facility shall have been paid and satisfied in full in cash, all  Letters of Credit have been terminated or expired (or been Cash Collateralized) and the Revolving Credit  Commitment has been terminated. The Commitment Fee shall be distributed by the Administrative Agent  to the Revolving Credit Lenders (other than any Defaulting Lender) pro rata in accordance with such  Revolving Credit Lenders’ respective Revolving Credit Commitment Percentages.  (b) Other Fees.  The US Borrower shall pay to the Arranger and the Administrative Agent for  their own respective accounts fees in Dollars in the amounts and at the times specified in their Fee Letter.  The US Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing  in the amounts and at the times so specified.  SECTION 5.4 Manner of Payment.  Except as otherwise expressly provided herein and except  with respect to principal and interest on Loans denominated in an Alternative Currency, each payment by  the Borrowers on account of the principal of or interest on the Loans or of any fee, commission or other  amounts (including the Reimbursement Obligation) payable to the Lenders under this Agreement shall be  made not later than 1:00 p.m. on the date specified for payment under this Agreement to the Administrative  Agent at the Administrative Agent’s Office for the account of the Lenders entitled to such payment in  Dollars, in immediately available funds and shall be made without any set off, counterclaim or deduction  whatsoever. Any payment received after such time but before 2:00 p.m. (or, with respect to a payment to  be made in an Alternative Currency, the Applicable Time specified by the Administrative Agent) on such  day shall be deemed a payment on such date for the purposes of Section 10.1, but for all other purposes  shall be deemed to have been made on the next succeeding Business Day. Any payment received (i) after  2:00 p.m., in the case of payment in Dollars or (ii) after the Applicable Time specified by the Administrative  Agent in the case of payments in an Alternative Currency shall be deemed to have been made on the next  succeeding Business Day for all purposes. Except as otherwise expressly provided herein, all payments by  the Borrowers hereunder with respect to principal and interest on Loans denominated in an Alternative  Currency shall be made to the Administrative Agent, for the account of the respective Lenders to which  such payment is owed, at the applicable Administrative Agent’s office in such Alternative Currency and in  Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates  specified herein. Without limitation the generality of the foregoing, the Administrative Agent may require  that payments due under this agreement be made in the United States. If, for any reason, any Borrower is  prohibited by any Applicable Law from making any required payment hereunder in an Alternative  Currency, the US Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative  Currency payment amount. Upon receipt by the Administrative Agent of each such payment, the  Administrative Agent shall distribute to each such Lender at its address for notices set forth herein its  Commitment Percentage in respect of the relevant Credit Facility (or other applicable share as provided  herein) of such payment and shall wire advice of the amount of such credit to each Lender. Each payment  to the Administrative Agent on account of the principal of or interest on the Swingline Loans or of any fee,  commission or other amounts payable to the Swingline Lender shall be made in like manner, but for the  account of the Swingline Lender. Each payment to the Administrative Agent of any Issuing Lender’s fees  or L/C Participants’ commissions shall be made in like manner, but for the account of such Issuing Lender  or the L/C Participants, as the case may be. Each payment to the Administrative Agent of Administrative  





 






  57  152003688_8  Agent’s fees or expenses shall be made for the account of the Administrative Agent and any amount payable  to any Lender under Sections 5.9, 5.10, 5.11 or 12.3 shall be paid to the Administrative Agent for the  account of the applicable Lender. Subject to the definition of Interest Period, if any payment under this  Agreement shall be specified to be made upon a day which is not a Business Day, it shall be made on the  next succeeding day which is a Business Day and such extension of time shall in such case be included in  computing any interest if payable along with such payment. Notwithstanding the foregoing, if there exists  a Defaulting Lender each payment by the Borrowers to such Defaulting Lender hereunder shall be applied  in accordance with Section 5.15(a)(ii).  SECTION 5.5 Evidence of Indebtedness.  (a) Extensions of Credit.  The Extensions of Credit made by each Lender and each Issuing  Lender shall be evidenced by one or more accounts or records maintained by such Lender or such Issuing  Lender and by the Administrative Agent in the ordinary course of business. The accounts or records  maintained by the Administrative Agent and each Lender or the applicable Issuing Lender shall be  conclusive absent manifest error of the amount of the Extensions of Credit made by the Lenders or such  Issuing Lender to the US Borrower and its Subsidiaries and the interest and payments thereon. Any failure  to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the  Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict  between the accounts and records maintained by any Lender or any Issuing Lender and the accounts and  records of the Administrative Agent in respect of such matters, the accounts and records of the  Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made  through the Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the  Administrative Agent) a Revolving Credit Note, Non-US Revolving Credit Note, Swingline Note and/or  such other promissory note evidencing Incremental Term Loans as requested, as applicable, which shall  evidence such Lender’s Revolving Credit Loans and/or Swingline Loans, as applicable, in addition to such  accounts or records. Each Lender may attach schedules to its Notes and endorse thereon the date, amount  and maturity of its Loans and payments with respect thereto.  (b) Participations.  In addition to the accounts and records referred to in subsection (a), each  Revolving Credit Lender and the Administrative Agent shall maintain in accordance with its usual practice  accounts or records evidencing the purchases and sales by such Revolving Credit Lender of participations  in Letters of Credit and Swingline Loans. In the event of any conflict between the accounts and records  maintained by the Administrative Agent and the accounts and records of any Revolving Credit Lender in  respect of such matters, the accounts and records of the Administrative Agent shall control in the absence  of manifest error.  SECTION 5.6 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right  of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of  its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of  the aggregate amount of its Loans and accrued interest thereon or other such obligations (other than pursuant  to Sections 5.9, 5.10, 5.11 or 12.3) greater than its pro rata share thereof as provided herein, then the Lender  receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase  (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make  such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the  Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their  respective Loans and other amounts owing them; provided that:  (i) if any such participations are purchased and all or any portion of the payment  giving rise thereto is recovered, such participations shall be rescinded and the purchase price  restored to the extent of such recovery, without interest, and  





 






  58  152003688_8  (ii) the provisions of this paragraph shall not be construed to apply to (A) any payment  made by the Borrowers pursuant to and in accordance with the express terms of this Agreement  (including the application of funds arising from the existence of a Defaulting Lender), (B) the  application of Cash Collateral provided for in Section 5.14 or (C) any payment obtained by a Lender  as consideration for the assignment of or sale of a participation in any of its Loans or participations  in Swingline Loans and Letters of Credit to any assignee or participant, other than to any Borrower  or any of its Subsidiaries or Affiliates (as to which the provisions of this paragraph shall apply).  Each Credit 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 Credit Party rights of setoff and counterclaim with respect to such participation as  fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.  SECTION 5.7 Administrative Agent’s Clawback.  (a) Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative  Agent shall have received notice from a Lender (i) in the case of Base Rate Loans, not later than 12:00 noon  on the date of any proposed borrowing and (ii) otherwise, prior to the proposed date of any borrowing that  such Lender will not make available to the Administrative Agent such Lender’s share of such borrowing,  the Administrative Agent may assume that such Lender has made such share available on such date in  accordance with Sections 2.3(b) and 4.2 and may, in reliance upon such assumption, make available to the  applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of  the applicable borrowing available to the Administrative Agent, then the applicable Lender and each  Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding  amount with interest thereon, for each day from and including the date such amount is made available to  such Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a  payment to be made by such Lender, the greater of the daily average Overnight Rate and a rate determined  by the Administrative Agent in accordance with banking industry rules on interbank compensation and (B)  in the case of a payment to be made by a Borrower, the interest rate applicable to Base Rate Loans. If any  Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an  overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such  interest paid by such Borrower for such period. If such Lender pays its share of the applicable borrowing  to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such  borrowing. Any payment by any Borrower shall be without prejudice to any claim such Borrower may have  against a Lender that shall have failed to make such payment to the Administrative Agent.  (b) Payments by the Borrowers; Presumptions by Administrative Agent.  Unless the  Administrative Agent shall have received notice from the applicable Borrower prior to the date on which  any payment is due to the Administrative Agent for the account of the Lenders, the Issuing Lender or the  Swingline Lender hereunder that a Borrower will not make such payment, the Administrative Agent may  assume that such Borrower has made such payment on such date in accordance herewith and may, in  reliance upon such assumption, distribute to the Lenders, the Issuing Lender or the Swingline Lender, as  the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then  each of the Lenders, the Issuing Lender or the Swingline Lender, as the case maybe, severally agrees to  repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, Issuing  Lender or the Swingline Lender, with interest thereon, for each day from and including the date such amount  is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the  Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry  rules on interbank compensation.  





 






  59  152003688_8  (c) Nature of Obligations of Lenders Regarding Extensions of Credit.  The obligations of the  Lenders under this Agreement to make the Loans and issue or participate in Letters of Credit are several  and are not joint or joint and several. The failure of any Lender to make available its Commitment  Percentage of any Loan requested by the Borrowers shall not relieve it or any other Lender of its obligation,  if any, hereunder to make its Commitment Percentage of such Loan available on the borrowing date, but  no Lender shall be responsible for the failure of any other Lender to make its Commitment Percentage of  such Loan available on the borrowing date.  SECTION 5.8 Changed Circumstances.  (a) Circumstances Affecting Adjusted Eurocurrency Rate or SONIA Availability.  Subject to  clause (c) below, in connection with any request for a Eurocurrency Rate Loan or a SONIA Daily Rate  Loan or a conversion to or continuation thereof or otherwise, if for any reason (i) the Administrative Agent  shall determine (which determination shall be conclusive and binding absent manifest error) that deposits  (whether in Dollars or an Alternative Currency) are not being offered to banks in the applicable offshore  interbank market for such currency for the applicable amount and Interest Period of such Loan, (ii) the  Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest  error) that reasonable and adequate means do not exist for the ascertaining the Adjusted Eurocurrency Rate  for such Interest Period with respect to a proposed Eurocurrency Rate Loan (whether denominated in  Dollars or an Alternative Currency) or SONIA Daily Rate with respect to a proposed SONIA Daily Rate  Loan or (iii) the Required Lenders shall determine (which determination shall be conclusive and binding  absent manifest error) that the Adjusted Eurocurrency Rate does not adequately and fairly reflect the cost  to such Lenders of making or maintaining such Eurocurrency Loans during such Interest Period or the  SONIA Daily Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining  such SONIA Daily Rate Loans, then the Administrative Agent shall promptly give notice thereof to the US  Borrower.  Thereafter, until the Administrative Agent notifies the US Borrower that such circumstances no  longer exist, the obligation of the Lenders to make Eurocurrency Rate Loans or SONIA Daily Rate Loans,  as applicable, in the affected currency or currencies and the right of the Borrowers to convert any Loan to  or continue any Loan as a Eurocurrency Rate Loan or SONIA Daily Rate Loan, as applicable, shall be  suspended, and the Borrowers shall either (A) repay in full (or cause to be repaid in full) the then outstanding  principal amount of each such Eurocurrency Rate Loan SONIA Daily Rate Loan, as applicable, together  with accrued interest thereon (subject to Section 5.1(d)), on the last day of the then current Interest Period  applicable to such Eurocurrency Rate Loan or on the Interest Payment Date for such SONIA Daily Rate  Loan, as applicable; or (B) convert the then outstanding principal amount of each such Eurocurrency Rate  Loan or SONIA Daily Rate Loan, as applicable, to a Base Rate Loan in Dollars as of the last day of such  Interest Period or on the Interest Payment Date for such SONIA Daily Rate Loan, as applicable.  (b) Laws Affecting Adjusted Eurocurrency Rate or SONIA Daily Rate Availability.  If, after  the date hereof, the introduction of, or any change in, any Applicable Law or any change in the interpretation  or administration thereof by any Governmental Authority, central bank or comparable agency charged with  the interpretation or administration thereof, or compliance by any of the Lenders (or any of their respective  Lending Offices) with any request or directive (whether or not having the force of law) of any such  Governmental Authority, central bank or comparable agency, shall make it unlawful or impossible for any  of the Lenders (or any of their respective Lending Offices) to honor its obligations hereunder to make or  maintain any Eurocurrency Rate Loan or SONIA Daily Rate Loan, such Lender shall promptly give notice  thereof to the Administrative Agent and the Administrative Agent shall promptly give notice to the US  Borrower and the other Lenders. Thereafter, until the Administrative Agent notifies the US Borrower that  such circumstances no longer exist, (i) the obligations of the Lenders to make Eurocurrency Rate Loans or  SONIA Daily Rate Loans, as applicable, and the right of the Borrowers to convert any Loan to a  Eurocurrency Rate Loan or continue any Loan as a Eurocurrency Rate Loan shall be suspended and  thereafter the Borrowers may select only Base Rate Loans, (ii) if any of the Lenders may not lawfully  





 






  60  152003688_8  continue to maintain a Eurocurrency Rate Loan to the end of the then current Interest Period applicable  thereto, the applicable Loan shall immediately be converted to a Base Rate Loan in Dollars for the  remainder of such Interest Period and (iii) if any of the Lenders may not lawfully continue to maintain a  SONIA Daily Rate Loan to the next Interest Payment Date applicable thereto, the applicable Loan shall  immediately be converted to a Base Rate Loan in Dollars.  (c) Effect of Benchmark Transition Event.    (i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in  any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt- in Election, as applicable, the Administrative Agent and the US Borrower may amend this  Agreement to replace any Benchmark with a Benchmark Replacement.  Any such amendment with  respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th)  Business Day after the Administrative Agent has posted such proposed amendment to all Lenders  and the US Borrower so long as the Administrative Agent has not received, by such time, written  notice of objection to such amendment from Lenders comprising the Required Lenders.  Any such  amendment with respect to an Early Opt-in Election will become effective on the sixth (6th)  Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long  as the Administrative Agent has not received, by 5:00 p.m. on the fifth (5th) Business Day after the  date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to  such Early Opt-in Election from Lenders comprising Required Lenders.  No replacement of any  Benchmark with a Benchmark Replacement pursuant to this Section 5.8(c) will occur prior to the  applicable Benchmark Transition Start Date.   (ii) Benchmark Replacement Conforming Changes. In connection with the  implementation of a Benchmark Replacement, the Administrative Agent, in consultation with US  Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to  time and, notwithstanding anything to the contrary herein or in any other Loan Document, any  amendments implementing such Benchmark Replacement Conforming Changes will become  effective without any further action or consent of any other party to this Agreement.   (iii) Notices; Standards for Decisions and Determinations. The Administrative Agent  will promptly notify the US Borrower and the Lenders of (A) any occurrence of a Benchmark  Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement  Date and Benchmark Transition Start Date, (B) the implementation of any Benchmark  Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes, (D) the  removal or reinstatement of any tenor of a Benchmark pursuant to Section 5.8(c)(iv) below and (E)  the commencement or conclusion of any Benchmark Unavailability Period. Any determination,  decision or election that may be made by the Administrative Agent or Lenders pursuant to this  Section 5.8(c), including any determination with respect to a tenor, rate or adjustment or of the  occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain  from taking any action, will be conclusive and binding absent manifest error and may be made in  its or their sole discretion and without consent from any other party hereto, except, in each case, as  expressly required pursuant to this Section 5.8(c).   (iv) Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary  herein or in any other Loan Document, at any time (including in connection with the  implementation of a Benchmark Replacement), (i) if any then-current Benchmark is a term rate  (including USD LIBOR, EURIBOR or CDOR) and either (A) any tenor for such Benchmark is not  displayed on a screen or other information service that publishes such rate from time to time as  selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor  





 






  61  152003688_8  for the administrator of such Benchmark has provided a public statement or publication of  information announcing that any tenor for such Benchmark is not or will not be representative, then  the Administrative Agent may modify the definition of “Interest Period” (or any similar or  analogous definition) for any Benchmark settings at or after such time to remove such unavailable  or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either  (x) is subsequently displayed on a screen or information service for a Benchmark (including a  Benchmark Replacement) or (y) is not, or is no longer, subject to an announcement that it is not or  will not be representative for a Benchmark (including a Benchmark Replacement), then the  Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous  definition) for all Benchmark settings at or after such time to reinstate such previously removed  tenor.  (v) Benchmark Unavailability Period. Upon the US Borrower’s receipt of notice of  the commencement of a Benchmark Unavailability Period, the US Borrower may revoke any  request for a Eurocurrency Rate Loan of, conversion to or continuation of Eurocurrency Rate Loans  to be made, converted or continued during any Benchmark Unavailability Period and, failing that,  the US Borrower will be deemed to have converted any such request into a request for a borrowing  of or conversion to Base Rate Loans.  During any Benchmark Unavailability Period, the component  of the Base Rate based upon the Adjusted Eurocurrency Rate will not be used in any determination  of the Base Rate.  SECTION 5.9 Indemnity.  Each Borrower hereby indemnifies each of the Lenders against any  loss or expense (including any loss or expense arising from the liquidation or reemployment of funds  obtained by it to maintain a Eurocurrency Rate Loan or SONIA Daily Rate Loan, foreign exchange losses  or from fees payable to terminate the deposits from which such funds were obtained) which may arise or  be attributable to each Lender’s obtaining, liquidating or employing deposits or other funds acquired to  effect, fund or maintain any Loan (a) as a consequence of any failure by such Borrower to make any  payment when due of any amount due hereunder in connection with a Eurocurrency Rate Loan or SONIA  Daily Rate Loan (including the failure to make a payment of any Loan denominated in an Alternative  Currency on its scheduled due date or any payment thereof in a different currency, other than at the direction  of the Administrative Agent or any Lender), (b) due to any failure of such Borrower to borrow, continue or  convert on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation or (c)  due to any payment, prepayment or conversion of any Eurocurrency Rate Loan on a date other than the last  day of the Interest Period therefor or any SONIA Daily Rate Loan on a date other than the Interest Payment  Date therefor. The amount of such loss or expense shall be determined, in the applicable Lender’s sole  discretion, based upon the assumption that such Lender funded its Commitment Percentage of the  Eurocurrency Rate Loans in the London or other applicable offshore interbank market for such currency  and using any reasonable attribution or averaging methods which such Lender deems appropriate and  practical. A certificate of such Lender setting forth the basis for determining such amount or amounts  necessary to compensate such Lender shall be forwarded to the US Borrower through the Administrative  Agent and shall be conclusively presumed to be correct save for manifest error. All of the obligations of  the Credit Parties under this Section 5.9 shall survive the resignation or replacement of the Administrative  Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments  and the repayment, satisfaction or discharge of all obligations under any Loan Document.  SECTION 5.10 Increased Costs.  (a) Increased Costs Generally.  If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,  insurance charge or similar requirement against assets of, deposits with or for the account of, or  





 






  62  152003688_8  advances, loans or other credit extended or participated in by, any Lender (except any reserve  requirement reflected in the Adjusted Eurocurrency Rate) or any Issuing Lender;  (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes  described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income  Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its  deposits, reserves, other liabilities or capital attributable thereto; or  (iii) impose on any Lender or any Issuing Lender any other condition, cost or expense  (other than Taxes) affecting this Agreement or Loans (other than Base Rate Loans) made by such  Lender or any Letter of Credit or participation therein;  and the result of any of the foregoing shall be to increase the cost to such Lender, any Issuing Lender or  such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its  obligation to make any such Loan), or to increase the cost to such Lender, such Issuing Lender or such  other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its  obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or  receivable by such Lender, such Issuing Lender or such other Recipient hereunder (whether of principal,  interest or any other amount) then, upon written request of such Lender, such Issuing Lender or other  Recipient, the Borrowers shall promptly pay to any such Lender, such Issuing Lender or other Recipient,  as the case may be, such additional amount or amounts as will compensate such Lender, such Issuing Lender  or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.  (b) Capital Requirements.  If any Lender or any Issuing Lender determines that any Change in  Law affecting such Lender or such Issuing Lender or any Lending Office of such Lender or such Lender’s  or such Issuing Lender’s holding company, if any, regarding capital or liquidity requirements, has or would  have the effect of reducing the rate of return on such Lender’s or such Issuing Lender’s capital or on the  capital of such Lender’s or such Issuing Lender’s holding company, if any, as a consequence of this  Agreement, the Revolving Credit Commitment of such Lender or the Loans made by, or participations in  Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by such Issuing  Lender, to a level below that which such Lender or such Issuing Lender or such Lender’s or such Issuing  Lender’s holding company could have achieved but for such Change in Law (taking into consideration such  Lender’s or such Issuing Lender’s policies and the policies of such Lender’s or such Issuing Lender’s  holding company with respect to capital adequacy and liquidity), then from time to time upon written  request of such Lender or such Issuing Lender, the Borrowers shall promptly pay to such Lender or such  Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or  such Issuing Lender or such Lender’s or such Issuing Lender’s holding company for any such reduction  suffered.  (c) Certificates for Reimbursement.  A certificate of a Lender, or an Issuing Lender or such  other Recipient setting forth the amount or amounts necessary to compensate such Lender or such Issuing  Lender, such other Recipient or any of their respective holding companies, as the case may be, as specified  in paragraph (a) or (b) of this Section and delivered to the Borrowers, shall be conclusive absent manifest  error. Each Borrower shall pay such Lender or such Issuing Lender or such other Recipient, as the case may  be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.  (d) Delay in Requests.  Failure or delay on the part of any Lender or any Issuing Lender or  such other Recipient to demand compensation pursuant to this Section shall not constitute a waiver of such  Lender’s or such Issuing Lender’s or such other Recipient’s right to demand such compensation; provided  that the Borrowers shall not be required to compensate any Lender or an Issuing Lender or any other  Recipient pursuant to this Section for any increased costs incurred or reductions suffered more than six (6)  





 






  63  152003688_8  months prior to the date that such Lender or such Issuing Lender or such other Recipient, as the case may  be, notifies the US Borrower of the Change in Law giving rise to such increased costs or reductions, and of  such Lender’s or such Issuing Lender’s or such other Recipient’s intention to claim compensation therefor  (except that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the  nine-month period referred to above shall be extended to include the period of retroactive effect thereof).  (e) Survival.  All of the obligations of the Credit Parties under this Section 5.10 shall survive  the resignation or replacement of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge  of all obligations under any Loan Document.  SECTION 5.11 Taxes.  (a) Defined Terms.  For purposes of this Section 5.11, the term “Lender” includes any Issuing  Lender and the term “Applicable Law” includes FATCA.  (b) Payments Free of Taxes.  Any and all payments by or on account of any obligation of any  Credit Party under any Loan Document shall be made without deduction or withholding for any Taxes,  except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion  of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such  payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such  deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant  Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then  the sum payable by the applicable Credit Party shall be increased as necessary so that, after such deduction  or withholding has been made (including such deductions and withholdings applicable to additional sums  payable under this Section), the applicable Recipient receives an amount equal to the sum it would have  received had no such deduction or withholding been made.  (c) Payment of Other Taxes by the Credit Parties.  The Credit Parties shall timely pay to the  relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative  Agent timely reimburse it for the payment of, any Other Taxes.  (d) Indemnification by the Credit Parties.  The Credit Parties shall jointly and severally  indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any  Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable  under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment  to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not  such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental  Authority. A certificate as to the amount of such payment or liability delivered to the US Borrower by a  Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or  on behalf of a Recipient, shall be conclusive absent manifest error.  (e) Indemnification by the Lenders.  Each Lender shall severally indemnify the Administrative  Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender  (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such  Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes  attributable to such Lender’s failure to comply with the provisions of Section 12.9(d) relating to the  maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each  case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any  reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or  legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such  





 






  64  152003688_8  payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent  manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all  amounts at any time owing to such Lender under any Loan Document or otherwise payable by the  Administrative Agent to the Lender from any other source against any amount due to the Administrative  Agent under this paragraph (e).  (f) Evidence of Payments.  As soon as practicable after any payment of Taxes by any Credit  Party to a Governmental Authority pursuant to this Section 5.11, such Credit Party shall deliver to the  Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority  evidencing such payment, a copy of the return reporting such payment or other evidence of such payment  reasonably satisfactory to the Administrative Agent.  (g) Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax  with respect to payments made under any Loan Document shall deliver to the applicable Borrower  and the Administrative Agent, at the time or times reasonably requested by the applicable Borrower  or the Administrative Agent, such properly completed and executed documentation reasonably  requested by the applicable Borrower or the Administrative Agent as will permit such payments to  be made without withholding or at a reduced rate of withholding. In addition, any Lender, if  reasonably requested by the US Borrower or the Administrative Agent, shall deliver such other  documentation prescribed by Applicable Law or reasonably requested by the US Borrower or the  Administrative Agent as will enable the US Borrower or the Administrative Agent to determine  whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution  and submission of such documentation (other than such documentation set forth in Section  5.11(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable  judgment such completion, execution or submission would subject such Lender to any material  unreimbursed cost or expense or would materially prejudice the legal or commercial position of  such Lender.  (ii) Without limiting the generality of the foregoing, in the event that any Borrower is  a U.S. Person:  (A) Any Lender that is a U.S. Person shall deliver to the US Borrower and the  Administrative Agent on or prior to the date on which such Lender becomes a Lender under  this Agreement (and from time to time thereafter upon the reasonable request of the US  Borrower or the Administrative Agent), an executed copy of IRS Form W-9 certifying that  such Lender is exempt from United States federal backup withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver  to the US Borrower and the Administrative Agent (in such number of copies as shall be  requested by the recipient) on or prior to the date on which such Foreign Lender becomes  a Lender under this Agreement (and from time to time thereafter upon the reasonable  request of the US Borrower or the Administrative Agent), whichever of the following is  applicable:  (1) in the case of a Foreign Lender claiming the benefits of an income  tax treaty to which the United States is a party (x) with respect to payments of  interest under any Loan Document, an executed copy of IRS Form W-8BEN-E  establishing an exemption from, or reduction of, United States federal withholding  





 






  65  152003688_8  Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any  other applicable payments under any Loan Document, IRS Form W-8BEN-E  establishing an exemption from, or reduction of, United States federal withholding  Tax pursuant to the “business profits” or “other income” article of such tax treaty;  (2) an executed copy of IRS Form W-8ECI;  (3) in the case of a Foreign Lender claiming the benefits of the  exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate  substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is  not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent  shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the  Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of  the Code (a “U.S. Tax Compliance Certificate”) and (y) an executed copy of IRS  Form W-8BEN-E; or  (4) to the extent a Foreign Lender is not the beneficial owner, an  executed copy of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS  Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of  Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents  from each beneficial owner, as applicable; provided that if the Foreign Lender is a  partnership and one or more direct or indirect partners of such Foreign Lender are  claiming the portfolio interest exemption, such Foreign Lender may provide a U.S.  Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of  each such direct and indirect partner;  (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver  to the US Borrower and the Administrative Agent (in such number of copies as shall be  requested by the recipient) on or prior to the date on which such Foreign Lender becomes  a Lender under this Agreement (and from time to time thereafter upon the reasonable  request of the US Borrower or the Administrative Agent), executed copies of any other  form prescribed by Applicable Law as a basis for claiming exemption from or a reduction  in United States federal withholding Tax, duly completed, together with such  supplementary documentation as may be prescribed by Applicable Law to permit the US  Borrower or the Administrative Agent to determine the withholding or deduction required  to be made; and  (D) if a payment made to a Lender under any Loan Document would be subject  to United States 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 US Borrower and the Administrative Agent at the time or times prescribed  by law and at such time or times reasonably requested by the US Borrower or the  Administrative Agent such documentation prescribed by Applicable Law (including as  prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation  reasonably requested by the US Borrower or the Administrative Agent as may be necessary  for the US Borrower and the Administrative Agent to comply with their obligations under  FATCA and to determine that such Lender has complied with such Lender’s obligations  under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to  FATCA after the date of this Agreement.  





