exhibit1042termloancredi






                                                        Exhibit 10.42                                                         EXECUTION VERSION                                                                CONFIDENTIAL ______________________________________________________________________________                           TERM LOAN CREDIT AGREEMENT                                       among                                RENT-A-CENTER, INC.                                     as Borrower,                     The Several Lenders from Time to Time Parties Hereto,                            JPMORGAN CHASE BANK, N.A.                                 as Administrative Agent                               Dated as of August 5, 2019                            JPMORGAN CHASE BANK, N.A.                           as Sole Lead Arranger and Bookrunner   ______________________________________________________________________________    509265-2041-Active.31278172.28  





 






                             TABLE OF CONTENTS                                                                             Page  SECTION 1.    DEFINITIONS ....................................................................................................1   1.1   Defined Terms ........................................................................................................................... 1   1.2   Classification of Loans and Borrowings .............................................................................. 36   1.3   Other Definitional Provisions ............................................................................................... 37   1.4   Interest Rate; LIBOR Notification. ...................................................................................... 37   1.5   Divisions .................................................................................................................................. 38   1.6   Limited Condition Transaction ............................................................................................. 38   1.7   Calculations ............................................................................................................................. 39   1.8   Discontinued Operations ........................................................................................................ 40   1.9   Bridge Loans ........................................................................................................................... 40 SECTION 2.    AMOUNT AND TERMS OF COMMITMENTS .............................................40   2.1   Term Loans .............................................................................................................................. 40   2.2   Procedure for Term Loan Borrowing ................................................................................... 40   2.3   Repayment of Term Loans .................................................................................................... 40   2.4   [Reserved] ................................................................................................................................ 41   2.5   [Reserved] ................................................................................................................................ 41   2.6   [Reserved] ................................................................................................................................ 41   2.7   [Reserved] ................................................................................................................................ 41   2.8   Fees, etc .................................................................................................................................... 41   2.9   [Reserved] ................................................................................................................................ 41   2.10  Optional Prepayments ............................................................................................................ 41   2.11  Mandatory Prepayments and Commitment Reductions .................................................... 41   2.12  Conversion and Continuation Options ................................................................................. 43   2.13  Limitations on Eurodollar Tranches ..................................................................................... 44   2.14  Interest Rates and Payment Dates......................................................................................... 44   2.15  Computation of Interest and Fees ......................................................................................... 44   2.16  Alternate Rate of Interest ....................................................................................................... 45   2.17  Pro Rata Treatment and Payments........................................................................................ 46   2.18  Requirements of Law ............................................................................................................. 47   2.19  Taxes ......................................................................................................................................... 49   2.20  Indemnity ................................................................................................................................. 52   2.21  Change of Lending Office ..................................................................................................... 52   2.22  Replacement of Lenders ........................................................................................................ 52   2.23  [Reserved] ................................................................................................................................ 53   2.24  Incremental Facilities ............................................................................................................. 53   2.25  Loan Purchases ........................................................................................................................ 55   2.26  Loan Modification Offers ...................................................................................................... 56   2.27  Refinancing Facilities ............................................................................................................. 57 SECTION 3.    [RESERVED] ....................................................................................................59 SECTION 4.    REPRESENTATIONS AND WARRANTIES .................................................59   4.1   Financial Condition ................................................................................................................ 59                                        i  509265-2041-Active.31278172.28  





 






  4.2   No Change ............................................................................................................................... 59   4.3   Existence; Compliance with Law ......................................................................................... 60   4.4   Power; Authorization; Enforceable Obligations ................................................................. 60   4.5   No Legal Bar ........................................................................................................................... 60   4.6   Litigation .................................................................................................................................. 60   4.7   No Default................................................................................................................................ 60   4.8   Ownership of Property; Liens ............................................................................................... 61   4.9   Intellectual Property ............................................................................................................... 61   4.10  Taxes ......................................................................................................................................... 61   4.11  Federal Regulations ................................................................................................................ 61   4.12  Labor Matters .......................................................................................................................... 61   4.13  ERISA ...................................................................................................................................... 61   4.14  Investment Company Act; Other Regulations .................................................................... 62   4.15  Subsidiaries; Capital Stock .................................................................................................... 62   4.16  Use of Proceeds ....................................................................................................................... 62   4.17  Environmental Matters ........................................................................................................... 62   4.18  Accuracy of Information, etc ................................................................................................ 63   4.19  Security Documents ................................................................................................................ 63   4.20  Solvency ................................................................................................................................... 64   4.21  Senior Indebtedness ................................................................................................................ 64   4.22  [Reserved] ................................................................................................................................ 64   4.23  Anti-Corruption Laws, Anti-Money Laundering and Sanctions ...................................... 64   4.24  EEA Financial Institutions ..................................................................................................... 64 SECTION 5.    CONDITIONS PRECEDENT ...........................................................................64   5.1   Conditions to Initial Extension of Credit ............................................................................. 64   5.2   Conditions to Each Extension of Credit .............................................................................. 66 SECTION 6.    AFFIRMATIVE COVENANTS .......................................................................67   6.1   Financial Statements ............................................................................................................... 67   6.2   Certificates; Other Information ............................................................................................. 68   6.3   Payment of Taxes .................................................................................................................... 69   6.4   Maintenance of Existence; Compliance............................................................................... 69   6.5   Maintenance of Property; Insurance..................................................................................... 69   6.6   Inspection of Property; Books and Records; Discussions ................................................. 69   6.7   Notices ...................................................................................................................................... 70   6.8   Environmental Laws ............................................................................................................... 70   6.9   [Reserved] ................................................................................................................................ 71   6.10  Additional Collateral, etc ....................................................................................................... 71   6.11  Designation of Subsidiaries ................................................................................................... 72   6.12  Maintenance of Ratings ......................................................................................................... 72 SECTION 7.    NEGATIVE COVENANTS ..............................................................................72   7.1   [Reserved] ................................................................................................................................ 73   7.2   Indebtedness ............................................................................................................................ 73   7.3   Liens ......................................................................................................................................... 76   7.4   Fundamental Changes ............................................................................................................ 80   7.5   Disposition of Property .......................................................................................................... 80                                        ii  509265-2041-Active.31278172.28  





 






  7.6   Restricted Payments ............................................................................................................... 82   7.7   Investments .............................................................................................................................. 84   7.8   Optional Payments and Modifications of Certain Debt Instruments ............................... 87   7.9   Transactions with Affiliates .................................................................................................. 87   7.10  Sales and Leasebacks ............................................................................................................. 88   7.11  Swap Agreements ................................................................................................................... 89   7.12  Changes in Fiscal Periods ...................................................................................................... 89   7.13  Negative Pledge Clauses ........................................................................................................ 89   7.14  Clauses Restricting Subsidiary Distributions ...................................................................... 89   7.15  Lines of Business .................................................................................................................... 90   7.16  Use of Proceeds ....................................................................................................................... 90 SECTION 8.    EVENTS OF DEFAULT ...................................................................................91 SECTION 9.    THE AGENTS ...................................................................................................94   9.1   Appointment ............................................................................................................................ 94   9.2   Administrative Agent’s Reliance, Indemnification, Etc. ................................................... 96   9.3   Posting of Communications. ................................................................................................. 97   9.4   The Administrative Agent Individually. .............................................................................. 98   9.5   Successor Administrative Agent. .......................................................................................... 98   9.6   Acknowledgements of Lenders............................................................................................. 99   9.7   Collateral Matters. .................................................................................................................. 99   9.8   Credit Bidding. ...................................................................................................................... 100   9.9   Certain ERISA Matters. ....................................................................................................... 101 SECTION 10.   MISCELLANEOUS ........................................................................................102   10.1  Amendments and Waivers ................................................................................................... 102   10.2  Notices .................................................................................................................................... 103   10.3  No Waiver; Cumulative Remedies ..................................................................................... 104   10.4  Survival of Representations and Warranties ..................................................................... 104   10.5  Payment of Expenses and Taxes ......................................................................................... 104   10.6  Successors and Assigns; Participations and Assignments............................................... 105   10.7  Adjustments; Set-off ............................................................................................................. 109   10.8  Counterparts .......................................................................................................................... 110   10.9  Severability ............................................................................................................................ 110   10.10 Integration .............................................................................................................................. 110   10.11 GOVERNING LAW ............................................................................................................ 110   10.12 Submission To Jurisdiction; Waivers ................................................................................. 110   10.13 Acknowledgements .............................................................................................................. 111   10.14 Releases of Guarantees and Liens ...................................................................................... 111   10.15 Confidentiality ....................................................................................................................... 112   10.16 WAIVERS OF JURY TRIAL.......................................................................................... 113   10.17 USA Patriot Act .................................................................................................................... 113   10.18 Intercreditor Agreement ....................................................................................................... 113   10.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ................... 114   10.20 Acknowledgement Regarding Any Supported QFCs ...................................................... 114                                         iii  509265-2041-Active.31278172.28  





 






SCHEDULES:  1.1    Term Commitments  4.13   Pension Plans  4.15   Subsidiaries  4.19   UCC Filing Jurisdictions  7.2(e)  Existing Indebtedness  7.3(f)  Existing Liens  7.5(l)  Scheduled Dispositions  7.7(k)  Existing Investments  7.13   Negative Pledge Clauses  7.14   Clauses Restricting Subsidiary Distributions   EXHIBITS:  A     Form of Borrowing Request  B     Form of Interest Election Request  C     Form of Officer’s Certificate  D     Form of Guarantee and Collateral Agreement  E     Form of Assignment and Assumption  F     Form of Compliance Certificate  G     [Reserved]  H-1  U.S. Tax Compliance Certificate (For Non-U.S. Lenders that are Not Partnerships for U.S. Federal  Income Tax Purposes)   H-2  U.S. Tax Compliance Certificate (For Non-U.S. Participants that are Not Partnerships for U.S.  Federal Income Tax Purposes)  H-3  U.S. Tax Compliance Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal  Income Tax Purposes)  H-4  U.S. Tax Compliance Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal  Income Tax Purposes)  I-1   Form of Incremental Term Loan Activation Notice  I-2   Form of New Lender Supplement  J     Auction Procedures  K     Form of Intercreditor Agreement  L     Form of Solvency Certificate                                          iv  509265-2041-Active.31278172.28  





 






            TERM LOAN CREDIT AGREEMENT (this “Agreement”), dated as of August 5, 2019,  among Rent-A-Center, Inc., a Delaware corporation (the “Borrower”), the several banks and other financial  institutions  or  entities  from  time  to  time  parties  to  this  Agreement,  JPMorgan  Chase  Bank,  N.A.,  as  administrative agent, and the other agents from time to time parties hereto.               The parties hereto hereby agree as follows:                             SECTION 1.  DEFINITIONS               1.1   Defined Terms.  As used in this Agreement, the terms listed in this Section 1.1  shall have the respective meanings set forth in this Section 1.1.               “ABL Administrative Agent” means JPMorgan Chase Bank, N.A., as administrative agent  under the ABL Loan Documents, and its successors and assigns.               “ABL Commitments” means the “Commitments” as defined in the ABL Credit Agreement.               “ABL Credit Agreement” means the ABL Credit Agreement, dated as of the Closing Date,  among the Borrower, the lenders and agents party thereto and the ABL Administrative Agent, as the same  may be amended, restated, amended and restated, modified, supplemented, refinanced and/or replaced from  time to time in accordance with the terms thereof and the Intercreditor Agreement to the extent constituting  Permitted Refinancing Indebtedness.               “ABL Loan Documents” means collectively (a) the ABL Credit Agreement, (b) the ABL  Security Documents, (c) the Intercreditor Agreement, (d) any promissory note evidencing loans under the  ABL  Credit  Agreement  and  (e)  any  amendment,  restatement,  amendment  and  restatement,  waiver,  supplement or other modification to any of the documents described in clauses (a) through (d).               “ABL Loans” means loans outstanding under the ABL Credit Agreement.               “ABL Obligations Payment Date” has the meaning set forth in the Intercreditor Agreement.               “ABL Priority Collateral” has the meaning set forth in the Intercreditor Agreement.               “ABL Representative” has the meaning set forth in the Intercreditor Agreement.               “ABL Security Documents” means the collective reference to the Guarantee and Collateral  Agreement (as defined in the ABL Credit Agreement) and all other security documents delivered to the  ABL Administrative Agent granting a Lien on any property of any Person to secure the obligations and  liabilities of any Loan Party under any ABL Loan Document.                 “ABR” means, when used in reference to any Loan or Borrowing, refers to whether such  Loan,  or the  Loans  comprising  such  Borrowing,  bear  interest  at  a  rate  determined  by  reference to  the  Alternate Base Rate.                “Accepting Lenders” has the meaning set forth in Section 2.26(a).               “Additional Permitted Amount” has the meaning set forth in the definition of Permitted  Refinancing Indebtedness.    509265-2041-Active.31278172.28  





 






            “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest  Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the  LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.               “Administrative Agent” means JPMorgan Chase Bank, N.A., together with its affiliates, as  the administrative agent for the Lenders under this Agreement and the other Loan Documents, together  with any of its successors.               “Advisory Fees” has the meaning set forth in the definition of Consolidated EBITDA.               “Affiliate”  means,  as  to  any  Person,  any  other  Person  that,  directly  or  indirectly,  is  in  control of, is controlled by, or is under common control with, such Person.  For purposes of this definition,  “control”  of  a  Person  means  the  power,  directly  or  indirectly,  to  direct  or  cause  the  direction  of  the  management and policies of such Person, whether by contract or otherwise.               “Agents” means the collective reference to the Administrative Agent and any other agent  identified on the cover page of this Agreement.               “Agreement” has the meaning set forth in the preamble hereto.               “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the  Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1⁄2 of 1% and (c) the  Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the  immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted  LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available  for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on  such day.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or  the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime  Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively.  If the Alternate Base Rate is being used  as an alternate rate of interest pursuant to Section 2.16, then the Alternate Base Rate shall be the greater of  clauses (a) and (b) above and shall be determined without reference to clause (c) above.  For the avoidance  of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 1.00%, such  rate shall be deemed to be 1.00% for purposes of this Agreement.               “Anti-Corruption  Laws”  means  all  laws,  rules  and  regulations  of  any  jurisdiction  applicable  to  the  Borrower  or  its  Subsidiaries  from  time  to  time  concerning  or  relating  to  bribery  or  corruption.               “Applicable Margin” means (a) (i) with respect to Initial Term Loans constituting ABR  Loans, 3.50% per annum and (ii) with respect to Initial Term Loans constituting Eurodollar Loans, 4.50%  per annum; and               (b)   with respect to Incremental Term Loans of any Series, such per annum rates as  shall be agreed to by the Borrower and the applicable Incremental Term Lenders as shown in the applicable  Incremental Term Loan Activation Notice in respect of such Series.               “Applicable Reference Period” means as of any date of determination, the most recently  ended Reference Period for which financial statements with respect to each fiscal quarter included in such  Reference Period have been delivered pursuant to Section 6.1(a) or 6.1(b) (or, prior to the delivery of any  such financial statements, the Reference Period ended March 31, 2019).                                          2  509265-2041-Active.31278172.28  





 






            “Approved Electronic Platform” has the meaning set forth in Section 9.3(a).               “Approved Fund” has the meaning set forth in Section 10.6(b).               “Arranger” means JPMorgan Chase Bank, N.A.               “Asset Sale” means any Disposition of property or series of related Dispositions of property  pursuant to Section 7.5(n) or (o) that yields gross proceeds to any Group Member (valued at the initial  principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and  valued at fair market value in the case of other non-cash proceeds) in excess of $10,000,000 in any single  transaction or series of related transactions.               “Assignee” has the meaning set forth in Section 10.6(b)(i).               “Assignment and Assumption” means an Assignment and Assumption, substantially in the  form of Exhibit E or any other form (including electronic records generated by the use of an electronic  Platform) approved by the Administrative Agent.               “Attributable Indebtedness” means in respect of any sale and leaseback transaction, as at  the time of determination, the present value (discounted at the implied interest rate in such transaction  compounded annually) of the total obligations of the lessee for rental payments during the remaining term  of the lease included in such sale and leaseback transaction (including any period for which such lease has  been extended or may, at the option of the lessor, be extended).               “Auction Manager” has the meaning set forth in Section 2.25.               “Auction Notice” means an auction notice given by the Borrower in accordance with the  Auction Procedures with respect to an Auction Purchase Offer.               “Auction  Procedures”  means  the  auction  procedures  with  respect  to  Auction  Purchase  Offers set forth in Exhibit J hereto.               “Auction Purchase Offer” means an offer by the Borrower to purchase Term Loans of one  or  more  Facilities  pursuant  to  modified  Dutch  auctions  conducted  in  accordance  with  the  Auction  Procedures and otherwise in accordance with Section 2.25.               “Available Amount” means at any time, the excess if any, of:                     (a)   the sum (without duplication) of:                            (i)  an amount equal to 100% of Retained Excess Cash Flow;                           (ii)  the Net Cash Proceeds (Not Otherwise Applied) received after the  Closing Date and on or prior to such date from any issuance of Qualified Capital Stock by the Borrower  (other than any such issuance to a Group Member);                           (iii)  the Net Cash Proceeds of Indebtedness and Disqualified Capital  Stock of the Borrower, in each case incurred or issued after the Closing Date, which have been exchanged  or converted into Qualified Capital Stock;                           (iv)  the Net Cash Proceeds of Dispositions of Investments made using  the Available Amount on or after the Closing Date;                                         3  509265-2041-Active.31278172.28  