 






  66  152003688_8  Each Lender agrees that if any form or certification it previously delivered expires or becomes  obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the US  Borrower and the Administrative Agent in writing of its legal inability to do so.  (h) Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in  good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this  Section 5.11 (including by the payment of additional amounts pursuant to this Section 5.11), it shall pay to  the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made  under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses  (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant  Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such  indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph  (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the  event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be  required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which  would place the indemnified party in a less favorable net after-Tax position than the indemnified party  would have been in if the Tax subject to indemnification and giving rise to such refund had not been  deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with  respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified  party to make available its Tax returns (or any other information relating to its Taxes that it deems  confidential) to the indemnifying party or any other Person.  (i) Survival. Each party’s obligations under this Section 5.11 shall survive the resignation or  replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender,  the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under  any Loan Document.  SECTION 5.12 Mitigation Obligations; Replacement of Lenders.  (a) Designation of a Different Lending Office.  If any Lender requests compensation under  Section 5.10, or requires the Borrowers to pay any Indemnified Taxes or additional amounts to any Lender  or any Governmental Authority for the account of any Lender pursuant to Section 5.11, then such Lender  shall, at the request of a Borrower, use reasonable efforts to designate a different Lending Office for funding  or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices,  branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate  or reduce amounts payable pursuant to Section 5.10 or Section 5.11, as the case may be, in the future and  (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be  disadvantageous to such Lender. Each Borrower hereby agrees to pay all reasonable costs and expenses  incurred by any Lender in connection with any such designation or assignment.  (b) Replacement of Lenders.  If any Lender requests compensation under Section 5.10, or if  the Borrowers are required to pay any Indemnified Taxes or additional amounts to any Lender or any  Governmental Authority for the account of any Lender pursuant to Section 5.11, and, in each case, such  Lender has declined or is unable to designate a different Lending Office in accordance with Section 5.12(a),  or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the US Borrower may, at its sole  expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign  and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents  required by, Section 12.9), all of its interests, rights (other than its existing rights to payments pursuant to  Section 5.10 or Section 5.11) and obligations under this Agreement and the related Loan Documents to an  





 






  67  152003688_8  Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender  accepts such assignment); provided that:  (i) the Borrowers shall have paid to the Administrative Agent the assignment fee (if  any) specified in Section 12.9;  (ii) such Lender shall have received payment of an amount equal to the outstanding  principal of its Loans and funded participations in Letters of Credit and Swingline Loans, accrued  interest thereon, accrued fees and all other amounts payable to it hereunder and under the other  Loan Documents (including any amounts under Section 5.9) from the assignee (to the extent of  such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other  amounts);  (iii) in the case of any such assignment resulting from a claim for compensation under  Section 5.10 or payments required to be made pursuant to Section 5.11, such assignment will result  in a reduction in such compensation or payments thereafter;  (iv) such assignment does not conflict with Applicable Law; and  (v) in the case of any assignment resulting from a Lender becoming a Non- Consenting  Lender, the applicable assignee shall have consented to the applicable amendment, waiver or  consent.  A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a  result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such  assignment and delegation cease to apply.  (c) Selection of Lending Office. Subject to Section 5.12(a), each Lender may make any Loan  to the Borrowers through any Lending Office, provided that the exercise of this option shall not affect the  obligations of the Borrowers to repay the Loan in accordance with the terms of this Agreement or otherwise  alter the rights of the parties hereto.  SECTION 5.13 Incremental Loans.  (a) At any time, the US Borrower may by written notice to the Administrative Agent and the  Lenders elect to request the establishment of:  (i) one or more incremental term loan commitments (any such incremental term loan  commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loan  (any such additional term loan, an “Incremental Term Loan”) in Dollars; or  (ii) one or more increases in the Revolving Credit Commitments (any such increase,  an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan  Commitments, the “Incremental Loan Commitments”) to make revolving credit loans in Dollars  under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase”  and, together with the Incremental Term Loans, the “Incremental Loans”);  provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not  (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each  Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a  minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the  





 






  68  152003688_8  foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which  the US Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date  not less than ten (10) Business Days after the date on which such notice is delivered to Administrative  Agent and the Lenders. Each Lender (or any Affiliate of any Lender and/or any Approved Fund) shall notify  the Administrative Agent within such time period whether or not it agrees to provide the Incremental Loan  Commitment and if so, whether by an amount equal to, greater than, or less than its Revolving Credit  Commitment Percentage. Any Lender not responding within such time period shall be deemed to have  declined to provide an Incremental Loan Commitment. The Administrative Agent shall notify the US  Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve full  amount of a requested increase, the US Borrower may invite any other Person reasonably satisfactory to  the Administrative Agent, to provide an Incremental Loan Commitment (any Lender, any Affiliate of any  Lender, any Approved Fund or such Person, an “Incremental Lender”). Any proposed Incremental Lender  offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline,  in its sole discretion, to provide such Incremental Loan Commitment. The Administrative Agent and the  US Borrower shall determine the final allocation of the Incremental Loan Commitments by the Incremental  Lenders. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date;  provided that (subject, in the case of an Incremental Term Loan incurred solely to finance a substantially  concurrent Limited Condition Acquisition, to Section 1.13):  (A) no Default or Event of Default shall exist on such Increased Amount Date  before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of  any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated  in connection therewith;   (B) the Administrative Agent and the Lenders shall have received from the US  Borrower an Officer’s Compliance Certificate demonstrating, in form and substance  reasonably satisfactory to the Administrative Agent, that the US Borrower is in compliance  with the financial covenants set forth in Section 9.15 based on the financial statements most  recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after  giving effect (on a Pro Forma Basis) to (1) any Incremental Loan Commitment, (2) the  making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition  consummated in connection therewith;   (C) each of the representations and warranties contained in Article VII shall  be true and correct in all material respects, except to the extent any such representation and  warranty is qualified by materiality or reference to Material Adverse Effect, in which case,  such representation and warranty shall be true, correct and complete in all respects, on such  Increased Amount Date with the same effect as if made on and as of such date (except for  any such representation and warranty that by its terms is made only as of an earlier date,  which representation and warranty shall remain true and correct as of such earlier date);   (D) the proceeds of any Incremental Loans shall be used for general corporate  purposes of the US Borrower and its Subsidiaries (including Permitted Acquisitions);   (E) each Incremental Loan Commitment (and the Incremental Loans made  thereunder) shall constitute Obligations of the US Borrower and shall be secured and  guaranteed with the other Extensions of Credit on a pari passu basis;   (F) (1) in the case of each Incremental Term Loan (the terms of which  shall be set forth in the relevant Lender Joinder Agreement):  





 






  69  152003688_8  (x) such Incremental Term Loan will mature and amortize in  a manner reasonably acceptable to the Administrative Agent, the  Incremental Lenders making such Incremental Term Loan and the US  Borrower, but will not in any event have a maturity date earlier than the  Revolving Loan Maturity Date;  (y) the Applicable Margin and pricing grid, if applicable, for  such Incremental Term Loan shall be determined by the Administrative  Agent, the applicable Incremental Lenders and the US Borrower on the  applicable Increased Amount Date; and  (2) in the case of each Incremental Revolving Credit Increase (the  terms of which shall be set forth in the relevant Lender Joinder Agreement):  (x) such Incremental Revolving Credit Increase shall mature  on the Revolving Credit Maturity Date, shall bear interest and be entitled  to fees, in each case at a rate determined by the Administrative Agent, the  applicable Incremental Lenders and the US Borrower, and shall be subject  to the same terms and conditions as the Revolving Credit Loans; interest  rate margins and/or unused fees with respect to any Incremental Revolving  Credit Increase may be higher than the interest rate margins and/or unused  fees applicable to the then existing Revolving Credit Commitments;  provided that if the interest rate margins and/or unused fees, as applicable,  in respect of any Incremental Revolving Credit Increase exceed the  interest rate margins and/or unused fees, as applicable, for the Initial  Revolving Credit Facility, then the interest rate margins and/or unused  fees, as applicable, for the Initial Revolving Credit Facility shall be  increased so that the interest rate margins and/or unused fees, as  applicable, are equal to the interest rate margins and/or unused fees for  such Incremental Revolving Credit Increase; provided further that, in  determining the interest rate margins and unused fees applicable to the  Incremental Revolving Credit Increase and the then existing Revolving  Credit Commitments, (AA) any upfront fees payable by the US Borrower  to the Lenders under the then existing Revolving Credit Commitments or  any Incremental Revolving Credit Increase, in each case in the initial  primary syndication thereof and the effects of any and all interest rate  floors, shall be included (with such upfront fees being equated to interest  based on an assumed four-year life to maturity), (BB) customary  arrangement or commitment fees payable to any Arranger (or its affiliates)  or to one or more arrangers (or their affiliates) in connection with the then  existing Revolving Credit Commitments or to one or more arrangers (or  their affiliates) of any Incremental Revolving Credit Increase shall be  excluded and (CC) in the event that, at the time of determination, the  Applicable Margin is determined based on a pricing grid, the interest rate  margins and unused fees shall be measured for purposes of this clause (F)  by reference to each level of the pricing grid;   (y) the outstanding Revolving Credit Loans and Revolving  Credit Commitment Percentages of Swingline Loans and L/C Obligations  will be reallocated by the Administrative Agent on the applicable  Increased Amount Date among the Revolving Credit Lenders (including  





 






  70  152003688_8  the Incremental Lenders providing such Incremental Revolving Credit  Increase) in accordance with their revised Revolving Credit Commitment  Percentages (and the Revolving Credit Lenders (including the Incremental  Lenders providing such Incremental Revolving Credit Increase) agree to  make all payments and adjustments necessary to effect such reallocation  and the US Borrower shall pay any and all costs required pursuant to  Section 5.9 in connection with such reallocation as if such reallocation  were a repayment); and   (z) except as provided above, all of the other terms and  conditions applicable to such Incremental Revolving Credit Increase shall,  except to the extent otherwise provided in this Section 5.13, be identical  to the terms and conditions applicable to the Revolving Credit Facility;   (G) any Incremental Lender with an Incremental Revolving Credit Increase  shall be entitled to the same voting rights as the existing Revolving Credit Lenders under  the Revolving Credit Facility and any Extensions of Credit made in connection with each  Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same  basis as the other Revolving Credit Loans made hereunder;   (H) such Incremental Loan Commitments shall be effected pursuant to one or  more Lender Joinder Agreements executed and delivered by the US Borrower, the  Administrative Agent and the applicable Incremental Lenders (which Lender Joinder  Agreement may, without the consent of any other Lenders, effect such amendments to this  Agreement and the other Loan Documents as may be necessary or appropriate, in the  opinion of the Administrative Agent, to effect the provisions of this Section 5.13); and   (I) the US Borrower shall deliver or cause to be delivered any customary legal  opinions or other documents (including, without limitation, a resolution duly adopted by  the board of directors (or equivalent governing body) of each Credit Party authorizing such  Incremental Loan and/or Incremental Term Loan Commitment) reasonably requested by  Administrative Agent in connection with any such transaction.  (b) (i) The Incremental Term Loans shall be on such other terms as shall be set forth in  an amendment to this Agreement including, among other provisions, amortization, optional prepayments  and mandatory prepayments.  (ii) The Incremental Lenders shall be included in any determination of the Required  Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting  class for any purposes under this Agreement.  (c) (i) On any Increased Amount Date on which any Incremental Term Loan  Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender  with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term  Loan to the US Borrower in an amount equal to its Incremental Term Loan Commitment and shall become  a Term Loan Lender hereunder with respect to such Incremental Term Loan Commitment and the  Incremental Term Loan made pursuant thereto.  (ii) On any Increased Amount Date on which any Incremental Revolving Credit  Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender  





 






  71  152003688_8  with an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender  hereunder with respect to such Incremental Revolving Credit Commitment.  SECTION 5.14 Cash Collateral.  At any time that there shall exist a Defaulting Lender, within  one Business Day following the written request of the Administrative Agent, any Issuing Lender (with a  copy to the Administrative Agent) or the Swingline Lender (with a copy to the Administrative Agent), the  US Borrower shall Cash Collateralize the Fronting Exposure of such Issuing Lender and/or the Swingline  Lender, as applicable, with respect to such Defaulting Lender (determined after giving effect to Section  5.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the  Minimum Collateral Amount.  (a) Grant of Security Interest.  US Borrower, and to the extent provided by any Defaulting  Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of each Issuing  Lender and the Swingline Lender, and agrees to maintain, a first priority security interest in all such Cash  Collateral as security for the Defaulting Lender’s obligation to fund participations in respect of L/C  Obligations and Swingline Loans, to be applied pursuant to subsection (b) below. If at any time the  Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other  than the Administrative Agent, each Issuing Lender and the Swingline Lender as herein provided (other  than Permitted Liens), or that the total amount of such Cash Collateral is less than the Minimum Collateral  Amount, the US Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the  Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after  giving effect to any Cash Collateral provided by the Defaulting Lender).  (b) Application.  Notwithstanding anything to the contrary contained in this Agreement, Cash  Collateral provided under this Section 5.14 or Section 5.15 in respect of Letters of Credit and Swingline  Loans shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in  respect of L/C Obligations and Swingline Loans (including, as to Cash Collateral provided by a Defaulting  Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to  any other application of such property as may otherwise be provided for herein.  (c) Termination of Requirement.  Cash Collateral (or the appropriate portion thereof) provided  to reduce the Fronting Exposure of any Issuing Lender and/or the Swingline Lender, as applicable, shall no  longer be required to be held as Cash Collateral pursuant to this Section 5.14 following (i) the elimination  of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the  applicable Lender), or (ii) the determination by the Administrative Agent, the Issuing Lenders and the  Swingline Lender that there exists excess Cash Collateral; provided that, subject to Section 5.15, the Person  providing Cash Collateral, the Issuing Lenders and the Swingline Lender may agree that Cash Collateral  shall be held to support future anticipated Fronting Exposure or other obligations; and provided further that  to the extent that such Cash Collateral was provided by the US Borrower, such Cash Collateral shall remain  subject to the security interest granted pursuant to the Loan Documents.  SECTION 5.15 Defaulting Lenders.  (a) Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in  this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no  longer a Defaulting Lender, to the extent permitted by Applicable Law:  (i) Waivers and Amendments.  Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as  set forth in the definition of Required Lenders and Section 12.2.  





 






  72  152003688_8  (ii) Defaulting Lender Waterfall.  Any payment of principal, interest, fees or other  amounts received by the Administrative Agent for the account of such Defaulting Lender (whether  voluntary or mandatory, at maturity, pursuant to Article X or otherwise) or received by the  Administrative Agent from a Defaulting Lender pursuant to Section 12.4 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  Lenders or the Swingline Lender hereunder; third, to Cash Collateralize the Fronting Exposure of  the Issuing Lenders and the Swingline Lender with respect to such Defaulting Lender in accordance  with Section 5.14; fourth, as the US Borrower may request (so long as no Default or Event of  Default exists), to the funding of any Loan or funded participation 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 US Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such  Defaulting Lender’s potential future funding obligations with respect to Loans and funded  participations under this Agreement and (B) Cash Collateralize the Issuing Lenders’ future Fronting  Exposure with respect to such Defaulting Lender with respect to future Letters of Credit and  Swingline Loans issued under this Agreement, in accordance with Section 5.14; sixth, to the  payment of any amounts owing to the Lenders, the Issuing Lenders or the Swingline Lender as a  result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing  Lender or the Swingline Lender against such Defaulting Lender as a result of such Defaulting  Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of  Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment  of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as  a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to  such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that  if (1) such payment is a payment of the principal amount of any Loans or funded participations in  Letters of Credit or Swingline Loans in respect of which such Defaulting Lender has not fully  funded its appropriate share, and (2) such Loans were made or the related Letters of Credit or  Swingline Loans were issued at a time when the conditions set forth in Section 6.2 were satisfied  or waived, such payment shall be applied solely to pay the Loans of, and funded participations in  Letters of Credit or Swingline Loans owed to, all Non-Defaulting Lenders on a pro rata basis prior  to being applied to the payment of any Loans of, or funded participations in Letters of Credit or  Swingline Loans owed to, such Defaulting Lender until such time as all Loans and funded and  unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata  in accordance with the Revolving Credit Commitments under the applicable Revolving Credit  Facility without giving effect to Section 5.15(a)(iv). Any payments, prepayments or other amounts  paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a  Defaulting Lender or to post Cash Collateral pursuant to this Section 5.15(a)(ii) shall be deemed  paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.  (iii) Certain Fees.  (A) No Defaulting Lender shall be entitled to receive any Commitment Fee for  any period during which that Lender is a Defaulting Lender (and the US Borrower shall  not be required to pay any such fee that otherwise would have been required to have been  paid to that Defaulting Lender).  (B) Each Defaulting Lender shall be entitled to receive letter of credit  commissions pursuant to Section 3.3 for any period during which that Lender is a  Defaulting Lender only to the extent allocable to its Revolving Credit Commitment  





 






  73  152003688_8  Percentage of the stated amount of Letters of Credit for which it has provided Cash  Collateral pursuant to Section 5.14.  (C) With respect to any Commitment Fee or letter of credit commission not  required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the US  Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee  otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s  participation in L/C Obligations or Swingline Loans that has been reallocated to such Non- Defaulting Lender pursuant to clause (iv) below, (2) pay to each applicable Issuing Lender  and Swingline Lender, as applicable, the amount of any such fee otherwise payable to such  Defaulting Lender to the extent allocable to such Issuing Lender’s or Swingline Lender’s  Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining  amount of any such fee.  (iv) Reallocation of Participations to Reduce Fronting Exposure.  All or any part of  such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be reallocated  among the Non-Defaulting Lenders in accordance with their respective Revolving Credit  Commitment Percentages (calculated without regard to such Defaulting Lender’s Revolving Credit  Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving  Credit Exposure of any Non- Defaulting Lender to exceed such Non-Defaulting Lender’s  Revolving Credit Commitment. Subject to Section 12.26, no reallocation hereunder shall constitute  a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from  that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender  as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.  (v) Cash Collateral, Repayment of Swingline Loans.  If the reallocation described in  clause (iv) above cannot, or can only partially, be effected, the US Borrower shall, without  prejudice to any right or remedy available to it hereunder or under law, (x) first, repay Swingline  Loans in an amount equal to the Swingline Lenders’ Fronting Exposure and (y) second, Cash  Collateralize the Issuing Lenders’ Fronting Exposure in accordance with the procedures set forth  in Section 5.14.  (b) Defaulting Lender Cure.  If the US Borrower, the Administrative Agent, the Issuing  Lenders and the Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, the  Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such  notice and subject to any conditions set forth therein (which may include arrangements with respect to any  Cash Collateral), such Lender will, to the extent applicable, purchase at par that portion of outstanding  Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be  necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline  Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable Credit  Facility (without giving effect to Section 5.15(a)(iv)), whereupon such Lender will cease to be a Defaulting  Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments  made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further,  that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from  Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party  hereunder arising from that Lender’s having been a Defaulting Lender.  SECTION 5.16 Non-US Borrowers.  (a) At any time after the Closing Date, so long as no Default or Event of Default has occurred  and is continuing or would result therefrom, US Borrower may elect to add any of its Foreign Subsidiaries  





 






  74  152003688_8  (provided that such Foreign Subsidiary is organized in a jurisdiction reasonably acceptable to the  Administrative Agent) as a Non-US Borrower hereunder fifteen (15) days after delivery to the  Administrative Agent of a Notice of Non-US Borrower. Each Non-US Borrower shall deliver to  Administrative Agent (in each case, in form and substance reasonably acceptable to Administrative Agent):  (i) a Non-US Revolving Credit Note in the form of Exhibit A-3 attached hereto, (ii) as to itself, the  documents, agreements and other instruments required under Sections 6.1(b), (e)(i) and (g)(iv), (iii) a  joinder to this Agreement in the form attached to the Notice of Non-US Borrower and (iv) if and to the  extent permitted by Applicable Law, documentation (including such documents and other instruments  required under Section 6.1(c)) to grant a first priority perfected security interest in the Property of such  Non-US Borrower to secure all Secured Obligations of such Non-US Borrower under the Loan Documents  to which it is a party, in each case subject to exceptions similar to those set forth in the Security Agreement  and such other exceptions reasonably acceptable to the Administrative Agent; provided that (A) the  Administrative Agent may elect to waive or postpone any such requirements under this clause (iv) to the  extent that the Administrative Agent and the US Borrower agree the cost of obtaining a security interest in  such assets are excessive in relation to the value afforded thereby at such time (provided that the  Administrative Agent reserves the right to obtain such documentation and security interests and require  such actions if the condition in clause (A) is no longer applicable), and (B) the requirements under this  clause (iv) shall exclude any security interest to the extent such security interest could reasonably be  expected to result in an adverse tax consequence to the US Borrower or any of its Subsidiaries (as  determined in good faith by the US Borrower).  (b) Each Non-US Borrower that is or becomes a “Borrower” pursuant to this Section 5.16  hereby irrevocably appoints the US Borrower to act as its agent for all notice purposes of this Agreement  and the other Loan Documents and agrees that any notice or communication delivered by the Administrative  Agent or the Lender to the US Borrower shall be deemed delivered to each such Borrower and the  Administrative Agent or the Lenders may accept, and be permitted to rely on, any document, instrument or  agreement delivered by the US Borrower on behalf of each of the Credit Parties.  SECTION 5.17 Designated Lenders.  Each of the Administrative Agent, the Issuing Lenders,  the Swingline Lenders and each Lender at its option may make any Extension of Credit or otherwise  perform its obligations hereunder through any Lending Office (each, a “Designated Lender”); provided that  any exercise of such option shall not affect the obligation of Borrowers to repay any Extension of Credit in  accordance with the terms of this Agreement. Any Designated Lender shall be considered a Lender;  provided that in the case of an Affiliate or branch of a Lender, such provisions that would be applicable  with respect to Extensions of Credit actually provided by such Affiliate or branch of such Lender shall  apply to such Affiliate or branch of such Lender to the same extent as such Lender; provided that for the  purposes only of voting in connection with any Loan Document, any participation by any Designated  Lender in any outstanding Extension of Credit shall be deemed a participation of such Lender.  ARTICLE VI  CONDITIONS OF CLOSING AND BORROWING  SECTION 6.1 Conditions to Closing and Initial Extensions of Credit.  The obligation of the  Lenders to close this Agreement and to make the initial Loans or issue or participate in the initial Letter of  Credit, if any, is subject to the satisfaction of each of the following conditions:  (a) Executed Loan Documents.  This Agreement, a Revolving Credit Note in favor of each  Revolving Credit Lender requesting a Revolving Credit Note, a Swingline Note in favor of the Swingline  Lender (in each case, if requested thereby), the Security Documents, together with any other applicable  Loan Documents, shall have been duly authorized, executed and delivered to the Administrative Agent by  





 






  75  152003688_8  the parties thereto, shall be in full force and effect and no Default or Event of Default shall exist hereunder  or thereunder.  (b) Closing Certificates; Etc.  The Administrative Agent shall have received each of the  following in form and substance reasonably satisfactory to the Administrative Agent:  (i) Officer’s Certificate.  A certificate from a Responsible Officer of the US Borrower  to the effect that (A) all representations and warranties of the Credit Parties contained in this  Agreement and the other Loan Documents are true, correct and complete in all material respects  (except to the extent any such representation and warranty is qualified by materiality or reference  to Material Adverse Effect, in which case, such representation and warranty shall be true, correct  and complete in all respects); (B) none of the Credit Parties is in violation of any of the covenants  contained in this Agreement and the other Loan Documents; (C) after giving effect to the  Transactions, no Default or Event of Default has occurred and is continuing; (D) since December  31, 2018, no event has occurred or condition arisen, either individually or in the aggregate, that has  had or could reasonably be expected to have a Material Adverse Effect; and (E) each of the Credit  Parties, as applicable, has satisfied each of the conditions set forth in Section 6.1 and Section 6.2.  (ii) Certificate of Responsible Officer of each Credit Party.  A certificate of a  Responsible Officer of each Credit Party certifying as to the incumbency and genuineness of the  signature of each officer of such Credit Party executing Loan Documents to which it is a party and  certifying that attached thereto is a true, correct and complete copy of (A) the articles or certificate  of incorporation or formation (or equivalent), as applicable, of such Credit Party and all  amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its  jurisdiction of incorporation, organization or formation (or equivalent), as applicable, (B) the  bylaws or other governing document of such Credit Party as in effect on the Closing Date, (C)  resolutions duly adopted by the board of directors (or other governing body) of such Credit Party  authorizing and approving the transactions contemplated hereunder and the execution, delivery and  performance of this Agreement and the other Loan Documents to which it is a party, and (D) each  certificate required to be delivered pursuant to Section 6.1(b)(iii).  (iii) Certificates of Good Standing.  Certificates as of a recent date of the good standing  of each Credit Party under the laws of its jurisdiction of incorporation, organization or formation  (or equivalent), as applicable, and, to the extent requested by the Administrative Agent, each other  jurisdiction where such Credit Party is qualified to do business and, to the extent available, a  certificate of the relevant taxing authorities of such jurisdictions certifying that such Credit Party  has filed required tax returns and owes no delinquent taxes.  (iv) Opinions of Counsel.  Opinions of counsel to the Credit Parties addressed to the  Administrative Agent and the Lenders with respect to the Credit Parties, the Loan Documents and  such other matters as the Administrative Agent shall request (which such opinions shall expressly  permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders).  (c) Personal Property Collateral.  (i) Filings and Recordings.  The Administrative Agent shall have received all filings  and recordations that are necessary to perfect the security interests of the Administrative Agent, on  behalf of the Secured Parties, in the Collateral and the Administrative Agent shall have received  evidence reasonably satisfactory to the Administrative Agent that upon such filings and  recordations such security interests constitute valid and perfected first priority Liens thereon  (subject to Permitted Liens).  





 






  76  152003688_8  (ii) Pledged Collateral.  The Administrative Agent shall have received (A) original  stock certificates or other certificates evidencing the certificated Capital Stock pledged pursuant to  the Security Documents, together with an undated stock power for each such certificate duly  executed in blank by the registered owner thereof and (B) each original promissory note pledged  pursuant to the Security Documents together with an updated allonge for each such promissory  note duly executed in blank by the holder thereof.  (iii) Lien Search.  The Administrative Agent shall have received the results of a Lien  search (including a search as to judgments, pending litigation, bankruptcy, tax and intellectual  property matters), in form and substance reasonably satisfactory thereto, made against the Credit  Parties under the Uniform Commercial Code (or applicable judicial docket) and PPSA, as  applicable, as in effect in each jurisdiction in which filings or recordations under the Uniform  Commercial Code and PPSA, as applicable, should be made to evidence or perfect security interests  in all assets of such Credit Party, indicating among other things that the assets of each such Credit  Party are free and clear of any Lien (except for Permitted Liens).  (iv) Property and Liability Insurance.  The Administrative Agent shall have received,  in each case in form and substance reasonably satisfactory to the Administrative Agent, evidence  of property, business interruption and liability insurance covering each Credit Party, evidence of  payment of all insurance premiums for the current policy year of each policy (with appropriate  endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as  applicable) on all policies for property hazard insurance and as additional insured on all policies  for liability insurance), and if requested by the Administrative Agent, copies of such insurance  policies.  (v) Other Collateral Documentation.  The Administrative Agent shall have received  any documents reasonably requested thereby or as required by the terms of the Security Documents  to evidence its security interest in the Collateral.  (d) [Reserved].    (e) Consents; Defaults.  (i) Governmental and Third Party Approvals.  The Credit Parties shall have received  all material governmental, shareholder and third party consents and approvals necessary (or any  other material consents as determined in the reasonable discretion of the Administrative Agent) in  connection with the transactions contemplated by this Agreement and the other Loan Documents  and all applicable waiting periods shall have expired without any action being taken by any Person  that could reasonably be expected to restrain, prevent or impose any material adverse conditions  on any of the Credit Parties or such other transactions or that could seek or threaten any of the  foregoing, and no law or regulation shall be applicable which in the reasonable judgment of the  Administrative Agent could reasonably be expected to have such effect.  (ii) No Injunction, Etc.  No action, proceeding or investigation shall have been  instituted, threatened or proposed before any Governmental Authority to enjoin, restrain, or  prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this  Agreement or the other Loan Documents or the consummation of the transactions contemplated  hereby or thereby, or which, in the Administrative Agent’s sole discretion, would make it  inadvisable to consummate the transactions contemplated by this Agreement or the other Loan  Documents or the consummation of the transactions contemplated hereby or thereby.  