 






                        (v)   to the extent not already included in Consolidated Net Income,  returns, profits, distributions and similar amounts received in cash or Cash Equivalents on Investments  made using the Available Amount on or after the Closing Date;                           (vi)  the  Investments  made  on  or  after  the  Closing  Date  using  the  Available Amount of the Borrower and its Restricted Subsidiaries in any Unrestricted Subsidiary that has  been re-designated as a Restricted Subsidiary or that has been merged or consolidated into the Borrower or  any of its Restricted Subsidiaries or the fair market value of the assets of any Unrestricted Subsidiary that  have been transferred to the Borrower or any of its Restricted Subsidiaries;                           (vii)  the  Net  Cash  Proceeds  of  Dispositions  of  Unrestricted  Subsidiaries and Joint Ventures;                            (viii)  the aggregate amount received after the Closing Date and on or  prior  to  such  date  by  the  Borrower  or  any  Restricted  Subsidiary  in  cash  from  any  dividend  or  other  distribution by an Unrestricted Subsidiary or a Joint Venture (except to the extent increasing Consolidated  Net Income); and                           (ix)  the aggregate amount of the Declined Amounts (calculated from  the Closing Date); minus                      (b)  the sum of all (x) Restricted Payments made on or after the Closing Date  and prior to such time in reliance on Section 7.6(g), (y) Investments made on or after the Closing Date,  prior to such time in reliance on Section 7.7(r) and (z) Restricted Debt Payments made on or after the  Closing Date and prior to such time in reliance on Section 7.8(a)(v), in each case utilizing the Available  Amount or portions thereof in effect on the date of any such Restricted Payment, Investment or Restricted  Debt Payment.               “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.               “Bail-In  Legislation”  means  with  respect  to  any  EEA  Member  Country  implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union,  the implementing law for such EEA Member Country from time to time which is described in the EU Bail- In Legislation Schedule.               “Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.), as  now and hereafter in effect, or any successor statute.               “Bankruptcy Plan” means a reorganization or plan of liquidation pursuant to any Debtor  Relief Laws.               “Base Incremental Amount” means as of any date, an amount equal to (a) $150,000,000  less  (b)  the  aggregate  principal  amount  of  Incremental  Term  Loans  and  Incremental  Equivalent  Debt  established prior to such date in reliance on the Base Incremental Amount.                “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of  ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which  Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset  Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any  such “employee benefit plan” or “plan”.                                         4  509265-2041-Active.31278172.28  





 






            “Benefitted Lender” has the meaning set forth in Section 10.7(a).               “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.               “Board” means the Board of Governors of the Federal Reserve System of the United States  (or any successor).               “Borrower” has the meaning set forth in the preamble hereto.               “Borrower Materials” has the meaning set forth in Section 10.15(a).               “Borrowing” means Loans of the same Facility and Type made, converted or continued on  the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.                “Borrowing Date” means any Business Day specified by the Borrower as a date on which  the Borrower requests the relevant Lenders to make Loans hereunder.               “Borrowing  Request”  means  a  request  by  the  Borrower  for  a  borrowing  of  Loans  in  accordance  with  Section 2.2,  which  shall  be  substantially  in  the  form  of  Exhibit  A  or  any  other  form  approved by the Administrative Agent.               “Business  Day”  means  a  day  other  than  a  Saturday,  Sunday  or  other  day  on  which  commercial banks in New York City are authorized or required by law to close, provided, that with respect  to notices and determinations in connection with, and payments of principal and interest on, Loans having  an interest rate determined by reference to the Adjusted LIBO Rate, such day is also a day for trading by  and between banks in Dollar deposits in the interbank eurodollar market.               “Capital Expenditures” means for any period, with respect to any Person, the aggregate of  all expenditures by such Person and its Restricted Subsidiaries for the acquisition or leasing (pursuant to a  finance  lease)  of  fixed  or  capital  assets  or  additions  to  equipment  (including  replacements,  capitalized  repairs  and  improvements  during  such  period)  that  is  required  to  be  capitalized  under  GAAP  on  a  consolidated balance sheet of such Person and its Restricted Subsidiaries.               “Capital  Stock”  means  any  and  all  shares,  interests,  participations  or  other  equivalents  (however designated) of capital stock  of  a  corporation,  any and all equivalent  ownership interests in a  Person  (other  than  a  corporation)  and  any  and  all  warrants,  rights  or  options  to  purchase  any  of  the  foregoing, but excluding any debt securities convertible into any of the foregoing.               “Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally  guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith  and credit of the United States, in each case maturing within two years from the date of acquisition; (b)  certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities  of  six  months  or  less  from  the  date  of  acquisition  issued  by  any  Lender  or  by  any  commercial  bank  organized under the laws of the United States or any state thereof having combined capital and surplus of  not less than $250,000,000; (c) commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s,  or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating  agencies cease publishing ratings of commercial paper issuers generally, and maturing within nine months  from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying  the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to  securities  issued  or  fully  guaranteed  or  insured  by  the  United  States  government;  (e)  securities  with                                         5  509265-2041-Active.31278172.28  





 






maturities  of  two  years  or  less  from  the  date  of  acquisition  issued  or  fully  guaranteed  by  any  state,  commonwealth or territory of the United States, by any political subdivision or taxing authority of any such  state,  commonwealth  or  territory  or  by  any  foreign  government,  the  securities  of  which  state,  commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be)  are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the  date  of  acquisition  backed  by  standby  letters  of  credit  issued  by  any  Lender  or  any  commercial  bank  satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar funds that  invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition; or (h)  money  market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment  Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio  assets of at least $1,000,000,000.               “CFC” means (a) each Person that is a “controlled foreign corporation” for purposes of the  Code and (b) each Subsidiary of any such Person.               “CFC Holding Company” means each Domestic Subsidiary substantially all of the assets  of which consist of Capital Stock of one or more (a) CFCs or (b) Persons described in this definition.               “Change  of  Control”  means  (a)  the  acquisition  of  ownership,  directly  or  indirectly,  beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of  the SEC thereunder, but excluding any employee benefit plan of such Person or its Subsidiaries and any  Person acting in its capacity as trustee, agent or other fiduciary or administrator of such plan) of Capital  Stock  of  the  Borrower  representing  more  than  40%  of  the  aggregate  ordinary  (in  the  absence  of  contingencies) voting power represented by the issued and outstanding Capital Stock of the Borrower or  (b) for any period of twelve consecutive months following the Closing Date, the board of directors of the  Borrower ceasing to consist of a majority of individuals (i) who were directors of the Borrower on the first  day of such period or (ii) whose election or nomination for the board of directors of the Borrower was  recommended or approved by at least a majority of directors who were directors of the Borrower on the  first day of such period, or whose election or nomination for election was so approved. Notwithstanding  the preceding sentence or any provision of Rule 13d-3 of the Exchange Act (as in effect on the Closing  Date), a person or “group” shall not be deemed to beneficially own securities subject to an equity or asset  purchase  agreement,  merger  agreement  or  similar agreement (or  voting  or option  or  similar agreement  related thereto) until the consummation of the transactions contemplated by such agreement.                “Closing Date” means August 5, 2019.               “Code” means the Internal Revenue Code of 1986, as amended.               “Collateral” means all property of the Loan Parties, now owned or hereafter acquired, upon  which a Lien is purported to be created by any Security Document.               “Commitment”  means,  with  respect  to  any  Lender,  such  Lender’s  Initial  Term  Loan  Commitment,  Incremental  Term  Loan  Commitment  of  any  Series  or  any  combination  thereof  (as  the  context requires).               “Communications” means, collectively, any notice, demand, communication, information,  document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or  the transactions contemplated therein which is distributed by the Administrative Agent, any Lender by  means of electronic communications pursuant to Section 9.3, including through an Approved Electronic  Platform.                                          6  509265-2041-Active.31278172.28  





 






            “Company  Headquarters”  means  the  headquarters  of  the  Borrower  located  at  5501  Headquarters Drive, Plano, Texas 75024.               “Compliance  Certificate”  means  a  certificate  duly  executed  by  a  Responsible  Officer  substantially in the form of Exhibit F.               “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 Cash Taxes” means for any period, with respect to the Borrower and its  Restricted Subsidiaries on a consolidated basis, the aggregate amount of all income and similar Taxes, to  the extent the same are payable in cash with respect to such period.               “Consolidated Current Assets” means at any date, all amounts (other than cash and Cash  Equivalents)  that  would,  in  conformity  with  GAAP,  be  reflected  in  “total  current  assets”  (or  any  like  caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries at such date and  including, for purposes of this definition, all rental inventory.               “Consolidated  Current  Liabilities”  means  at  any  date,  all  amounts  that  would,  in  conformity with GAAP, be reflected in “total current liabilities” (or any like caption) on a consolidated  balance sheet of the Borrower and its Restricted Subsidiaries at such date, but excluding (a) the current  portion of any Funded Debt of the Borrower and its Restricted Subsidiaries and (b) without duplication of  clause (a) above, all Indebtedness consisting of ABL Loans to the extent otherwise included therein.               “Consolidated EBITDA” means for any period, Consolidated Net Income for such period  plus, without duplication and to the extent reflected as a charge in the statement of such Consolidated Net  Income for such period, the sum of:               (a)   provisions  for  taxes  based  on  income  or  profits  or  capital,  including  state,  franchise, excise and similar taxes and foreign withholding taxes paid or accrued, including penalties and  interest relating to tax examinations,                (b)   interest expense, amortization or writeoff of debt discount and debt issuance costs  and commissions, discounts and other fees and charges associated with Indebtedness (including the Loans  and the ABL Loans),                (c)   depreciation  and  amortization  expense,  including  amortization  of  capitalized  expenses for software-as-a-service solutions for accounting,                (d)   non-cash charges, losses, expenses, accruals and provisions, including stock-based  compensation and sale of assets not in the ordinary course of business (but excluding any such non-cash  charge to the extent that it represents an accrual or reserve for cash expenses in any future period),                (e)   amortization of intangibles (including, but not limited to, impairment of goodwill)  and organization costs,                (f)   any extraordinary, unusual or non-recurring charges, expenses or losses, including  (i) legal and professional fees and expenses incurred in connection with the Vintage Capital Merger and the  termination thereof, (ii) other legal settlement expenses and recoveries, (iii) non-recurring natural disaster  related-charges and (iv) infrequent or unusual inventory adjustments,                                          7  509265-2041-Active.31278172.28  





 






            (g)   any  fees  and  expenses  incurred  during  such  period  in  connection  with  any  Investment (including any Permitted Acquisition), Disposition, issuance of Indebtedness or Capital Stock,  or  amendment  or  modification  of  any  debt  instrument,  in  each  case  permitted  under  this  Agreement,  including (i) any such transactions undertaken but not completed and any transactions consummated prior  to  the  Closing  Date  and  (ii)  any  financial  advisory  fees,  accounting  fees,  legal  fees  and  other  similar  advisory and consulting fees, in each case paid in cash during such period (collectively, “Advisory Fees”),                (h)   any  fees  and  expenses  incurred  in  connection  with  the  Transactions,  including  Advisory Fees and (solely for purposes of this clause (h)) cash charges or expenses in respect of strategic  market  reviews,  stay  or  sign-on  bonuses,  integration-related  bonuses,  restructuring,  consolidation,  severance or discontinuance of any portion of operations, employees and/or management,                (i)   the  amount  of  “run-rate”  cost  savings,  operating  expense  reductions,  operating  improvements,  revenue  enhancements,  business  optimizations  and  synergies  that  are  reasonably  identifiable, factually supportable and projected by the Borrower in good faith to be realized as a result of  mergers and other business combinations, Permitted Acquisitions, divestitures, insourcing initiatives, cost  savings initiatives, plant consolidations, openings and closings, product rationalization and other similar  initiatives after the Closing Date, in each case to the extent not prohibited by this Agreement (collectively,  “Initiatives”) (calculated on a pro forma basis as though such cost savings, operating expense reductions,  operating improvements, revenue enhancements, business optimizations and synergies had been realized  on the first day of the relevant Reference Period), net of the amount of actual benefits realized in respect  thereof; provided that (i) actions in respect of such cost-savings, operating expense reductions, operating  improvements, revenue enhancements, business optimizations and synergies have been, or will be, taken  within 12 months of the applicable Initiative, (ii) no cost savings, operating expense reductions, operating  improvements, revenue enhancements, business optimizations or synergies shall be added pursuant to this  clause  (i)  to  the  extent  duplicative  of  any  expenses  or  charges  otherwise  added  to  (or  excluded  from)  Consolidated  EBITDA,  whether  through  a  pro  forma  adjustment  or  otherwise,  for  such  period,  (iii)  projected amounts (and not yet realized) may no longer be added in calculating Consolidated EBITDA  pursuant to this clause (i) to the extent occurring more than eight fiscal quarters after the applicable Initiative  and  (iv)  with  respect to  any  Reference  Period, the  aggregate  amount  added  back  in  the  calculation  of  Consolidated EBITDA for such Reference Period pursuant to this clause (i) and clause (j) below shall not  exceed 25% of Consolidated EBITDA (calculated after giving effect to any add-backs pursuant to this  clause (i) and clause (j) below),                (j)   non-recurring  cash  expenses  or  charges  recognized  for  restructuring  costs,  integration costs and business optimization expenses in connection with any Initiative; provided that with  respect  to  any  Reference  Period,  the  aggregate  amount  added  back  in  the  calculation  of  Consolidated  EBITDA for such Reference Period pursuant to this clause (j) and clause (i) above shall not exceed 25% of  Consolidated EBITDA (calculated after giving effect to any add-backs pursuant to this clause (j) and clause  (i) above),               (k)   fees, costs, expenses and charges associated with contract terminations; provided  that  with  respect  to  any  Reference  Period,  the  aggregate  amount  added  back  in  the  calculation  of  Consolidated  EBITDA  for  such  Reference  Period  pursuant  to  this  clause  (k)  shall  not  exceed  5%  of  Consolidated EBITDA (calculated after giving effect to any add-backs pursuant to this clause (k)),               (l)   losses, charges and expenses related to the early extinguishment of Indebtedness,  hedge agreements or other derivative instruments (including deferred financing fees), and                                          8  509265-2041-Active.31278172.28  





 






            (m)  losses,  charges  and  expenses  attributable  to  abandoned,  closed,  Disposed  or  discontinued operations and losses, charges and expenses related to the abandonment, closure, Disposal or  discontinuation thereof,                minus,                (x)   to the extent included in the statement of such Consolidated Net Income for such  period, the sum of:                      (i)   interest income,                      (ii)   any extraordinary, unusual or non-recurring income or gains (including,        whether or not otherwise includable as a separate item in the statement of such Consolidated Net        Income for such period, gains on the sales of assets outside of the ordinary course of business),                      (iii)   income tax credits (to the extent not netted from income tax expense),                      (iv)   any  other  non-cash  income  (other  than  normal  accruals in the ordinary        course  of  business  for  non-cash  income  that  represents  an  accrual  for  cash  income  in  a  future        period),                     (v)   gains  related  to  the  early  extinguishment  of  Indebtedness,  hedge        agreements or other derivative instruments (including deferred financing fees), and                     (vi)  gains  attributable  to  abandoned,  closed,  Disposed  or  discontinued        operations, and                (y)   any cash payments made during such period in respect of items described in clause  (d) above subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were reflected  as a charge in the statement of Consolidated Net Income, all as determined on a consolidated basis.                 For the purposes of calculating Consolidated EBITDA for any Reference Period pursuant  to any determination of the Consolidated Leverage Ratio or Consolidated Secured Leverage Ratio, (i) if at  any time during such Reference Period the Borrower or any Restricted Subsidiary shall have made any  Material Disposition, the Consolidated EBITDA for such Reference Period shall be reduced by an amount  equal to  the  Consolidated EBITDA (if  positive) attributable to  the property  that is  the  subject of  such  Material  Disposition  for  such  Reference  Period  or  increased  by  an  amount  equal  to  the  Consolidated  EBITDA (if negative) attributable thereto for such Reference Period, (ii) if during such Reference Period  the Borrower or any Restricted Subsidiary shall have made a Material Acquisition, Consolidated EBITDA  for  such  Reference Period  shall  be  calculated  after  giving  pro  forma  effect  thereto  as if  such Material  Acquisition occurred on the first day of such Reference Period and (iii) in the case of any Reference Period  which includes any fiscal quarter ended on or prior to the Closing Date, if the respective Reference Period  (a) includes the fiscal quarter of the Borrower ended March 31, 2019, Consolidated EBITDA for such fiscal  quarter shall be deemed to be $66,492,000, (b) includes the fiscal quarter of the Borrower ended December  31, 2018, Consolidated EBITDA for such fiscal quarter shall be deemed to be $48,955,000, (c) includes the  fiscal quarter of the Borrower ended September 30, 2018, Consolidated EBITDA for such fiscal quarter  shall be deemed to be $49,299,000 and (d) includes the fiscal quarter of the Borrower ended June 30, 2018,  Consolidated EBITDA for such fiscal quarter shall be deemed to be $61,068,000, in each case subject to  any pro forma adjustments permitted under this Agreement.                                           9  509265-2041-Active.31278172.28  