 






  77  152003688_8  (f) Financial Matters.  (i) Financial Statements.  The Administrative Agent shall have received (A) the  audited Consolidated balance sheet of the US Borrower and its Subsidiaries as of December 31,  2018 and the related audited statements of income and retained earnings and cash flows for the  Fiscal Year then ended and (B) unaudited Consolidated balance sheet of the US Borrower and its  Subsidiaries as of March 31, 2019 and related unaudited interim statements of income and retained  earnings.  (ii) [Reserved].    (iii) [Reserved].    (iv) Financial Condition/Solvency Certificate.  The Borrowers shall have delivered to  the Administrative Agent a certificate, in form and substance satisfactory to the Administrative  Agent, and certified as accurate by a Responsible Officer of the Borrowers, that after giving effect  to the Transactions, the Credit Parties and their Subsidiaries, taken as a whole, are Solvent.  (v) Payment at Closing.  The US Borrower shall have paid or made arrangements to  pay contemporaneously with closing (A) to the Administrative Agent, the Arranger and the Lenders  the fees set forth or referenced in Section 5.3 and any other accrued and unpaid fees or commissions  due hereunder, (B) all fees, charges and disbursements of counsel to the Administrative Agent  (directly to such counsel if requested by the Administrative Agent) to the extent accrued and unpaid  prior to or on the Closing Date, plus such additional amounts of such fees, charges and  disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements  incurred or to be incurred by it through the closing proceedings (provided that such estimate shall  not thereafter preclude a final settling of accounts between the US Borrower and the Administrative  Agent) and (C) to any other Person such amount as may be due thereto in connection with the  transactions contemplated hereby, including all taxes, fees and other charges in connection with  the execution, delivery, recording, filing and registration of any of the Loan Documents.  (g) Miscellaneous.  (i) Notice of Account Designation.  The Administrative Agent shall have received a  Notice of Account Designation specifying the account or accounts to which the proceeds of any  Loans made on or after the Closing Date are to be disbursed.  (ii) Due Diligence.  The Administrative Agent shall have completed, to its satisfaction,  all legal, tax, environmental, business and other due diligence with respect to the business, assets,  liabilities, operations and condition (financial or otherwise) of the US Borrower and its Subsidiaries  in scope and determination satisfactory to the Administrative Agent in its sole discretion.  (iii) Existing Indebtedness.  All existing Indebtedness of the US Borrower and its  Subsidiaries under the Existing Credit Agreement shall be refinanced.  (iv) PATRIOT Act, etc.    (A) The Administrative Agent and the Lenders shall have received all  documentation and other information requested by the Administrative Agent or any Lender  and required by regulatory authorities in order for the Administrative Agent and the  





 






  78  152003688_8  Lenders to comply with requirements of any Anti-Money Laundering Laws, including the  PATRIOT Act and any applicable “know your customer” rules and regulations.  (B) Each Borrower shall have delivered to the Administrative Agent, and  directly to any Lender requesting the same, a Beneficial Ownership Certification in relation  to it (or a certification that such Borrower qualifies for an express exclusion from the “legal  entity customer” definition under the Beneficial Ownership Regulations).  (v) Other Documents.  All opinions, certificates and other instruments and all  proceedings in connection with the transactions contemplated by this Agreement shall be  satisfactory in form and substance to the Administrative Agent. The Administrative Agent shall  have received copies of all other documents, certificates and instruments reasonably requested  thereby, with respect to the transactions contemplated by this Agreement.  Without limiting the generality of the provisions of Section 11.3(c), for purposes of determining compliance  with the conditions specified in this Section 6.1, the Administrative Agent and each Lender that has signed  this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each  document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory  to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the  proposed Closing Date specifying its objection thereto.  SECTION 6.2 Conditions to All Extensions of Credit.  Subject to Section 5.13 and Section  1.13 solely with respect to any Incremental Term Loan incurred to finance a substantially concurrent  Limited Condition Acquisition, the obligations of the Lenders to make or participate in any Extensions of  Credit (including the initial Extension of Credit), convert or continue any Loan and/or any Issuing Lender  to issue or extend any Letter of Credit are subject to the satisfaction of the following conditions precedent  on the relevant borrowing, continuation, conversion, issuance or extension date:  (a) Continuation of Representations and Warranties.  The representations and warranties  contained in Article VII shall be true and correct in all material respects, except for any representation and  warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation  and warranty shall be true and correct in all respects, on and as of such borrowing, continuation, conversion,  issuance or extension date with the same effect as if made on and as of such date (except for any such  representation and warranty that by its terms is made only as of an earlier date, which representation and  warranty shall remain true and correct in all material respects as of such earlier date, except for any  representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which  such representation and warranty shall be true and correct in all respects as of such earlier date).  (b) No Existing Default.  No Default or Event of Default shall have occurred and be continuing  (i) on the borrowing, continuation or conversion date with respect to such Loan or after giving effect to the  Loans to be made, continued or converted on such date or (ii) on the issuance or extension date with respect  to such Letter of Credit or after giving effect to the issuance or extension of such Letter of Credit on such  date.  (c) Notices.  The Administrative Agent shall have received a Notice of Borrowing, Letter of  Credit Application, or Notice of Conversion/Continuation, as applicable, from the US Borrower in  accordance with Section 2.3(a), Section 3.2 or Section 5.2, as applicable.  (d) Additional Documents.  The Administrative Agent shall have received each additional  document, instrument, legal opinion or other item reasonably requested by it.  





 






  79  152003688_8  (e) New Swingline Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender, (i)  the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will  have no Fronting Exposure after giving effect to such Swingline Loan and (ii) the Issuing Lender shall not  be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no  Fronting Exposure after giving effect thereto.  (f) Alternative Currency Credit Extensions.  In the case of a Credit Extension to be  denominated in an Alternative Currency, there shall not have occurred any change in national or  international financial, political or economic conditions or currency exchange rates or exchange controls  which in the reasonable opinion of the Administrative Agent or the Required Lenders (in the case of any  Loans to be denominated in an Alternative Currency) would make it impracticable for such Credit  Extension to be denominated in the relevant Alternative Currency. Each Lender shall have obtained all  applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to  execute and perform the transactions contemplated by the Loan Documents and the requested Alternative  Currency Credit Extension.  Each Notice of Borrowing, Letter of Credit Application or Notice of Conversion/Continuation, as  applicable, submitted by the US Borrower shall be deemed to be a representation and warranty that the  conditions specified in Sections 6.2(a) and (b) have been satisfied on and as of the date of the applicable  Extension of Credit, subject to Section 5.13 and Section 1.13 solely with respect to any Incremental Term  Loan incurred to finance a substantially concurrent Limited Condition Acquisition.  ARTICLE VII  REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES  To induce the Administrative Agent and Lenders to enter into this Agreement and to induce the  Lenders to make Extensions of Credit, each Borrower hereby represents and warrants to the Administrative  Agent and the Lenders both before and after giving effect to the transactions contemplated hereunder, which  representations and warranties shall be deemed made on the Closing Date and as otherwise set forth in  Section 6.2, that:  SECTION 7.1 Organization; Power; Qualification.  Each Credit Party and each Material  Foreign Subsidiary (a) is duly organized, validly existing and in good standing under the laws of the  jurisdiction of its incorporation or formation, (b) has the power and authority to own its Properties and to  carry on its business as now being and hereafter proposed to be conducted and (c) is duly qualified and  authorized to do business in each jurisdiction in which the character of its Properties or the nature of its  business requires such qualification and authorization except in jurisdictions where the failure to be so  qualified or in good standing could not reasonably be expected to result in a Material Adverse Effect. The  jurisdictions in which each Credit Party and each Material Foreign Subsidiary are organized and qualified  to do business as of the Closing Date are described on Schedule 7.1. No Credit Party nor any Subsidiary  thereof is an Affected Financial Institution.  SECTION 7.2 Ownership.  Each Subsidiary of each Credit Party as of the Closing Date is  listed on Schedule 7.2. As of the Closing Date, the capitalization of each Credit Party and its Subsidiaries  consists of the number of shares, authorized, issued and outstanding, of such classes and series, with or  without par value, described on Schedule 7.2. All outstanding shares have been duly authorized and validly  issued and are fully paid and nonassessable and not subject to any preemptive or similar rights, except as  described in Schedule 7.2. The shareholders or other owners, as applicable, of each Credit Party (other than  the US Borrower) and its Subsidiaries and the number of shares owned by each as of the Closing Date are  described on Schedule 7.2. As of the Closing Date, there are no outstanding stock purchase warrants,  subscriptions, options, securities, instruments or other rights of any type or nature whatsoever, which are  





 






  80  152003688_8  convertible into, exchangeable for or otherwise provide for or require the issuance of Capital Stock of any  Credit Party or any Subsidiary thereof, except as described on Schedule 7.2.  SECTION 7.3 Authorization; Enforceability.  Each Credit Party has the right, power and  authority and has taken all necessary corporate and other action to authorize the execution, delivery and  performance of this Agreement and each of the other Loan Documents to which it is a party in accordance  with their respective terms. This Agreement and each of the other Loan Documents have been duly executed  and delivered by the duly authorized officers of each Credit Party that is a party thereto, and each such  document constitutes the legal, valid and binding obligation of each Credit Party that is a party thereto,  enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy,  insolvency, reorganization, moratorium or similar state or federal Debtor Relief Laws from time to time in  effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies.  SECTION 7.4 Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.   The execution, delivery and performance by each Credit Party and each Material Foreign Subsidiary of the  Loan Documents to which each such Person is a party, in accordance with their respective terms, the  Extensions of Credit hereunder and the transactions contemplated hereby or thereby do not and will not, by  the passage of time, the giving of notice or otherwise, (a) require any Governmental Approval or violate  any material provision of Applicable Law relating to any Credit Party or any Material Foreign Subsidiary,  (b) conflict with, result in a breach of or constitute a default under the articles of incorporation, bylaws or  other organizational documents of any Credit Party or any Material Foreign Subsidiary, (c) conflict with,  result in a breach of or constitute a default under any indenture, agreement or other instrument to which  such Person is a party or by which any of its properties may be bound or any Governmental Approval  relating to such Person, which could, individually or in the aggregate, reasonably be expected to have a  Material Adverse Effect, (d) result in or require the creation or imposition of any Lien upon or with respect  to any property now owned or hereafter acquired by such Person other than Permitted Liens or (e) require  any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental  Authority and no consent of any other Person is required in connection with the execution, delivery,  performance, validity or enforceability of this Agreement other than (i) consents, authorizations, filings or  other acts or consents obtained or for which the failure to obtain or make could not, individually or in the  aggregate, reasonably be expected to have a Material Adverse Effect, (ii) consents or filings under the UCC,  and/or PPSA and (iii) filings with the United States Copyright Office, the United States Patent and  Trademark Office and/or CIPO.  SECTION 7.5 Compliance with Law; Governmental Approvals.  Each Credit Party and each  Material Foreign Subsidiary (a) has all Governmental Approvals required by any Applicable Law for it to  conduct its business, each of which is in full force and effect, is final and not subject to review on appeal  and is not the subject of any pending or, to its Knowledge, threatened attack by direct or collateral  proceeding, (b) is in compliance with each Governmental Approval applicable to it and in compliance with  all other Applicable Laws relating to it or any of its respective properties and (c) has timely filed all material  reports, documents and other materials required to be filed by it under all Applicable Laws with any  Governmental Authority and has retained all material records and documents required to be retained by it  under Applicable Law except in each case (a), (b) or (c) where the failure to have, comply or file could not  reasonably be expected to have a Material Adverse Effect.  SECTION 7.6 Tax Returns and Payments.  Each Credit Party and each Material Foreign  Subsidiary has duly filed or caused to be filed all federal, state, provincial, local and other material tax  returns required by Applicable Law to be filed, and has paid, or made adequate provision for the payment  of, all federal, state, provincial, local and other material taxes, assessments and governmental charges or  levies upon it and its property, income, profits and assets which are due and payable (other than any amount  the validity of which is currently being contested in good faith by appropriate proceedings and with respect  





 






  81  152003688_8  to which reserves in conformity with GAAP have been provided for on the books of the relevant Credit  Party). Such returns accurately reflect in all material respects all liability for taxes of any Credit Party or  any Material Foreign Subsidiary for the periods covered thereby. As of the Closing Date, except as set forth  on Schedule 7.6, there is no ongoing audit or examination or, to the Knowledge of the US Borrower, other  investigation by any Governmental Authority of the tax liability of any Credit Party or any Material Foreign  Subsidiary. No Governmental Authority has asserted any Lien or other claim against any Credit Party or  any Material Foreign Subsidiary with respect to unpaid taxes which has not been discharged or resolved  (other than (a) any amount the 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 for on the  books of the relevant Credit Party and (b) Permitted Liens). The charges, accruals and reserves on the books  of each Credit Party and each Material Foreign Subsidiary in respect of federal, state, provincial, local and  other taxes for all Fiscal Years and portions thereof since the organization of any Credit Party or any  Material Foreign Subsidiary are in the judgment of the US Borrower adequate, and the US Borrower does  not anticipate any additional taxes or assessments for any of such years.  SECTION 7.7 Intellectual Property Matters.  Each Credit Party and each Subsidiary thereof  owns or possesses rights to use all material franchises, licenses, copyrights, copyright applications, patents,  patent rights or licenses, patent applications, trademarks, trademark rights, service mark, service mark  rights, trade names, trade name rights, copyrights and other rights with respect to the foregoing which are  reasonably necessary to conduct its business. To the Knowledge of the US Borrower, no event has occurred  which permits, or after notice or lapse of time or both would permit, the revocation or termination of any  such rights, and no Credit Party nor any Subsidiary thereof is liable to any Person for infringement under  Applicable Law with respect to any such rights as a result of its business operations except as could not  reasonably be expected to have a Material Adverse Effect.  SECTION 7.8 Environmental Matters.  (a) The properties owned, leased or operated by each Credit Party now do not and as to  properties formerly owned, leased or operated, at the time, did not contain, and to their Knowledge have  not previously contained, any Hazardous Materials in amounts or concentrations which constitute or  constituted a violation of applicable Environmental Laws; or have contamination at, under or about such  properties or such operations, except to the extent any such violation, individually or in the aggregate, could  not reasonably be expected to result in a Material Adverse Effect;   (b) Each Credit Party and such properties and all operations conducted in connection therewith  are in compliance, and have been in compliance, with all applicable Environmental Laws except to the  extent for any failures to comply which, individually or in the aggregate, could reasonably be expected to  result in a Material Adverse Effect, and there is no contamination at, under or about such properties or such  operations which could interfere with the continued operation of such properties or impair the fair saleable  value thereof;  (c) No Credit Party has received any written notice of violation, alleged violation, non- compliance, liability or potential liability regarding environmental matters, Hazardous Materials, or  compliance with Environmental Laws, nor does any Credit Party have Knowledge or reason to believe that  any such notice will be received or is being threatened;  (d) Hazardous Materials have not been transported or disposed of to or from the properties  owned, leased or operated by any Credit Party in violation of, or in a manner or to a location which could  give rise to liability under, Environmental Laws which violation or liability could reasonably be expected  to have a Material Adverse Effect, nor have any Hazardous Materials been generated, treated, stored or  disposed of at, on or under any of such properties in violation of, or in a manner that could give rise to  





 






  82  152003688_8  liability under, any applicable Environmental Laws which violation or liability could reasonably be  expected to have a Material Adverse Effect;  (e) No judicial proceedings or governmental or administrative action is pending, or, to the  knowledge of any Credit Party, threatened, under any Environmental Law to which any Credit Party is or  will be named as a potentially responsible party with respect to such properties or operations conducted in  connection therewith, 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 any Credit Party or such properties or such operations that could  reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and  (f) There has been no release, or to the best Knowledge of the Credit Parties, threat of release,  of Hazardous Materials at or from properties owned, leased or operated by any Credit Party, now or in the  past, in violation of or in amounts or in a manner that could give rise to liability under Environmental Laws  that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.  SECTION 7.9 Employee Benefit Matters.  (a) As of the Closing Date, no Credit Party nor any ERISA Affiliate maintains or contributes  to, or has any obligation under, any Employee Benefit Plans other than those identified on Schedule 7.9;  (b) Each Credit Party and each ERISA Affiliate is in compliance with all applicable provisions  of ERISA, the Code and the regulations and published interpretations thereunder with respect to all  Employee Benefit Plans except for any required amendments for which the remedial amendment period as  defined in Section 401(b) of the Code has not yet expired and except where a failure to so comply could  not reasonably be expected to have a Material Adverse Effect. Each Employee Benefit Plan that is intended  to be qualified under Section 401(a) of the Code has been determined by the IRS to be so qualified, and  each trust related to such plan has been determined to be exempt under Section 501(a) of the Code except  for such plans that have not yet received determination letters but for which the remedial amendment period  for submitting a determination letter has not yet expired. No liability has been incurred by any Credit Party  or any ERISA Affiliate which remains unsatisfied for any taxes or penalties assessed with respect to any  Employee Benefit Plan or any Multiemployer Plan except for a liability that could not reasonably be  expected to have a Material Adverse Effect;  (c) As of the Closing Date, no Pension Plan has been terminated, nor has any Pension Plan  become subject to funding based upon benefit restrictions under Section 436 of the Code (except as set  forth on Schedule 7.9), nor has any funding waiver from the IRS been received or requested with respect  to any Pension Plan, nor has any Credit Party or any ERISA Affiliate failed to make any contributions or  to pay any amounts due and owing as required by Sections 412 or 430 of the Code, Section 302 of ERISA  or the terms of any Pension Plan on or prior to the due dates of such contributions under Sections 412 or  430 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under  Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;  (d) Except where the failure of any of the following representations to be correct could not  reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Credit Party  nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406  of the ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC which remains  outstanding other than the payment of premiums and there are no premium payments which are due and  unpaid, (iii) failed to make a required contribution or payment to a Multiemployer Plan, or (iv) failed to  make a required installment or other required payment under Sections 412 or 430 of the Code;  





 






  83  152003688_8  (e) No Termination Event has occurred or is reasonably expected to occur that could  reasonably be expected to result in a Material Adverse Effect;  (f) Except where the failure of any of the following representations to be correct in all material  respects could not reasonably be expected, individually or in the aggregate, to have a Material Adverse  Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or  investigation is existing or, to its Knowledge, threatened concerning or involving (i) any employee welfare  benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by any Credit  Party or any ERISA Affiliate (excluding any Canadian employee welfare benefit plan), (ii) any Pension  Plan or (iii) any Multiemployer Plan.  (g) No Credit Party nor any Subsidiary thereof is a party to any contract, agreement or  arrangement that could, solely as a result of the delivery of this Agreement or the consummation of  transactions contemplated hereby, result in the payment of any “excess parachute payment” within the  meaning of Section 280G of the Code.   (h) As of the Closing Date the Borrowers are not using “plan assets” (within the meaning of  29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection  with the Loans, the Letters of Credit or the Commitments.  (i) As of the Closing Date, no Credit Party nor any Canadian Credit Party maintains or  contributes to, or has any obligation under, any Canadian Defined Benefit Plans.  (j) Each Credit Party and Canadian Credit Party is in compliance with all applicable provisions  of Canadian Pension Laws with respect to all Canadian Plans except where a failure to so comply could not  reasonably be expected to have a Material Adverse Effect. No liability has been incurred by any Credit  Party or any Canadian Credit Party which remains unsatisfied for any taxes or penalties assessed with  respect to any Canadian Plan except for a liability that could not reasonably be expected to have a Material  Adverse Effect.  (k) As of the Closing Date, no Canadian Plan has been terminated, nor has any Credit Party or  any Canadian Credit Party failed to make any contributions or other funding obligations as required by the  terms of any Canadian Plans, except where such termination or failure to do so could not reasonably be  expected to have a Material Adverse Effect.  (l) Except where the failure of any of the following representations to be correct in all material  respects could not reasonably be expected, individually or in the aggregate, to have a Material Adverse  Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or  investigation is existing or, to its Knowledge, threatened concerning or involving any Canadian Plan.  SECTION 7.10 Margin Stock.  No Credit Party nor any Subsidiary thereof is engaged  principally or as one of its activities in the business of extending credit for the purpose of “purchasing” or  “carrying” any “margin stock” (as each such term is defined or used, directly or indirectly, in Regulation U  of the Board of Governors of the Federal Reserve System). No part of the proceeds of any of the Loans or  Letters of Credit will be used for purchasing or carrying margin stock in violation of, or for any purpose  which violates, or which would be inconsistent with, the provisions of Regulation T, U or X of such Board  of Governors. Following the application of the proceeds of each Extension of Credit, not more than twenty- five percent (25%) of the value of the assets (either of the US Borrower only or of the US Borrower and its  Subsidiaries on a Consolidated basis) subject to the provisions of Section 9.2 or Section 9.5 or subject to  any restriction contained in any agreement or instrument between any Borrower and any Lender or any  Affiliate of any Lender relating to Indebtedness in excess of the Threshold Amount will be “margin stock”.  





 






  84  152003688_8  SECTION 7.11 Government Regulation.  No Credit Party nor any Subsidiary thereof is an  “investment company” or a company “controlled” by an “investment company” (as each such term is  defined or used in the Investment Company Act of 1940) and no Credit Party nor any Subsidiary thereof  is, or after giving effect to any Extension of Credit will be, subject to regulation under the Interstate  Commerce Act, or any other Applicable Law which limits its ability to incur or consummate the transactions  contemplated hereby.  SECTION 7.12 Reserved.  SECTION 7.13 Employee Relations.  As of the Closing Date, no Credit Party nor any Material  Foreign Subsidiary is party to any collective bargaining agreement, nor has any labor union been recognized  as the representative of its employees except as set forth on Schedule 7.13. None of the Credit Parties and  Material Foreign Subsidiaries knows of any pending, threatened or contemplated strikes, work stoppage or  other collective labor disputes involving its employees that, individually or in the aggregate, could  reasonably be expected to have a Material Adverse Effect.  SECTION 7.14 Burdensome Provisions.  The Credit Parties and their respective Subsidiaries  do not presently anticipate that future expenditures needed to meet the provisions of any statutes, orders,  rules or regulations of a Governmental Authority will be so burdensome as to have a Material Adverse  Effect.  SECTION 7.15 Financial Statements.  The audited and unaudited financial statements delivered  pursuant to Section 6.1(f)(i) are complete and correct and fairly present on a Consolidated basis the assets,  liabilities and financial position of the US Borrower and its Subsidiaries, in all material respects as at such  dates, and the results of the operations and changes of financial position for the periods then ended (other  than customary year-end adjustments for unaudited financial statements and the absence of footnotes from  unaudited financial statements). All such financial statements, including the related schedules and notes  thereto, have been prepared in accordance with GAAP. Such financial statements show all material  indebtedness and other material liabilities, direct or contingent, of the US Borrower and its Subsidiaries as  of the date thereof, including material liabilities for taxes, material commitments, and Indebtedness, in each  case, to the extent required to be disclosed under GAAP.  SECTION 7.16 No Material Adverse Change.  Since December 31, 2018, there has been no  material adverse change in the properties, business, operations or condition (financial or otherwise) of the  US Borrower and its Subsidiaries and no event has occurred or condition arisen, either individually or in  the aggregate, that could reasonably be expected to have a Material Adverse Effect.  SECTION 7.17 Solvency.  US Borrower and its Subsidiaries, taken as a whole, are Solvent.  SECTION 7.18 Title to Properties.  As of the Closing Date, the real property listed on Schedule  7.18 constitutes all of the real property that is owned, leased, subleased or used by any Credit Party or any  of its Material Foreign Subsidiaries. Each Credit Party and each Material Foreign Subsidiary has such title  to the real property owned or leased by it as is necessary or desirable to the conduct of its business and valid  and legal title to all of its personal property and assets, except those which have been disposed of by the  Credit Parties and their Material Foreign Subsidiaries subsequent to such date which dispositions have been  in the ordinary course of business or as otherwise expressly permitted hereunder.  SECTION 7.19 Litigation.  There are no actions, suits or proceedings pending nor, to the  Knowledge of any Borrower, threatened against or in any other way relating adversely to or affecting any  Credit Party or any Material Foreign Subsidiary or any of their respective properties in any court or before  





 






  85  152003688_8  any arbitrator of any kind or before or by any Governmental Authority that could reasonably be expected  to have a Material Adverse Effect.  SECTION 7.20 Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions.    (a) None of (i) the US Borrower, any Subsidiary or to the Knowledge of the US Borrower any  of their respective directors, officers or employees, or (ii) to the Knowledge of the US Borrower, any agent  of the US Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the  Credit Facility, (A) is a Sanctioned Person or currently the subject or target of any Sanctions or (B) has  taken any action, directly or indirectly, that would result in a violation by such Persons of any Anti- Corruption Laws or Anti-Money Laundering Laws.  (b) The US Borrower and its Subsidiaries have implemented and maintains in effect policies  and procedures designed to promote and achieve compliance by the US Borrower and its Subsidiaries and  their respective directors, officers, employees, agents and Affiliates with all Anti-Corruption Laws, Anti- Money Laundering Laws and applicable Sanctions.  (c) The US Borrower and its Subsidiaries, and to the Knowledge of the US Borrower, each  director, officer, employee, agent and Affiliate of the US Borrower and each such Subsidiary, is in  compliance with all Anti-Corruption Laws, Anti-Money Laundering Laws in all material respects and  applicable Sanctions.  (d) No proceeds of any Extension of Credit have been used, directly or indirectly, by any US  Borrower or any of its Subsidiaries in violation of Section 8.16.  SECTION 7.21 Absence of Defaults.  No event has occurred or is continuing (a) which  constitutes a Default or an Event of Default, or (b) which constitutes, or which with the passage of time or  giving of notice or both would constitute, a default or event of default by any Credit Party or any Material  Foreign Subsidiary under any judgment, decree or order to which any Credit Party or any Material Foreign  Subsidiary is a party or by which any Credit Party or any Material Foreign Subsidiary or any of their  respective properties may be bound or which would require any Credit Party or any Material Foreign  Subsidiary to make any payment thereunder prior to the scheduled maturity date therefor that, in any case  under this clause (b), could, either individually or in the aggregate, reasonably be expected to have a  Material Adverse Effect.  SECTION 7.22 Senior Indebtedness Status.  The Obligations of each Credit Party and each  Subsidiary thereof under this Agreement and each of the other Loan Documents ranks and shall continue  to rank at least senior in priority of payment to all Subordinated Indebtedness and all senior unsecured  Indebtedness of each such Person and is designated as “Senior Indebtedness” (or any other similar term)  under all instruments and documents, now or in the future, relating to all Subordinated Indebtedness and  all senior unsecured Indebtedness of such Person.  SECTION 7.23 Disclosure.  No financial statement, material report, material certificate or other  material information furnished in writing by or on behalf of any Credit Party or any Material Foreign  Subsidiary to the Administrative Agent or any Lender in connection with the transactions contemplated  hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other  information so furnished), taken together as a whole, contains any untrue statement of a material fact or  omits to state any material fact necessary to make the statements therein, in the light of the circumstances  under which they were made, not misleading; provided that, with respect to projected financial information,  pro forma financial information, estimated financial information and other projected, estimated or forward  looking information, such information was prepared in good faith based upon assumptions believed to be  





 






  86  152003688_8  reasonable at the time. As of the Closing Date, all of the information included in the Beneficial Ownership  Certification is true and correct.  ARTICLE VIII  AFFIRMATIVE COVENANTS  Until all of the Obligations (other than contingent indemnification obligations not then due) have  been paid and satisfied in full in cash, all Letters of Credit have been terminated or expired (or been Cash  Collateralized) and the Commitments terminated, each Borrower will, and to the extent specifically  provided below, will cause each of its Subsidiaries to:  SECTION 8.1 Financial Statements and Budgets.  Deliver to the Administrative Agent, in  form and detail satisfactory to the Administrative Agent (which shall promptly make such information  available to the Lenders in accordance with its customary practice):  (a) Annual Financial Statements.  As soon as available and in any event within ninety (90)  days (or, if earlier, on the date of any required public filing thereof) after the end of each Fiscal Year  (commencing with the Fiscal Year ended December 31, 2019), a Consolidated and consolidating balance  sheet of the US Borrower and its Subsidiaries as of the close of such Fiscal Year and Consolidated and  consolidating statements of income, Consolidated stockholders’ equity and Consolidated cash flows  including the notes to the Consolidated statements, all in reasonable detail setting forth in comparative form  the corresponding figures as of the end of and for the preceding Fiscal Year and with respect to Consolidated  statements prepared in accordance with GAAP and, if applicable, containing disclosure of the effect on the  financial position or results of operations of any change in the application of accounting principles and  practices during the year. In the case of the Consolidated financial statements, such statements shall be  audited by Deliotte LLP or other independent certified public accounting firm of recognized national  standing selected by Borrower and reasonably satisfactory to the Administrative Agent, and accompanied  by a report and opinion thereon by such certified public accountants prepared in accordance with generally  accepted auditing standards that is not subject to any “going concern” or similar qualification or exception  or any qualification as to the scope of such audit or with respect to accounting principles followed by the  US Borrower or any of its Subsidiaries not in accordance with GAAP.  (b) Quarterly Financial Statements.  As soon as practicable and in any event within forty-five  (45) days (or, if earlier, on the date of any required public filing thereof) after the end of the first three fiscal  quarters of each Fiscal Year (commencing with the fiscal quarter ended September 30, 2019), an unaudited  Consolidated and consolidating balance sheet of the US Borrower and its Subsidiaries as of the close of  such fiscal quarter and unaudited Consolidated and consolidating statements of income, Consolidated  stockholders’ equity and Consolidated cash flows and a report containing management’s discussion and  analysis of such financial statements for the fiscal quarter then ended and that portion of the Fiscal Year  then ended, including the notes to the Consolidated statements, all in reasonable detail setting forth in  comparative form the corresponding figures as of the end of and for the corresponding period in the  preceding Fiscal Year and with respect to the Consolidated statements, prepared by the US Borrower in  accordance with GAAP and, if applicable, containing required disclosure of the effect on the financial  position or results of operations of any change in the application of accounting principles and practices  during the period, and with respect to Consolidated statements, certified by the chief financial officer of the  US Borrower to present fairly in all material respects the financial condition of the US Borrower and its  Subsidiaries on a Consolidated basis as of their respective dates and the results of operations of the US  Borrower and its Subsidiaries for the respective periods then ended, subject to normal year-end adjustments  and the absence of footnotes.  