 






            “Consolidated Leverage Ratio” means as at the last day of any Reference Period, the ratio  of  (a)(i)  Consolidated  Total  Debt  on  such  day  less  (ii)  the  aggregate  Unrestricted  Cash  of  the  Group  Members on such day to (b) Consolidated EBITDA for such period.                “Consolidated Net Income” means for any period, the consolidated net income (or loss) of  the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP;  provided that there shall be excluded:                     (a)   the income (or deficit) of any Person accrued prior to the date it becomes  a Restricted Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its  Restricted Subsidiaries;                      (b)   the income (or deficit) of any Person (other than a Restricted Subsidiary  of the Borrower) in which the Borrower or any of its Restricted Subsidiaries has an ownership interest,  except to the extent that any such income is actually received by the Borrower or such Restricted Subsidiary  in the form of dividends or similar distributions;                      (c)   the undistributed earnings of any Restricted Subsidiary of the Borrower to  the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary  is  not  at  the  time  permitted  by  the  terms  of  any  Contractual  Obligation  (other  than  under  any  Loan  Document) or Requirement of Law applicable to such Restricted Subsidiary;                      (d)   any  income  (or  loss)  for  such  period  attributable  to  the  early  extinguishment of Indebtedness or Swap Obligations; and                     (e)   the cumulative effect of a change in accounting principles and changes as  a result of the adoption or modification of accounting policies during such period.               “Consolidated Secured Debt” means at any date, Consolidated Total Debt at such date that  is secured by a Lien on any property of any Group Member.               “Consolidated Secured Leverage Ratio” means as at the last day of any Reference Period,  the ratio of (a)(i) Consolidated Secured Debt on such day less (ii) the aggregate Unrestricted Cash of the  Group Members on such day to (b) Consolidated EBITDA for such period.               “Consolidated Total Assets” means at any date of determination, the total assets, in each  case reflected on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries as at the  end  of  the  most  recently  ended  fiscal  quarter  of  the  Borrower  for  which  a  balance  sheet  is  available,  determined in accordance with GAAP (and, in the case of any determination related to the incurrence of  Indebtedness or  Liens or  any  Investment, on  a pro forma  basis including  any  property  or assets  being  acquired in connection therewith).               “Consolidated  Total  Debt”  means  at  any  date  (without  duplication),  all  Finance  Lease  Obligations, purchase money Indebtedness, Indebtedness for borrowed money and letters of credit (but only  to the extent drawn and not reimbursed), in each case of the Borrower and its Restricted Subsidiaries at  such date, determined on a consolidated basis in accordance with GAAP.               “Consolidated Working Capital” means at any date, the excess of Consolidated Current  Assets on such date over Consolidated Current Liabilities on such date.                                          10  509265-2041-Active.31278172.28  





 






            “Contract  Consideration”  has  the  meaning  set  forth  in  the  definition  of  “Excess  Cash  Flow”.               “Contractual Obligation” means as to any Person, any provision of any security issued by  such Person or of any agreement, instrument or other undertaking to which such Person is a party or by  which it or any of its property is bound (including its Organizational Documents).               “Covered Entity” means any of the following:               (a)   a “covered entity” as that term is defined in, and interpreted in accordance with,        12 C.F.R. § 252.82(b);               (b)   a “covered bank” as that term is defined in, and interpreted in accordance with, 12        C.F.R. § 47.3(b); or               (c)   a “covered FSI” as that term is defined in, and interpreted in accordance with, 12        C.F.R. § 382.2(b).               “Covered Party” has the meaning set forth in Section 10.20.               “Credit Party” means the Administrative Agent or any other Lender and, for the purposes  of Section 10.13 only, any other Agent and any Arranger.               “Debtor  Relief  Laws”  means  the  Bankruptcy  Code,  and  all  other  liquidation,  conservatorship,  bankruptcy,  assignment  for  the  benefit  of  creditors,  moratorium,  rearrangement,  receivership,  insolvency,  reorganization,  or  similar  debtor  relief  laws  of  the  United  States  or  other  applicable jurisdictions from time to time in effect.               “Declined Amount” has the meaning set forth in Section 2.11(e).               “Default” means any of the events specified in Section 8, whether or not any requirement  for the giving of notice, the lapse of time, or both, has been satisfied.               “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.               “Designated  Non-Cash  Consideration”  means  the  fair  market  value  of  non-cash  consideration  received  by  the  Borrower  or  one  of  its  Restricted  Subsidiaries  in  connection  with  a  Disposition  that  is  so  designated  as  Designated  Non-Cash  Consideration  pursuant  to  a  certificate  of  a  Responsible Officer, setting forth the basis of such valuation, less the amount of cash and Cash Equivalents  received in connection with a subsequent sale of such Designated Non-Cash Consideration within 180 days  of receipt of such Designated Non-Cash Consideration.               “Disposition”  means  with  respect  to  any  property,  any  sale,  lease,  sale  and  leaseback,  assignment,  conveyance,  transfer  or  other  disposition  (in  one  transaction  or  in  a  series  of  related  transactions) of any property by any Person (including any issuance of Capital Stock by a Subsidiary of  such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any  notes  or  accounts  receivable  or  any  rights  and  claims  associated  therewith.   The  terms  “Dispose”  and  “Disposed of” shall have correlative meanings.                                          11  509265-2041-Active.31278172.28  





 






            “Disqualified Capital Stock” means with respect to any Person, any Capital Stock of such  Person that by its terms (or by the terms of any security into which it is convertible or for which it is  exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event  or condition:                     (a)   matures or is mandatorily redeemable (other than solely for Capital Stock  of such Person that does not constitute Disqualified Capital Stock and cash in lieu of fractional shares of  such Capital Stock) whether pursuant to a sinking fund obligation or otherwise;                      (b)   is convertible or exchangeable, either mandatorily or at the option of the  holder thereof, for Indebtedness or Capital Stock (other than solely for Capital Stock of such Person that  does not constitute Disqualified Capital Stock and cash in lieu of fractional shares of such Capital Stock);  or                     (c)   is redeemable (other than solely for Capital Stock of such Person that does  not constitute Disqualified Capital Stock and cash in lieu of fractional shares of such Capital Stock) or is  required to be repurchased by the Borrower or any Restricted Subsidiary, in whole or in part, at the option  of the holder thereof;   in each case, on or prior to the date that is 91 days after the Latest Maturity Date (determined as of the date  of issuance thereof or, in the case of any such Capital Stock outstanding on the Closing Date, the Closing  Date); provided, however, that (i) Capital Stock of any Person that would not constitute Disqualified Capital  Stock but for terms thereof giving holders thereof the right to require such Person to redeem or purchase  such Capital Stock upon the occurrence of an “asset sale”, “condemnation” or a “change of control” (or  similar event, however denominated) shall not constitute Disqualified Capital Stock if any such requirement  becomes operative only after repayment in full (or offer to repay in full) of all the Loans and all other  Obligations that are accrued and payable and (ii) Capital Stock of any Person that is issued to any employee  or to any plan for the benefit of employees or by any such plan to such employees shall not constitute  Disqualified Capital Stock solely because it may be required to be repurchased by such Person or any of its  subsidiaries  in  order  to  satisfy  applicable  statutory  or  regulatory  obligations  or  as  a  result  of  such  employee’s termination, death or disability.               “Disqualified Lenders” means (a) certain banks, financial institutions, other institutional  lenders and other Persons that have been specified in writing to the Administrative Agent by the Borrower  prior to the Closing Date, (b) competitors of the Borrower and its Restricted Subsidiaries and any affiliate  of such competitor, in each case, that is identified in writing to the Administrative Agent by the Borrower  from time to time and (c) any affiliates of the entities described in the foregoing clauses (a) or (b) that are  clearly identifiable as affiliates of such entities solely on the basis of the similarity of their names (other  than  affiliates that  constitute bona fide  debt  funds  primarily  investing  in  loans).   In  no  event  shall the  designation  of  any  Person  as  a  Disqualified  Lender  apply  (x)  to  disqualify  any  Person  until  three  (3)  Business  Days after  such Person shall have  been identified  in  writing  to the Administrative  Agent via  electronic  mail  submitted  to  JPMDQ_Contact@jpmorgan.com  (or  to  such  other  address  as  the  Administrative Agent may designate to the Borrower from time to time).  For the avoidance of doubt, with  respect to any assignee that becomes a Disqualified Lender after the applicable Trade Date (including as a  result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred to in, this  definition)  or is otherwise party to a pending trade as of the date of such notice, (x) such assignee shall not  retroactively  be  disqualified  from  becoming  a  Lender  and  (y)  the  execution  by  the  Borrower  of  an  Assignment and Assumption with respect to such assignee will not by itself result in such assignee no  longer being considered a Disqualified Lender.               “Dollars” and “$” means dollars in lawful currency of the United States.                                         12  509265-2041-Active.31278172.28  





 






            “Domestic Subsidiary” means any Restricted Subsidiary of the Borrower organized under  the laws of any jurisdiction within the United States.               “ECF Percentage” means 50%; provided, that (a) the ECF Percentage shall be reduced to  25% if the Consolidated Leverage Ratio as of the last day of the relevant fiscal year is less than or equal to  3.00  to  1.00  but  greater  than  2.00  to  1.00  and  (b)  the  ECF  Percentage  shall  be  reduced  to  0%  if  the  Consolidated Leverage Ratio as of the last day of the relevant fiscal year is less than or equal to 2.50 to  1.00.               “EEA  Financial  Institution”  means  (a) any  institution  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 institution established in an EEA Member Country which is a subsidiary of an institution described in  clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.               “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein and Norway.               “EEA  Resolution  Authority”  means  any  public  administrative  authority  or  any  Person  entrusted with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any EEA Financial Institution.               “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund,  (d) any commercial bank and (e) any other financial institution or investment fund engaged as a primary  activity in the ordinary course of its business in making or investing in commercial loans or debt securities,  other than, in each case, (i) a natural person or (ii) except to the extent permitted under Sections 2.25 and  10.6(e), the Borrower, any Subsidiary or any other Affiliate of the Borrower or (iii) a Disqualified Lender.               “Environmental Laws” means any and all foreign, Federal, state, local or municipal laws,  rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority  or  other  Requirements  of  Law  (including  common  law)  regulating,  relating  to  or  imposing  liability  or  standards of conduct concerning protection of human health insofar as involving exposure to harmful or  deleterious substances or the environment, as now or may at any time hereafter be in effect.               “Environmental  Permits”  means  any  and  all  permits,  licenses,  approvals,  registrations,  notifications or authorizations required under any Environmental Law.               “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from  time to time, and the rules and regulations promulgated thereunder.               “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together  with  the  Borrower, is  treated  as  a  single  employer  under  Section 414(b)  or  (c) of  the  Code  or  Section  4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated  as a single employer under Section 414 of the Code.               “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or  the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice  period is waived); (b) the failure to satisfy the “minimum funding standard” (as defined in Section 412 of  the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the  Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with  respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under                                         13  509265-2041-Active.31278172.28  





 






Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA  Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan  or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its  ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Borrower or  any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any  ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA  Affiliate of any notice, concerning the imposition upon the Borrower or any of its ERISA Affiliates of  Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in  reorganization, within the meaning of Title IV of ERISA.               “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor Person), as in effect from time to time.               “Eurodollar” when used in reference to any Loan or Borrowing, refers to whether such  Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the  Adjusted LIBO Rate.               “Eurodollar Tranche” means the collective reference to Eurodollar Loans under a particular  Facility the then current Interest Periods with respect to all of which begin on the same date and end on the  same later date (whether or not such Loans shall originally have been made on the same day).               “Event  of  Default”  means  any  of  the  events  specified  in  Section  8,  provided  that  any  requirement for the giving of notice, the lapse of time, or both, has been satisfied.               “Excess Cash Flow” means for any fiscal year of the Borrower and with respect to the  Borrower and its Restricted Subsidiaries, the excess, if any, of:                     (a)   the  sum,  without  duplication,  of  (i)  Consolidated  Net  Income  for  such  fiscal year, (ii) the amount of all non-cash charges (including depreciation and amortization) deducted in  arriving at such Consolidated Net Income, (iii) decreases in Consolidated Working Capital for such fiscal  year, and (iv) the aggregate net amount of non-cash loss on the Disposition of property by the Borrower  and its Restricted Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course  of business), to the extent deducted in arriving at such Consolidated Net Income over                      (b)   the sum, without duplication, of                            (i)   the amount of all non-cash income included in arriving at such        Consolidated Net Income,                            (ii)   the  aggregate  amount  actually  paid  by  the  Borrower  and  its        Restricted  Subsidiaries  in  cash  during  such  fiscal  year  on  account  of  Capital  Expenditures        (excluding  the  principal  amount  of  long-term  Indebtedness  incurred  in  connection  with  such        expenditures and any such expenditures financed with the proceeds of any Reinvestment Deferred        Amount or the proceeds of any issuance of Capital Stock of the Borrower),                            (iii)   without duplication of amounts deducted from Excess Cash Flow        in prior periods, the aggregate amount of Restricted Payments made by the Borrower in cash during        such  fiscal  year  pursuant  to  Section  7.6(b),  Section  7.6(d)  and  Section  7.6(j)  (excluding  the        principal amount of Indebtedness incurred in connection with such Restricted Payments and any        Restricted Payments made with proceeds of any issuance of Capital Stock of the Borrower),                                           14  509265-2041-Active.31278172.28  





 






                        (iv)   the  aggregate  amount  of  all  voluntary  prepayments  of  Funded        Debt (other than (A) the Term Loans, (B) the ABL Loans and (C) any other revolving credit facility        to  the  extent  there  is  not  an  equivalent  permanent  reduction  in  commitments  thereof)  of  the        Borrower  and  its  Restricted  Subsidiaries  made  during  such  fiscal  year  (excluding  any  such        prepayments financed with the Available Amount or the proceeds of any issuance of Capital Stock        of the Borrower or the issuance of any Indebtedness),                           (v)   the  aggregate  amount  of  all  regularly  scheduled  principal        payments  of  Funded  Debt  (including  the  Term  Loans)  of  the  Borrower  and  its  Restricted        Subsidiaries made during such fiscal year (other than in respect of any revolving credit facility to        the extent there is not an equivalent permanent reduction in commitments thereunder),                            (vi)   increases in Consolidated Working Capital for such fiscal year,                            (vii)   the aggregate net amount of non-cash gain on the Disposition of        property by the Borrower and its Restricted Subsidiaries during such fiscal year (other than sales        of  inventory  in  the  ordinary  course  of  business),  to  the  extent  included  in  arriving  at  such        Consolidated Net Income,                            (viii)   to  the  extent  not  otherwise  deducted  from  Consolidated  Net        Income, Consolidated Cash Taxes paid during such fiscal year,                            (ix)   to  the  extent  not  otherwise  deducted  from  Consolidated  Net        Income, interest expense and any cash payments in respect of premium, make-whole or penalty        payments in respect of Indebtedness of the Borrower and its Restricted Subsidiaries for such year,                            (x)   without duplication of amounts deducted from Excess Cash Flow        in  prior  periods,  the  aggregate  amount  of  cash  consideration  paid  by  the  Borrower  and  the        Restricted Subsidiaries during such fiscal year to make Permitted Acquisitions and Investments        permitted by Section 7.7(h), Section 7.7(t), Section 7.7(u) and Section 7.7(v) (excluding any such        Permitted  Acquisitions  or  other  Investments  financed  with  the  proceeds  of  any  Reinvestment        Deferred Amount, the Available Amount or the proceeds or any issuance of Capital Stock of the        Borrower or the issuance of any Indebtedness),                           (xi)   cash charges included in clauses (a) through (l) of the definition        of “Consolidated Net Income” and                            (xii)   without duplication of amounts deducted from Excess Cash Flow        in prior periods and, at the option of the Borrower, the aggregate cash consideration (x) required to        be paid by the Borrower and its Restricted Subsidiaries pursuant to binding contracts (the “Contract        Consideration”) entered into prior to or during such period relating to Permitted Acquisitions or        other Investments anticipated to be consummated pursuant to Section 7.7(h), Section 7.7(t), Section        7.7(u) or Section 7.7(v), (y) expected to be paid in connection with Restricted Payments pursuant        to Section 7.6(b), Section 7.6(d), or Section 7.6(j) (“Planned Distributions”) and (z) expected to be        paid  in  connection  with  planned  Capital  Expenditures  of  the  Borrower  and  its  Restricted        Subsidiaries (the “Planned Expenditures”), in each case during the period of four consecutive fiscal        quarters of the Borrower following the end of the applicable fiscal year for which Excess Cash        Flow is being calculated (except to the extent financed with the proceeds of Indebtedness, any        Reinvestment Deferred Amount, the proceeds of any issuance of Capital Stock of the Borrower or        utilizing the Available Amount); provided that to the extent the aggregate amount of cash actually        utilized  to  finance  such  Permitted  Acquisitions,  Investments,  Restricted  Payments  or  Capital                                         15  509265-2041-Active.31278172.28  