 






  87  152003688_8  (c) Annual Business Plan and Budget.  As soon as practicable and in any event within the  earlier of (A) three (3) Business Days after approval by the Board of Directors of the US Borrower and (B)  seventy-five (75) days after the end of each Fiscal Year, a business plan and operating and capital budget  of the US Borrower and its Subsidiaries for the ensuing four (4) fiscal quarters.  SECTION 8.2 Certificates; Other Reports.  Deliver to the Administrative Agent (which shall  promptly make such information available to the Lenders in accordance with its customary practice):  (a) at each time financial statements are delivered pursuant to Sections 8.1(a) or (b) a duly  completed Officer’s Compliance Certificate signed by a Responsible Officer of the US Borrower;  (b) reserved;  (c) promptly upon receipt thereof (unless restricted by applicable professional standards with  respect to which mutually agreeable arrangements cannot be made to permit disclosure thereof), copies of  all management reports (and management responses thereto, if any) submitted to any Credit Party, any  Subsidiary thereof or any of their respective boards of directors by their respective independent public  accountants in connection with their auditing function;  (d) promptly after the furnishing thereof, copies of any statement or report furnished to any  holder of Indebtedness of any Credit Party or any Material Foreign Subsidiary in excess of the Threshold  Amount pursuant to the terms of any indenture, loan or credit or similar agreement;  (e) promptly after the US Borrower’s Knowledge of the assertion or occurrence thereof, notice  of any action or proceeding against or of any noncompliance by any Credit Party or any Material Foreign  Subsidiary with any Environmental Law that could reasonably be expected to have a Material Adverse  Effect;  (f) promptly after the same are available, copies of each annual report, proxy or financial  statement or other report or communication sent to the stockholders of the US Borrower, and copies of all  annual, regular, periodic and special reports and registration statements which the US Borrower may file or  be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, or with any national  securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent  pursuant hereto;  (g) promptly, and in any event within ten (10) Business Days after receipt thereof by the US  Borrower, copies of each notice or other correspondence received from the SEC (or comparable agency in  any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry  by such agency regarding financial or other operational results of any Credit Party or any Subsidiary thereof;  (h) promptly upon the request thereof, such other information and documentation required by  bank regulatory authorities under applicable Anti-Money Laundering Laws or Anti-Corruption Laws  (including, without limitation, any applicable “know your customer” rules and regulations and the  PATRIOT Act), in each case as from time to time reasonably requested by the Administrative Agent or any  Lender; and  (i) such other information regarding the operations, business affairs and financial condition of  any Credit Party or any Subsidiary thereof as the Administrative Agent or any Lender may reasonably  request.  





 






  88  152003688_8  Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(f) (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 US Borrower posts  such documents, or provides a link thereto on the US Borrower’s website on the Internet at the website  address listed in Section 12.1; or (ii) on which such documents are posted on the US 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: (i) the US Borrower shall deliver paper copies of such documents to the Administrative Agent or any  Lender that requests the US Borrower to deliver such paper copies until a written request to cease delivering  paper copies is given by the Administrative Agent or such Lender and (ii) the US Borrower shall notify the  Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such  documents and provide to the Administrative Agent by electronic mail electronic versions of such  documents. Notwithstanding anything contained herein, in every instance the US Borrower shall be  required to provide copies of the Officer’s Compliance Certificates required by Section 8.2 directly to the  Administrative Agent. Except for such Officer’s Compliance Certificates, the Administrative Agent shall  have no obligation to request the delivery or to maintain copies of the documents referred to above, and in  any event shall have no responsibility to monitor compliance by the US 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.  SECTION 8.3 Notice of Litigation and Other Matters.  Promptly (but in no event later than  ten (10) days after any Responsible Officer of any Borrower obtains Knowledge thereof) notify the  Administrative Agent in writing of (which shall promptly make such information available to the Lenders  in accordance with its customary practice):  (a) the occurrence of any Default or Event of Default;  (b) the commencement of all proceedings and investigations by or before any Governmental  Authority and all actions and proceedings in any court or before any arbitrator against or involving any  Credit Party or any Material Foreign Subsidiary or any of their respective properties, assets or businesses  in each case that if adversely determined could reasonably be expected to result in a liability in excess of  the Threshold Amount;  (c) any notice of any violation received by any Credit Party or any Material Foreign Subsidiary  from any Governmental Authority including, without limitation, any notice of violation of Environmental  Laws exceeding the Threshold Amount;  (d) any labor controversy that has resulted in, or threatens to result in, a long-term strike or  other work action against any Credit Party or any Material Foreign Subsidiary;  (e) any attachment, judgment, lien, levy or order exceeding the Threshold Amount that may  be assessed against or threatened in writing against any Credit Party or any Material Foreign Subsidiary;  (f) the occurrence of any Termination Event that, alone or together with any other Termination  Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; and  (g) any event which makes any of the representations set forth in Article VII that is subject to  materiality or Material Adverse Effect qualifications inaccurate in any respect or any event which makes  any of the representations set forth in Article VII that is not subject to materiality or Material Adverse Effect  qualifications inaccurate in any material respect.  





 






  89  152003688_8  Each notice pursuant to Section 8.3 shall be accompanied by a statement of a Responsible Officer  of the US Borrower setting forth details of the occurrence referred to therein and stating what action the US  Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 8.3(a) shall  describe with particularity any and all provisions of this Agreement and any other Loan Document that  have been breached.  SECTION 8.4 Preservation of Corporate Existence and Related Matters.  Except as permitted  by Section 9.4, preserve and maintain each Credit Party’s and each Material Foreign Subsidiary’s separate  corporate existence and all rights, franchises, licenses and privileges necessary to the conduct of its  business, and qualify and remain qualified as a foreign corporation or other entity and authorized to do  business in each jurisdiction in which the failure to so qualify could reasonably be expected to have a  Material Adverse Effect.  SECTION 8.5 Maintenance of Property and Licenses.  (a) In addition to the requirements of any of the Security Documents, protect and preserve all  Properties necessary in and material to each Credit Party’s and each Material Foreign Subsidiary’s business,  including copyrights, patents, trade names, service marks and trademarks; maintain in good working order  and condition, ordinary wear and tear excepted, all buildings, equipment and other tangible real and  personal property; and from time to time make or cause to be made all repairs, renewals and replacements  thereof and additions to such Property necessary for the conduct of its business, so that the business carried  on in connection therewith may be conducted in a commercially reasonable manner, in each case except as  such action or inaction would not reasonably be expected to result in a Material Adverse Effect.  (b) Maintain, in full force and effect in all material respects, each and every material license,  permit, certification, qualification, approval or franchise issued by any Governmental Authority (each a  “License”) required for each of each Credit Party and each Material Foreign Subsidiary to conduct their  respective businesses as presently conducted.  SECTION 8.6 Insurance.  Maintain insurance with financially sound and reputable insurance  companies against at least such risks and in at least such amounts as are customarily maintained by similar  businesses and as may be required by Applicable Law and as are required by any Security Documents  (including, without limitation, hazard and business interruption insurance). All such insurance shall, (a)  provide that no cancellation or material modification thereof shall be effective until at least 30 days after  receipt by the Administrative Agent of written notice thereof (except as a result of non-payment of premium  in which case only 10 days’ prior written notice shall be required), (b) in the case of liability insurance,  name the Administrative Agent as an additional insured party thereunder and (c) in the case of each property  insurance policy, name the Administrative Agent as lender’s loss payee or mortgagee, as applicable. On the  Closing Date and from time to time thereafter deliver to the Administrative Agent upon its request  information in reasonable detail as to the insurance then in effect, stating the names of the insurance  companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties  and risks covered thereby.  SECTION 8.7 Accounting Methods and Financial Records.  Maintain a system of accounting,  and keep proper books, records and accounts (which shall be true and complete in all material respects) as  may be required or as may be necessary to permit the preparation of financial statements in accordance with  GAAP and in compliance with the regulations of the SEC.  SECTION 8.8 Payment of Taxes and Other Obligations.  Pay and perform and cause, each  Credit Party and Material Foreign Subsidiary to pay and perform (a) all taxes, assessments and other  governmental charges that may be levied or assessed upon it or any of its Property and (b) all other  





 






  90  152003688_8  Indebtedness, obligations and liabilities in accordance with customary trade practices; provided, that the  US Borrower or such Subsidiary may contest any item described in clause (a) of this Section in good faith  so long as adequate reserves are maintained with respect thereto in accordance with GAAP.  SECTION 8.9 Compliance with Laws and Approvals.  Observe and remain in compliance with  all Applicable Laws and maintain in full force and effect all Governmental Approvals, in each case  applicable to the conduct of each Credit Party’s and each Material Foreign Subsidiary’s business and which  if not complied with or not maintained could reasonably be expected to have a Material Adverse Effect.  SECTION 8.10 Environmental Laws.  In addition to and without limiting the generality of  Section 8.9, (a) comply in all material respects with, and ensure such compliance by all, Credit Parties and  Material Foreign Subsidiaries, tenants and subtenants with all applicable Environmental Laws and obtain  and comply with and maintain, and ensure that all tenants and subtenants, if any, obtain and comply with  and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable  Environmental Laws and (b) conduct and complete all investigations, studies, sampling and testing, and all  remedial, removal and other actions required under Environmental Laws, and promptly comply with all  lawful orders and directives of any Governmental Authority regarding Environmental Laws.  SECTION 8.11 Compliance with ERISA.  In addition to and without limiting the generality of  Section 8.9, (a) except where the failure to so comply could not, individually or in the aggregate, reasonably  be expected to have a Material Adverse Effect, (i) comply with applicable provisions of ERISA, the Code  and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans, (ii)  not take any action or fail to take action the result of which could reasonably be expected to result in a  liability to the PBGC or to a Multiemployer Plan, (iii) not participate in any prohibited transaction that  could result in any civil penalty under ERISA or tax under the Code and (iv) operate each Employee Benefit  Plan in such a manner that will not incur any tax liability under Section 4980B of the Code or any liability  to any qualified beneficiary as defined in Section 4980B of the Code and (b) furnish to the Administrative  Agent upon the Administrative Agent’s request such additional information about any Employee Benefit  Plan as may be reasonably requested by the Administrative Agent. In addition to and without limiting the  generality of Section 8.9, (a) except where the failure to so comply could not, individually or in the  aggregate, reasonably be expected to have a Material Adverse Effect, comply with applicable provisions of  Canadian Pension Laws in respect to all Canadian Plans, and (b) furnish to the Administrative Agent upon  the Administrative Agent’s request such additional information about any Canadian Plan as may be  reasonably requested by the Administrative Agent.  SECTION 8.12 Compliance with Agreements.  Comply in all respects with each term,  condition and provision of all leases, agreements and other instruments entered into in the conduct of its  business, except as could not reasonably be expected to have a Material Adverse Effect.  SECTION 8.13 Visits and Inspections.  Permit representatives of the Administrative Agent or  any Lender, from time to time upon prior reasonable notice and at such times during normal business hours,  all at the expense of the US Borrower, to visit and inspect its properties; inspect, audit and make extracts  from its books, records and files, including, but not limited to, management letters prepared by independent  accountants; and discuss with its principal officers, and its independent accountants, its business, assets,  liabilities, financial condition, results of operations and business prospects; provided that excluding any  such visits and inspections during the continuation of an Event of Default, the Administrative Agent shall  not exercise such rights more often than two (2) times during any calendar year at the US Borrower’s  expense; provided further that upon the occurrence and during the continuance of an Event of Default, the  Administrative Agent or any Lender may do any of the foregoing at the expense of the Borrowers at any  time without advance notice. Upon the request of the Administrative Agent or the Required Lenders,  participate in a meeting of the Administrative Agent and Lenders once during each Fiscal Year, which  





 






  91  152003688_8  meeting will be held at the US Borrower’s corporate offices (or such other location as may be agreed to by  the US Borrower and the Administrative Agent) at such time as may be agreed by the US Borrower and the  Administrative Agent.  SECTION 8.14 Additional Subsidiaries.  (a) Additional Domestic Subsidiaries.  Promptly after the creation or acquisition (including by  division) of any Material Domestic Subsidiary or upon any other event whereby a Subsidiary becomes a  Material Domestic Subsidiary, and in any event (x) in the case of any such Material Domestic Subsidiary  created or acquired in connection with a Permitted Acquisition, within sixty (60) days (as such time period  may be extended by the Administrative Agent in its sole discretion) after the closing date of such Permitted  Acquisition and (y) in all other cases any such Material Domestic Subsidiary, within sixty (60) days (as  such time period may be extended by the Administrative Agent in its sole discretion) after creation or other  event, cause such Person to (i) become a Subsidiary Guarantor by delivering to the Administrative Agent a  duly executed supplement to the Subsidiary Guaranty Agreement or such other document as the  Administrative Agent shall deem appropriate for such purpose, (ii) grant a security interest in all Collateral  (subject to the exceptions specified in the Security Agreement) owned by such Subsidiary by delivering to  the Administrative Agent a duly executed supplement to each applicable Security Document or such other  document as the Administrative Agent shall deem appropriate for such purpose and comply with the terms  of each applicable Security Document, (iii) deliver to the Administrative Agent such opinions, documents  and certificates of the type referred to in Section 6.1 as may be reasonably requested by the Administrative  Agent, (iv) if such Capital Stock is certificated, deliver to the Administrative Agent such original Capital  Stock or other certificates and stock or other transfer powers evidencing the Capital Stock of such Person,  (v) deliver to the Administrative Agent such updated Schedules to the Loan Documents as requested by the  Administrative Agent with respect to such Person, and (vi) deliver to the Administrative Agent such other  documents as may be reasonably requested by the Administrative Agent, all in form, content and scope  reasonably satisfactory to the Administrative Agent.  (b) Additional Foreign Subsidiaries.  Notify the Administrative Agent promptly after any  Person becomes a First Tier Foreign Subsidiary, and at the request of the Administrative Agent, promptly  thereafter (and, in any event, within forty five (45) days after such notification, as such time period may be  extended by the Administrative Agent in its sole discretion), cause (i) the applicable Credit Party to deliver  to the Administrative Agent Security Documents pledging sixty-five percent (65%) of the total outstanding  voting Capital Stock (and one hundred percent (100%) of the non-voting Capital Stock) of any such new  First Tier Foreign Subsidiary and a consent thereto executed by such new First Tier Foreign Subsidiary  (including, without limitation, if applicable, original certificated Capital Stock (or the equivalent thereof  pursuant to the Applicable Laws and practices of any relevant foreign jurisdiction) evidencing the Capital  Stock of such new First Tier Foreign Subsidiary, together with an appropriate undated stock or other transfer  power for each certificate duly executed in blank by the registered owner thereof), (ii) such Person to deliver  to the Administrative Agent such opinions, documents and certificates referred to in Section 6.1 as may be  reasonably requested by the Administrative Agent, (iii) such Person to deliver to the Administrative Agent  such updated Schedules to the Loan Documents as requested by the Administrative Agent and (iv) such  Person to deliver to the Administrative Agent such other documents as may be reasonably requested by the  Administrative Agent, all in form, content and scope reasonably satisfactory to the Administrative Agent  and not more burdensome than the original closing documents required with regard to such Person.  (c) Merger Subsidiaries.  Notwithstanding the foregoing, to the extent any new Subsidiary is  created solely for the purpose of consummating a merger transaction pursuant to a Permitted Acquisition,  and such new Subsidiary at no time holds any assets or liabilities other than any merger consideration  contributed to it contemporaneously with the closing of such merger transaction, such new Subsidiary shall  not be required to take the actions set forth in Section 8.14(a) or (b), as applicable, until the consummation  





 






  92  152003688_8  of such Permitted Acquisition (at which time, the surviving entity of the respective merger transaction shall  be required to so comply with Section 8.14(a) or (b), as applicable, within ten (10) Business Days of the  consummation of such Permitted Acquisition.  (d) Additional Collateral.  Comply with the requirements set forth in the Security Documents  with respect to any Property constituting Collateral thereunder.  (e) Exclusions.  The provisions of this Section 8.14 shall not apply to assets as to which the  Administrative Agent and the US Borrower shall reasonably determine that the costs and burdens of  obtaining a security interest therein or perfection thereof outweigh the value of the security afforded  thereby.  SECTION 8.15 Reserved.  SECTION 8.16 Use of Proceeds.    (a) The Borrowers shall use the proceeds of the Revolving Credit Loans (i) to refinance  Indebtedness under the Existing Credit Agreement, (ii) to pay certain fees and expenses incurred in  connection with the Transactions and this Agreement and (iii) for working capital and general corporate  purposes of the US Borrower and its Subsidiaries.   (b) The US Borrower shall use the proceeds of any Incremental Term Loan and any  Incremental Revolving Credit Increase as permitted pursuant to Section 5.13, as applicable.   (c) The Borrowers will not, directly or, to their Knowledge, indirectly, use the proceeds of the  Loans, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture  partner or other Person, (i) in furtherance of an offer, payment, promise to pay, or authorization of the  payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption  Laws or Anti-Money Laundering Laws in any material respect, (ii) to fund any activities or business of or  with any Person, or in any  country or territory, that, at the time of such funding, is, or whose government  is, the subject of Sanctions, or (iii) in any other manner that would result in a violation of Sanctions by any  Person (including any Person participating in the Loans, whether as an underwriter, advisor, investor or  otherwise).  SECTION 8.17 Reserved.  SECTION 8.18 Compliance with Anti-Corruption Laws; Beneficial Ownership Regulation;  Anti-Money Laundering Laws and Sanctions.  Each Borrower will (a) maintain in effect and enforce  policies and procedures designed to promote and achieve compliance by such Borrower, its Subsidiaries  and their respective directors, officers, employees and agents with Anti- Corruption Laws and applicable  Sanctions and (b) promptly upon the reasonable request of the Administrative Agent or any Lender, provide  the Administrative Agent or directly to such Lender, as the case may be, any information or documentation  required by the Beneficial Ownership Regulation. No borrowing or Letter of Credit, use of proceeds or  other transaction contemplated by this Agreement or the other Loan Documents will violate Anti- Corruption Laws, Anti-Money Laundering Laws or applicable Sanctions.  SECTION 8.19 Corporate Governance.  (a) Maintain entity records and books of account  separate from those of any other entity which is an Affiliate of such entity, (b) not commingle its funds or  assets with those of any other entity which is an Affiliate of such entity (except pursuant to cash  management systems reasonably acceptable to the Administrative Agent) and (c) provide that its board of  directors (or equivalent governing body) will hold all appropriate meetings to authorize and approve such  





 






  93  152003688_8  entity’s actions, which meetings will be separate from those of any other entity which is an Affiliate of such  entity. For the purposes of this Section 8.19, “Affiliate” shall not include any Borrower or any Subsidiary  thereof.  SECTION 8.20 Further Assurances.  Execute any and all further documents, financing  statements, agreements and instruments, and take all such further actions (including the filing and recording  of financing statements and other documents), which may be required under any Applicable Law, or which  the Administrative Agent or the Required Lenders (through the Administrative Agent) may reasonably  request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect  or perfect the Liens created or intended to be created by the Security Documents or the validity or priority  of any such Lien, all at the expense of the Credit Parties. Each Borrower also agrees to provide to the  Administrative Agent, from time to time upon the reasonable request by the Administrative Agent, evidence  reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or  intended to be created by the Security Documents.  SECTION 8.21 Post-Closing Matters.  Execute and deliver the documents and complete the  tasks set forth on Schedule 8.21, in each case within the time limits specified on such schedule.  ARTICLE IX  NEGATIVE COVENANTS  Until all of the Obligations (other than contingent, indemnification obligations not then due) have  been paid and satisfied in full in cash, all Letters of Credit have been terminated or expired (or been Cash  Collateralized) and the Commitments terminated, each Borrower will not, and will not permit any Credit  Party, any Material Foreign Subsidiary and to the extent specifically provided below, any other Subsidiary  to:  SECTION 9.1 Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness except:  (a) the Obligations;  (b) Indebtedness owing under Hedge Agreements entered into in order to manage existing or  anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;  (c) Indebtedness existing on the Closing Date and listed on Schedule 9.1, and the renewal,  refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;  (d) Indebtedness incurred in connection with Finance Lease Obligations and purchase money  Indebtedness in an aggregate amount not to exceed $75,000,000 at any time outstanding (excluding  Indebtedness incurred in connection with Finance Lease Obligations and purchase money Indebtedness  otherwise permitted in Section 9.1(e));  (e) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets  were acquired from such Person in connection with an Investment permitted pursuant to Section 9.3, to the  extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person  becoming a Subsidiary or the acquisition of such assets, (ii) neither any Borrower nor any Subsidiary thereof  (other than such Person or any other Person that such Person merges with or that acquires the assets of such  Person) shall have any liability or other obligation with respect to such Indebtedness, (iii) any Indebtedness  (other than Indebtedness described in clause (iv) below) was incurred in connection with Finance Lease  Obligations or purchase money Indebtedness, (iv) such Indebtedness is pari passu with or subordinate to  





 






  94  152003688_8  the Obligations and (v) the aggregate principal amount of such Indebtedness does not exceed $75,000,000  at any time outstanding;  (f) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a)  through (e) of this Section and Guaranty Obligations with respect to contract performance;  (g) unsecured intercompany Indebtedness:  (i) owed by any Credit Party to another Credit Party;  (ii) owed by any Credit Party to any Non-Guarantor Subsidiary (provided that such  Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the  Administrative Agent);  (iii) owed by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary;  and  (iv) owed by any Non-Guarantor Subsidiary to any Credit Party not to exceed  $40,000,000 at any time outstanding;  (h) Indebtedness arising from the honoring by a bank or other financial institution of a check,  draft or other similar instrument drawn against insufficient funds in the ordinary course of business; and  Indebtedness incurred in respect of credit cards, credit card processing service, debit cards, stored value  cards, purchase cards (including “procurement cards” or “P-cards”) or cash management services, in each  case, incurred in the ordinary course of business;  (i) unsecured Indebtedness of the US Borrower and the Subsidiary Guarantors; provided, that  (subject, in the case of unsecured Indebtedness incurred solely to finance a substantially concurrent Limited  Condition Acquisition, to Section 1.13) the US Borrower shall be in compliance with the financial  covenants set forth in Section 9.15 based on the financial statements most recently delivered pursuant to  Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to the  incurrence of such Indebtedness;   (j) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds,  statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary  course of business, and reimbursement obligations in respect of any of the foregoing;  (k) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed  $75,000,000 at any time outstanding (excluding the Obligations of Non-US Borrowers pursuant to this  Agreement);  (l) Indebtedness consisting of promissory notes issued to current or former officers, directors  and employees (or their respective family members, estates or trusts or other entities for the benefit of any  of the foregoing) of the US Borrower or its Subsidiaries to purchase or redeem Capital Stock or options of  the US Borrower permitted pursuant to Section 9.6(d)(v); provided that the aggregate principal amount of  all such Indebtedness shall not exceed $10,000,000 at any time outstanding;  (m) Indebtedness of any Credit Party or any Subsidiary thereof not otherwise permitted  pursuant to this Section in an aggregate principal amount not to exceed $10,000,000 at any time  outstanding;  





 






  95  152003688_8  (n) Indebtedness incurred in connection with floor plan financing in an aggregate amount not  to exceed $100,000,000 at any time outstanding; and  (o) Indebtedness not otherwise permitted pursuant to this Section not to exceed, at any time  outstanding, the greater of (i) $75,000,000 and (ii) 7.5% of Consolidated total assets for the most recently  ended period of four (4) consecutive fiscal quarters for which financial statements have been delivered  hereunder prior to such date.  SECTION 9.2 Liens.  Create, incur, assume or suffer to exist, any Lien on or with respect to  any of its Property, whether now owned or hereafter acquired, except:  (a) Liens created pursuant to the Loan Documents (including, without limitation, Liens in  favor of the Swingline Lender and/or the Issuing Lenders, as applicable, on Cash Collateral granted  pursuant to the Loan Documents);  (b) Liens in existence on the Closing Date and described on Schedule 9.2, and the replacement,  renewal or extension thereof (including Liens incurred, assumed or suffered to exist in connection with any  refinancing, refunding, renewal or extension of Indebtedness pursuant to Section 9.1(c) (solely to the extent  that such Liens were in existence on the Closing Date and described on Schedule 9.2)); provided that the  scope of any such Lien shall not be increased, or otherwise expanded, to cover any additional property or  type of asset, as applicable, beyond that in existence on the Closing Date, except for products and proceeds  of the foregoing;  (c) Liens for taxes, assessments and other governmental charges or levies (excluding any Lien  imposed pursuant to any of the provisions of ERISA or Environmental Laws) (i) not yet due or as to which  the period of grace (not to exceed thirty (30) days), if any, related thereto has not expired or (ii) which are  being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the  extent required by GAAP;  (d) the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for  labor, materials, supplies or rentals incurred in the ordinary course of business, which (i) are not overdue  for a period of more than thirty (30) days, or if more than thirty (30) days overdue, no action has been taken  to enforce such Liens and such Liens are being contested in good faith and by appropriate proceedings if  adequate reserves are maintained to the extent required by GAAP and (ii) do not, individually or in the  aggregate, materially impair the use thereof in the operation of the business of the US Borrower or any of  its Subsidiaries;  (e) deposits or pledges made in the ordinary course of business in connection with, or to secure  payment of, obligations under workers’ compensation, unemployment insurance and other types of social  security or similar legislation, or to secure the performance of bids, trade contracts and leases (other than  Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation),  performance bonds and other obligations of a like nature incurred in the ordinary course of business, in  each case, so long as no foreclosure sale or similar proceeding has been commenced with respect to any  portion of the Collateral on account thereof;  (f) encumbrances in the nature of zoning restrictions, easements and rights or restrictions of  record on the use of real property, which in the aggregate are not substantial in amount and which do not,  in any case, detract from the value of such property or impair the use thereof in the ordinary conduct of  business;  





 