 






      Expenditures  during  such  period  of  four  consecutive  fiscal  quarters  is  less  than  the  Contract        Consideration, Planned Distributions and the Planned Expenditures, the amount of such shortfall        shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive        fiscal quarters.               “Excess Cash Flow Application Date” has the meaning set forth in Section 2.11(c).               “Excess Cash Flow Period” means each fiscal year of the Borrower, commencing with the  fiscal year ending December 31, 2020.               “Exchange Act” means the Securities Exchange Act of 1934, as amended.               “Excluded  Subsidiary”  means  (a)  any  Unrestricted  Subsidiary,  (b)  any  Immaterial  Subsidiary, (c) any non-Wholly Owned Subsidiary, (d) any Subsidiary that is prohibited or restricted by  applicable law, rule or regulation or by any contractual obligation existing on the Closing Date or on the  date  such  Subsidiary  was  acquired  (so  long  as  such  contractual  obligation  was  not  entered  into  in  contemplation  of  such  acquisition)  from  guaranteeing  the  Obligations  or  which  would  require  a  governmental  (including  regulatory)  consent,  approval,  license  or  authorization  to  provide  a  guarantee  unless such consent, approval, license or authorization has been received, (e) any CFC or CFC Holding  Company, (f) any Domestic Subsidiary of a Foreign Subsidiary, (g) not-for-profit Subsidiaries and captive  insurance companies, (h) the Insurance Subsidiary and (i) any Subsidiary whose provision of a guarantee  would  have  a  cost  that  is  excessive  in  relation  to  the  value  afforded  thereby  as  determined  by  the  Administrative Agent in its reasonable discretion.  Each Excluded Subsidiary as of the Closing Date is set  forth on Schedule 4.15.               “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Credit  Party or required to be withheld or deducted from a payment to a Credit Party, (a) Taxes imposed on or  measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case,  (i) imposed as a result of a Credit Party being organized under the laws of, or having its principal office or,  in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or  any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S.  federal withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to an  applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) a Lender  acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the  Borrower under Section 2.22) or (ii) a Lender changes its lending office, except in each case to the extent  that, pursuant to Section 2.19, amounts with respect to such Taxes were payable either to such Lender’s  assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to  such Lender immediately before it changed its lending office, (c) Taxes attributable to a Credit Party’s  failure to comply with Section 2.19(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.               “Existing Indebtedness Refinancing” has the meaning set forth in Section 5.1(b)(ii).               “Facility” means each of (a) the Initial Term Commitments and the Initial Term Loans  made thereunder (the “Initial Term Facility”) and (b) the Incremental Term Loans of any Series (each, an  “Incremental Term Facility”).  Additional Facilities may be established pursuant to Section 2.26 and/or  Section 2.27.               “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement  (or any amended or successor version that is substantively comparable and not materially more onerous to  comply with), any current or future regulations or official interpretations thereof, any agreement entered  into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices                                         16  509265-2041-Active.31278172.28  





 






adopted  pursuant  to  any  intergovernmental  agreement,  treaty  or  convention  among  Governmental  Authorities and implementing such Sections of the Code.                “Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB  based on such day’s federal funds transactions by depositary institutions, as determined in such manner as  the NYFRB shall set forth on its public website from time to time, and published on the next succeeding  Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective  Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this  Agreement.               “Federal Reserve Board” means the Board of Governors of the Federal Reserve System of  the United States.               “Finance Lease Obligations” means as to any Person, the obligations of such Person to pay  rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal  property, or a combination thereof, which obligations are required to be classified and accounted for as  finance leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the  amount of such obligations at any time shall be the capitalized amount thereof at such time determined in  accordance with GAAP.               “Foreign Benefit Arrangement” means any employee benefit arrangement mandated by  non-U.S. law that is maintained or contributed to by any Group Member, any ERISA Affiliate or any other  entity related to a Group Member on a controlled group basis.               “Foreign Plan” means each employee benefit plan (within the meaning of Section 3(3) of  ERISA, whether or not such plan is subject to ERISA) that is not subject to US law and is maintained or  contributed to by any Group Member, or ERISA Affiliate or any other entity related to a Group Member  on a controlled group basis.               “Foreign Plan Event” means with respect to any Foreign Benefit Arrangement or Foreign  Plan, (a) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any  employer or employee contributions required by applicable law or by the terms of such Foreign Benefit  Arrangement or Foreign Plan; (b) the failure to register or loss of good standing with applicable regulatory  authorities of any such Foreign Benefit Arrangement or Foreign Plan required to be registered; or (c) the  failure of any Foreign Benefit Arrangement or Foreign Plan to comply with any material provisions of  applicable law and regulations or with the material terms of such Foreign Benefit Arrangement or Foreign  Plan.               “Foreign  Subsidiary”  means  any  Restricted  Subsidiary  of  the  Borrower  that  is  not  a  Domestic Subsidiary.               “Funded Debt” means as to any Person, all Specified Indebtedness of such Person that  matures more than one year from the date of its creation or matures within one year from such date but is  renewable or extendible, at the option of such Person, to a date more than one year from such date or arises  under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a  period of more than one year from such date, including all current maturities and current sinking fund  payments in respect of such Indebtedness whether or not required to be paid within one year from the date  of its creation and, in the case of the Borrower, Indebtedness in respect of the Loans and the ABL Loans.                                          17  509265-2041-Active.31278172.28  





 






            “Funding Office” means the office of the Administrative Agent specified in Section 10.2  or such other office as may be specified from time to time by the Administrative Agent as its funding office  by written notice to the Borrower and the Lenders.               “GAAP” means generally accepted accounting principles in the United States as in effect  from time to time.  In the event that any “Accounting Change” (as defined below) shall occur and such  change results in a change in the method of calculation of financial covenants, standards or terms in this  Agreement, then the Borrower and the Administrative Agent agree to enter into negotiations to promptly  amend such provisions of this Agreement so as to reflect equitably such Accounting Changes with the  desired result that the criteria for evaluating the Borrower’s results of operations and/or financial condition  shall be the same after such Accounting Changes as if such Accounting Changes had not been made.  Until  such  time  as  such  an  amendment  shall  have  been  executed  and  delivered  by  the  Borrower,  the  Administrative  Agent  and  the  Required  Lenders,  all  financial  covenants,  standards  and  terms  in  this  Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred.   “Accounting Changes” refers to changes in accounting principles required by the promulgation of any rule,  regulation, pronouncement or opinion by the Financial Accounting Standards Board or, if applicable, the  SEC.               “Governmental Authority”  means the government of the United States, any other nation  or  any  political  subdivision  thereof,  whether  state  or  local, and  any  agency,  authority,  instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,  legislative,  judicial,  taxing,  regulatory or administrative powers or functions of or pertaining to government, any securities exchange  and any self-regulatory organization (including the National Association of Insurance Commissioners).                “Group  Members”  means  the  collective  reference  to  the  Borrower  and  its  Restricted  Subsidiaries.               “Guarantee and Collateral Agreement” means the Term Loan Guarantee and Collateral  Agreement, dated as of the Closing Date, executed and delivered by the Borrower and each Subsidiary  Guarantor, substantially in the form of Exhibit D.               “Guarantee  Obligation”  means  as  to  any  Person  (the  “guaranteeing  person”),  any  obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person  that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by  another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any  Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person  (the  “primary  obligor”)  in  any  manner,  whether  directly  or  indirectly,  including  any  obligation  of  the  guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property  constituting  direct  or  indirect  security therefor, (ii) to  advance  or supply  funds  (1)  for  the  purchase  or  payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary  obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property,  securities or services primarily for the purpose of assuring the owner of any such primary obligation of the  ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or  hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however,  that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection  in the ordinary course of business or reasonable indemnity obligations entered into in connection with any  acquisition or disposition of assets.  The amount of any Guarantee Obligation of any guaranteeing person  shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary  obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which  such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee  Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person                                         18  509265-2041-Active.31278172.28  





 






may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall  be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined  by the Borrower in good faith.               “Immaterial Subsidiary” means any Restricted Subsidiary that is not a Material Subsidiary  and  that  is  designated  by  the  Borrower  in  writing  to  the  Administrative  Agent  as  an  “Immaterial  Subsidiary”; provided that if (i) as of the last day of the most recently ended fiscal quarter of the Borrower  for which financial statements have been delivered pursuant to Section 5.1(a) or (b), the aggregate tangible  assets of Immaterial Subsidiaries, as of the last day of such fiscal quarter, is greater than 5% of Consolidated  Total Assets or (ii) the aggregate contribution of Immaterial Subsidiaries to Consolidated EBITDA for the  Applicable Reference Period is greater than 5% of Consolidated EBITDA for such Applicable Reference  Period,  then  one  or  more  Restricted  Subsidiaries  that  are  not  Material  Subsidiaries  shall  promptly  be  designated by the Borrower in writing to the Administrative Agent as a “Material Subsidiary” until such  excess has been eliminated. Each Immaterial Subsidiary as of the Closing Date is set forth on Schedule  4.15.               “Impacted Interest Period” has the meaning set forth in the definition of LIBO Rate.               “Incremental Equivalent Debt” means any Indebtedness incurred by a Loan Party in the  form of one or more series of secured or unsecured bonds, debentures, notes or similar instruments or term  loans;  provided  that  (a)  if  such  Indebtedness  is  secured,  (i) such  Indebtedness  shall  be secured  by  the  Collateral (x) in the case of bonds, debentures, notes or similar instruments, on a pari passu or junior basis  to the Obligations, and (y) in the case of loans, on a junior basis to the Obligations (but, in each case,  without regard to the control of remedies) and shall not be secured by any property or assets of any Group  Member other than the Collateral and (ii) a representative, trustee, collateral agent, security agent or similar  Person acting on behalf of the holders of such Indebtedness shall have become party to an intercreditor  agreement  reasonably  satisfactory  to  the  Administrative  Agent,  (b)  such  Indebtedness  does  not  mature  earlier than the date that is 91 days after the Latest Maturity Date then in effect at the time of incurrence  thereof and has a weighted average life to maturity no shorter than the Facility of Term Loans with the  Latest Maturity Date in effect at the time of incurrence of such Indebtedness, (c) such Indebtedness contains  mandatory prepayment and redemption terms, covenants and events of default that are either (x) customary  for similar Indebtedness in light of then-prevailing market conditions (it being understood and agreed that  such  Indebtedness  shall include  financial  maintenance  covenants  only  to  the  extent  any  such  financial  maintenance covenant is (i) applicable only to periods after the Latest Maturity Date then in effect at the  time of incurrence thereof or (ii) included in or added to the Loan Documents for the benefit of the Lenders)  or  (y)  when  taken  as  a  whole  (other  than  interest  rates,  rate  floors,  fees  and  optional  prepayment  or  redemption terms), are not materially more favorable to the lenders or investors providing such Incremental  Equivalent Debt, as the case may be, than those set forth in the Loan Documents are with respect to the  Lenders (other than covenants or other provisions applicable only to periods after the Latest Maturity Date  then in effect at the time of incurrence thereof or that are included in or added to the Loan Documents for  the benefit of the Lenders), in the case of each of clauses (x) and (y), as conclusively determined by the  Borrower in good faith, and (d) such Indebtedness is not guaranteed by any Person other than Loan Parties.                 “Incremental  Limited  Condition  Term  Facility”  means  an  Incremental  Term  Facility  incurred to finance a Limited Condition Transaction.                “Incremental Term Facility” has the meaning set forth in the definition of “Facility”.               “Incremental Term Lenders” means a Lender with an Incremental Term Loan Commitment  or an outstanding Incremental Term Loan.                                          19  509265-2041-Active.31278172.28  





 






            “Incremental Term Loan Activation Notice” means a notice substantially in the form of  Exhibit I-1 or in such other form as is reasonably acceptable to the Administrative Agent; provided that if  such Incremental Term Loan Activation Notice is to effect amendments to this Agreement or the other Loan  Documents as contemplated by Section 2.24(d), the Administrative Agent shall, in each case, have executed  such Incremental Term Loan Activation Notice.               “Incremental Term Loan Closing Date” means any Business Day designated as such in an  Incremental Term Loan Activation Notice.               “Incremental  Term  Loan  Commitment”  means,  with  respect  to  any  Lender,  the  commitment, if any, of such Lender, established pursuant to an Incremental Term Loan Activation Notice  and  Section  2.24,  to  make  Incremental  Term  Loans  of  any  Series  hereunder,  expressed  as  an  amount  representing the maximum principal amount of the Incremental Term Loans of such Series to be made by  such Lender.               “Incremental  Term  Loan  Maturity  Date”  means  with  respect  to  the  Incremental  Term  Loans to be made pursuant to any Incremental Term Loan Activation Notice, the maturity date specified in  such Incremental Term Loan Activation Notice, which date shall not be earlier than the Latest Maturity  Date.               “Incremental Term Loans” means any term loans made pursuant to Section 2.24(a).               “Indebtedness” means of any Person at any date, without duplication, (a) all indebtedness  of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of  property or services, (c) all  obligations of such  Person  evidenced  by  notes,  bonds, debentures  or  other  similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention  agreement with respect to property acquired by such Person (even though the rights and remedies of the  seller or lender under such agreement in the event of default are limited to repossession or sale of such  property), (e) all Finance Lease Obligations of such Person, (f) all obligations of such Person, contingent  or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety  bonds or similar arrangements, (g) the liquidation value of all Disqualified Capital Stock of such Person,  (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a)  through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or  for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any  Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person  has assumed or become liable for the payment of such obligation (but only to the extent of the lesser of (i)  the amount of such Indebtedness and (ii) the fair market value of such property), and (j) for the purposes of  Section 8(e) only, all obligations of such Person in respect of Swap Agreements; provided that Indebtedness  shall not include (i) trade payable and accrued expenses incurred in the ordinary course of business and not  more than 120 days overdue, (ii) ordinary course intercompany liabilities having a term not exceeding 365  days (inclusive of any roll-over or extension of terms) or any other ordinary course intercompany liabilities  not constituting Specified Indebtedness, (iii) prepaid or deferred revenue arising in the ordinary course of  business, (iv) purchase price holdbacks arising in the ordinary course of business in respect of a portion of  the purchase price of an asset to satisfy unperformed obligations of the seller of such assets, (v) deferred  compensation  payable  to  employees,  officers  and  directors  and  (vi)  any  earn-out  obligation  until  such  obligation  becomes  a  liability  on  the  balance  sheet  of  such  Person  in  accordance  with  GAAP.   The  Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in  which such Person is a general partner) to the extent such Person is liable therefor as a result of such  Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such  Indebtedness expressly provide that such Person is not liable therefor. Any Indebtedness for which proceeds                                          20  509265-2041-Active.31278172.28  





 






have  been  escrowed  or  otherwise  deposited  to  repay,  defease,  redeem  or  satisfy  and  discharge  such  Indebtedness shall not be deemed outstanding.               “Indemnified Liabilities” has the meaning set forth in Section 10.5.               “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect  to  any  payment  made  by  or  on  account  of  any  obligation  of  any  Loan  Party  under  any  Loan  Document and (b) to the extent not otherwise described in clause (a) above, Other Taxes.               “Indemnitee” has the meaning set forth in Section 10.5(d).               “Initial Term Commitment” means as to any Lender, the obligation of such Lender, if any,  to make Initial Term Loans in an aggregate principal not to exceed the amount set forth under the heading  “Initial  Term  Commitment”  opposite  such  Lender’s  name  on  Schedule  1.1  or  in  the  Assignment  and  Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time  to time pursuant to the terms hereof.  The aggregate Initial Term Commitments on the Closing Date is  $200,000,000.               “Initial Term Lender” means each Lender that holds an Initial Term Loan.               “Initial Term Loans” has the meaning set forth in Section 2.1.               “Initial Term Percentage” means, as to any Initial Term Lender, the percentage which the  aggregate amount of such Lender’s Initial Term Loan Commitment then outstanding constitutes of the  aggregate amount of the Initial Term Loan Commitments then outstanding.               “Initiatives” has the meaning set forth in the definition of Consolidated EBITDA.               “Insolvent” means with respect to any Multiemployer Plan, the condition that such plan is  insolvent within the meaning of Section 4245 of ERISA.               “Insurance  Subsidiary”  means  Legacy  Insurance  Co.,  Ltd.,  a  Bermuda  company  and  a  Wholly Owned Subsidiary of the Borrower formed for the sole purpose of writing insurance only for the  risks of the Borrower and its Subsidiaries.               “Intellectual Property” means the collective reference to all rights in and to intellectual  property, whether arising under United States, multinational or foreign laws or otherwise, including with  respect  to  any  copyrights,  copyright  licenses,  patents,  patent  licenses,  trademarks,  trademark  licenses,  technology,  confidential  and  proprietary  know-how  and  processes,  all  registrations  and  applications  therefor, and all rights to sue at law or in equity for any infringement or other impairment thereof, including  the right to receive all proceeds and damages therefrom.               “Intercreditor Agreement” means the ABL/Term Loan Intercreditor Agreement, dated as  of the Closing Date, among the Borrower, the Subsidiary Guarantors, the Administrative Agent and the  ABL Administrative Agent, and any other intercreditor agreement substantially in the form of Exhibit K,  in each case as may be amended, modified or supplemented from time to time.               “Interest  Election  Request”  means  a  request  by  the  Borrower  to  convert  or  continue a  Borrowing  in  accordance  with  Section  2.12  and  the  definition  of  “Interest  Period”,  which  shall  be  substantially in the form of Exhibit B or any other form approved by the Administrative Agent.                                          21  509265-2041-Active.31278172.28  





 






            “Interest Payment Date” means (a) as to any ABR Loan, the first day of each January,  April, July and October to occur while such Loan is outstanding and the final maturity date of such Loan,  (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day of such Interest  Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day that is  three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such  Interest Period and (d) as to any Loan, the date of any repayment or prepayment made in respect thereof.               “Interest Period” means as to any Eurodollar Loan, (a) initially, the period commencing on  the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one,  two, three or six months thereafter, as selected by the Borrower in its Borrowing Request or Interest Election  Request, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the  last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, two, three  or six months thereafter, as selected by the Borrower by irrevocable notice in an Interest Election Request  submitted to the Administrative Agent not later than 12:00 Noon, New York City time, on the date that is  three Business Days prior to the last day of the then current Interest Period with respect thereto; provided  that, all of the foregoing provisions relating to Interest Periods are subject to the following:                     (i)   if any Interest Period would otherwise end on a day that is not a Business        Day, such Interest Period shall be extended to the next succeeding Business Day unless the result        of such extension would be to carry such Interest Period into another calendar month in which event        such Interest Period shall end on the immediately preceding Business Day;                     (ii)  the Borrower may not select an Interest Period under a particular Facility        that would extend beyond the date final payment is due on the relevant Term Loans; and                     (iii) any  Interest  Period  that  begins  on  the  last  Business  Day  of  a  calendar        month (or on a day for which there is no numerically corresponding day in the calendar month at        the end of such Interest Period) shall end on the last Business Day of the last calendar month of        such Interest Period.               “Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded  to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent  (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that  results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period for  which the LIBO Screen Rate is available that is shorter than the Impacted Interest Period; and (b) the LIBO  Screen Rate for the shortest period for which that LIBO Screen Rate is available that exceeds the Impacted  Interest Period, in each case, as of 11:00 a.m., London time, two Business Days prior to the commencement  of the applicable Interest Period; provided that if the Interpolated Rate as so determined would be less than  zero, such rate shall be deemed to be zero for the purposes of calculating such rate. When determining the  rate for a period which is less than the shortest period for which the LIBO Screen Rate is available, the  LIBO Screen Rate for purposes of clause (a) above shall be deemed to be the overnight rate for Dollars  determined by the Administrative Agent from such service as the Administrative Agent may select in its  reasonable discretion. “Investments” has the meaning set forth in Section 7.7.               “IRS” means the United States Internal Revenue Service.                “Joint Venture” means a joint venture, partnership or other similar arrangement entered  into by the Borrower or any Restricted Subsidiary, whether in corporate, partnership or other legal form;  provided that in no event shall any Subsidiary be considered to be a Joint Venture.                                          22  509265-2041-Active.31278172.28  





 






            “Junior  Indebtedness”  means  (a)  any  Subordinated  Indebtedness  and  (b)  any  Specified  Indebtedness (other than ABL Loans and any Permitted Refinancing Indebtedness in respect thereof) of  any Group Member that is secured by a Lien on the Collateral that is junior to the Lien on the Collateral  securing the Obligations.               “Latest Maturity Date” means at any date of determination, the latest scheduled maturity  date applicable to any Loan hereunder at such time, including in respect of any Incremental Term Facility.               “LCT Election” has the meaning set forth in Section 1.6.               “LCT Test Date” has the meaning set forth in Section 1.6.               “Lenders” means the Persons listed on Schedule 1.1 and any other Person that shall have  become a party hereto pursuant to an Assignment and Assumption or otherwise, other than any such Person  that ceases to be a party hereto pursuant to an Assignment and Assumption or otherwise.               “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, the  LIBO  Screen  Rate  at  approximately  11:00  a.m.,  London  time,  two  Business  Days  prior  to  the  commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such  time for such Interest Period (an “Impacted Interest Period”) then the LIBO Rate shall be the Interpolated  Rate.               “LIBO  Screen  Rate”  means,  for  any  day  and  time,  with  respect  to  any  Eurodollar  Borrowing for any Interest Period, the London interbank offered rate as administered by ICE Benchmark  Administration (or any other Person that takes over the administration of such rate) for U.S. Dollars for a  period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or  LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a  Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the  appropriate page of such other information service that publishes such rate from time to time as selected by  the  Administrative  Agent  in  its  reasonable  discretion);  provided  that  if  the  LIBO  Screen  Rate  as  so  determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.               “Lien”  means  any  mortgage,  pledge,  hypothecation,  assignment,  deposit  arrangement,  encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other  security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional  sale or other title retention agreement and any finance lease having substantially the same economic effect  as any of the foregoing); provided that a “Lien” as defined herein shall not include any license, sublicense  or similar right with respect to Intellectual Property.                “Limited Condition Transaction” means any Investment that the Borrower or a Restricted  Subsidiary is contractually committed to consummate (it being understood that such commitment may be  subject  to  conditions  precedent,  which  conditions  precedent  may  be  amended,  satisfied  or  waived  in  accordance with the applicable agreement) and whose consummation is not conditioned on the availability  of, or on obtaining, third party financing (it being understood that a “marketing period” or similar concept  is not a financing condition).               “Loan” means the loans made by the Lenders to the Borrower pursuant to this Agreement.               “Loan  Documents”  means  this  Agreement,  the  Security  Documents,  the  Intercreditor  Agreement, the Notes and any amendment, restatement, amendment and restatement, waiver, supplement  or other modification to any of the foregoing.                                         23  509265-2041-Active.31278172.28  





 






            “Loan  Modification  Agreement”  means  a  Loan  Modification  Agreement,  in  form  and  substance reasonably satisfactory to the Administrative Agent and the Borrower, among the Borrower, the  Administrative Agent and one or more Accepting Lenders, effecting one or more Permitted Amendments  and such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.26.               “Loan Modification Offer” has the meaning set forth in Section 2.26(a).               “Loan Parties” means the Borrower and the Subsidiary Guarantors.               “Majority Facility Lenders” means with respect to any Facility, the holders of more than  50% of the aggregate unpaid principal amount of the Term Loans outstanding under such Facility.               “Margin Stock” means margin stock within the meaning of Regulations T, U and X, as  applicable.               “Market  Capitalization”  means  an  amount  equal  to  (i)  the  total  number  of  issued  and  outstanding shares of common stock of the Borrower on the date of the declaration of a Restricted Payment  multiplied by (ii) the arithmetic mean of the closing prices per share of such common stock on the principal  securities exchange on which such common stock is traded for the 20 consecutive trading days immediately  preceding the date of declaration of such Restricted Payment.               “Material Acquisition” means any acquisition of property or series of related acquisitions  of property that (a) constitutes assets comprising all or substantially all of an operating unit of a business  or constitutes all or substantially all of the common stock of a Person and (b) involves the payment of  consideration by the Group Members in excess of $55,000,000.               “Material Adverse Effect” means a material adverse effect on (a) the business, property,  operations or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the  ability  of  the  Loan  Parties  (taken  as  a  whole)  to  perform  their  payment  obligations  under  the  Loan  Documents to which they are a party or (c) the validity or enforceability of this Agreement or any of the  other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders under the Loan  Documents, taken as a whole.               “Material Disposition” means any Disposition of property or series of related Dispositions  of property that yields gross proceeds to the Group Members in excess of $55,000,000.               “Material Indebtedness” means Indebtedness (other than the Loans) or Swap Obligations  of any one or more of the Borrower and the Restricted Subsidiaries in an aggregate principal amount of  $75,000,000 or more; provided that any Indebtedness outstanding under the ABL Credit Agreement shall  be deemed to be Material Indebtedness.  For purposes of determining Material Indebtedness, the “principal  amount” of any Swap Obligation at any time shall be the maximum aggregate amount (giving effect to any  netting agreements) that the Borrower and/or any applicable Restricted Subsidiary would be required to  pay if the applicable Swap Agreement were terminated at such time.               “Material Subsidiary” means, as of any date of determination, each Restricted Subsidiary  (a) with total assets (including the value of Capital Stock of its subsidiaries) on such date of determination  greater than 5.0% of Consolidated Total Assets, (b) whose contribution to Consolidated EBITDA for the  Applicable Reference Period exceeds 5% of Consolidated EBITDA for the Applicable Reference Period or  (c) that is designated as a “Material Subsidiary” pursuant to the definition of Immaterial Subsidiary.                                           24  509265-2041-Active.31278172.28  





 






            “Materials of Environmental Concern” means any gasoline or petroleum (including crude  oil or any fraction thereof) or petroleum products, asbestos, polychlorinated biphenyls, urea-formaldehyde  insulation, radioactivity, and any other substances, materials or wastes, that are regulated pursuant to or that  could give rise to liability under any Environmental Law.               “Maturity Date” means August 5, 2026.               “Maximum  Incremental  Amount”  means  an  amount  represented  by  Incremental  Term  Loans to be established pursuant to Section 2.24 that would not, immediately after giving effect to the  establishment thereof (excluding from Unrestricted Cash in making such pro forma calculation the Net  Cash Proceeds of such Incremental Term Loans), cause the Consolidated Secured Leverage Ratio for the  Applicable  Reference  Period,  calculated  on  a  Pro  Forma  Basis  as  of  the  date  of  incurrence  of  such  Indebtedness, to exceed 2.00 to 1.00; provided that, with respect to Incremental Equivalent Debt established  pursuant to Section 7.2(t), in lieu of the Consolidated Secured Leverage Ratio test applicable to Incremental  Term Loans, such test with respect to Incremental Equivalent Debt (which in each case shall be calculated  excluding from Unrestricted Cash in making such pro forma calculation the Net Cash Proceeds of such  Incremental Equivalent Debt) shall instead be: (1) in the case of such Indebtedness secured by Liens on the  Collateral on a pari passu basis with, or on a junior basis to, the Liens on the Collateral securing the Term  Loans,  a  Consolidated  Secured  Leverage  Ratio  not  to  exceed  2.00  to  1.00  or  (2)  in  the  case  of  such  unsecured Indebtedness, a Consolidated Leverage Ratio not to exceed 2.50 to 1.00.               “Merchants  Preferred  Acquisition”  means  the  acquisition  by  the  Group  Members  of  substantially all of the assets of C/C Financial Corp. dba Merchants Preferred.               “Mexico Operations” means the operations in Mexico of the Borrower and its Subsidiaries.               “Minimum Extension Condition” has the meaning set forth in Section 2.26(a).               “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 Group Member or any ERISA Affiliate (i) makes or is obligated to make contributions,  (ii) during the preceding five plan years, has made or been obligated to make contributions or (iii) has any  actual or contingent liability.               “Multiple  Employer  Plan”  means  a  Plan  which  has  two  or  more  contributing  sponsors  (including any Group Member or any ERISA Affiliate) at least two of whom are not under common control,  as such a Plan is described in Section 4064 of ERISA.               “Net Cash Proceeds” means (a) in connection with any Disposition or any Recovery Event,  the  proceeds  thereof  in  the  form  of  cash  and  Cash  Equivalents  (including  any  such  proceeds  actually  received by the Group Members by way of deferred payment of principal pursuant to a note or installment  receivable or purchase price adjustment receivable or otherwise, but only as and when received), net of  attorneys’  fees, accountants’  fees,  investment  banking  fees,  auditor fees, printer  fees,  SEC filing  fees,  brokerage fees, amounts required to be applied to the repayment of Indebtedness ((i) including repayments  pursuant to the ABL Credit Agreement and (ii) other than the Loans, any Pari Passu Secured Indebtedness  or any Junior Indebtedness) secured by a Lien expressly permitted hereunder on any asset that is the subject  of  such  Disposition  or  Recovery  Event  and  other  customary  fees  and  expenses  actually  incurred  in  connection  therewith  and  net  of  taxes  paid  or  reasonably  estimated  to  be  payable  as  a  result  thereof,  including (in connection with any Asset Sale by a Foreign Subsidiary or Recovery Event relating to any  asset  of  a  Foreign  Subsidiary)  any  taxes  paid  or  reasonably  estimated to  be  payable  as  a  result  of  the                                         25  509265-2041-Active.31278172.28  





 






repatriation of such proceeds to the Borrower, any reserve established in accordance with GAAP (provided  that upon release of any such reserve, the amount released shall be considered Net Cash Proceeds) and any  payment amount required to be paid by law, rule or regulation upon receipt to a third party related to the  transaction (including to labor unions, work councils and environmental trusts), in each case as determined  by the Borrower in good faith, and (b) in connection with any issuance or sale of Capital Stock or any  incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’  fees, investment banking fees, auditor fees, printer fees, SEC filing fees, brokerage fees, accountants’ fees,  underwriting  discounts  and  commissions  and  other  customary  fees  and  expenses  actually  incurred  in  connection therewith.               “New Lender” has the meaning set forth in Section 2.24(b).               “New Lender Supplement” has the meaning set forth in Section 2.24(b).               “No  Undisclosed  Information  Representation”  means  with  respect  to  any  Person,  a  representation that such Person is not in possession of any material non-public information with respect to  the Borrower or any of its Subsidiaries that has not been disclosed to the Lenders generally (other than  those Lenders who have elected to not receive any non-public information with respect to the Borrower or  any of its Subsidiaries) and if so disclosed would reasonably be expected to have a material effect upon, or  otherwise be material to, the market price of the applicable Loan, or the decision of an assigning Lender to  sell, or of an assignee to purchase, such Loan.               “Non-U.S. Lender” means a Lender that is not a U.S. Person.               “Not Otherwise Applied” means in respect of any amount, such amount has not previously  been (and is not currently being) applied to any other use or transaction.                 “Notes” means the collective reference to any promissory note evidencing Loans.               “NYFRB” means the Federal Reserve Bank of New York.               “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in  effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is  not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are  published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds  transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds  broker  of  recognized  standing  selected  by  it;  provided,  further,  that if  any  of  the  aforesaid  rates as  so  determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.               “Obligations” means the unpaid principal of and interest on (including interest accruing  after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the  commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or  not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other  obligations and liabilities of the Borrower to the Administrative Agent or to any Lender, whether direct or  indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which arise  under, out of, or in connection with, this Agreement, any other Loan Document or any other document  made, delivered or given in connection herewith or therewith, whether on account of principal, interest,  reimbursement  obligations,  fees,  indemnities,  costs,  expenses  (including  all  fees,  charges  and  disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the  Borrower pursuant hereto) or otherwise.                                          26  509265-2041-Active.31278172.28  





 