  96  152003688_8  (g) Liens arising from the filing of precautionary UCC or PPSA financing statements relating  solely to personal property leased pursuant to operating leases entered into in the ordinary course of business  of the US Borrower and its Subsidiaries;  (h) Liens securing Indebtedness permitted under Sections 9.1(d), 9.1(n) and Finance Lease  Obligations and purchase money Indebtedness permitted under Section 9.1(e); provided that (i) such Liens  shall be created substantially simultaneously with the acquisition, repair, improvement or lease, as  applicable, of the related Property, (ii) such Liens do not at any time encumber any property other than the  Property financed by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased  and (iv) the principal amount of Indebtedness secured by any such Lien shall at no time exceed one hundred  percent (100%) of the original price for the purchase, repair improvement or lease amount (as applicable)  of such Property at the time of purchase, repair, improvement or lease (as applicable);  (i) Liens securing judgments for the payment of money not constituting an Event of Default  under Section 10.1(m) or securing appeal or other surety bonds relating to such judgments;  (j) (i) Liens on Property (i) of any Subsidiary which are in existence at the time that such  Subsidiary is acquired pursuant to a Permitted Acquisition and (ii) of the US Borrower or any of its  Subsidiaries existing at the time such tangible property or tangible assets are purchased or otherwise  acquired by the US Borrower or such Subsidiary thereof pursuant to a transaction permitted pursuant to this  Agreement; provided that, with respect to each of the foregoing clauses (i) and (ii), (A) such Liens are not  incurred in connection with, or in anticipation of, such Permitted Acquisition, purchase or other acquisition,  (B) such Liens are applicable only to specific Property, (C) such Liens are not “blanket” or all asset Liens,  (D) such Liens do not attach to any other Property of the US Borrower or any of its Subsidiaries and (E)  the Indebtedness secured by such Liens is permitted under Section 9.1(e));  (k) Liens on assets of Foreign Subsidiaries; provided that (i) such Liens do not extend to, or  encumber, assets that constitute Collateral or the Capital Stock of the US Borrower or any of the  Subsidiaries, and (ii) such Liens extending to the assets of any Foreign Subsidiary secure only Indebtedness  incurred by such Foreign Subsidiary pursuant to Section 9.1(a), (c) or (k);  (l) (i) Liens of a collecting bank arising in the ordinary course of business under Section 4- 210 of the Uniform Commercial Code in effect in the relevant jurisdiction and (ii) Liens of any depositary  bank in connection with statutory, common law and contractual rights of set-off and recoupment with  respect to any deposit account of the US Borrower or any Subsidiary thereof;  (m) (i) contractual or statutory Liens of landlords to the extent relating to the property and  assets relating to any lease agreements with such landlord, (ii) statutory liens under Canadian Pension Laws,  subject to compliance with the last sentence of Section 8.11, and (iii) contractual Liens of suppliers  (including sellers of goods) or customers granted in the ordinary course of business to the extent limited to  the property or assets relating to such contract;  (n) any interest or title of a licensor, sublicensor, lessor or sublessor with respect to any assets  under any license or lease agreement entered into in the ordinary course of business which do not (i)  interfere in any material respect with the business of the US Borrower or its Subsidiaries or materially  detract from the value of the relevant assets of the US Borrower or its Subsidiaries or (ii) secure any  Indebtedness;   (o) Liens arising from permitted sale-leaseback transactions as permitted under Section 9.13;  and  





 






  97  152003688_8  (p) Liens not otherwise permitted hereunder on assets other than the Collateral securing  Indebtedness or other obligations in the aggregate principal amount not to exceed, at any time outstanding,  amounts permitted by Sections 9.1(m) and 9.1(o);   provided that, other than Liens permitted under clauses (c), (d), (f), (i), (j), (l), (m) and (o) (including  any Liens on the real property subject to the 2008 Sale-Leaseback Transaction in connection with the  assumption by the US Borrower and its Domestic Subsidiaries of the financing under the 2008 Sale- Leaseback Transaction in existence at any time such real property is purchased by the US Borrower or such  Domestic Subsidiary) of this Section 9.2, no Liens shall encumber any real property owned by US Borrower  or any of its Domestic Subsidiaries.  SECTION 9.3 Investments.  Purchase, own, invest in or otherwise acquire (in one transaction  or a series of transactions), by division or otherwise, directly or indirectly, any Capital Stock, interests in  any partnership or joint venture (including, without limitation, the creation or capitalization of any  Subsidiary), evidence of Indebtedness or other obligation or security, substantially all or a portion of the  business or assets of any other Person or any other investment or interest whatsoever in any other Person,  or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any  investment in cash or by delivery of Property in, any Person (all the foregoing, “Investments”) except:  (a) (i) Investments existing on the Closing Date in Subsidiaries existing on the Closing  Date;  (ii) Investments existing on the Closing Date (other than Investments in Subsidiaries  existing on the Closing Date) and described on Schedule 9.3;  (iii) Investments made after the Closing Date by any Credit Party in any other Credit  Party (other than the US Borrower);  (iv) Investments made after the Closing Date by any Non-Guarantor Subsidiary in any  other Non-Guarantor Subsidiary;  (v) Investments made after the Closing Date by any Non-Guarantor Subsidiary in any  Credit Party; and  (vi) Investments made after the Closing Date by the U.S. Borrower in any Non- Guarantor Subsidiary in order for such Subsidiary to effect a Permitted Acquisition in accordance  with the provisions of Section 9.3(g);  (b) Investments in cash and Cash Equivalents;  (c) Investments by the US Borrower or any of its Subsidiaries consisting of Capital  Expenditures;  (d) deposits made in the ordinary course of business to secure the performance of leases or  other obligations as permitted by Section 9.2;  (e) Hedge Agreements permitted pursuant to Section 9.1;  (f) purchases of assets in the ordinary course of business;  





 






  98  152003688_8  (g) Investments by the US Borrower or any Subsidiary thereof in the form of a Permitted  Acquisition; provided that the US Borrower shall be in compliance with the financial covenants set forth in  Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b),  as applicable, both before and after giving effect (on a Pro Forma Basis as of the proposed closing date of  the Acquisition) thereto and any Indebtedness incurred in connection therewith, which in the case of a  Limited Condition Acquisition shall be subject to Section 1.13;  (h) Investments in the form of loans and advances to officers, directors and employees in the  ordinary course of business in an aggregate amount not to exceed at any time outstanding $1,000,000  (determined without regard to any write-downs or write-offs of such loans or advances);  (i) Investments in the form of Restricted Payments permitted pursuant to Section 9.6;  (j) Guarantees permitted pursuant to Section 9.1;  (k) Investments in joint ventures; provided, that the aggregate amount of all such Investments  shall not at any time outstanding exceed $30,000,000; and  (l) Investments in the form of intercompany Indebtedness permitted pursuant to Section  9.1(g);  (m) Investments in the form of Indebtedness in direct customers and distributors in an aggregate  principal amount not to exceed $50,000,000 at any time outstanding;  (n) Investments (other than Acquisitions) not otherwise permitted pursuant to this Section 9.3  so long as before and after giving effect to such Investments:  (i) no Default or Event of Default has occurred and is continuing or would result  therefrom;  (ii) the Consolidated Total Net Leverage Ratio shall be less than or equal to 3.25 to  1.00 for the most recently ended four-quarter period prior to such Investment for which financial  statements have been delivered pursuant to Section 8.1(a) or (b), as applicable; and  (iii) the US Borrower is in compliance with the financial covenants set forth in Section  9.15;  (o) Investments not otherwise permitted pursuant to this Section 9.3 not to exceed the  Available Amount as of the date of such Investments so long as before and after giving effect to such  Investment:  (i) no Default or Event of Default has occurred and is continuing or would result  therefrom; and  (ii) the US Borrower is in compliance with the financial covenants set forth in Section  9.15; and  (p) Investments not otherwise permitted pursuant to this Section in an aggregate amount not  to exceed $50,000,000 at any time outstanding; provided that, subject to Section 1.13, immediately before  and immediately after giving pro forma effect to any such Investments and any Indebtedness incurred in  connection therewith, no Default or Event of Default shall have occurred and be continuing.  





 






  99  152003688_8  For purposes of determining the amount of any Investment outstanding for purposes of this Section 9.3,  such amount shall be deemed to be the amount of such Investment when made, purchased or acquired  (without adjustment for subsequent increases or decreases in the value of such Investment) less any amount  realized in respect of such Investment upon the sale, collection or return of capital (not to exceed the original  amount invested).  SECTION 9.4 Fundamental Changes.  Merge, amalgamate, consolidate or enter into any  similar combination with (including by division), or enter into any Asset Disposition of all or substantially  all of its assets (whether in a single transaction or a series of transactions) with, any other Person or  liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except:  (a) (i) any Wholly-Owned Subsidiary of a Borrower may be merged, amalgamated or  consolidated with or into such Borrower (provided that a Borrower shall be the continuing or surviving  entity) or (ii) any Wholly-Owned Subsidiary of a Borrower may be merged, amalgamated or consolidated  with or into any Subsidiary Guarantor (provided that the Subsidiary Guarantor shall be the continuing or  surviving entity or simultaneously with such transaction, the continuing or surviving entity shall become a  Subsidiary Guarantor and such Borrower shall comply with Section 8.14 in connection therewith);  (b) (i) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may be merged,  amalgamated or consolidated with or into, or be liquidated into, any other Non-Guarantor Subsidiary and  (ii) any Non-Guarantor Subsidiary that is a Domestic Subsidiary may be merged, amalgamated or  consolidated with or into, or be liquidated into, any other Non-Guarantor Subsidiary that is a Domestic  Subsidiary;  (c) any Subsidiary may dispose of all or substantially all of its assets (upon voluntary  liquidation, dissolution, winding up, division or otherwise) to the US Borrower or any Subsidiary  Guarantor; provided that, with respect to any such disposition by any Non-Guarantor Subsidiary, the  consideration for such disposition shall not exceed the fair value of such assets;  (d) (i) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may dispose of all or  substantially all of its assets (upon voluntary liquidation, dissolution, winding up, division or otherwise) to  any other Non-Guarantor Subsidiary and (ii) any Non-Guarantor Subsidiary that is a Domestic Subsidiary  may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or  otherwise) to any other Non-Guarantor Subsidiary that is a Domestic Subsidiary;  (e) any Wholly-Owned Subsidiary of the US Borrower may merge with or into the Person  such Wholly-Owned Subsidiary was formed to acquire in connection with any acquisition permitted  hereunder (including, without limitation, any Permitted Acquisition permitted pursuant to Section 9.3(g));  provided that in the case of any merger involving a Wholly-Owned Subsidiary that is a Domestic  Subsidiary, (i) a Subsidiary Guarantor shall be the continuing or surviving entity or (ii) simultaneously with  such transaction, the continuing or surviving entity shall become a Subsidiary Guarantor and the US  Borrower shall comply with Section 8.14 in connection therewith; and  (f) any Person may merge with or into the US Borrower or any of its Wholly-Owned  Subsidiaries in connection with a Permitted Acquisition permitted pursuant to Section 9.3(g); provided that  (i) in the case of a merger involving the US Borrower or a Subsidiary Guarantor, the continuing or surviving  Person shall be the US Borrower or such Subsidiary Guarantor and (ii) the continuing or surviving Person  shall be the US Borrower or a Wholly-Owned Subsidiary of the US Borrower.  SECTION 9.5 Asset Dispositions.  Make any Asset Disposition except:  





 






  100  152003688_8  (a) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of  the US Borrower or any of its Subsidiaries;  (b) non-exclusive licenses and sublicenses of intellectual property rights in the ordinary course  of business not interfering, individually or in the aggregate, in any material respect with the conduct of the  business of the US Borrower and its Subsidiaries;  (c) leases, subleases, licenses or sublicenses of real or personal property granted by any  Borrower or any of its Subsidiaries to others in the ordinary course of business not detracting from the value  of such real or personal property or interfering in any material respect with the business of such Borrower  or any of its Subsidiaries;  (d) Asset Dispositions in connection with Insurance and Condemnation Events;  (e) Assets Dispositions in connection with transactions permitted by Section 9.4;   (f) Asset Dispositions with an aggregate book value not to exceed (i) 5% of Consolidated total  assets during any four (4) consecutive fiscal quarter period and (ii) 10% of Consolidated total assets during  the term of this Agreement; and  (g) Asset Dispositions not otherwise permitted pursuant to this Section so long as the Credit  Parties reinvest substantially all of the net cash proceeds therefrom in assets used or useful for the business  of the Credit Parties and their Subsidiaries within twelve (12) months following receipt of such proceeds.  SECTION 9.6 Restricted Payments.  Declare or pay any dividend on, or make any payment or  other distribution on account of, or purchase, redeem, retire or otherwise acquire (directly or indirectly), or  set apart assets for a sinking or other analogous fund for the purchase, redemption, retirement or other  acquisition of, any class of Capital Stock of any Credit Party or any Subsidiary thereof, or make any  distribution of cash, property or assets to the holders of shares of any Capital Stock of any Credit Party or  any Subsidiary thereof (all of the foregoing, the “Restricted Payments”) provided that:  (a) the US Borrower or any of its Subsidiaries may pay dividends in shares of its own Qualified  Capital Stock;  (b) any Subsidiary of any Borrower may pay cash dividends to such Borrower or any  Subsidiary Guarantor;  (c) (i) any Non-Guarantor Subsidiary that is a Domestic Subsidiary may make Restricted  Payments to any other Non-Guarantor Subsidiary that is a Domestic Subsidiary (and, if applicable, to other  holders of its outstanding Capital Stock on a ratable basis) and (ii) any Non-Guarantor Subsidiary that is a  Foreign Subsidiary may make Restricted Payments to any other Non-Guarantor Subsidiary (and, if  applicable, to other holders of its outstanding Capital Stock on a ratable basis);  (d) the US Borrower may declare and make (and each Subsidiary of the US Borrower may  declare and make to enable the US Borrower to do the same) Restricted Payments to:  (i) so long as no Default or Event of Default has occurred and is continuing or would  result therefrom, redeem, retire or otherwise acquire shares of its Capital Stock to offset dilution  created by equity compensation to its officers, directors, employees and consultants;  





 






  101  152003688_8  (ii) declare and make dividends in accordance with a dividend policy approved by the  US Borrower’s Board of Directors and make other repurchases of Capital Stock of the US Borrower  not to exceed $35,000,000 during any Fiscal Year; and  (iii) so long as no Default or Event of Default has occurred and is continuing or would  result therefrom, redeem, retire or otherwise acquire shares of its Capital Stock or options or other  equity or phantom equity in respect of its Capital Stock from present or former officers, employees,  directors or consultants (or their family members or trusts or other entities for the benefit of any of  the foregoing) or make severance payments to such Persons in connection with the death, disability  or termination of employment or consultancy of any such officer, employee, director or consultant.  (e) the US Borrower may make cash distributions to the holders of the US Borrower’s Capital  Stock not otherwise permitted pursuant to this Section 9.6 so long as before and after giving effect to such  distributions:  (i) no Default or Event of Default has occurred and is continuing or would result  therefrom;  (ii) the Consolidated Total Net Leverage Ratio shall be less than or equal to 3.25 to  1.00 for the most recently ended four-quarter period prior to such distribution for which financial  statements have been delivered pursuant to Section 8.1(a) or (b), as applicable; and  (iii) the US Borrower is in compliance with the financial covenants set forth in Section  9.15;  (f) the US Borrower may make cash distributions to the holders of such Borrower’s Capital  Stock not otherwise permitted pursuant to this Section 9.6 not to exceed the Available Amount as of the  date of such distributions so long as before and after giving effect to such distributions:  (i) no Default or Event of Default has occurred and is continuing or would result  therefrom; and  (ii) the US Borrower is in compliance with the financial covenants set forth in Section  9.15; and  (g) so long as no Default or Event of Default has occurred and is continuing or would result  therefrom, the US Borrower may make other Restricted Payments not otherwise permitted pursuant to this  Section 9.6 not to exceed $50,000,000 during the term of this Agreement.  SECTION 9.7 Transactions with Affiliates.  Directly or indirectly enter into any transaction,  including, without limitation, any purchase, sale, lease or exchange of Property, the rendering of any service  or the payment of any management, advisory or similar fees, with (a) any officer, director, holder of any  Capital Stock in, or other Affiliate of, the US Borrower or any of its Subsidiaries or (b) any Affiliate of any  such officer, director or holder other than:  (i) transactions permitted by Sections 9.1, 9.3, 9.4, 9.5, 9.6, 9.9 and 9.13;  (ii) transactions existing on the Closing Date and described on Schedule 9.7;  (iii) transactions among Credit Parties not prohibited hereunder;  





 






  102  152003688_8  (iv) other transactions in the ordinary course of business on terms as favorable as would  be obtained by it on a comparable arm’s-length transaction with an independent, unrelated third  party as determined in good faith by the board of directors (or equivalent governing body) of the  US Borrower;  (v) employment and severance arrangements (including equity incentive plans and  employee benefit plans and arrangements) with their respective officers and employees in the  ordinary course of business; and  (vi) payment of customary fees and reasonable out of pocket costs to, and indemnities  for the benefit of, directors, officers and employees of the US Borrower and its Subsidiaries in the  ordinary course of business to the extent attributable to the ownership or operation of the US  Borrower and its Subsidiaries.  SECTION 9.8 Accounting Changes; Organizational Documents.  (a) Change its Fiscal Year end, or make (without the consent of the Administrative Agent) any  material change in its accounting treatment and reporting practices except as required by GAAP.  (b) Amend, modify or change its articles of incorporation (or corporate charter or other similar  organizational documents) or amend, modify or change its bylaws (or other similar documents) in any  manner materially adverse to the rights or interests of the Lenders.  SECTION 9.9 Payments and Modifications of Subordinated Indebtedness.  (a) Amend, modify, waive or supplement (or permit the modification, amendment, waiver or  supplement of) any of the terms or provisions of any Subordinated Indebtedness in any respect which would  materially and adversely affect the rights or interests of the Administrative Agent and Lenders hereunder.  (b) Cancel, forgive, make any payment or prepayment on, or redeem or acquire for value  (including, without limitation, (x) by way of depositing with any trustee with respect thereto money or  securities before due for the purpose of paying when due and (y) at the maturity thereof) any Subordinated  Indebtedness, except:  (i) refinancings, refundings, renewals, extensions or exchange of any Subordinated  Indebtedness permitted by Section 9.1(c), (e), (g)(ii), (i) or (m), and by any subordination  provisions applicable thereto;  (ii) payments and prepayments of any Subordinated Indebtedness made solely with  the proceeds of Qualified Capital Stock; and  (iii) the payment of interest, expenses and indemnities in respect of Subordinated  Indebtedness incurred under Section 9.1(c), (e), (g)(ii), (i) or (m) (other than any such payments  prohibited by any subordination provisions applicable thereto).  SECTION 9.10 No Further Negative Pledges; Restrictive Agreements.  (a) Enter into, assume or be subject to any agreement prohibiting or otherwise restricting the  creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired,  or requiring the grant of any security for such obligation if security is given for some other obligation,  except (i) pursuant to this Agreement and the other Loan Documents, (ii) pursuant to any document or  





 






  103  152003688_8  instrument governing Indebtedness incurred pursuant to Section 9.1(d) (provided that any such restriction  contained therein relates only to the asset or assets financed thereby), (iii) customary restrictions contained  in the organizational documents of any Credit Party as of the Closing Date and (iv) customary restrictions  in connection with any Permitted Lien or any document or instrument governing any Permitted Lien  (provided that any such restriction contained therein relates only to the asset or assets subject to such  Permitted Lien).  (b) Create or otherwise cause or suffer to exist or become effective any consensual  encumbrance or restriction on the ability of any Credit Party or any Subsidiary thereof to (i) pay dividends  or make any other distributions to any Credit Party or any Subsidiary on its Capital Stock or with respect  to any other interest or participation in, or measured by, its profits, (ii) pay any Indebtedness or other  obligation owed to any Credit Party or (iii) make loans or advances to any Credit Party, except in each case  for such encumbrances or restrictions existing under or by reason of (A) this Agreement and the other Loan  Documents and (B) Applicable Law.  (c) Create or otherwise cause or suffer to exist or become effective any consensual  encumbrance or restriction on the ability of any Credit Party or any Subsidiary thereof to (i) sell, lease or  transfer any of its properties or assets to any Credit Party or (ii) act as a Credit Party pursuant to the Loan  Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except in each case  for such encumbrances or restrictions existing under or by reason of (A) this Agreement and the other Loan  Documents, (B) Applicable Law, (C) any document or instrument governing Indebtedness incurred  pursuant to Section 9.1(d) (provided that any such restriction contained therein relates only to the asset or  assets acquired in connection therewith), (D) any Permitted Lien or any document or instrument governing  any Permitted Lien (provided that any such restriction contained therein relates only to the asset or assets  subject to such Permitted Lien), (E) obligations that are binding on a Subsidiary at the time such Subsidiary  first becomes a Subsidiary of any Borrower, so long as such obligations are not entered into in  contemplation of such Person becoming a Subsidiary, (F) customary restrictions contained in an agreement  related to the sale of Property (to the extent such sale is permitted pursuant to Section 9.5) that limit the  transfer of such Property pending the consummation of such sale, (G) customary restrictions in leases,  subleases, licenses and sublicenses or asset sale agreements otherwise permitted by this Agreement so long  as such restrictions relate only to the assets subject thereto and (H) customary provisions restricting  assignment of any agreement entered into in the ordinary course of business.  SECTION 9.11 Nature of Business.  Engage in any business other than the business conducted  by the US Borrower and its Subsidiaries as of the Closing Date and business activities similar to, reasonably  related or ancillary thereto.  SECTION 9.12  Reserved.  SECTION 9.13 Sale Leasebacks.  Except for (a) the 2008 Sale-Leaseback Transaction and (b)  any of the following as it relates to any Property not constituting Collateral for the Obligations, directly or  indirectly become or remain liable as lessee or as guarantor or other surety with respect to any lease, whether  an operating lease or a finance lease, of any Property (whether real, personal or mixed), whether now owned  or hereafter acquired, (i) which any Credit Party or any Subsidiary thereof has sold or transferred or is to  sell or transfer to a Person which is not another Credit Party or Subsidiary of a Credit Party or (ii) which  any Credit Party or any Subsidiary of a Credit Party intends to use for substantially the same purpose as  any other Property that has been sold or is to be sold or transferred by such Credit Party or such Subsidiary  to another Person which is not another Credit Party or Subsidiary of a Credit Party in connection with such  lease.  SECTION 9.14 Reserved.  





 






  104  152003688_8  SECTION 9.15 Financial Covenants.  (a) Consolidated Total Net Leverage Ratio.  (i) As of the last day of any fiscal quarter commencing with the period ending  September 30, 2019, permit the Consolidated Total Net Leverage Ratio to be greater than the 3.75  to 1.00.  (ii) Notwithstanding the covenant level set forth in clause (i) above, the Consolidated  Total Net Leverage Ratio shall be subject to a covenant adjustment (“Covenant Holiday”) at the  election of the US Borrower given in writing to the Administrative Agent, if the Permitted  Acquisition Consideration of a Permitted Acquisition or a series of Permitted Acquisitions over a  period of twelve (12) months is at least $75,000,000. If so elected, (1) the maximum Consolidated  Total Net Leverage Ratio during the Covenant Holiday shall be 4.00 to 1.00, which such increase  shall be applicable (A) with respect to a Permitted Acquisition that is not a Limited Condition  Acquisition, for the fiscal quarter in which such Permitted Acquisition is consummated and the  three (3) consecutive quarterly test periods thereafter or (B) with respect to a Permitted Acquisition  that is a Limited Condition Acquisition, for purposes of determining compliance on a Pro Forma  Basis with this Section 9.15(a) on the LCA Test Date, for the fiscal quarter in which such Permitted  Acquisition is consummated and for the three (3) consecutive quarterly test periods after which  such Permitted Acquisition is consummated; provided that the maximum Consolidated Total Net  Leverage Ratio shall be increased to 4.25 to 1.00 during any Covenant Holiday where the US  Borrower and its Subsidiaries have outstanding unsecured Consolidated Total Indebtedness in an  aggregate principal amount of $150,000,000 or more, (2) the period of each Covenant Holiday shall  last no longer than four fiscal quarters and (3) there shall be no less than two fiscal quarters between  Covenant Holidays. After the period of each Covenant Holiday, the maximum Consolidated Total  Net Leverage Ratio shall be 3.75 to 1.00.  (b) Consolidated Interest Coverage Ratio.  As of the last day of any fiscal quarter commencing  with the period ending September 30, 2019, permit the Consolidated Interest Coverage Ratio to be less than  3.50 to 1.00.  SECTION 9.16 Disposal of Subsidiary Interests.  Permit any Domestic Subsidiary to be a non-  Wholly-Owned Subsidiary except as a result of or in connection with a dissolution, merger, amalgamation,  consolidation or disposition permitted by Section 9.4 or 9.5.  SECTION 9.17 Canadian Defined Benefit Plans.  Establish, participate in, contribute to or be  required to contribute to a Canadian Defined Benefit Plan except as a result of a Permitted Acquisition.  ARTICLE X  DEFAULT AND REMEDIES  SECTION 10.1 Events of Default.  Each of the following shall constitute an Event of Default:  (a) Default in Payment of Principal of Loans and Reimbursement Obligations.  Any Borrower  shall default in any payment of principal of any Loan or Reimbursement Obligation when and as due  (whether at maturity, by reason of acceleration or otherwise).  (b) Other Payment Default.  Any Borrower shall default in the payment when and as due  (whether at maturity, by reason of acceleration or otherwise) of interest on any Loan or Reimbursement  





 






  105  152003688_8  Obligation or the payment of any other Obligation, and such default shall continue for a period of three (3)  Business Days.  (c) Misrepresentation.  Any representation, warranty, certification or statement of fact made  or deemed made by or on behalf of any Credit Party or any Material Foreign Subsidiary in this Agreement,  in any other Loan Document, or in any document delivered in connection herewith or therewith that is  subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any  respect when made or deemed made or any representation, warranty, certification or statement of fact made  or deemed made by or on behalf of any Credit Party or any Subsidiary thereof in this Agreement, in any  other Loan Document, or in any document delivered in connection herewith or therewith that is not subject  to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any material  respect when made or deemed made.  (d) Default in Performance of Certain Covenants.  Any Credit Party or any Subsidiary thereof  shall default in the performance or observance of any covenant or agreement contained in Sections 8.1,  8.2(a), 8.3(a), 8.4, 8.13, 8.14, 8.16, 8.18, 8.19 or Article IX.  (e) Default in Performance of Other Covenants and Conditions.  Any Credit Party or any  Material Foreign Subsidiary shall default in the performance or observance of any term, covenant, condition  or agreement contained in this Agreement (other than as specifically provided for in this Section) or any  other Loan Document and such default shall continue for a period of thirty (30) days after the earlier of (i)  the Administrative Agent’s delivery of written notice thereof to the US Borrower and (ii) a Responsible  Officer of any Credit Party having obtained Knowledge thereof.  (f) Indebtedness Cross-Default.  Any Credit Party or any Material Foreign Subsidiary thereof  shall (i) default in the payment of any Indebtedness (other than the Loans or any Reimbursement Obligation)  the aggregate outstanding amount of which Indebtedness is in excess of the Threshold Amount beyond the  period of grace if any, provided in the instrument or agreement under which such Indebtedness was created,  or (ii) default in the observance or performance of any other agreement or condition relating to any  Indebtedness (other than the Loans or any Reimbursement Obligation) the aggregate outstanding amount,  or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in excess of the  Threshold Amount 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 holders of such Indebtedness (or a trustee or agent on behalf of such holder  or holders) to cause, with the giving of notice and/or lapse of time, if required, any such Indebtedness to  become due prior to its stated maturity (any applicable grace period having expired).  (g) Reserved.  (h) Change in Control.  Any Change in Control shall occur.  (i) Voluntary Bankruptcy Proceeding.  Any Credit Party or any Material Foreign Subsidiary  shall (i) commence a voluntary case under any Debtor Relief Laws, (ii) file a petition seeking to take  advantage of any Debtor Relief Laws, (iii) consent to or fail to contest in a timely and appropriate manner  any petition filed against it in an involuntary case under any Debtor Relief Laws, (iv) apply for or consent  to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by,  a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or  foreign, (v) admit in writing its inability to pay its debts as they become due, (vi) make a general assignment  for the benefit of creditors, or (vii) take any corporate action for the purpose of authorizing any of the  foregoing.  