            “Organizational Documents”  means (a) with respect to any corporation, the certificate or  articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect  to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of  formation or organization and operating agreement, and (c) with respect to any partnership, joint venture,  trust  or  other  form  of  business  entity,  the  partnership,  joint  venture  or  other  applicable  agreement  of  formation or organization and, if applicable, any agreement, instrument, filing or notice with respect thereto  filed in connection with its formation or organization with the applicable Governmental Authority in the  jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or  organization of such entity.                 “Other Connection Taxes” means with respect to any Credit Party, Taxes imposed as a  result of a present or former connection between such Credit Party and the jurisdiction imposing such Tax  (other  than  connections  arising  from  such  Credit  Party  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 Debt Declined Amount” has the meaning set forth in Section 2.11(b).               “Other  Taxes”  means  all  present  or  future  stamp,  court,  or  documentary,  intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery,  performance, enforcement or registration of, from the receipt or perfection of a security interest under, or  otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes  imposed with respect to an assignment (other than an assignment made pursuant to Section 2.22).               “Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight  federal  funds  and  overnight  Eurodollar  borrowings  by  U.S.-managed  banking  offices  of  depository  institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website  from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank  funding rate.               “Pari  Passu  Secured  Indebtedness”  means  Term  Loan  Refinancing  Indebtedness  and  Incremental Equivalent Debt (and any Permitted Refinancing Indebtedness in respect of the foregoing), in  each case that is secured by Liens on the Collateral that are pari passu to the Liens on Collateral securing  the Term Loans.               “Participant” has the meaning set forth in Section 10.6(c).               “Participant Register” has the meaning set forth in Section 10.6(c).               “Patriot Act” has the meaning set forth in Section 10.17.               “PBGC” means the Pension Benefit Guaranty Corporation established under Section 4002  of ERISA and any successor entity performing similar functions.               “Pension Plan” means any employee benefit plan (including a Multiple Employer Plan, but  not including a Multiemployer Plan) that is subject to Title IV of ERISA, Section 412 of the Code or Section  302 of ERISA (i) which is or was sponsored, maintained or contributed to by, or required to be contributed  to by, any Group Member or any ERISA Affiliate or (ii) with respect to which any Group Member or any  ERISA Affiliate has any actual or contingent liability.                                          27  509265-2041-Active.31278172.28  





 






            “Permitted  Acquisition”  means  the  purchase  or  other  acquisition  (including  by  merger,  consolidation or amalgamation) by the Borrower or any Restricted Subsidiary of all or a majority of the  Capital Stock of, or all or substantially all of the property of, any Person, or of any business or division of  any Person; provided that with respect to each purchase or other acquisition (i) after giving effect thereto,  the Borrower and its Restricted Subsidiaries are in compliance with Section 7.15, (ii) immediately before  and immediately after giving effect on a pro forma basis to any such purchase or other acquisition, no Event  of Default shall have occurred and be continuing and (iii) any such newly created or acquired Subsidiary  shall, to the extent required by Section 6.10, comply with the requirements of Section 6.10.               “Permitted Amendment” means an amendment to this Agreement and/or the other Loan  Documents, effected in connection with a Loan Modification Offer pursuant to Section 2.26, providing for  an extension of the scheduled maturity date and/or amortization applicable to the Loans of the Accepting  Lenders of a relevant Facility and, in connection therewith, which may also provide for (a)(i) a change in  the  Applicable  Margin  with  respect  to  the  Loans  of  the  Accepting  Lenders  subject  to  such  Permitted  Amendment and/or (ii) a change in the fees payable to, or the inclusion of new fees to be payable to, the  Accepting Lenders in respect of such Loans, (b) changes to any prepayment premiums with respect to the  applicable  Loans  of  a  relevant  Facility,  (c)  such  amendments  to  this  Agreement  and  the  other  Loan  Documents as shall be appropriate, in the reasonable judgment of the Administrative Agent, to provide the  rights and benefits of this Agreement and other Loan Documents to each new Facility of Loans and/or  commitments resulting therefrom and (d) additional amendments to the terms of this Agreement and/or the  other Loan Documents applicable to the applicable Loans of the Accepting Lenders that are less favorable  to  such  Accepting  Lenders  than  the  terms  of  this  Agreement  and/or  the  other  Loan  Documents,  as  applicable, prior to giving effect to such Permitted Amendments and that are reasonably acceptable to the  Administrative Agent.               “Permitted  Refinancing  Indebtedness”  means  with  respect  to  any  Indebtedness  of  any  Person (the “Original Indebtedness”), any modification, refinancing, refunding, replacement, renewal or  extension of such Indebtedness, in whole or in part; provided, that (i) no Person that is not an obligor with  respect  to  the  Original  Indebtedness  shall  be  an  obligor  with  respect  to  such  Permitted  Refinancing  Indebtedness, (ii) the final maturity and weighted average life to maturity of such Indebtedness shall not be  shortened as a result of such modification, refinancing, refunding, replacement, renewal or extension, (iii)  in the case of any modification, refinancing, refunding, replacement, renewal or extension of Indebtedness  incurred pursuant to Section 7.2(b), the mandatory prepayment and redemption terms, covenants and events  of  default  of  such  Indebtedness  are  either  (x)  not  materially  more  favorable  (taken  as  a  whole,  as  conclusively determined by the Borrower in good faith) to the lenders providing such Indebtedness than  those terms (taken as a whole) applicable to the Original Indebtedness (except to the extent such terms  apply solely to any period after the Latest Maturity Date or applied for the benefit of the Term Loans then  outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively  determined by the Borrower in good faith, (iv) (x) in the case of any Original Indebtedness consisting of a  revolving credit facility, the committed amount does not exceed the committed amount in respect of the  Original Indebtedness and (y) in each case (including in respect of a revolving credit facility), the principal  amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value,  if applicable) of the Original Indebtedness, except in each case by an amount (such amount, the “Additional  Permitted  Amount”)  equal  to  unpaid  accrued  interest  and  premium  (including  make-whole  premiums,  prepayment premiums and amounts required to be paid in connection with defeasance and satisfaction and  discharge)  thereon  at  such  time  plus  reasonable  fees  and  expenses  incurred  in  connection  with  such  modification,  refinancing,  refunding,  replacement,  renewal  or  extension  (including  upfront  fees  and  original issue discount), (v) for the avoidance of doubt, the Original Indebtedness is paid down (or, with  respect  to  revolving  credit  facilities,  commitments  in  respect  thereof  are  reduced  (together  with,  if  applicable, payments of principal)) on a dollar-for-dollar basis by such Permitted Refinancing Indebtedness  (other  than  by  the  Additional  Permitted  Amount),  (vi)  if  the  Original  Indebtedness  shall  have  been                                         28  509265-2041-Active.31278172.28  





 






subordinated to the Obligations, such Permitted Refinancing Indebtedness shall also be subordinated to the  Obligations on terms not less favorable in any material respect to the Lenders and (vii) such Permitted  Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured  such Original Indebtedness (or would have been required to secure such Original Indebtedness pursuant to  the terms thereof) or, in the event Liens securing such Original Indebtedness shall have been contractually  subordinated  to  any  Lien  securing  the  Obligations, by  any  Lien  that  shall  not  have  been  contractually  subordinated to at least the same extent.                “Permitted Unsecured Indebtedness” means Indebtedness of the Borrower or any of its  Subsidiaries (a) that is not (and any Guarantee Obligations thereof by any Group Member are not) secured  by any collateral (including the Collateral), (b) that does not mature earlier than the date that is 91 days  after the Latest Maturity Date then in effect at the time of incurrence thereof and has a weighted average  life to maturity no shorter than the Facility of Term Loans with the Latest Maturity Date in effect at the  time of incurrence of such Indebtedness, (c) that contains mandatory prepayment and redemption terms,  covenants and events of default that are either (x) customary for similar Indebtedness in light of then- prevailing market conditions (it being understood and agreed that such Indebtedness shall include financial  maintenance covenants only to the extent any such financial maintenance covenant is (i) applicable only to  periods after the Latest Maturity Date then in effect at the time of incurrence thereof or (ii) included in or  added to the Loan Documents for the benefit of the Lenders) or (y) when taken as a whole (other than  interest  rates,  rate  floors, fees  and  optional  prepayment  or  redemption  terms),  are  not  materially  more  favorable to the lenders or investors providing such Permitted Unsecured Indebtedness, as the case may be,  than those set forth in the Loan Documents are with respect to the Lenders (other than covenants or other  provisions applicable only to periods after the Latest Maturity Date then in effect at the time of incurrence  thereof or that are included in or added to the Loan Documents for the benefit of the Lenders), in the case  of each of clauses (x) and (y), as conclusively determined by the Borrower in good faith, and (e) that is not  guaranteed by any Person other than on an unsecured basis by Group Members.               “Person” means an individual, partnership, corporation, limited liability company, business  trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other  entity of whatever nature.               “Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject  to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect  of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section  4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.               “Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section  3(42) of ERISA, as amended from time to time.               “Planned Distributions” has the meaning set forth in the definition of “Excess Cash Flow”.               “Planned Expenditures” has the meaning set forth in the definition of “Excess Cash Flow”.               “Platform” has the meaning set forth in Section 10.15.               “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime  Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest  rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected  Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate  quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve                                          29  509265-2041-Active.31278172.28  





 






Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from  and including the date such change is publicly announced or quoted as being effective.               “Pro Forma Basis” means, with respect to the calculation of any test or covenant hereunder,  such test or covenant being calculated after giving effect to (a) any designation of a Restricted Subsidiary  as an Unrestricted Subsidiary, (b) any designation of an Unrestricted Subsidiary as a Restricted Subsidiary,  (c) any Material Acquisition, (d) any Material Disposition, and (e) any assumption, incurrence, repayment  or other Disposition of Indebtedness (all of the foregoing, “Applicable Transactions”) using, for purposes  of determining such compliance, the historical financial statements of all entities or assets so designated,  acquired or sold (to the extent available) and the consolidated financial statements of the Borrower and its  Restricted Subsidiaries, which shall be reformulated as if all Applicable Transactions during the Applicable  Reference Period, or subsequent to the Applicable Reference Period and on or prior to the date of such  calculation, had been consummated at the beginning of such period (and shall include, with respect to any  Material Acquisition or Material Disposition, any adjustments calculated in accordance with (and subject  to the requirements and limitations of) clause (i) of the definition of “Consolidated EBITDA”); provided  that with respect to any assumption, incurrence, repayment or other Disposition of Indebtedness (i) if such  Indebtedness has a floating rate of interest, the interest expense on such Indebtedness will be calculated as  if the rate in effect on the date of calculation had been the applicable rate for the entire period (taking into  account any Swap Obligations applicable to such Indebtedness if such Swap Obligation has a remaining  term as at the date of calculation in excess of 12 months), (ii) interest on Finance Lease Obligations shall  be deemed to accrue at an interest rate reasonably determined by the Borrower to be the rate of interest  implicit in such Finance Lease Obligation in accordance with GAAP, (iii) interest on any Indebtedness  under a revolving credit facility shall be based upon the average daily balance of such Indebtedness during  the applicable period and (iv) interest on Indebtedness that may be optionally determined at an interest rate  based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be  deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate  as the Borrower may designate.                “Pro Forma Financial Statements” has the meaning set forth in Section 4.1(a).               “Prohibited Transaction” has the meaning set forth in Section 406 of ERISA and Section  4975(c) of the Code.               “Projections” has the meaning set forth in Section 6.2(c).               “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.               “Public-Sider”  means  a  Lender  whose  representatives  may  trade  in  securities  of  the  Borrower or any of its Subsidiaries while in possession of the financial statements provided by the Borrower  under the terms of this Agreement.               “Purchasing Borrower Party” means any of the Borrower or any Restricted Subsidiary.               “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).               “QFC Credit Support” has the meaning set forth in Section 10.20.               “Qualified Capital Stock” means Capital Stock of the Borrower other than Disqualified  Capital Stock.                                         30  509265-2041-Active.31278172.28  





 






            “Recovery  Event”  means  any  settlement  of  or  payment  in  respect  of  any  property  or  casualty insurance claim or any condemnation proceeding relating to any asset of any Group Member (other  than assets that constitute ABL Priority Collateral) that yields gross cash proceeds to any Group Member  in excess of $10,000,000.               “Reference Period” means each period of four consecutive fiscal quarters of the Borrower.               “Refinancing Facility Agreement” means an amendment to this Agreement, in form and  substance reasonably satisfactory to the Administrative Agent and the Borrower, among the Borrower and,  if  applicable,  the  Administrative  Agent  and  one  or  more  Refinancing  Term  Lenders,  establishing  Refinancing Term Loan Commitments and Refinancing Term Loans and effecting such other amendments  hereto and to the other Loan Documents as are contemplated by Section 2.27.               “Refinancing Term Lender” has the meaning set forth in Section 2.27(a).               “Refinancing Term Loan Commitments” has the meaning set forth in Section 2.27(a).               “Refinancing Term Loans” has the meaning set forth in Section 2.27(a).               “Register” has the meaning set forth in Section 10.6(b)(iv).               “Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time  to time and all official rulings and interpretations thereunder or thereof.               “Regulation T” means Regulation T of the Federal Reserve Board, as in effect from time  to time and all official rulings and interpretations thereunder or thereof.               “Regulation U” means Regulation U of the Board, as in effect from time to time and all  official rulings and interpretations thereunder or thereof.               “Regulation X” means Regulation X of the Federal Reserve Board, as in effect from time  to time and all official rulings and interpretations thereunder or thereof.               “Reinvestment  Deferred  Amount”  means  with  respect  to  any  Reinvestment  Event,  the  aggregate Net Cash Proceeds received by any Group Member in connection therewith that are not applied  to prepay the Term Loans pursuant to Section 2.11(b) as a result of the delivery of a Reinvestment Notice.               “Reinvestment Event” means any Asset Sale or Recovery Event in respect of which the  Borrower has delivered a Reinvestment Notice.               “Reinvestment Notice” means a written notice executed by a Responsible Officer stating  that the Borrower (directly or indirectly through a Restricted Subsidiary) intends and expects to use all or  a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire (including  purchases  of  companies  or  divisions  or  lines  of  business,  Permitted  Acquisitions  and  other  permitted  Investments and purchases of inventory), maintain, develop, construct, improve, upgrade or repair assets  useful in its or its Restricted Subsidiaries’ business.               “Reinvestment Prepayment Amount” means with respect to any Reinvestment Event, the  Reinvestment  Deferred  Amount  relating  thereto  less  any  amount  expended  prior  to  the  relevant  Reinvestment  Prepayment  Date  to  acquire  (including  purchases  of  companies  or  divisions  or  lines  of  business, Permitted Acquisitions and other permitted Investments and purchases of inventory), maintain,                                         31  509265-2041-Active.31278172.28  





 






develop, construct, improve, upgrade or repair assets useful in the Borrower’s or its Restricted Subsidiaries’  business.               “Reinvestment  Prepayment  Date”  means  with  respect  to  any  Reinvestment  Event,  the  earlier of (a) the date occurring 12 months after such Reinvestment Event (or if the Borrower or the relevant  Restricted Subsidiary, as applicable, has contractually committed within 12 months after such Reinvestment  Event  to  reinvest  such  Reinvestment  Deferred  Amount,  the  date  occurring  18  months  after  such  Reinvestment Event) and (b) the date on which the Borrower shall have determined not to, or shall have  otherwise ceased to, acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the  Borrower’s or its Restricted Subsidiaries’ business with all or any portion of the relevant Reinvestment  Deferred Amount.               “Related Parties” with respect to any specified Person, such Person’s Affiliates and the  respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.                “Repricing  Transaction”  means  (a)  any  prepayment  of  Initial  Term  Loans  with  the  proceeds of a substantially concurrent incurrence of Indebtedness by any Group Member (other than any  such incurrence in  connection  with a Transformative  Acquisition  or  a  Change of  Control) the  primary  purpose of which results in the all-in yield, on the date of such prepayment, being lower than the all-in yield  on the Initial Term Loans (with the all-in yield calculated by the Administrative Agent in accordance with  standard market practice, taking into account, in each case, any interest rate floors, the Applicable Margin  hereunder and the interest rate spreads under such Indebtedness, and any original issue discount and upfront  fees applicable to or payable in respect of the Initial Term Loans and such Indebtedness with the original  issue discount and upfront fees being equated to interest rate assuming a four-year life to maturity of such  Indebtedness (but excluding arrangement, structuring, underwriting, commitment, amendment or other fees  regardless of whether paid in whole or in part to any or all lenders of such Indebtedness and any other fees  that are not paid generally to all lenders of such Indebtedness)) and (b) any amendment, amendment and  restatement or other modification to this Agreement that reduces the all-in yield (calculated as set forth in  clause (a) above) of the Initial Term Loans (other than any such amendment, amendment and restatement  or other modification effected in connection with a Transformative Acquisition or a Change of Control).               “Required Lenders” means at any time, the holders of more than 50% of the aggregate  unpaid principal amount of the Term Loans then outstanding.               “Requirement of Law” means as to any Person, the Certificate of Incorporation and By- Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation  or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or  binding upon such Person or any of its property or to which such Person or any of its property is subject.               “Responsible Officer” means the chief executive officer, president, chief financial officer  or treasurer of the Borrower, but in any event, with respect to financial matters, the chief financial officer  of the Borrower.               “Restricted Debt Payment” has the meaning set forth in Section 7.8(a).               “Restricted Payments” has the meaning set forth in Section 7.6.               “Restricted Subsidiary” means any Subsidiary of the Borrower other than an Unrestricted  Subsidiary.                                          32  509265-2041-Active.31278172.28  





 






            “Retained Excess Cash Flow” means, at any date of determination, an amount, equal to the  aggregate  cumulative  sum  of the  Retained  Percentage  of  Excess  Cash  Flow for the  Excess  Cash  Flow  Periods ended on or prior to such date.                “Retained Percentage” means, with respect to any Excess Cash Flow Period, (a) 100%  minus (b) the ECF Percentage with respect to such Excess Cash Flow Period.               “S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services  LLC business.               “Sanctioned Country” means, at any time, a country, region or territory which is itself the  subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea and  Syria).               “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list  of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the  Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, any  European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions  authority, in each case, having jurisdiction over any Group Member, (b) any Person operating, organized,  or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons  described in the foregoing clauses (a) or (b), or (d) any Person otherwise the subject of any Sanctions.               “Sanctions”  means  all  economic  or  financial  sanctions  or  trade  embargoes  imposed,  administered or enforced from time to time by (a) the U.S. government, including those administered by  the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of  State, or (b) the United Nations Security Council, the European Union, any European Union member state,  Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, in each case, having  jurisdiction over any Group Member.               “SEC” means the Securities and Exchange Commission, any successor thereto and any  analogous Governmental Authority.               “Secured Parties” has the meaning set forth in the Guarantee and Collateral Agreement.               “Security  Documents”  means  the  collective  reference  to  the  Guarantee  and  Collateral  Agreement and all other security documents hereafter delivered to the Administrative Agent granting a Lien  on any property of any Person to secure the obligations and liabilities of any Loan Party under any Loan  Document.               “Series” has the meaning set forth in Section 2.24(a).               “Solvent”  means,  when  used  with  respect  to  any  Person,  that,  as  of  any  date  of  determination, (a) the fair value of the assets of such Person, at a fair valuation, will exceed its debts and  liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the assets of such  Person will be greater than the amount that will be required to pay the probable liabilities on its debts and  other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute  and  matured,  (c)  such  Person  will  be  able  to  pay  its  debts  and  liabilities,  subordinated,  continent  or  otherwise, as such debts and liabilities become absolute and matured and (d) such Person will not have an  unreasonably small capital with which to conduct the business in which it is engaged as such business is  conducted as of such date of determination and proposed to be conducted following such date. The amount  of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and                                         33  509265-2041-Active.31278172.28  





 






circumstances existing at such time, represents the amount that can reasonably be expected to become an  actual or matured liability.               “Specified Acquisition Agreement Representations” means, with respect to any acquisition  contemplated by the Borrower or any Restricted Subsidiary, the representations made by or on behalf of  the  proposed  target  of  such  acquisition  in  the  documentation  governing  such acquisition  (the  “Subject  Acquisition Agreement”) that are material to the interests of the Lenders, but only to the extent that accuracy  of any such representation is a condition to the obligations of the Borrower (or any affiliate thereof) to close  under the Subject Acquisition Agreement or the Borrower (or an affiliate thereof) has the right (without  regard  to  any  notice  requirement  but  giving  effect  to  any  applicable  cure  provisions)  to  terminate  its  obligations under the Subject Acquisition Agreement as a result of a breach of such representations in the  Subject Acquisition Agreement.                “Specified Event of Default” means an Event of Default under clauses (a) or (f) of Section  8.               “Specified Indebtedness” means Indebtedness of the types described in clauses (a) and (c)  of the definition of “Indebtedness”.               “Specified Representations” means the representations and warranties of the Borrower and  the  Subsidiary  Guarantors  set  forth  in  Sections  4.3(a)  and  (c),  4.4(a),  4.5  (solely  with  respect  to  organizational or governing documents and agreements governing Material Indebtedness), 4.11, 4.14, 4.16,  4.19, 4.20 and 4.23.                “Statutory  Reserve  Rate”  means  a  fraction  (expressed  as  a  decimal),  the  numerator  of  which is the number one and the denominator of which is the number one minus the aggregate of the  maximum  reserve  percentage  (including  any  marginal,  special,  emergency  or  supplemental  reserves)  expressed as a decimal established by the Federal Reserve Board to which the Administrative Agent is  subject  with  respect  to  the  Adjusted  LIBO  Rate,  for  eurocurrency  funding  (currently  referred  to  as  “Eurocurrency liabilities” in Regulation D).  Such reserve percentage shall include those imposed pursuant  to Regulation D.  Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to  such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be  available from time to time to any Lender under Regulation D or any comparable regulation.  The Statutory  Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve  percentage.               “Subordinated Indebtedness” means any Specified Indebtedness of any Group Member  that is expressly subordinated in right of payment to the Obligations; provided that, for the avoidance of  doubt, Indebtedness under the ABL Credit Agreement shall not be considered Subordinated Indebtedness.               “Subsidiary” means as to any Person, a corporation, partnership, limited liability company  or other entity of which shares of stock or other ownership interests having ordinary voting power (other  than  stock  or  such  other  ownership  interests  having  such  power  only  by reason  of  the happening  of a  contingency) to elect a majority of the board of directors or other managers of such corporation, partnership  or other entity are at the time owned, or the management of which is otherwise controlled, directly or  indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all  references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries  of the Borrower.               “Subsidiary  Guarantor”  means  (i)  each  Restricted  Subsidiary  of  the  Borrower that  is a  Domestic Subsidiary (other than any Excluded Subsidiary) and (ii) each other Restricted Subsidiary that is                                         34  509265-2041-Active.31278172.28  





 






an obligor under or guarantor in respect of the ABL Loans or any Permitted Refinancing Indebtedness in  respect thereof.               “Supported QFC” has the meaning assigned to it in Section 10.20.               “Swap  Agreement”  means  any  agreement with  respect to any  swap,  forward, future  or  derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates,  currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices  or measures of economic, financial or pricing risk or value or any similar transaction or any combination  of  these  transactions;  provided  that  no  phantom  stock  or  similar  plan  providing  for  payments  only  on  account  of  services  provided  by  current  or  former  directors,  officers,  employees  or  consultants  of  the  Borrower or any of its Subsidiaries shall be a “Swap Agreement”.               “Swap Obligation” means, with respect to any Person, any obligation to pay or perform  under any Swap Agreement.               “Syndication Agent” means the Syndication Agent identified on the cover page of this  Agreement.               “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, additions to tax or penalties applicable thereto.               “Term  Lenders”  means  the  collective  reference  to  the  Initial  Term  Lenders  and  the  Incremental Term Lenders.               “Term Loan Refinancing Indebtedness” has the meaning set forth in Section 7.2(a).                “Term Loans” means the collective reference to the Initial Term Loans and the Incremental  Term Loans.               “Trade Date” means with respect to any sale or assignment of rights by a Lender under this  Agreement, the date on which such Lender entered into a binding agreement to sell or assign all or a portion  of its rights under this Agreement.                “Transactions”  means  collectively,  (a)  the  execution,  delivery  and  performance  by  the  Borrower and the other Loan Parties of this Agreement, the borrowing of Loans hereunder and the use of  proceeds thereof, (b) the execution, delivery and performance by the Borrower and the other Loan Parties  of the ABL Credit Agreement, the borrowing of ABL Loans thereunder and the use of proceeds thereof and  (c) the Existing Indebtedness Refinancing.                “Transferee” means any Assignee or Participant.               “Transformative Acquisition” means any acquisition by the Borrower or any Restricted  Subsidiary of an unrelated third party that is either (a) not permitted by the terms of the Loan Documents  immediately prior to the consummation of such acquisition or (b) if permitted by the terms of the Loan  Documents immediately prior to the consummation of such acquisition, would not provide the Borrower  and its Restricted Subsidiaries with adequate flexibility under the Loan Documents for the continuation  and/or  expansion  of  their  combined  operations  following  such  consummation  (as  determined  by  the  Borrower acting in good faith).                                          35  509265-2041-Active.31278172.28  





 






            “Type” means, when used in reference to any Loan or Borrowing, refers to whether the  rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to  the Adjusted LIBO Rate or the Alternate Base Rate.               “United States” means the United States of America.               “Unrestricted Cash” means unrestricted cash and Cash Equivalents owned by any Group  Member  (including  the  Insurance  Subsidiary)  and  not  controlled  by  or  subject  to  any  Lien  or  other  preferential arrangement in favor of any creditor (other than Liens created under the Security Documents  or the ABL Security Documents and Liens of the type referred to in Section 7.3(u) or Section 7.3(x));  provided that Unrestricted Cash shall only include cash and Cash Equivalents of the Insurance Subsidiary  to the extent in excess of any minimum cash amounts that the Insurance Subsidiary is required by law or  regulation to maintain.               “Unrestricted Subsidiary” means (a) any Subsidiary of the Borrower that is designated as  an Unrestricted Subsidiary by the Borrower pursuant to Section 6.11 subsequent to the Closing Date and  (b) any Subsidiary of an Unrestricted Subsidiary.               “U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)  of the Code.                “U.S. Special Resolution Regime” has the meaning set forth in Section 10.20.               “U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.19(f)(ii)(B)(3).               “Vintage Capital Merger” means the merger contemplated by that certain Agreement and  Plan of Merger dated as of June 17, 2018, among Vintage Rodeo Acquisition, Inc., a Delaware corporation,  Vintage Rodeo Parent, LLC, a Delaware limited liability company, and Borrower.               “Voluntary Prepayment Amount” means as of any date, an amount equal to (a) the sum of  (i) the aggregate principal amount of all optional prepayments of Term Loans made after the Closing Date  and prior to such date (excluding prepayments made with the proceeds of long-term Indebtedness) less (b)  the aggregate principal amount of Incremental Term Loans and Incremental Equivalent Debt established  prior to such date in reliance on the Voluntary Prepayment Amount.               “Wholly Owned Subsidiary” means as to any Person, any other Person all of the Capital  Stock of which (other than directors’ qualifying shares required by law) is owned by such Person directly  and/or through other Wholly Owned Subsidiaries.               “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete  or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of  Title IV of ERISA.               “Write-Down  and  Conversion  Powers”  means  with  respect  to  any  EEA  Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time  under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion  powers are described in the EU Bail-In Legislation Schedule.               1.2   Classification of Loans and Borrowings.  For purposes of this Agreement, Loans  may be classified and referred to by Type (e.g., a “Eurodollar Loan”).  Borrowings also may be classified  and referred to by Type (e.g., a “Eurodollar Borrowing”).                                         36  509265-2041-Active.31278172.28  





 






            1.3   Other Definitional Provisions.  (a)  Unless otherwise specified therein, all terms  defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any  certificate or other document made or delivered pursuant hereto or thereto.                      (b)   As used herein and in the other Loan Documents, and any certificate or  other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group  Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not  defined,  shall  have the  respective  meanings  given  to  them  under  GAAP (provided that  all  terms  of  an  accounting or financial nature used herein shall be construed, and all computations of amounts and ratios  referred to herein shall be made, without giving effect to (x) any election under Accounting Standards  Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159) (or  any other Accounting Standards Codification or Financial Accounting Standard having a similar result or  effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as  defined therein and (y)  any  treatment  of  Indebtedness  in  respect  of  convertible  debt instruments  under  Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial  Accounting  Standard having a  similar  result or effect) to  value any  such Indebtedness  in  a reduced  or  bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated  principal  amount  thereof),  (ii)  the  words  “include”,  “includes”  and  “including”  shall  be  deemed  to  be  followed by the phrase “without limitation”, (iii) the word “incur” shall be construed to mean incur, create,  issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence”  shall have correlative meanings), (iv) the words “asset” and “property” shall be construed to have the same  meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash,  Capital  Stock,  securities,  revenues,  accounts,  leasehold  interests  and  contract  rights,  (v)  references  to  agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such  agreements  or  Contractual  Obligations  as  amended,  supplemented,  restated,  amended  and  restated  or  otherwise modified from time to time and (vi) the concept of “letters of credit” shall be construed to include  banker’s acceptances.                       (c)   The  words  “hereof”,  “herein”  and  “hereunder”  and  words  of  similar  import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular  provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless  otherwise specified.                     (d)   The meanings given to terms defined herein shall be equally applicable to  both the singular and plural forms of such terms.                     (e)   Unless otherwise defined herein or the context otherwise requires, terms  for which meanings are provided in the UCC are used in this Agreement, including its preamble and recitals,  with such meanings.               1.4   Interest  Rate;  LIBOR  Notification.  The  interest  rate  on  Eurodollar  Loans  is  determined by reference to the LIBO Rate, which is derived from the London interbank offered rate.  The  London interbank offered rate is intended to represent the rate at which contributing banks may obtain  short-term borrowings from each other in the London interbank market.  In July 2017, the U.K. Financial  Conduct  Authority  announced  that,  after  the  end  of  2021,  it  would  no  longer  persuade  or  compel  contributing  banks to  make rate  submissions to  the ICE  Benchmark  Administration  (together with  any  successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London  interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered  rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to  determine  the  interest  rate  on  Eurodollar  Loans.  In  light  of  this  eventuality,  public  and  private  sector  industry initiatives are currently underway to identify new or alternative reference rates to be used in place                                         37  509265-2041-Active.31278172.28  





 






of  the London  interbank  offered  rate. In  the event  that the  London interbank  offered  rate  is no longer  available or in certain other circumstances as set forth in Section 2.16(b) of this Agreement, such Section  2.16(b) provides a mechanism for determining an alternative rate of interest.  The Administrative Agent  will notify the Borrower, pursuant to Section 2.16, in advance of any change to the reference rate upon  which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant  or  accept  any  responsibility  for,  and  shall  not  have  any  liability  with  respect  to,  the  administration,  submission or any other matter related to the London interbank offered rate or other rates in the definition  of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof,  including without limitation, whether the composition or characteristics of any such alternative, successor  or replacement reference rate, as it may or may not be adjusted pursuant to Section 2.16(b), will be similar  to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or  liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.               1.5   Divisions.  For all purposes under the Loan Documents, in connection with any  division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s  laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or  liability of a different Person, then it shall be deemed to have been transferred from the original Person to  the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed  to have been organized and acquired on the first date of its existence by the holders of its Capital Stock at  such time.               1.6   Limited Condition Transaction.  Notwithstanding anything in this Agreement or  any Loan Document to the contrary when (i) calculating any applicable ratio or financial test in connection  with the incurrence of Indebtedness, the creation of Liens, the making of any Disposition, the making of an  Investment, the making of a Restricted Payment, the designation of a Subsidiary as restricted or unrestricted  or the repayment of Indebtedness (each, a “Specified Transaction”), (ii) determining the accuracy of any  representation or warranty (other than in connection with an Incremental Limited Condition Term Facility)  or (iii) determining whether any Default or Event of Default has occurred, is continuing or would result  from any action (other than in connection with an Incremental Limited Condition Term Facility), in each  case  of  clauses  (i)  through  (iii)  in  connection  with  a  Limited  Condition  Transaction,  the  date  of  determination of such ratio or financial test, the accuracy of such representation or warranty (but taking  into account any earlier date specified therein) or whether any Default or Event of Default has occurred, is  continuing  or  would  result  therefrom  shall,  at  the  option  of  the  Borrower  (the  Borrower’s  election  to  exercise such option in connection with any Limited Condition Acquisition, an “LCT Election”), be deemed  to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT  Test Date”).  If on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the  other transactions to be entered into in connection therewith (including any incurrence of Indebtedness,  Liens, Restricted Payments or other transactions and the use of proceeds thereof) such ratios, financial tests,  representations  and  warranties  and  absence  of  defaults  are  calculated  as  if  such  Limited  Condition  Transaction or other transactions had occurred at the beginning of the most recent Reference Period ending  prior to the LCT Test Date for which financial statements are available, the Borrower could have taken such  action on the relevant LCT Test Date in compliance with the applicable ratios or other provisions, such  provisions shall be deemed to have been complied with.  For the avoidance of doubt, (i) if any of such  ratios, financial tests, representations and warranties or absence of defaults are exceeded or breached as a  result of fluctuations in such ratio or financial test (including due to fluctuations in Consolidated EBITDA),  a  change  in  facts  or  circumstances or  other provisions  at or prior  to the  consummation  of the relevant  Limited Condition Transaction, such ratios, financial tests, representations and warranties and absence of  defaults  will  not  be  deemed  to  have  been  exceeded,  breached,  or  otherwise  failed  as  a  result  of  such  fluctuations or changed circumstances solely for purposes of determining whether the Limited Condition  Transaction and any related transactions is permitted hereunder and (ii) such ratios, financial tests and  compliance with such conditions shall not be tested at the time of consummation of such Limited Condition                                         38  509265-2041-Active.31278172.28  