 






  106  152003688_8  (j) Involuntary Bankruptcy Proceeding.  A case or other proceeding shall be commenced  against any Credit Party or any Material Foreign Subsidiary in any court of competent jurisdiction seeking  (i) relief under any Debtor Relief Laws, or (ii) the appointment of a trustee, receiver, custodian, liquidator  or the like for any Credit Party or any Material Foreign Subsidiary or for all or any substantial part of their  respective assets, domestic or foreign, and such case or proceeding shall continue without dismissal or stay  for a period of sixty (60) consecutive days, or an order granting the relief requested in such case or  proceeding under such Debtor Relief Laws shall be entered.  (k) Failure of Agreements.  Any provision of this Agreement or any provision of any other  Loan Document shall for any reason cease to be valid and binding on any Credit Party or any Material  Foreign Subsidiary party thereto or any such Person shall so state in writing, or any Loan Document shall  for any reason cease to create a valid and perfected first priority Lien (subject to Permitted Liens) on, or  security interest in, any of the Collateral purported to be covered thereby, in each case other than in  accordance with the express terms hereof or thereof.  (l) Termination Events.  A Termination Event shall have occurred that, when taken together  with all other Termination Events that have occurred, could reasonably be expected to result in a Material  Adverse Effect.  (m) Judgment.  A final, nonappealable judgment or order for the payment of money which  could reasonably be expected to have a Material Adverse Effect shall be entered against any Credit Party  or any Subsidiary thereof by any court and such judgment or order shall continue without having been  discharged, vacated or stayed for a period of sixty (60) consecutive days after the entry thereof.  SECTION 10.2 Remedies.  Upon the occurrence and during the continuance of an Event of  Default, 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 US Borrower:  (a) Acceleration; Termination of Credit Facility.  Terminate the Revolving Credit  Commitment and declare the principal of and interest on the Loans and the Reimbursement Obligations at  the time outstanding, and all other amounts owed to the Lenders and to the Administrative Agent under this  Agreement or any of the other Loan Documents (including, without limitation, all L/C Obligations, whether  or not the beneficiaries of the then outstanding Letters of Credit shall have presented or shall be entitled to  present the documents required thereunder) and all other Obligations, to be forthwith due and payable,  whereupon the same shall immediately become due and payable without presentment, demand, protest or  other notice of any kind, all of which are expressly waived by each Credit Party, anything in this Agreement  or the other Loan Documents to the contrary notwithstanding, and terminate the Credit Facility and any  right of the US Borrower to request borrowings or Letters of Credit thereunder; provided, that upon the  occurrence of an Event of Default specified in Section 10.1(i) or (j), the Credit Facility shall be  automatically terminated and all Obligations shall automatically become due and payable without  presentment, demand, protest or other notice of any kind, all of which are expressly waived by each Credit  Party, anything in this Agreement or in any other Loan Document to the contrary notwithstanding.  (b) Letters of Credit.  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 the preceding paragraph, demand  that the US Borrower deposit in a Cash Collateral account opened by the Administrative Agent an amount  equal to 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 drawn under  such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or  been fully drawn upon, if any, shall be applied to repay the other Secured Obligations in accordance with  Section 10.3. After all such Letters of Credit shall have expired or been fully drawn upon, the  





 






  107  152003688_8  Reimbursement Obligation shall have been satisfied and all other Secured Obligations shall have been paid  in full, the balance, if any, in such Cash Collateral account shall be returned to the US Borrower.  (c) General Remedies.  Exercise on behalf of the Secured Parties all of its other rights and  remedies under this Agreement, the other Loan Documents and Applicable Law, in order to satisfy all of  the Secured Obligations.  SECTION 10.3 Rights and Remedies Cumulative; Non-Waiver; etc.  (a) The enumeration of the rights and remedies of the Administrative Agent and the Lenders  set forth in this Agreement is not intended to be exhaustive and the exercise by the Administrative Agent  and the Lenders of any right or remedy shall not preclude the exercise of any other rights or remedies, all  of which shall be cumulative, and shall be in addition to any other right or remedy given hereunder or under  the other Loan Documents or that may now or hereafter exist at law or in equity or by suit or otherwise. No  delay or failure to take action on the part of the Administrative Agent or any Lender in exercising any right,  power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of any such  right, power or privilege preclude any other or further exercise thereof or the exercise of any other right,  power or privilege or shall be construed to be a waiver of any Event of Default. No course of dealing  between any Borrower, the Administrative Agent and the Lenders or their respective agents or employees  shall be effective to change, modify or discharge any provision of this Agreement or any of the other Loan  Documents or to constitute a waiver of any Event of Default.  (b) Notwithstanding anything to the contrary contained herein or in any other Loan Document,  the authority to enforce rights and remedies hereunder and under the other Loan Documents against the  Credit Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in  connection with such enforcement shall be instituted and maintained exclusively by, the Administrative  Agent in accordance with Section 10.2 for the benefit of all the Lenders and the Issuing Lenders; provided  that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the  rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and  under the other Loan Documents, (b) any Issuing Lender or the Swingline Lender from exercising the rights  and remedies that inure to its benefit (solely in its capacity as an Issuing Lender or Swingline Lender, as  the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff  rights in accordance with Section 12.4 (subject to the terms of Section 5.6), or (d) any Lender from filing  proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding  relative to any Credit Party under any Debtor Relief Law; and provided, further, that if at any time there is  no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the  Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section  10.2 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and  subject to Section 5.6, any Lender may, with the consent of the Required Lenders, enforce any rights and  remedies available to it and as authorized by the Required Lenders.  SECTION 10.4 Crediting of Payments and Proceeds.  (a) In the event that the Obligations have  been accelerated pursuant to Section 10.2 or the Administrative Agent or any Lender has exercised any  remedy set forth in this Agreement or any other Loan Document, all payments received other than from a  Non-US Borrower on account of the Secured Obligations and all net proceeds of or constituting US  Collateral, from the enforcement of the Secured Obligations shall be applied by the Administrative Agent  as follows:  First, to payment of that portion of the US Obligations constituting fees, indemnities, expenses and  other amounts, including attorney fees, payable to the Administrative Agent in its capacity as such, the  Issuing Lenders in their capacity as such and the Swingline Lender in its capacity as such, ratably among  





 






  108  152003688_8  the Administrative Agent, the Issuing Lenders and Swingline Lender in proportion to the respective  amounts described in this clause First payable to them;  Second, to payment of that portion of the US Obligations constituting fees, indemnities and other  amounts (other than principal and interest) payable to the Lenders under the Loan Documents, including  attorney fees, ratably among the Lenders in proportion to the respective amounts described in this clause  Second payable to them;   Third, to payment of that portion of the US Obligations constituting accrued and unpaid interest on  the Loans and Reimbursement Obligations, ratably among the Lenders in proportion to the respective  amounts described in this clause Third payable to them;   Fourth, to payment of that portion of the US Obligations constituting unpaid principal of the Loans,  Reimbursement Obligations and payment obligations then owing under Secured Hedge Agreements and  Secured Cash Management Agreements, ratably among the Lenders, the Issuing Lenders, the Hedge Banks  and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth  payable to them;   Fifth, to the Administrative Agent for the account of the Issuing Lenders, to Cash Collateralize any  L/C Obligations constituting US Obligations then outstanding;   Sixth, to the payment of the Non-US Obligations in the order set forth in clause (b) below; and   Last, the balance, if any, after all of the Secured Obligations have been paid in full in cash, to the  US Borrower or as otherwise required by Applicable Law.   Notwithstanding the foregoing, Secured Obligations arising under Secured Cash Management  Agreements and Secured Hedge Agreements shall be excluded from the application described above if the  Administrative Agent has not received written notice thereof, together with such supporting documentation  as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as  the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given  the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged  and accepted the appointment of the Administrative Agent pursuant to the terms of Article XI for itself and  its Affiliates as if a “Lender” party hereto.  (b) In the event that the Obligations have been accelerated pursuant to Section 10.2 or the  Administrative Agent or any Lender has exercised any remedy set forth in this Agreement or any other  Loan Document, all payments received from a Non-US Borrower and all net proceeds of or constituting  Non-US Collateral, from the enforcement of the Non-US Obligations shall be applied by the Administrative  Agent as follows:  First, to payment of that portion of the Non-US Obligations constituting fees, indemnities, expenses  and other amounts, including attorney fees, payable to the Administrative Agent in its capacity as such;   Second, to payment of that portion of the Non-US Obligations constituting fees, indemnities and  other amounts (other than principal and interest) payable to the Lenders under the Loan Documents,  including attorney fees, ratably among the Lenders in proportion to the respective amounts described in this  clause Second payable to them;   





 






  109  152003688_8  Third, to payment of that portion of the Non-US Obligations constituting accrued and unpaid  interest on the Loans, ratably among the Lenders in proportion to the respective amounts described in this  clause Third payable to them;   Fourth, to payment of that portion of the Non-US Obligations constituting unpaid principal of the  Loans and payment obligations then owing under Secured Hedge Agreements and Secured Cash  Management Agreements, ratably among the Lenders, the Hedge Banks and the Cash Management Banks  in proportion to the respective amounts described in this clause Fourth payable to them; and   Last, the balance, if any, after all of the Non-US Obligations have been paid in full in cash, to the  Non US Borrowers or as otherwise required by Applicable Law.   Notwithstanding the foregoing, Non-US Obligations arising under Secured Cash Management  Agreements and Secured Hedge Agreements shall be excluded from the application described above if the  Administrative Agent has not received written notice thereof, together with such supporting documentation  as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as  the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given  the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged  and accepted the appointment of the Administrative Agent pursuant to the terms of Article XI for itself and  its Affiliates as if a “Lender” party hereto.  (c) Notwithstanding anything to the contrary contained in this Agreement or the other Loan  Documents: (i) each Non-US Borrower shall be severally and not jointly liable, for that portion of the  Secured Obligations evidenced by any Loan or other Extension of Credit made to, or for the benefit of, such  Non-US Borrower; and (ii) the US Borrower shall be liable for all of the Secured Obligations evidenced by  any Loan or other Extension of Credit made to, or for the benefit of any Non-US Borrower, and all such  Secured Obligations shall be guaranteed by the Subsidiary Guarantors.  SECTION 10.5 Administrative Agent May File Proofs of Claim.  In case of the pendency of  any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party,  the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then  be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the  Administrative Agent shall have made any demand on the US Borrower) shall be entitled and empowered  (but not obligated) by intervention in such proceeding or otherwise:  (a) to file and prove a claim for the whole amount of the principal and interest owing and  unpaid in respect of the Loans, L/C Obligations and all other Secured Obligations that are owing and unpaid  and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders,  the Issuing Lenders and the Administrative Agent (including any claim for the reasonable compensation,  expenses, disbursements and advances of the Lenders, the Issuing Lenders and the Administrative Agent  and their respective agents and counsel and all other amounts due the Lenders, the Issuing Lenders and the  Administrative Agent under Sections 3.3, 5.3 and 12.3) allowed in such judicial proceeding; and  (b) to collect and receive any monies or other property payable or deliverable on any such  claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  judicial proceeding is hereby authorized by each Lender and each Issuing Lender to make such payments  to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of  such payments directly to the Lenders and the Issuing Lenders, to pay to the Administrative Agent any  amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative  





 






  110  152003688_8  Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 3.3,  5.3 and 12.3.  SECTION 10.6 Credit Bidding.  (a) The Administrative Agent, on behalf of itself and the Secured Parties, shall have the right  to credit bid and purchase for the benefit of the Administrative Agent and the Secured Parties all or any  portion of Collateral at any sale thereof conducted by the Administrative Agent under the provisions of the  UCC, including pursuant to Sections 9-610 or 9-620 of the UCC, at any sale thereof conducted under the  provisions of the United States Bankruptcy Code, including Section 363 thereof, or a sale under a plan of  reorganization, or at any other sale or foreclosure conducted by the Administrative Agent (whether by  judicial action or otherwise) in accordance with Applicable Law. Such credit bid or purchase may be  completed through one or more acquisition vehicles formed by the Administrative Agent to make such  credit bid or purchase and, in connection therewith, the Administrative Agent is authorized, on behalf of  itself and the other Secured Parties, to adopt documents providing for the governance of the acquisition  vehicle or vehicles, and assign the applicable Secured Obligations to any such acquisition vehicle in  exchange for Capital Stock and/or debt issued by the applicable acquisition vehicle (which shall be deemed  to be held for the ratable account of the applicable Secured Parties on the basis of the Secured Obligations  so assigned by each Secured Party).  (b) Each Lender hereby agrees, on behalf of itself and each of its Affiliates that is a Secured  Party, that, except as otherwise provided in any Loan Document or with the written consent of the  Administrative Agent and the Required Lenders, it will not take any enforcement action, accelerate  obligations under any of the Loan Documents, or exercise any right that it might otherwise have under  Applicable Law to credit bid at foreclosure sales, UCC sales or other similar dispositions of Collateral.  ARTICLE XI  THE ADMINISTRATIVE AGENT  SECTION 11.1 Appointment and Authority.  (a) Each of the Lenders and each Issuing Lender hereby irrevocably appoints Wells Fargo to  act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes  the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to  the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are  reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative  Agent, the Lenders and the Issuing Lenders, and neither the US Borrower nor any Subsidiary thereof shall  have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use  of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the  Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations  arising under agency doctrine of any Applicable Law. Instead, such term is used as a matter of market  custom, and is intended to create or reflect only an administrative relationship between contracting parties.  (b) The Administrative Agent shall also act as the “collateral agent” under the Loan  Documents, and each of the Lenders (including in its capacity as a potential Hedge Bank or Cash  Management Bank) and the Issuing Lenders hereby irrevocably appoints and authorizes the Administrative  Agent to act as the agent of such Lender and such Issuing Lender for purposes of acquiring, holding and  enforcing any and all Liens on Collateral granted by any of the Credit Parties to secure any of the Secured  Obligations, together with such powers and discretion as are reasonably incidental thereto (including,  without limitation, to enter into additional Loan Documents or supplements to existing Loan Documents  on behalf of the Secured Parties). In this connection, the Administrative Agent, as “collateral agent” and  





 






  111  152003688_8  any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to this  Article XI for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted  under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the  Administrative Agent), shall be entitled to the benefits of all provisions of Articles XI and XII (including  Section 12.3, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under  the Loan Documents) as if set forth in full herein with respect thereto.  SECTION 11.2 Rights as a Lender.  The Person serving as the Administrative Agent hereunder  shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the  same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless  otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the  Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept  deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity  for and generally engage in any kind of business with the US Borrower or any Subsidiary or other Affiliate  thereof as if such Person were not the Administrative Agent hereunder and without any duty to account  therefor to the Lenders.  SECTION 11.3 Exculpatory Provisions.  (a) The Administrative Agent shall not have any duties or obligations except those expressly  set forth herein and in the other Loan Documents, and its duties hereunder and thereunder shall be  administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:  (i) shall not be subject to any fiduciary or other implied duties, regardless of whether  a Default or Event of Default has occurred and is continuing;  (ii) shall not have any duty to take any discretionary action or exercise any  discretionary powers, except discretionary rights and powers expressly contemplated hereby or by  the other Loan Documents that the Administrative Agent is required to exercise as directed in  writing by the Required Lenders (or such other number or percentage of the Lenders as shall be  expressly provided for herein or in the other Loan Documents), provided that the Administrative  Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may  expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable  Law, including for the avoidance of doubt any action that may be in violation of the automatic stay  under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property  of a Defaulting Lender in violation of any Debtor Relief Law; and  (iii) shall not, except as expressly set forth herein and in the other Loan Documents,  have any duty to disclose, and shall not be liable for the failure to disclose, any information relating  to the US Borrower or any of its Subsidiaries or Affiliates that is communicated to or obtained by  the Person serving as the Administrative Agent or any of its Affiliates in any capacity.  (b) The Administrative Agent shall not be liable for any action taken or not taken by it (i) with  the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders  as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under  the circumstances as provided in Section 12.2 and Section 10.2) or (ii) in the absence of its own gross  negligence or willful misconduct as determined by a court of competent jurisdiction by final nonappealable  judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of  Default unless and until notice describing such Default or Event of Default is given to the Administrative  Agent by the US Borrower, a Lender or an Issuing Lender.  





 






  112  152003688_8  (c) The Administrative Agent shall not be responsible for or have any duty to ascertain or  inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or  any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder  or thereunder or in connection herewith or therewith (including, without limitation, any report provided to  it by an Issuing Lender pursuant to Section 3.9), (iii) the performance or observance of any of the covenants,  agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event  of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan  Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth  in Article VI or elsewhere herein, other than to confirm receipt of items expressly required to be delivered  to the Administrative Agent or (vi) the utilization of any Issuing Lender’s L/C Commitment (it being  understood and agreed that each Issuing Lender shall monitor compliance with its own L/C Commitment  without any further action by the Administrative Agent).  SECTION 11.4 Reliance by the Administrative Agent.  The Administrative Agent shall be  entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,  consent, statement, instrument, document or other writing (including any electronic message, Internet or  intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or  otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement  made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not  incur any liability for relying thereon. In determining compliance with any condition hereunder to the  making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms  must be fulfilled to the satisfaction of a Lender or an Issuing Lender, the Administrative Agent may presume  that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent  shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of  such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel  (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and  shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel,  accountants or experts.  SECTION 11.5 Delegation of Duties.  The Administrative Agent may perform any and all of  its duties and exercise its rights and powers hereunder or under any other Loan Document by or through  any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any  such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their  respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and  to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective  activities in connection with the syndication of the Credit Facility as well as activities as Administrative  Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub- agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable  judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection  of such sub-agents.  SECTION 11.6 Resignation of Administrative Agent.  (a) The Administrative Agent may at any time give notice of its resignation to the Lenders, the  Issuing Lenders and the US Borrower. Upon receipt of any such notice of resignation, the Required Lenders  shall have the right, in consultation with the US Borrower and subject to the consent of the US Borrower  (provided no Event of Default has occurred and is continuing at the time of such resignation) to appoint a  successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with  an office in the United States. If no such successor shall have been so appointed by the Required Lenders  and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives  notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation  





 






  113  152003688_8  Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of  the Lenders and the Issuing Lenders, appoint a successor Administrative Agent meeting the qualifications  set forth above. Whether or not a successor has been appointed, such resignation shall become effective in  accordance with such notice on the Resignation Effective Date.  (b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d)  of the definition thereof, the Required Lenders may, to the extent permitted by Applicable Law, by notice  in writing to the US Borrower and such Person, remove such Person as Administrative Agent and, in  consultation with the US Borrower, appoint a successor. If no such successor shall have been so appointed  by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as  shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall  nonetheless become effective in accordance with such notice on the Removal Effective Date.  (c) With effect from the Resignation Effective Date or the Removal Effective Date (as  applicable), (i) the retiring or removed Administrative Agent shall be discharged from its duties and  obligations hereunder and under the other Loan Documents (except that in the case of any collateral security  held by the Administrative Agent on behalf of the Lenders or the Issuing Lenders under any of the Loan  Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security  until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity  payments owed to the retiring or removed Administrative Agent, all payments, communications and  determinations provided to be made by, to or through the Administrative Agent shall instead be made by  or to each Lender and each Issuing Lender directly, until such time, if any, as the Required Lenders appoint  a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment  as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights,  powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to  indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed  Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other  Loan Documents. The fees payable by the Borrowers to a successor Administrative Agent shall be the same  as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor.  After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other  Loan Documents, the provisions of this Article and Section 12.3 shall continue in effect for the benefit of  such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect  of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative  Agent was acting as Administrative Agent.  (d) Any resignation by, or removal of, Wells Fargo as Administrative Agent pursuant to this  Section shall also constitute its resignation as an Issuing Lender and Swingline Lender. Upon the acceptance  of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and  become vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender, if in its  sole discretion it elects to, and Swingline Lender, (b) the retiring Issuing Lender and Swingline Lender shall  be discharged from all of their respective duties and obligations hereunder or under the other Loan  Documents, and (c) the successor Issuing Lender, if in its sole discretion it elects to, shall issue letters of  credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make  other arrangements satisfactory to the retiring Issuing Lender to effectively assume the obligations of the  retiring Issuing Lender with respect to such Letters of Credit.  SECTION 11.7 Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and  each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative  Agent or any other Lender or any of their Related Parties and based on such documents and information as  it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each  Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon  





 






  114  152003688_8  the Administrative Agent or any other Lender or any of their Related Parties and based on such documents  and information as it shall from time to time deem appropriate, continue to make its own decisions in taking  or not taking action under or based upon this Agreement, any other Loan Document or any related  agreement or any document furnished hereunder or thereunder.  SECTION 11.8 No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none  of the syndication agents, documentation agents, co-agents, arrangers or bookrunners listed on the cover  page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan  Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Lender  hereunder.  SECTION 11.9 Collateral and Guaranty Matters.  (a) Each of the Lenders (including in its or any of its Affiliate’s capacities as a potential Hedge  Bank or Cash Management Bank) irrevocably authorize the Administrative Agent, at its option and in its  discretion:  (i) to release any Lien on any Collateral granted to or held by the Administrative  Agent, for the ratable benefit of the Secured Parties, under any Loan Document (A) upon the  termination of the Revolving Credit Commitment and payment in full of all Secured Obligations  (other than (1) contingent indemnification obligations and (2) obligations and liabilities under  Secured Cash Management Agreements or Secured Hedge Agreements as to which arrangements  satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made) and  the expiration or termination of all Letters of Credit (other than Letters of Credit which have been  Cash Collateralized or as to which other arrangements satisfactory to the Administrative Agent and  the applicable Issuing Lender shall have been made), (B) that is sold or otherwise disposed of or to  be sold or otherwise disposed of as part of or in connection with any sale or other disposition to a  Person other than a Credit Party permitted under the Loan Documents, or (C) if approved,  authorized or ratified in writing in accordance with Section 12.2;  (ii) to subordinate any Lien on any Collateral granted to or held by the Administrative  Agent under any Loan Document to the holder of any Permitted Lien; and  (iii) to release any Subsidiary Guarantor from its obligations under any Loan  Documents if such Person ceases to be a Subsidiary as a result of a transaction permitted under the  Loan Documents.  Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the  Administrative Agent’s authority to release or subordinate its interest in particular types or items of  property, or to release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty  Agreement pursuant to this Section 11.9. In each case as specified in this Section 11.9, the Administrative  Agent will, at the US Borrower’s expense, execute and deliver to the applicable Credit Party such  documents as such Credit Party may reasonably request to evidence the release of such item of Collateral  from the assignment and security interest granted under the Security Documents or to subordinate its  interest in such item, or to release such Guarantor from its obligations under the Subsidiary Guaranty  Agreement, in each case in accordance with the terms of the Loan Documents and this Section 11.9. In the  case of any such sale, transfer or disposal of any property constituting Collateral in a transaction constituting  an Asset Disposition permitted pursuant to Section 9.5 to a Person other than a Credit Party, the Liens  created by any of the Security Documents on such property shall be automatically released without need  for further action by any person.  





 






  115  152003688_8  (b) The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire  into any representation or warranty regarding the existence, value or collectability of the Collateral, the  existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by  any Credit Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the  Lenders for any failure to monitor or maintain any portion of the Collateral.  SECTION 11.10 Secured Hedge Agreements and Secured Cash Management Agreements.  No  Cash Management Bank or Hedge Bank that obtains the benefits of Section 10.4 or any Collateral by virtue  of the provisions hereof or of any Security Document shall have any right to notice of any action or to  consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in  respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as  a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding  any other provision of this Article XI to the contrary, the Administrative Agent shall not be required to  verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Cash  Management Agreements and Secured Hedge Agreements unless the Administrative Agent has received  written notice of such Secured Cash Management Agreements and Secured Hedge Agreements, together  with such supporting documentation as the Administrative Agent may request, from the applicable Cash  Management Bank or Hedge Bank, as the case may be.  SECTION 11.11 Erroneous Payments.  (a) Each Lender, each Issuing Lender, each other Secured Party and any other party hereto  hereby severally agrees that if (i) the Administrative Agent notifies (which such notice shall be conclusive  absent manifest error) such Lender or Issuing Lender or any other Secured Party (or the Lender Affiliate of  a Secured Party) or any other Person that has received funds from the Administrative Agent or any of its  Affiliates, either for its own account or on behalf of a Lender, Issuing Lender or other Secured Party (each  such recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion  that any funds received by such Payment Recipient were erroneously transmitted to, or otherwise  erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment  Recipient) or (ii) any Payment Recipient receives any payment from the Administrative Agent (or any of  its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of  payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect  to such payment, prepayment or repayment, as applicable, (y) that was not preceded or accompanied by a  notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates)  with respect to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient  otherwise becomes aware was transmitted or received in error or by mistake (in whole or in part) then, in  each case, an error in payment shall be presumed to have been made (any such amounts specified in clauses  (i) or (ii) of this Section 11.11(a), whether received as a payment, prepayment or repayment of principal,  interest, fees, distribution or otherwise; individually and collectively, an “Erroneous Payment”), then, in  each case, such Payment Recipient is deemed to have knowledge of such error at the time of its receipt of  such Erroneous Payment; provided that nothing in this Section shall require the Administrative Agent to  provide any of the notices specified in clauses (i) or (ii) above. Each Payment Recipient agrees that it shall  not assert any right or claim to any Erroneous Payment, and hereby waives any claim, counterclaim, defense  or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative  Agent for the return of any Erroneous Payments, including without limitation waiver of any defense based  on “discharge for value” or any similar doctrine.   (b) Without limiting the immediately preceding clause (a), each Payment Recipient agrees that,  in the case of clause (a)(ii) above, it shall promptly notify the Administrative Agent in writing of such  occurrence.  





 






  116  152003688_8  (c) In the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times  remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held  in trust for the benefit of the Administrative Agent, and upon demand from the Administrative Agent such  Payment Recipient shall (or, shall cause any Person who received any portion of an Erroneous Payment on  its behalf to), promptly, but in all events no later than one Business Day thereafter, return to the  Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a  demand was made in Same Day Funds and in the currency so received, together with interest thereon in  respect of each day from and including the date such Erroneous Payment (or portion thereof) was received  by such Payment Recipient to the date such amount is repaid to the Administrative Agent at the Overnight  Rate.  (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the  Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance  with immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate of a  Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return  Deficiency”), then at the sole discretion of the Administrative Agent and upon the Administrative Agent’s  written notice to such Lender (i) such Lender shall be deemed to have made a cashless assignment of the  full face amount of the portion of its Loans (but not its Commitments) of the relevant Class with respect to  which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) to the Administrative  Agent or, at the option of the Administrative Agent, the Administrative Agent’s applicable lending affiliate  in an amount that is equal to the Erroneous Payment Return Deficiency (or such lesser amount as the  Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous  Payment  Impacted Class, the “Erroneous Payment Deficiency Assignment”) plus any accrued and unpaid  interest on such assigned amount, without further consent or approval of any party hereto and without any  payment by the Administrative Agent or its applicable lending affiliate as the assignee of such Erroneous  Payment Deficiency Assignment.  The parties hereto acknowledge and agree that (1) any assignment  contemplated in this clause (d) shall be made without any requirement for any payment or other  consideration paid by the applicable assignee or received by the assignor, (2) the provisions of this clause  (d) shall govern in the event of any conflict with the terms and conditions of Section 12.9 and (3) the  Administrative Agent may reflect such assignments in the Register without further consent or action by any  other Person.  (e) Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion  thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion  thereof) for any reason, the Administrative Agent (1) shall be subrogated to all the rights of such Payment  Recipient with respect to such amount and (2) is authorized to set off, net and apply any and all amounts at  any time owing to such Payment Recipient under any Loan Document, or otherwise payable or distributable  by the Administrative Agent to such Payment Recipient from any source, against any amount due to the  Administrative Agent under this Section 11.11 or under the indemnification provisions of this Agreement,  (y) the receipt of an Erroneous Payment by a Payment Recipient shall not for the purpose of this Agreement  be treated as a payment, prepayment, repayment, discharge or other satisfaction of any Obligations owed  by the Borrower or any other Credit Party, except, in each case, to the extent such Erroneous Payment is,  and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by  the Administrative Agent from the Borrower or any other Credit Party for the purpose of making a payment  on the Obligations and (z) to the extent that an Erroneous Payment was in any way or at any time credited  as payment or satisfaction of any of the Obligations, the Obligations or any part thereof that were so  credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full  force and effect as if such payment or satisfaction had never been received, except, in each case, to the  extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that  is, comprised of funds received by the Administrative Agent from the Borrower or any other Credit Party  for the purpose of making a payment on the Obligations.  





 






  117  152003688_8  (f) Each party’s obligations under this Section 11.11 shall survive the resignation or  replacement of the Administrative Agent or any transfer of right or obligations by, or the replacement of, a  Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations  (or any portion thereof) under any Loan Document.  (g) Nothing in this Section 11.11 will constitute a waiver or release of any claim of the  Administrative Agent hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.  ARTICLE XII  MISCELLANEOUS  SECTION 12.1 Notices.  (a) Notices Generally. Except in the case of notices and other communications expressly  permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and other  communications provided for herein shall be in writing and shall be delivered by hand or overnight courier  service, mailed by certified or registered mail or sent by facsimile as follows:  If to the Borrowers (to US Borrower at):  Federal Signal Corporation   1415 West 22nd Street   Suite 1100   Oak Brook, IL 60523   Attention of: Ivo Boev   Telephone No.: (630) 954-2052   Facsimile No.: (630) 954-3961   E-mail: IVBoev@federalsignal.com  With copies to:  Attention of: Daniel A. DuPre   Telephone No.: (630) 954-2012   Facsimile No.: (630) 954-3961   E-mail: ddupre@federalsignal.com   With copies to:  Thompson Coburn LLP   One US Bank Plaza   St. Louis, MO 63101   Attention of: Ruthanne C. Hammett   Telephone No.: (314) 552-6155   Facsimile: No.: (314) 552-7155   E-mail: rhammett@thompsoncoburn.com   





 






  118  152003688_8  If to Wells Fargo as Administrative Agent:  Wells Fargo Bank, National Association   MAC D1109-019  1525 West W.T. Harris Blvd.   Charlotte, NC 28262  Attention of: Syndication Agency Services   Telephone No.: (704) 590-2706  Facsimile No.: (844) 879-5899  With copy to:  Wells Fargo Bank, National Association   10 South Wacker Drive  16th Floor Chicago, IL 60606  Attention of: Brett Rausch   Telephone No.: (312) 630-2311  Facsimile No.: (312) 845-4222  E-mail: brett.rausch@wellsfargo.com   If to any Lender:  To the address set forth on the Register  Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed  to have been given when received; notices sent by facsimile shall be deemed to have been given when sent  (except that, if not given during normal business hours for the recipient, shall be deemed to have been given  at the opening of business on the next Business Day for the recipient). Notices delivered through electronic  communications to the extent provided in paragraph (b) below, shall be effective as provided in said  paragraph (b).  (b) Electronic Communications.  Notices and other communications to the Lenders and the  Issuing Lenders hereunder may be delivered or furnished by electronic communication (including e-mail  and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided  that the foregoing shall not apply to notices to any Lender or any Issuing Lender pursuant to Article II or  III if such Lender or such Issuing Lender, as applicable, has notified the Administrative Agent that is  incapable of receiving notices under such Article by electronic communication. The Administrative Agent  or the US Borrower may, in its discretion, agree to accept notices and other communications to it hereunder  by electronic communications pursuant to procedures approved by it, provided that approval of such  procedures may be limited to particular notices or communications. Unless the Administrative Agent  otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed  received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the  “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii)  notices or communications posted to an Internet or intranet website shall be deemed received upon the  deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of  notification that such notice or communication is available and identifying the website address therefor;  provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent  during the normal business hours of the recipient, such notice, email or other communication shall be  deemed to have been sent at the opening of business on the next Business Day for the recipient.  





 






  119  152003688_8  (c) Administrative Agent’s Offices.  The Administrative Agent hereby designates its office  located at the address set forth above, or any subsequent office which shall have been specified for such  purpose by written notice to the US Borrower and Lenders, as the Administrative Agent’s Office referred  to herein, to which payments due are to be made and at which Loans will be disbursed and Letters of Credit  requested.  (d) Change of Address, Etc.  Any party hereto may change its address or facsimile number for  notices and other communications hereunder by notice to the other parties hereto.  (e) Platform.  (i) Each Credit Party agrees that the Administrative Agent may, but shall not be  obligated to, make the Borrower Materials available to the Issuing Lenders and the other Lenders  by posting the Borrower Materials on the Platform.  (ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined  below) do not warrant the accuracy or completeness of the Borrower Materials or the adequacy of  the Platform, and expressly disclaim liability for errors or omissions in the Borrower Materials. 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 any Agent Party in connection with the Borrower  Materials or the Platform. In no event shall the Administrative Agent or any of its Related Parties  (collectively, the “Agent Parties”) have any liability to any Credit Party, any Lender or any other  Person or entity for losses, claims, damages, liabilities or expenses of any kind (whether in tort,  contract or otherwise) arising out of any Credit Party’s or the Administrative Agent’s transmission  of communications through the Internet (including, without limitation, the Platform), except to the  extent that such losses, claims, damages, liabilities or expenses are determined by a court of  competent jurisdiction by final and nonappealable judgment to have resulted from the gross  negligence or willful misconduct of such Agent Party; provided that in no event shall any Agent  Party have any liability to any Credit Party, any Lender, the Issuing Lender or any other Person for  indirect, special, incidental, consequential or punitive damages, losses or expenses (as opposed to  actual damages, losses or expenses).  SECTION 12.2 Amendments, Waivers and Consents.  Except as set forth below or as  specifically provided in any Loan Document, any term, covenant, agreement or condition of this Agreement  or any of the other Loan Documents may be amended or waived by the Lenders, and any consent given by  the Lenders, if, but only if, such amendment, waiver or consent is in writing signed by the Required Lenders  (or by the Administrative Agent with the consent of the Required Lenders) and delivered to the  Administrative Agent and, in the case of an amendment, signed by the Borrowers; provided, that no  amendment, waiver or consent shall:  (a) increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant  to Section 10.2) or the amount of Loans of any Lender, in any case, without the written consent of such  Lender;  (b) waive, extend or postpone any date fixed by this Agreement or any other Loan Document  for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder  or under any other Loan Document without the written consent of each Lender directly and adversely  affected thereby;  





 






  120  152003688_8  (c) reduce the principal of, or the rate of interest specified herein on, any Loan or  Reimbursement Obligation, or (subject to clause (iv) of the proviso set forth in the paragraph below) any  fees or other amounts payable hereunder or under any other Loan Document without the written consent of  each Lender directly and adversely affected thereby; provided that only the consent of the Required Lenders  shall be necessary (i) to waive any obligation of the Borrowers to pay interest at the Default Rate during  the continuance of an Event of Default or (ii) to amend any financial covenant hereunder (or any defined  term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan  or L/C Obligation or to reduce any fee payable hereunder;  (d) change Section 5.6, Section 10.4 or Section 11.9 in any manner without the written consent  of each Lender directly and adversely affected thereby;  (e) except as otherwise permitted by this Section 12.2 change any provision of this Section or  reduce the percentages specified in the definitions of “Required Lenders,” or any other provision hereof  specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights  hereunder or make any determination or grant any consent hereunder, without the written consent of each  Lender directly and adversely affected thereby;  (f) consent to the assignment or transfer by any Credit Party of such Credit Party’s rights and  obligations under any Loan Document to which it is a party (except as permitted pursuant to Section 9.4),  in each case, without the written consent of each Lender; or  (g) release (i) all of the Subsidiary Guarantors or (ii) Subsidiary Guarantors comprising  substantially all of the credit support for the Secured Obligations, in any case, from any Guaranty  Agreement (other than as authorized in Section 11.9), without the written consent of each Lender;  (h) release all or substantially all of the Collateral or release any Security Document which  would have the effect of releasing all or substantially all of the Collateral (other than as authorized in Section  11.9 or as otherwise specifically permitted or contemplated in this Agreement or the applicable Security  Document) without the written consent of each Lender;  (i) amend the definition of “Alternative Currency” without written consent of each Lender  provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by each  affected Issuing Lender in addition to the Lenders required above, affect the rights or duties of such Issuing  Lender under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or  to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swingline  Lender in addition to the Lenders required above, affect the rights or duties of the Swingline Lender under  this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the  Administrative Agent in addition to the Lenders required above, affect the rights or duties of the  Administrative Agent under this Agreement or any other Loan Document or modify Section 12.27 hereof;  (iv) each Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only  by the parties thereto, (v) each Letter of Credit Application may be amended, or rights or privileges  thereunder waived, in a writing executed only by the parties thereto; provided that a copy of such amended  Letter of Credit Application shall be promptly delivered to the Administrative Agent upon such amendment  or waiver, (vi) any waiver, amendment or modification of this Agreement that by its terms affects the rights  or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not  the Lenders holding Loans or Commitments of any other Class) may be effected by an agreement or  agreements in writing entered into by the Borrowers and the requisite percentage in interest of the affected  Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were  the only Class of Lenders hereunder at the time, (vii) the Administrative Agent and the Borrowers shall be  





 






  121  152003688_8  permitted to amend any provision of the Loan Documents (and such amendment shall become effective  without any further action or consent of any other party to any Loan Document) if the Administrative Agent  and the Borrowers shall have jointly identified an obvious error or any error ambiguity, defect or  inconsistency or omission of a technical or immaterial nature in any such provision and (viii) the  Administrative Agent and the US Borrower may, without the consent of any Lender, enter into amendments  or modifications to this Agreement or any of the other Loan Documents or to enter into additional Loan  Documents as the Administrative Agent reasonably deems appropriate in order to implement any  Benchmark Replacement or any Benchmark Replacement Conforming Changes or otherwise effectuate the  terms of Section 5.8(c) in accordance with the terms of Section 5.8(c). Notwithstanding anything to the  contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver  or consent hereunder, except that (A) the Revolving Credit Commitment of such Lender may not be  increased or extended without the consent of such Lender and (B) any amendment, waiver, or consent  hereunder which requires the consent of all Lenders or each affected Lender that by its terms  disproportionately and adversely affects any such Defaulting Lender relative to other affected Lenders shall  require the consent of such Defaulting Lender.   Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably authorizes the  Administrative Agent on its behalf, and without further consent of any Lender (but with the consent of the  US Borrower and the Administrative Agent), to (x) amend and restate this Agreement if, upon giving effect  to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so  amended and restated), the Commitments of such Lender shall have terminated, such Lender shall have no  other commitment or other obligation hereunder and shall have been paid in full all principal, interest and  other amounts owing to it or accrued for its account under this Agreement and the other Loan Documents  and (y) enter into amendments or modifications to this Agreement (including, without limitation,  amendments to this Section 12.2) or any of the other Loan Documents or to enter into additional Loan  Documents as the Administrative Agent reasonably deems appropriate in order to effectuate the terms of  Section 5.13 (including, without limitation, as applicable, (1) to permit the Incremental Term Loans and  the Incremental Revolving Credit Increases to share ratably in the benefits of this Agreement and the other  Loan Documents, (2) to include the Incremental Term Loan Commitments and the Incremental Revolving  Credit Increase, as applicable, or outstanding Incremental Term Loans and outstanding Incremental  Revolving Credit Increase, as applicable, in any determination of (i) Required Lenders or (ii) similar  required lender terms applicable thereto); provided that no amendment or modification shall result in any  increase in the amount of any Lender’s Commitment or any increase in any Lender’s Commitment  Percentage, in each case, without the written consent of such affected Lender and (3) to enter into  amendments or modifications to this Agreement to effectuate the provisions of Sections 5.16 or 1.12  including, without limitations, any provisions under Applicable Law or Governmental Authority relating  to Loans to Non-US Borrowers in Alternative Currencies hereunder.  SECTION 12.3 Expenses; Indemnity.  (a) Costs and Expenses.  The US Borrower and any other Credit Party, jointly and severally,  shall pay (i) all reasonable and documented out of pocket expenses incurred by the Administrative Agent  and its Affiliates and JPMC (including the reasonable fees, charges and disbursements of counsel for the  Administrative Agent and JPMC), in connection with the syndication of the Credit Facility, the preparation,  negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or  any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the  transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out  of pocket expenses incurred by any Issuing Lender in connection with the issuance, amendment, renewal  or extension of any Letter of Credit or any demand for payment thereunder and (iii) after a Default or Event  of Default, all out of pocket expenses incurred by the Administrative Agent, any Lender or any Issuing  Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent, any  





 






  122  152003688_8  Lender or any Issuing Lender), in connection with the enforcement or protection of its rights (A) in  connection with this Agreement and the other Loan Documents, including its rights under this Section, or  (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out of  pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or  Letters of Credit. The term “out of pocket expenses” shall not include expenses, costs or fees of any  attorneys, paralegals, accountants and/or consultants who are employees of the Administrative Agent, any  Lender, the Issuing Lender or any of their respective direct or indirect parent corporations, subsidiaries or  affiliates.  (b) Indemnification by the Borrowers.  Each Borrower shall indemnify the Administrative  Agent (and any sub-agent thereof), each Lender and each Issuing Lender, and each Related Party of any of  the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee  harmless from, and shall pay or reimburse any such Indemnitee for, any and all losses, claims (including,  without limitation, any Environmental Claims), penalties, damages, liabilities and related expenses  (including the reasonable and documented fees, charges and disbursements of any counsel for any  Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including such  Borrower or any other Credit Party), other than such Indemnitee and its Related Parties, arising out of, in  connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document  or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of  their respective obligations hereunder or thereunder or the consummation of the transactions contemplated  hereby or thereby (including, without limitation, the Transactions), (ii) any Loan or Letter of Credit or the  use or proposed use of the proceeds therefrom (including any refusal by any Issuing Lender to honor a  demand for payment under a Letter of Credit if the documents presented in connection with such demand  do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release  of Hazardous Materials on or from any property owned or operated by any Credit Party or any Subsidiary  thereof, or any Environmental Claim related in any way to any Credit Party or any Subsidiary, (iv) any  actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether  based on contract, tort or any other theory, whether brought by a third party or by any Credit Party or any  Subsidiary thereof, and regardless of whether any Indemnitee is a party thereto, or (v) any claim (including,  without limitation, any Environmental Claims), investigation, litigation or other proceeding (whether or not  the Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof, arising  out of or in any way connected with the Loans, this Agreement, any other Loan Document, or any  documents contemplated by or referred to herein or therein or the transactions contemplated hereby or  thereby, including without limitation, reasonable attorneys and consultant’s fees, provided that such  indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,  liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and  nonappealable judgment to have resulted from the gross negligence or willful misconduct of such  Indemnitee or any of its Related Parties, (y) result from a claim brought by any Credit Party or any  Subsidiary thereof against an Indemnitee or any of its Related Parties for breach in bad faith of such  Indemnitee’s obligations hereunder or under any other Loan Document, if such Credit Party or such  Subsidiary has obtained a final and nonappealable judgment in its favor on such claim as determined by a  court of competent jurisdiction or (z) arise out of (i) disputes solely between or among the Lenders, (ii)  disputes solely between or among the Lenders and their respective Affiliates or Related Parties (it being  understood and agreed that the foregoing indemnification shall extend to the Administrative Agent and the  Arrangers (but not in their capacities as a Lender) relative to disputes between or among the Administrative  Agent and/or the Arrangers, on the one hand, and one or more Lenders, or one or more of their Affiliates  or Related Parties, on the other hand). This Section 12.3(b) shall not apply with respect to Taxes other than  any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.  (c) Reimbursement by Lenders.  To the extent that any Borrower for any reason fails to  indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by it to the  





 






  123  152003688_8  Administrative Agent (or any sub-agent thereof), any Issuing Lender, the Swingline Lender or any Related  Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such  sub-agent), such Issuing Lender, the Swingline Lender or such Related Party, as the case may be, such  Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity  payment is sought based on each Lender’s share of the Total Credit Exposure at such time, or if the Total  Credit Exposure has been reduced to zero, then based on such Lender’s share of the Total Credit Exposure  immediately prior to such reduction) of such unpaid amount (including any such unpaid amount in respect  of a claim asserted by such Lender); provided that with respect to such unpaid amounts owed to any Issuing  Lender or the Swingline Lender solely in its capacity as such, only the Revolving Credit Lenders shall be  required to pay such unpaid amounts, such payment to be made severally among them based on such  Revolving Credit Lenders’ Revolving Credit Commitment Percentage (determined as of the time that the  applicable unreimbursed expense or indemnity payment is sought or, if the Revolving Credit Commitment  has been reduced to zero as of such time, determined immediately prior to such reduction); provided,  further, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as  the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent),  such Issuing Lender or the Swingline Lender in its capacity as such, or against any Related Party of any of  the foregoing acting for the Administrative Agent (or any such sub-agent), such Issuing Lender or the  Swingline Lender in connection with such capacity. The obligations of the Lenders under this clause (c)  are subject to the provisions of Section 5.7.  (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by Applicable  Law, each Borrower and each other Credit Party shall not assert, and hereby waives, any claim against any  Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed  to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other  Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby  or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in  clause (b) above 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.  (e) Payments.  All amounts due under this Section shall be payable promptly after demand  therefor.  (f) Survival. Each party’s obligations under this Section shall survive the termination of the  Loan Documents and payment of the obligations hereunder.  SECTION 12.4 Right of Setoff.  If an Event of Default shall have occurred and be continuing,  each Lender, each Issuing Lender, the Swingline Lender and each of their respective Affiliates is hereby  authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off  and apply any and all deposits (general or special, time or demand, provisional or final, in whatever  currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender,  such Issuing Lender, the Swingline Lender or any such Affiliate to or for the credit or the account of any  Borrower or any other Credit Party against any and all of the obligations of such Borrower or such Credit  Party now or hereafter existing under this Agreement or any other Loan Document to such Lender, such  Issuing Lender or the Swingline Lender or any of their respective Affiliates, irrespective of whether or not  such Lender, such Issuing Lender, the Swingline Lender or any such Affiliate shall have made any demand  under this Agreement or any other Loan Document and although such obligations of such Borrower or such  Credit Party may be contingent or unmatured or are owed to a branch or office of such Lender, such Issuing  Lender, the Swingline Lender or such Affiliate different from the branch, office or Affiliate holding such  deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall  





 






  124  152003688_8  exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the  Administrative Agent for further application in accordance with the provisions of Section 10.4 and, pending  such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust  for the benefit of the Administrative Agent, the Issuing Lenders, the Swingline Lender and the Lenders,  and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing  in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of  setoff. The rights of each Lender, each Issuing Lender, the Swingline Lender and their respective Affiliates  under this Section are in addition to other rights and remedies (including other rights of setoff) that such  Lender, such Issuing Lender, the Swingline Lender or their respective Affiliates may have. Each Lender,  such Issuing Lender and the Swingline Lender agree to notify the US Borrower and the Administrative  Agent promptly after any such setoff and application; provided that the failure to give such notice shall not  affect the validity of such setoff and application.  SECTION 12.5 Governing Law; Jurisdiction, Etc.  (a) Governing Law. This Agreement and the other Loan Documents and any claim,  controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of  or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as  expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and  construed in accordance with, the law of the State of Illinois.  (b) Submission to Jurisdiction.  Each of the parties hereto irrevocably and unconditionally  agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in  law or equity, whether in contract or in tort or otherwise, arising out of or in any way relating to this  Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other  than the courts of the State of Illinois sitting in Cook County, and of the United States District Court of the  Northern District of Illinois, and any appellate court from any thereof, and each of the parties hereto  irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees that all  claims in respect of any such action, litigation or proceeding may be heard and determined in such Illinois  State court or, to the fullest extent permitted by Applicable Law, in such federal court. Each of the parties  hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may  be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  (c) Waiver of Venue.  Each of the parties hereto irrevocably and unconditionally waives, to  the fullest extent permitted by Applicable Law, any objection that it may now or hereafter have to the laying  of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan  Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby  irrevocably waives, to the fullest extent permitted by Applicable Law, the defense of an inconvenient forum  to the maintenance of such action or proceeding in any such court.  (d) Service of Process.  Each party hereto irrevocably consents to service of process in the  manner provided for notices in Section 12.1. Nothing in this Agreement will affect the right of any party  hereto to serve process in any other manner permitted by Applicable Law.  SECTION 12.6 Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY  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).  





 






  125  152003688_8  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 CONSENT 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.  SECTION 12.7 Reversal of Payments.  To the extent any Credit Party makes a payment or  payments to the Administrative Agent for the ratable benefit of the Lenders or the Administrative Agent  receives any payment or proceeds of the Collateral which payments or proceeds or any part thereof are  subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to  a trustee, receiver or any other party under any Debtor Relief Law, other Applicable Law or equitable cause,  then, to the extent of such payment or proceeds repaid, the Secured Obligations or part thereof intended to  be satisfied shall be revived and continued in full force and effect as if such payment or proceeds had not  been received by the Administrative Agent.  SECTION 12.8 Injunctive Relief.  Each Borrower recognizes that, in the event such Borrower  fails to perform, observe or discharge any of its obligations or liabilities under this Agreement, any remedy  of law may prove to be inadequate relief to the Lenders. Therefore, each Borrower agrees that the Lenders,  at the Lenders’ option, shall be entitled to temporary and permanent injunctive relief in any such case  without the necessity of proving actual damages.  SECTION 12.9 Successors and Assigns; Participations.  (a) Successors and Assigns Generally.  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,  except that neither any Borrower nor any other Credit Party may assign or otherwise transfer any of its  rights or obligations hereunder without the prior written consent of the Administrative Agent and each  Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i)  to an assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation  in accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge or assignment  of a security interest subject to the restrictions of paragraph (e) of this Section (and any other attempted  assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or  implied, shall be construed to confer upon any Person (other than the parties hereto, their respective  successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of this Section  and, to the extent expressly contemplated hereby, the Related Parties 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) Assignments by Lenders.  Any Lender may at any time assign to one or more assignees all  or a portion of its rights and obligations under this Agreement (including all or a portion of its Revolving  Credit Commitment and the Loans at the time owing to it); provided that, in each case with respect to any  Credit Facility, any such assignment shall be subject to the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire remaining amount of the  assigning Lender’s Commitment and/or the Loans at the time owing to it (in each case with  respect to any Credit Facility) or contemporaneous assignments to related Approved Funds  (determined after giving effect to such assignments) that equal at least the amount specified  in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a  





 






  126  152003688_8  Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be  assigned; and  (B) in any case not described in paragraph (b)(i)(A) of this Section, the  aggregate amount of the Commitment (which for this purpose includes Loans outstanding  thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding  balance of the Loans of the assigning Lender subject to each such assignment (determined  as of the date the Assignment and Assumption with respect to such assignment is delivered  to the Administrative Agent or, if “Trade Date” is specified in the Assignment and  Assumption, as of the Trade Date) shall not be less than $5,000,000, in the case of any  assignment in respect of the Revolving Credit Facility, unless each of the Administrative  Agent and, so long as no Event of Default has occurred and is continuing, the US Borrower  otherwise consents (each such consent not to be unreasonably withheld or delayed);  provided that the US Borrower shall be deemed to have given its consent five (5) Business  Days after the date written notice thereof has been delivered by the assigning Lender  (through the Administrative Agent) unless such consent is expressly refused by the US  Borrower prior to such fifth (5th) Business Day;  (ii) Proportionate Amounts.  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;  (iii) Required Consents.  No consent shall be required for any assignment except to the  extent required by paragraph (b)(i)(B) of this Section and, in addition:  (A) the consent of the US 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, (y) such assignment is to a Lender, an Affiliate  of a Lender or an Approved Fund or (z) the assignment is made in connection with the  primary syndication of the Credit Facility and during the period commencing on the  Closing Date and ending on the date that is ninety (90) days following the Closing Date;  provided, that the US Borrower shall be deemed to have consented to any such assignment  unless it shall object thereto by written notice to the Administrative Agent within five (5)  Business Days after having received notice thereof; and provided, further, that the US  Borrower’s consent shall not be required during the primary syndication of the Credit  Facility;  (B) the consent of the Administrative Agent (such consent not to be  unreasonably withheld or delayed) shall be required for assignments in respect of the  Revolving Credit Facility if such assignment is to a Person that is not a Lender with a  Revolving Credit Commitment, an Affiliate of such Lender or an Approved Fund with  respect to such Lender; and  (C) the consents of the Issuing Lenders and the Swingline Lender (such  consents not to be unreasonably withheld or delayed) shall be required for any assignment  in respect of the Revolving Credit Facility.  (iv) Assignment and Assumption.  The parties to each assignment shall execute and  deliver to the Administrative Agent an Assignment and Assumption, together with a processing  and recordation fee of $3,500 for each assignment; provided that (A) only one such fee will be  payable in connection with simultaneous assignments to two or more related Approved Funds by a  





 






  127  152003688_8  Lender and (B) the Administrative Agent may, in its sole discretion, elect to waive such processing  and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver  to the Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons.  No such assignment shall be made to (A) the  US Borrower or any of its Subsidiaries or Affiliates, (B) any direct competitor of the US Borrower  or any of its Subsidiaries or (C) any Defaulting Lender or any of its Subsidiaries, or any Person  who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described  in this clause (C).  (vi) No Assignment to Natural Persons.  No such assignment shall be made to a natural  Person (or a holding company, investment vehicle or trust for, or owned and operated for the  primary benefit of, a natural Person).  (vii) Certain Additional Payments.  In connection with any assignment of rights and  obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and  until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall  make such additional payments to the Administrative Agent in an aggregate amount sufficient,  upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee  of participations or subparticipations, or other compensating actions, including funding, with the  consent of the US Borrower and the Administrative Agent, the applicable pro rata share of Loans  previously requested, but not funded by, the Defaulting Lender, to each of which the applicable  assignee and assignor hereby irrevocably consent), to (A) pay and satisfy in full all payment  liabilities then owed by such Defaulting Lender to the Administrative Agent, the Issuing Lenders,  the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (B)  acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of  Credit and Swingline Loans in accordance with its Revolving Credit Commitment Percentage.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any  Defaulting Lender hereunder shall become effective under Applicable Law without compliance  with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a  Defaulting Lender for all purposes of this Agreement until such compliance occurs.  Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this  Section, from and after the effective date specified in each Assignment and Assumption, the assignee  thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment  and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning  Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be  released from its obligations under this Agreement (and, in the case of an Assignment and Assumption  covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease  to be a party hereto) but shall continue to be entitled to the benefits of Sections 5.8, 5.9, 5.10, 5.11 and 12.3  with respect to facts and circumstances occurring prior to the effective date of such assignment; provided,  that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting  Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s  having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under  this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as  a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) of  this Section (other than a purported assignment to a natural Person or the US Borrower or any of the US  Borrower’s Subsidiaries or Affiliates or a direct competitor of the US Borrower or its Subsidiaries, which  shall be null and void.)  





 






  128  152003688_8  (c) Register.  The Administrative Agent, acting solely for this purpose as a non- fiduciary agent  of the Borrowers, shall maintain at one of its offices in Charlotte, North Carolina, a copy of each  Assignment and Assumption and each Lender Joinder Agreement delivered to it and a register for the  recordation of the names and addresses of the Lenders, and the Commitment of, and principal amounts of  (and stated interest on) the Loans owing to, each Lender pursuant to the terms hereof from time to time (the  “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrowers, the  Administrative Agent 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. The Register shall  be available for inspection by the US Borrower and any Lender (but only to the extent of entries in the  Register that are applicable to such Lender), at any reasonable time and from time to time upon reasonable  prior notice.  (d) Participations.  Any Lender may at any time, without the consent of, or notice to, the US  Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, (or a  holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural  Person, or any Borrower or any of such Borrower’s Subsidiaries or Affiliates) (each, a “Participant”) in all  or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of  its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this  Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties  hereto for the performance of such obligations and (iii) such Borrower, the Administrative Agent, the  Issuing Lender, the Swingline 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. For the  avoidance of doubt, each Lender shall be responsible for the indemnity under Section 12.3(c) with respect  to any payments made by such Lender to its Participant(s).  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide  that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,  modification or waiver of any provision of this Agreement; provided that such agreement or instrument  may provide that such Lender will not, without the consent of the Participant, agree to any amendment,  modification or waiver described in Section 12.2(b), (c), (d) or (e) that directly and adversely affects such  Participant. Each Borrower agrees that each Participant shall be entitled to the benefits of Sections 5.9, 5.10  and 5.11 (subject to the requirements and limitations therein, including the requirements under Section  5.11(g) (it being understood that the documentation required under Section 5.11(g) shall be delivered to the  participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment  pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the  provisions of Section 5.12 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be  entitled to receive any greater payment under Sections 5.10 or 5.11, with respect to any participation, than  its participating Lender would have been entitled to receive, except to the extent such entitlement to receive  a greater payment results from a Change in Law that occurs after the Participant acquired the applicable  participation. Each Lender that sells a participation agrees, at the US Borrower’s request and expense, to  use reasonable efforts to cooperate with the US Borrower to effectuate the provisions of Section 5.12(b)  with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the  benefits of Section 12.4 as though it were a Lender; provided that such Participant agrees to be subject to  Section 5.6 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 Borrowers, maintain a register on which it enters the name and address of each Participant and the  principal amounts of (and stated interest on) each Participant’s interest in the Loans or other obligations  under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation  to disclose all or any portion of the Participant Register (including the identity of any Participant or any  information relating to a Participant’s interest in any commitments, loans, letters of credit or its other  





 






  129  152003688_8  obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary  to establish that such commitment, loan, letter of credit or other obligation is in registered form under  Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall  be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the  Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding  any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as  Administrative Agent) shall have no responsibility for maintaining a Participant Register.  (e) Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all or  any portion of its rights under this Agreement to secure obligations of such Lender, including without  limitation any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such  pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such  pledgee or assignee for such Lender as a party hereto.  (f) Cashless Settlement.  Notwithstanding anything to the contrary contained in this  Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with  any refinancing, extension, loan modification or similar transaction permitted by the terms of this  Agreement, pursuant to a cashless settlement mechanism approved by the US Borrower, the Administrative  Agent and such Lender.  SECTION 12.10 Treatment of Certain Information; Confidentiality.  Each of the Administrative  Agent, the Lenders and the Issuing Lender agrees to maintain the confidentiality of the Information (as  defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Related  Parties in connection with the Credit Facility, this Agreement, the transactions contemplated hereby or in  connection with marketing of services by such Affiliate or Related Party to the Borrowers or any of their  Subsidiaries (it being understood that the Persons to whom such disclosure is made will be informed of the  confidential nature of such Information and instructed to keep such Information confidential), (b) to the  extent required or requested by, or required to be disclosed to, any regulatory or similar authority purporting  to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as  the National Association of Insurance Commissioners), (c) to the extent required by Applicable Laws or  regulations or in any legal, judicial, administrative or other compulsory process, (d) to any other party  hereto, (e) in connection with the exercise of any remedies under this Agreement, under any other Loan  Document or under any Secured Hedge Agreement or Secured Cash Management Agreement, or any action  or proceeding relating to this Agreement, any other Loan Document or any Secured Hedge Agreement or  Secured Cash Management Agreement, or the enforcement of rights hereunder or thereunder, (f) subject to  an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or  Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this  Agreement, (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other  transaction under which payments are to be made by reference to the Borrowers and their obligations, this  Agreement or payments hereunder, (iii) to an investor or prospective investor in an Approved Fund that  also agrees that Information shall be used solely for the purpose of evaluating an investment in such  Approved Fund, (iv) to a trustee, collateral manager, servicer, backup servicer, noteholder or secured party  in an Approved Fund in connection with the administration, servicing and reporting on the assets serving  as collateral for an Approved Fund, or (v) to a nationally recognized rating agency that requires access to  information regarding any Borrower and its Subsidiaries, the Loans and the Loan Documents in connection  with ratings issued with respect to an Approved Fund, (g) on a confidential basis to the CUSIP Service  Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with  respect to the Credit Facility, (h) with the consent of the US Borrower, (i) with respect to deal terms and  other information customarily reported to Thomson Reuters, other bank market data collectors and similar  service providers to the lending industry and service providers to the Administrative Agent and the Lenders  in connection with the administration of the Loan Documents, (j) to the extent such Information (i) becomes  





 






  130  152003688_8  publicly available other than as a result of a breach of this Section or (ii) becomes available to the  Administrative Agent, any Lender, any Issuing Lender or any of their respective Affiliates from a third  party that is not, to such Person’s knowledge, subject to confidentiality obligations to any Borrower, (k) to  governmental regulatory authorities in connection with any regulatory examination of the Administrative  Agent or any Lender or in accordance with the Administrative Agent’s or any Lender’s regulatory  compliance policy if the Administrative Agent or such Lender deems necessary for the mitigation of claims  by those authorities against the Administrative Agent or such Lender or any of its subsidiaries or affiliates,  (l) to the extent that such information is independently developed by such Person, or (m) for purposes of  establishing a “due diligence” defense. For purposes of this Section, “Information” means all information  received from any Credit Party or any Subsidiary thereof relating to any Credit Party or any Subsidiary  thereof or any of their respective businesses, other than any such information that is available to the  Administrative Agent, any Lender or any Issuing Lender on a nonconfidential basis prior to disclosure by  any Credit Party or any Subsidiary thereof; provided that, in the case of information received from a Credit  Party or any Subsidiary thereof after the date hereof, such information is clearly identified at the time of  delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in  this Section shall be considered to have complied with its obligation to do so if such Person has exercised  the same degree of care to maintain the confidentiality of such Information as such Person would accord to  its own confidential information.  SECTION 12.11 Performance of Duties.  Each of the Credit Party’s obligations under this  Agreement and each of the other Loan Documents shall be performed by such Credit Party at its sole cost  and expense.  SECTION 12.12 All Powers Coupled with Interest.  All powers of attorney and other  authorizations granted to the Lenders, the Administrative Agent and any Persons designated by the  Administrative Agent or any Lender pursuant to any provisions of this Agreement or any of the other Loan  Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of the  Obligations remain unpaid or unsatisfied, any of the Commitments remain in effect or the Credit Facility  has not been terminated.  SECTION 12.13 Survival.  (a) All representations and warranties set forth in Article VII and all representations and  warranties contained in any certificate, or any of the Loan Documents (including, but not limited to, any  such representation or warranty made in or in connection with any amendment thereto) shall constitute  representations and warranties made under this Agreement. All representations and warranties made under  this Agreement shall be made or deemed to be made at and as of the Closing Date (except those that are  expressly made as of a specific date), shall survive the Closing Date and shall not be waived by the  execution and delivery of this Agreement, any investigation made by or on behalf of the Lenders or any  borrowing hereunder.  (b) Notwithstanding any termination of this Agreement, the indemnities to which the  Administrative Agent and the Lenders are entitled under the provisions of this Article XII and any other  provision of this Agreement and the other Loan Documents shall continue in full force and effect and shall  protect the Administrative Agent and the Lenders against events arising after such termination as well as  before.  SECTION 12.14 Titles and Captions.  Titles and captions of Articles, Sections and subsections  in, and the table of contents of, this Agreement are for convenience only, and neither limit nor amplify the  provisions of this Agreement.  





 






  131  152003688_8  SECTION 12.15 Severability of Provisions.  Any provision of this Agreement or any other Loan  Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be  ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of  such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of  such provision in any other jurisdiction. In the event that any provision is held to be so prohibited or  unenforceable in any jurisdiction, the Administrative Agent, the Lenders and the US Borrower shall  negotiate in good faith to amend such provision to preserve the original intent thereof in such jurisdiction  (subject to the approval of the Required Lenders).  SECTION 12.16 Counterparts; Integration; Effectiveness; Electronic Execution.  (a) Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts  (and by different parties hereto in different counterparts), each of which shall constitute an original, but all  of which when taken together shall constitute a single contract. This Agreement and the other Loan  Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent,  the Issuing Lender, the Swingline Lender and/or the Arrangers, constitute the entire contract among the  parties relating to the subject matter hereof and supersede any and all previous agreements and  understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 6.1, this  Agreement shall become effective when it shall have been executed by the Administrative Agent and when  the Administrative Agent shall have received counterparts hereof that, when taken together, bear the  signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of  this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a  manually executed counterpart of this Agreement.  (b) Electronic Execution.  The words “execute,” “execution,” “signed,” “signature,”  “delivery” and words of like import in or related to this Agreement, any other Loan Document or any  document, amendment, approval, consent, waiver, modification, information, notice, certificate, report,  statement, disclosure, or authorization to be signed or delivered in connection with this Agreement or any  other Loan Document or the transactions contemplated hereby shall be deemed to include Electronic  Signatures or execution in the form of an Electronic Record, and contract formations on electronic platforms  approved by the Administrative Agent, deliveries or the keeping of records in electronic form, each of  which shall be of the same legal effect, validity or enforceability as a manually executed signature or the  use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any  Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the  New York State Electronic Signatures and Records Act, or any other similar state laws based on the  Uniform Electronic Transactions Act.  Each party hereto agrees that any Electronic Signature or execution  in the form of an Electronic Record shall be valid and binding on itself and each of the other parties hereto  to the same extent as a manual, original signature.  For the avoidance of doubt, the authorization under this  paragraph may include, without limitation, use or acceptance by the parties of a manually signed paper  which has been converted into electronic form (such as scanned into PDF format), or an electronically  signed paper converted into another format, for transmission, delivery and/or retention.  Notwithstanding  anything contained herein to the contrary, the Administrative Agent is under no obligation to accept an  Electronic Signature in any form or in any format unless expressly agreed to by the Administrative Agent  pursuant to procedures approved by it; provided that without limiting the foregoing, (i) to the extent the  Administrative Agent has agreed to accept such Electronic Signature from any party hereto, the  Administrative Agent and the other parties hereto shall be entitled to rely on any such Electronic Signature  purportedly given by or on behalf of the executing party without further verification and (ii) upon the  request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by  an original manually executed counterpart thereof.  Without limiting the generality of the foregoing, each  party hereto hereby (A) agrees that, for all purposes, including without limitation, in connection with any  workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the  





 






  132  152003688_8  Administrative Agent, the Lenders and any of the Credit Parties, electronic images of this Agreement or  any other Loan Document (in each case, including with respect to any signature pages thereto)  shall have  the same legal effect, validity and enforceability as any paper original, and (B) waives any argument,  defense or right to contest the validity or enforceability of the Loan Documents based solely on the lack of  paper original copies of any Loan Documents, including with respect to any signature pages thereto.  SECTION 12.17 Term of Agreement.  This Agreement shall remain in effect from the Closing  Date through and including the date upon which all Obligations (other than contingent indemnification  obligations not then due) arising hereunder or under any other Loan Document shall have been paid and  satisfied in full in cash, all Letters of Credit have been terminated or expired (or been Cash Collateralized)  or otherwise satisfied in a manner acceptable to the Issuing Lender) and the Revolving Credit Commitment  has been terminated. No termination of this Agreement shall affect the rights and obligations of the parties  hereto arising prior to such termination or in respect of any provision of this Agreement which survives  such termination.  SECTION 12.18 USA PATRIOT Act; Anti-Money Laundering Laws.  The Administrative  Agent and each Lender hereby notifies the Borrowers that pursuant to the requirements of the PATRIOT  Act or any other Anti-Money Laundering Laws, each of them is required to obtain, verify and record  information that identifies each Credit Party, which information includes the name and address of each  Credit Party and other information that will allow such Lender to identify each Credit Party in accordance  with the PATRIOT Act or such Anti-Money Laundering Laws.  SECTION 12.19 Independent Effect of Covenants.  Each Borrower expressly acknowledges and  agrees that each covenant contained in Articles VIII or IX hereof shall be given independent effect.  Accordingly, no Borrower shall engage in any transaction or other act otherwise permitted under any  covenant contained in Articles VIII or IX, before or after giving effect to such transaction or act, such  Borrower shall or would be in breach of any other covenant contained in Articles VIII or IX.  SECTION 12.20 No Advisory or Fiduciary Responsibility.  (a) In connection with all aspects of each transaction contemplated hereby, each Credit Party  acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i) the facilities 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 any Borrower and its Affiliates, on the one hand, and the  Administrative Agent, the Arrangers and the Lenders, on the other hand, and such Borrower is capable of  evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions  contemplated hereby and by the other Loan Documents (including any amendment, waiver or other  modification hereof or thereof), (ii) in connection with the process leading to such transaction, each of the  Administrative Agent, the Arrangers and the Lenders is and has been acting solely as a principal and is not  the financial advisor, agent or fiduciary, for such Borrower or any of its Affiliates, stockholders, creditors  or employees or any other Person, (iii) none of the Administrative Agent, the Arrangers or the Lenders has  assumed or will assume an advisory, agency or fiduciary responsibility in favor of such Borrower with  respect to any of the transactions contemplated hereby 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 any Arranger or Lender has advised or is currently advising such Borrower or any of its Affiliates  on other matters) and none of the Administrative Agent, the Arrangers or the Lenders has any obligation to  such Borrower or any of its Affiliates with respect to the financing transactions contemplated hereby except  those obligations expressly set forth herein and in the other Loan Documents, (iv) the Arrangers and the  Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests  that differ from, and may conflict with, those of such Borrower and its Affiliates, and none of the  





 






  133  152003688_8  Administrative Agent, the Arrangers or the Lenders has any obligation to disclose any of such interests by  virtue of any advisory, agency or fiduciary relationship and (v) the Administrative Agent, the Arrangers  and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with  respect to any of the transactions contemplated hereby (including any amendment, waiver or other  modification hereof or of any other Loan Document) and the Credit Parties have consulted their own legal,  accounting, regulatory and tax advisors to the extent they have deemed appropriate.  (b) Each Credit Party acknowledges and agrees that each Lender, the Arrangers and any  Affiliate thereof may lend money to, invest in, and generally engage in any kind of business with, any of  the Borrowers, any Affiliate thereof or any other person or entity that may do business with or own  securities of any of the foregoing, all as if such Lender, Arranger or Affiliate thereof were not a Lender or  Arranger or an Affiliate thereof (or an agent or any other person with any similar role under the Credit  Facilities) and without any duty to account therefor to any other Lender, the Arrangers, the Borrowers or  any Affiliate of the foregoing. Each Lender, the Arrangers and any Affiliate thereof may accept fees and  other consideration from the Borrowers or any Affiliate thereof for services in connection with this  Agreement, the Credit Facilities or otherwise without having to account for the same to any other Lender,  the Arrangers, the Borrowers or any Affiliate of the foregoing.  SECTION 12.21 Amendment and Restatement; No Novation.  This Agreement constitutes an  amendment and restatement of the Existing Credit Agreement, effective from and after the Closing Date.  The execution and delivery of this Agreement shall not constitute a novation of any indebtedness or other  obligations owing to the Lenders or the Administrative Agent under the Existing Credit Agreement based  on facts or events occurring or existing prior to the execution and delivery of this Agreement. On the  Closing Date, the credit facilities described in the Existing Credit Agreement, shall be amended,  supplemented, modified and restated in their entirety by the facilities described herein, and all loans and  other obligations of the Borrowers outstanding as of such date under the Existing Credit Agreement, shall  be deemed to be loans and obligations outstanding under the corresponding facilities described herein,  without any further action by any Person, except that the Administrative Agent shall make such transfers  of funds as are necessary in order that the outstanding balance of such Loans, together with any Loans  funded on the Closing Date, reflect the respective Revolving Credit Commitment of the Lenders hereunder.  SECTION 12.22 Inconsistencies with Other Documents.  In the event there is a conflict or  inconsistency between this Agreement and any other Loan Document, the terms of this Agreement shall  control; provided that any provision of the Security Documents which imposes additional burdens on any  Borrower or any of its Subsidiaries or further restricts the rights of such Borrower or any of its Subsidiaries  or gives the Administrative Agent or Lenders additional rights shall not be deemed to be in conflict or  inconsistent with this Agreement and shall be given full force and effect.  SECTION 12.23 Anti-Money Laundering Legislation.  (a) Each Borrower acknowledges that, pursuant to the Proceeds of Crime (Money Laundering)  and Terrorist Financing Act (Canada) and other applicable anti-money laundering, anti- terrorist financing,  government sanction and “know your client” laws, whether within Canada or elsewhere (collectively,  including any guidelines or orders thereunder, “AML Legislation”), the Lenders and the Administrative  Agent may be required to obtain, verify and record information regarding such Borrower, its directors,  authorized signing officers, direct or indirect shareholders or other Persons in control of such Borrower,  and the transactions contemplated hereby. Each Borrower shall promptly provide all such information,  including supporting documentation and other evidence, as may be reasonably requested by any Lender or  the Administrative Agent, or any prospective assignee or participant of a Lender or the Administrative  Agent, in order to comply with any applicable AML Legislation, whether now or hereafter in existence.  





 






  134  152003688_8  (b) If the Administrative Agent has ascertained the identity of a Borrower or any authorized  signatories of a Borrower for the purposes of applicable AML Legislation, then the Administrative Agent:  (i) shall be deemed to have done so as an agent for each Lender, and this Agreement  shall constitute a “written agreement” in such regard between each Lender and the Administrative  Agent within the meaning of applicable AML Legislation; and  (ii) shall provide to each Lender copies of all information obtained in such regard  without any representation or warranty as to its accuracy or completeness.  Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of the  Lenders agrees that the Administrative Agent has no obligation to ascertain the identity of any Borrower or  any authorized signatories of such Borrower on behalf of any Lender, or to confirm the completeness or  accuracy of any information it obtains from such Borrower or any such authorized signatory in doing so.  SECTION 12.24 Maximum Amount.  In no event shall the aggregate “interest” (as defined in  Section 347 (the “Criminal Code Section”) of the Criminal Code (Canada)), payable by any Canadian  Credit Party to any Lender under this Agreement or any other Loan Document exceed the effective annual  rate of interest lawfully permitted under the Criminal Code Section on the “credit advanced” (as defined in  such section) under this Agreement or any other Loan Document. Further, if any payment, collection or  demand pursuant to this Agreement or any other Loan Document in respect of such “interest” is determined  to be contrary to the provisions of the Criminal Code Section, such payment, collection, or demand shall  be deemed to have been made by mutual mistake of the affected Lender, and any Canadian Credit Party  and such “interest” shall be deemed to have been adjusted with retroactive effect to the maximum amount  or rate of interest, as the case may be, as would not be so prohibited by the Criminal Code Section so as to  result in a receipt by such Lender of interest at a rate not in contravention of the Criminal Code Section,  such adjustment to be effected, to the extent necessary, as follows:  (i) first, by reducing the amounts or rates of interest required to be paid to that Lender;  and  (ii) second, by reducing any fees, charges, expenses and other amounts required to be  paid to the affected Lender that would constitute “interest”.  Notwithstanding the foregoing, and after giving effect to all such adjustments, if any Lender shall have  received an amount in excess of the maximum permitted by the Criminal Code Section, then any such  Canadian Credit Party shall be entitled, by notice in writing to such affected Lender, to obtain  reimbursement from such Lender in an amount equal to such excess.  SECTION 12.25 Judgment Currency.  If for the purposes of obtaining judgment in any court, it  is necessary to convert a sum due hereunder or any other Loan Document in one currency into another  currency, the rate of exchange used shall be that at which in accordance with normal banking procedures  the Administrative Agent could purchase the first currency with such other currency on the Business Day  preceding that on which final judgment is given. The obligation of each Credit Party in respect of any such  sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents  shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such  sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement  Currency”), be discharged only to the extent that on the Business Day following receipt by the  Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment  Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal  banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the  





 






  135  152003688_8  Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any  Lender from any Credit Party in the Agreement Currency, such Credit Party agrees, as a separate obligation  and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case  may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum  originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or  such Lender, as the case may be, agrees to return the amount of any excess to such Credit Party (or to any  other Person who may be entitled thereto under applicable law).  SECTION 12.26 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.   Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement  or understanding among any such parties, each party hereto acknowledges that any liability of any Affected  Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be  subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and  consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers, by the applicable Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an  Affected Financial Institution; and   (b) the effects of any Bail-In Action on any such liability, including, if applicable:   (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other instruments  of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution  that may be issued to it or otherwise conferred on it, and that such shares or other instruments of  ownership will be accepted by it in lieu of any rights with respect to any such liability under this  Agreement or any other Loan Document; or   (iii) the variation of the terms of such liability in connection with the exercise of the  Write-Down and Conversion Powers of the applicable Resolution Authority.  SECTION 12.27 Certain ERISA Matters.    (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party  hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such  Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, each Arranger and  their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the US Borrower or  any other Credit 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 or the  Commitments;   (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a  class exemption for certain transactions determined by independent qualified professional asset  managers), PTE 95-60 (a class exemption for certain transactions involving insurance company  general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance  company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions  involving bank collective investment funds) or PTE 96-23 (a class exemption for certain  





 






  136  152003688_8  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, each Arranger and their respective Affiliates, and not, for the  avoidance of doubt, to or for the benefit of the US Borrower or any other Credit Party, that none of the  Administrative Agent, any Arranger and their respective Affiliates is 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).   SECTION 12.28 Acknowledgement Regarding Any Support QFCs.  To the extent that the Loan  Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any other  agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such QFC, a  “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of  the FDIC under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and  Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special  Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions  below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated  to be governed by the laws of the State of New York and/or of the United States or any other state of the  United States):   (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported  QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported  QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC  Credit Support) from such Covered Party will be effective to the same extent as the transfer would be  effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support  (and any such interest, obligation and rights in property) were governed by the laws of the United States or  a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes  subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents  





 






  137  152003688_8  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.    (b) As used in this Section 12.28, the following terms have the following meanings:  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  “Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 252.82(b);  (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 47.3(b); or  (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 382.2(b).  “Default Right” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall  be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).     [Signature pages omitted]      





 






  150558160_4  ANNEX B    Amended Exhibits B, D and E to Credit Agreement      [See attached]      





 






    Exhibit B  Form of Notice of Borrowing   [US Borrower] [Non-US Borrower]  Reference is made to that certain Second Amended and Restated Credit Agreement dated as of July  30, 2019 (as amended, restated, supplemented or modified from time to time, the “Credit Agreement”) by  and among the several financial institutions party thereto as Lenders, Wells Fargo Bank, National  Association, a national banking association, as Administrative Agent (“Administrative Agent”), Federal  Signal Corporation, a Delaware corporation, as a Borrower (“US Borrower”), FST Canada Inc., an Ontario  corporation and certain other Foreign Subsidiaries of US Borrower from time to time party thereto as Non- US Borrowers (collectively, the “Non-US Borrowers” and each a “Non-US Borrower”, together with the  US Borrower, collectively the “Borrowers”). Capitalized words and phrases not otherwise defined herein  shall have the meaning assigned thereto in the Credit Agreement, which definitions are hereby incorporated  by reference.  Pursuant to Section 2.3(a) of the Credit Agreement, [US Borrower] [Non-US Borrower] requests  that Administrative Agent and Lenders make the following Loan(s) to [US Borrower] [Non-US Borrower]  in accordance with the applicable terms and conditions of the Credit Agreement on the date stated below:  On ____________, 20__  $__________ Revolving Credit Loan Amount  $__________ Swingline Loan Amount  (a) Interest Rate:  ☐  Base Rate1  ☐  Eurocurrency Rate  ☐  SONIA Daily Rate2  (b) Currency:3  ☐  Canadian Dollars  ☐  Dollars  ☐  Euros  ☐  Sterling  (c) Interest Period (for Eurocurrency Rate Loans only): ________ months (insert one, three,  six or twelve)    1 Base Rate Loans are only available for Loans denominated in Dollars.  2 SONIA Daily Rate Loans are only available for Loans denominated in Sterling.   3 All Eurocurrency Rate Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.  





 






  118807503_5  [US Borrower] [Non-US Borrower] hereby certifies to Administrative Agent that:  (a) after making the Loan(s) requested on the date hereof: (i) the Revolving Credit  Outstandings will not exceed the Revolving Credit Commitment and (ii) the aggregate Revolving Credit  Outstandings denominated in an Alternative Currency shall not exceed the Alternative Currency Sublimit.  (b) as of the date hereof, the representations and warranties of Borrowers contained in Article  VII of the Credit Agreement are true and correct in all material respects (without duplication of any  materiality qualifier) except to the extent that such representations and warranties specifically refer to an  earlier date, in which case they shall be true and correct in all material respects (without duplication of any  materiality qualifier) as of such earlier date, and except that the representations and warranties contained in  Section 7.15 of the Credit Agreement shall be deemed to refer to the most recent financial statements  furnished pursuant to subsections (a) and (b), respectively, of Section 8.1 of the Credit Agreement; and   (c) as of the date hereof, no Default or Event of Default has occurred and is continuing  [Signature page to follow]  





 






  [Signature Page to Notice of Borrowing]    118807503_5  DATED: [__________, 20__]  [____________________]4    By:  ___________________________________   Name:   Title:      4 Notice of Borrowing will be executed by applicable Borrower.  





 






  118807503_5  Exhibit D  Form of Notice of Prepayment  __________, 20__  Wells Fargo Bank, National Association   1525 W. WT Harris Blvd.   Charlotte, NC 28262-0680  Attn: Syndication Agency Services   Ladies and Gentlemen:  Reference is hereby made to that certain Second Amended and Restated Credit Agreement dated  as of July 30, 2019 (as amended, restated, supplemented or modified from time to time, the “Credit  Agreement”), by and among Federal Signal Corporation, a Delaware corporation, as a Borrower (“US  Borrower”), FST Canada Inc., an Ontario corporation and certain other Foreign Subsidiaries of US  Borrower from time to time party thereto as Non-US Borrowers (collectively, the “Non-US Borrowers”  and each a “Non-US Borrower”, together with the US Borrower, collectively the “Borrowers”), the  financial institutions from time to time party thereto as Lenders (“Lenders”) and Wells Fargo Bank,  National Association, as Administrative Agent (“Administrative Agent”). Terms used herein without  definition shall have the meanings assigned to such terms in the Credit Agreement.  Pursuant to Section 2.4(c) of the Credit Agreement, we hereby give you irrevocable notice that we  shall prepay certain Loans under the Credit Agreement.  1. Date of prepayment: [__________, 20__].  2. Type of Loan prepaid: [Swingline/Revolving] Loans that are [Base/Eurocurrency/SONIA Daily]  Rate Loans [Dollars/Alternative Currency/Sterling].  3. Aggregate amount of prepayment: $____________.    [Remainder of page intentionally left blank]  





 






  [Signature Page to Notice of Prepayment]    118807503_5  Date: [__________, 20__]   [________________]5    By:  _________________________________________   Name:   Title:    5 Notice of Prepayment will be executed by applicable Borrower.  





 






  118807503_5  Exhibit E  Form of Notice of Conversion/Continuation  Reference is made to that certain Second Amended and Restated Credit Agreement dated as of July  30, 2019 (as amended, restated, supplemented or modified from time to time, the “Credit Agreement”) by  and among the several financial institutions party thereto as Lenders, Wells Fargo Bank, National  Association, a national banking association, as Administrative Agent (“Administrative Agent”) and Federal  Signal Corporation, a Delaware corporation, as a Borrower (“US Borrower”), FST Canada Inc., an Ontario  corporation and certain other Foreign Subsidiaries of US Borrower from time to time party thereto as Non- US Borrowers (collectively, the “Non-US Borrowers” and each a “Non-US Borrower”, together with the  US Borrower, collectively the “Borrowers”). Capitalized words and phrases not otherwise defined herein  shall have the meaning assigned thereto in the Credit Agreement, which definitions are hereby incorporated  by reference. Pursuant to Section 5.2 of the Credit Agreement, [US Borrower] [Non- US Borrower] requests  that Administrative Agent and Lenders convert or continue Loans as follows:  1. Date of conversion/continuation: __________, _____  2. Principal amount of Loans being converted/continued: $ __________  3. Nature of conversion/continuation:  [ ] a. Conversion of Base Rate Loans to Eurocurrency Rate Loans  [ ] b. Conversion of Eurocurrency Rate Loans to Base Rate Loans6  [ ] c. Continuation of Eurocurrency Rate Loans as such  [ ] d. Continuation of SONIA Daily Rate Loans as such  4. If Loans are being continued as or converted to Eurocurrency Rate Loans, the duration of  the new Interest Period that commences on the conversion/ continuation date: __________ month(s) (must  be one, three, six or twelve months).  Borrower hereby certifies to Administrative Agent that:  1. as of the date hereof, the representations and warranties of Borrowers contained in Article  VII of the Credit Agreement are true and correct in all material respects (without duplication of any  materiality qualifier) except to the extent that such representations and warranties specifically refer to an  earlier date, in which case they shall be true and correct in all material respects (without duplication of any  materiality qualifier) as of such earlier date, and except that the representations and warranties contained in  Section 7.15 of the Credit Agreement shall be deemed to refer to the most recent financial statements  furnished pursuant to subsections (a) and (b), respectively, of Section 8.1 of the Credit Agreement; and  2. as of the date hereof, no Default or Event of Default has occurred and is continuing.  [Signature pages to follow]    6 This option is only available for Loans denominated in Dollars.  





 






  [Signature Page to Notice of Conversion/Continuation]    118807503_5  DATED: [__________, 20__]  [_______________]7    By:  ___________________________________   Name:   Title:    7 Notice of Conversion/Continuation will be executed by applicable Borrower.  





 






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