 






Transaction or related Specified Transactions.  If the Company has made an LCT Election for any Limited  Condition Transaction, then in connection with any subsequent calculation of any ratio or financial test  with respect to any subsequent acquisition or Investment that the Borrower or a Restricted Subsidiary is  contractually committed to consummate on or following the relevant LCT Test Date and prior to the earlier  of the date on which such Limited Condition Transaction is consummated or the date that the definitive  agreement for such Limited Condition Transaction is terminated or expires without consummation of such  Limited Condition Transaction, any such ratio or financial test shall be calculated on a Pro Forma Basis  both  (i)  assuming  such  Limited  Condition  Transaction  and  other  transactions  in  connection  therewith  (including any incurrence of Indebtedness, Liens, Restricted Payments or other transactions and the use of  proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other  transactions in connection therewith (including any incurrence of Indebtedness, Liens, Restricted Payments  or other transactions and the use of proceeds thereof) have not been consummated.               1.7   Calculations.  Notwithstanding anything in this Agreement or any Loan Document  to the contrary (i) the Borrower may rely on more than one basket or exception hereunder (including both  ratio-based and non-ratio based baskets and exceptions, and including partial reliance on different baskets  that, collectively, permit the entire proposed transaction) at the time of any proposed transaction, and the  Borrower may, in its sole discretion, at any later time divide, classify or reclassify such transaction (or any  portion thereof) in any manner that complies with the available baskets and exceptions hereunder at such  later time (provided that with respect to reclassification of Indebtedness and Liens, any such reclassification  shall be subject to the parameters of Sections 7.2 and 7.3, as applicable), (ii) unless the Borrower elects  otherwise, if the Borrower or its Restricted Subsidiaries in connection with any transaction or series of such  related  transaction  (A)  incurs  Indebtedness,  creates  Liens,  makes  Dispositions,  makes  Investments,  designates any Subsidiary as restricted or unrestricted or repays any Indebtedness or takes any other action  under  or  as  permitted  by  a  ratio-based  basket  and  (B)  incurs  Indebtedness,  creates  Liens,  makes  Dispositions,  makes  Investments,  designates  any  Subsidiary  as  restricted  or  unrestricted  or  repays  any  Indebtedness  or  takes  any  other  action  under  a  non-ratio-based  basket  (which  shall  occur  within  five  Business Days of the events in clause (A) above), then the applicable ratio will be calculated with respect  to any such action under the applicable ratio-based basket without regard to any such action under such  non-ratio-based basket made in connection with such transaction or series of related transactions, and (iii)  if the Borrower or any Restricted Subsidiary incurs Indebtedness under a ratio-based basket, such ratio- based  basket  (together  with  any  other  ratio-based  basket  utilized  in  connection  therewith,  including  in  respect of other Indebtedness, Liens, Dispositions, Investments, Restricted Payments or Restricted Debt  Payments) will be calculated excluding the cash proceeds of such Indebtedness for netting purposes (i.e.,  such cash proceeds shall not reduce the Borrower’s Consolidated Leverage Ratio or Consolidated Secured  Leverage Ratio pursuant to clause (a)(ii) of the definition of such terms), provided that the actual application  of such proceeds may reduce Indebtedness for purposes of determining compliance with any applicable  ratio. For example, if the Borrower incurs Indebtedness under the Base Incremental Amount on the same  date that it incurs Indebtedness under the Maximum Incremental Amount, then the Consolidated Leverage  Ratio and the Consolidated Secured Leverage Ratio and any other applicable ratio will be calculated with  respect to such incurrence under the Maximum Incremental Amount without regard to any incurrence of  Indebtedness under the Base Incremental Amount. Unless the Borrower elects otherwise, each Incremental  Term  Facility  (or  Incremental  Equivalent  Debt)  shall  be  deemed  incurred  first  under  the  Maximum  Incremental  Amount  to  the  extent  permitted  (and  calculated  prior  to  giving  effect  to  any  substantially  simultaneous incurrence of any Indebtedness based on a basket or exception that is not based on a financial  ratio, including the Base Incremental Amount and the Voluntary Prepayment Amount), with any balance  incurred  under  the  Base  Incremental  Amount  or  the  Voluntary  Prepayment  Amount.   For  purposes  of  determining compliance with Section 2.24, in the event that any Incremental Term Facility or Incremental  Equivalent  Debt  (or  any  portion  thereof)  meets  the  criteria  of  Base  Incremental  Amount,  Maximum  Incremental Amount or Voluntary Prepayment Amount, the Borrower may, in its sole discretion, at the  time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such                                         39  509265-2041-Active.31278172.28  





 






Indebtedness (or any portion thereof) in any manner that complies with Section 2.24 on the date of such  classification or any such reclassification, as applicable.               1.8   Discontinued  Operations.   Notwithstanding  anything  to  the  contrary  in  this  Agreement or any classification under GAAP of any Person, business, assets or operations in respect of  which a definitive agreement for the disposition thereof has been entered into as discontinued operations,  no  pro  forma  effect  shall  be  given  to  any  discontinued  operations  (and  the  Consolidated  EBITDA  attributable  to  any  such  Person,  business,  assets  or  operations  shall  not  be  excluded  for  any  purposes  hereunder) until such disposition shall have been consummated.               1.9   Bridge Loans.  For purposes of determining the maturity date of any Indebtedness,  customary bridge loans that are subject to customary conditions (including no payment or bankruptcy event  of default) that would either automatically be extended as, converted into or required to be exchanged for  permanent refinancing shall be deemed to have the maturity date as so extended, converted or exchanged.                 SECTION 2.  AMOUNT AND TERMS OF COMMITMENTS               2.1   Term  Loans.   Subject  to  the  terms  and  conditions  hereof,  each  Term  Lender  severally agrees to make term loans denominated in Dollars (the “Initial Term Loans”) on the Closing Date  to the Borrower in an amount equal to the amount of its Initial Term Commitment.  The Term Loans may  from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the  Administrative Agent in accordance with Section 2.12.                 2.2   Procedure  for  Term  Loan  Borrowing.  To  borrow  Initial  Term   Loans  on  the  Closing  Date,  the  Borrower  shall  give  the  Administrative  Agent  irrevocable  notice  by  submitting  a  Borrowing Request (which Borrowing Request must be received by the Administrative Agent prior to 12:00  Noon, New York City time, (a) three Business Days prior to the requested Borrowing Date, in the case of  Eurodollar Loans; provided, that such notice may be received by the Administrative Agent prior to 12:00  Noon, New York City time one Business Day prior to the Closing Date for a Eurodollar Borrowing to be  made on the Closing Date, or (b) one Business Day prior to the requested Borrowing Date, in the case of  ABR Loans), specifying (i) the amount and Type of Initial Term Loans to be borrowed, and (ii) in the case  of Eurodollar Loans, the respective amounts of each such Type of Loan and the respective lengths of the  initial Interest Period therefor.  Each borrowing under the Commitments shall be in an amount equal to (x)  in the case of ABR Loans, $1,000,000 or a whole multiple thereof and (y) in the case of Eurodollar Loans,  $5,000,000, or a whole multiple of $1,000,000 in excess thereof.  Upon receipt of any Borrowing Request  from the Borrower, the Administrative Agent shall promptly notify each applicable Term Lender thereof.   Each Lender will make the amount of its applicable Commitment available to the Administrative Agent for  the account of the Borrower at the applicable Funding Office prior to 12:00 Noon, New York City time, on  the Borrowing Date in respect of such Commitments requested by such Borrower in funds immediately  available to the Administrative Agent.                 2.3   Repayment of Term Loans.  (a) The Borrower shall repay the Initial Term Loans  on the last day of each March, June, September and December, beginning with December 31, 2019 and  ending with the last such day to occur prior to the Maturity Date, in an aggregate principal amount for each  such date (as such amount shall be adjusted pursuant to Section 2.17(b) hereof) equal to the aggregate  principal amount of the Initial Term Loans outstanding on the Closing Date multiplied by 0.25%.                      (b)   The  Incremental  Term  Loans  of  each  Incremental  Term  Lender  shall  mature in consecutive installments (which shall be no more frequent than quarterly) as specified in the  Incremental Term Loan Activation Notice pursuant to which such Incremental Term Loans were made (as  such amount shall be adjusted pursuant to Section 2.17(b)).                                         40  509265-2041-Active.31278172.28  





 






                  (c)   To the extent not previously paid (i) all Initial Term Loans shall be paid  on the Maturity Date and (ii) all Incremental Term Loans shall be paid on the Incremental Term Loan  Maturity Date applicable thereto.               2.4   [Reserved].                 2.5   [Reserved].                 2.6   [Reserved].                 2.7   [Reserved].                 2.8   Fees, etc.  The Borrower agrees to pay to the Administrative Agent the fees in the  amounts and on the dates as set forth in any fee agreements with the Administrative Agent and to perform  any other obligations contained therein.               2.9   [Reserved].                 2.10  Optional Prepayments.  (a) The Borrower may at any time and from time to time  prepay  the  Loans,  in  whole  or  in  part,  without  premium  or  penalty  (subject  to  Section  2.10(b)),  upon  revocable notice (which may be conditioned as stated in such notice by the Borrower) delivered to the  Administrative Agent no later than 12:00 Noon, New York City time, three Business Days prior thereto, in  the case of Eurodollar Loans, and no later than 12:00 Noon, New York City time, one Business Day prior  thereto, in the case of ABR Loans, which notice shall specify the date and amount of prepayment and  whether the prepayment is of Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid  on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any  amounts owing pursuant to Section 2.20.  Upon receipt of any such notice the Administrative Agent shall  promptly notify each relevant Lender thereof.  If any such notice is given, the amount specified in such  notice shall be due and payable on the date specified therein, together with accrued interest to such date on  the  amount  prepaid.   Partial  prepayments  of Term Loans  shall be in an  aggregate  principal amount  of  $1,000,000 or a whole multiple of $100,000 in excess thereof.  All optional prepayments of Term Loans in  accordance with this Section 2.10 shall be applied as directed by the Borrower.                     (b)   All (i) prepayments of Initial Term Loans pursuant to Section 2.10(a) or  Section 2.11(a) effected on or prior to the six-month anniversary of the Closing Date with the proceeds of  a Repricing Transaction and (ii) amendments, amendments and restatements or other modifications of this  Agreement on or prior to the six-month anniversary of the Closing Date constituting Repricing Transactions  shall, in each case, be accompanied by a fee payable to the Initial Term Lenders in an amount equal to  1.00% of the aggregate principal amount of the Initial Term Loans so prepaid, in the case of a transaction  described in clause (i) of this paragraph, or 1.00% of the aggregate principal amount of Initial Term Loans  affected by such amendment, amendment and restatement or other modification (including any such Loans  assigned in connection with the replacement of an Initial Term Lender not consenting thereto), in the case  of a transaction described in clause (ii) of this paragraph.  Such fee shall be paid by the Borrower to the  Administrative Agent, for the account of the Lenders in respect of the Initial Term Loans, on the date of  such prepayment.                 2.11  Mandatory Prepayments and Commitment Reductions.  (a)  If any Indebtedness  shall be incurred by any Group Member (excluding any Indebtedness permitted in accordance with Section  7.2),  an  amount equal  to 100%  of  the  Net  Cash  Proceeds thereof  shall  be applied  on the  date of such  incurrence  toward  the  prepayment  of  the  Term  Loans  as  set  forth  in  Section  2.11(d);  provided  that                                          41  509265-2041-Active.31278172.28  





 






prepayments pursuant to this Section 2.11(a) shall be accompanied by any fees payable with respect thereto  pursuant to Section 2.10(b).                     (b)   If on any date any Group Member shall receive Net Cash Proceeds from  any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof,  such Net Cash Proceeds shall be applied within 10 Business Days after such date toward the prepayment  of the Term Loans as set forth in Section 2.11(d); provided, that, notwithstanding the foregoing, no such  prepayment shall be required to the extent that the aggregate Net Cash Proceeds received from Asset Sales  or Recovery Events in any fiscal year is less than $40,000,000 (it being understood that only amounts in  excess of such threshold shall be required to be applied to any prepayment); provided further that on each  Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to  the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in  Section  2.11(d); provided further  that,  notwithstanding  the  foregoing,  such  Net  Cash  Proceeds  may  be  applied  towards  the  prepayment  or  purchase  of  Pari  Passu  Secured  Indebtedness  to  the  extent  the  documentation  governing  such  Indebtedness  requires  such  a  prepayment  or  purchase  with  Net  Cash  Proceeds from any Asset Sale or Recovery Event, in each case in an amount not to exceed the product of  (x) the amount of such Net Cash Proceeds and (y) a fraction, the numerator of which is the outstanding  principal amount of such other Indebtedness and the denominator of which is the aggregate outstanding  principal  amount  of  Term  Loans  and  all  such  other  Indebtedness  (provided  that,  in  the  event  that  the  Borrower or applicable Restricted Subsidiary makes an offer to the holders of such Pari Passu Secured  Indebtedness to prepay or purchase such Pari Passu Secured Indebtedness in an amount permitted under  this  Section  2.11(b),  to  the  extent  that  such  offer  is  declined  by  holders  of  such  Pari  Passu  Secured  Indebtedness (the declined amount, the “Other Debt Declined Amount”), the Borrower shall be required to  prepay Term Loans in an amount equal to such Other Debt Declined Amount as if the Other Debt Declined  Amount were Net Cash Proceeds received on the final date by which such declining holders were required  to give notice of their Other Debt Declined Amount).                     (c)   If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, the  Borrower shall, on the relevant Excess Cash Flow Application Date, apply toward the prepayment of the  Term Loans as set forth in Section 2.11(d) the excess of (x) the ECF Percentage of such Excess Cash Flow  over (y) solely to the extent not funded with the proceeds of long-term Indebtedness the aggregate amount  of all optional prepayments of Term Loans made during such Excess Cash Flow Period pursuant to Section  2.10, prepayments of ABL Loans during such Excess Cash Flow Period to the extent accompanied by a  permanent reduction of the ABL Commitments, and all Loan purchases made during such Excess Cash  Flow Period pursuant to Section 2.25 and Section 10.6(e) (provided that the aggregate amount of any such  purchase shall be the amount of the Borrower’s cash payment in respect of such purchase).  Each such  prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business  Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section  6.1(a), for the Excess Cash Flow Period with respect to which such prepayment is made, are required to be  delivered to the Lenders and (ii) the date such financial statements are actually delivered.                     (d)   Amounts to be applied in connection with prepayments made pursuant to  this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b).   The application of any prepayment pursuant to this Section 2.11 shall be made first, to ABR Loans and,  second, to Eurodollar Loans.  Each prepayment of the Loans under this Section 2.11 shall be accompanied  by accrued interest to the date of such prepayment on the amount prepaid.                     (e)   With respect to any prepayment pursuant to this Section 2.11 of Initial  Term Loans and, unless otherwise specified in the applicable Incremental Term Loan Activation Notice,  other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment.  The Borrower  shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at                                         42  509265-2041-Active.31278172.28  





 






least three Business Days prior to the date of such prepayment.  Each such notice shall specify the date of  such prepayment and provide a reasonably detailed calculation of the amount of such prepayment that is  required to be made under this Section 2.11.  Any Lender may decline to accept all (but not less than all)  of  its  share  of  any  such  prepayment  (the  “Declined  Amount”)  by  providing  written  notice  to  the  Administrative Agent no later than two Business Days after the date of such Lender’s receipt of notice from  the  Administrative  Agent  regarding  such  prepayment.   If  the  Lender  does  not  give  a  notice  to  the  Administrative Agent on or prior to such second Business Day informing the Administrative Agent that it  declines to accept the applicable  prepayment,  then  such  Lender  will  be  deemed  to  have accepted  such  prepayment.  Such Lender’s Declined Amount may be retained by the Borrower.                     (f)   Notwithstanding any other provisions of this Section 2.11, to the extent  any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of  any  Recovery  Event  received  by  a  Foreign  Subsidiary  or  Excess  Cash  Flow  attributable  to  Foreign  Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate  benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors  of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower  or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of  any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax  consequences (including a material acceleration of the point in time when such earnings would otherwise  be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so  affected will not be required to be applied to prepay the Term Loans at the times provided in this Section  2.11 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable  local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower  or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse  tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or  Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith  such repatriation would no longer have such material adverse tax consequences, such repatriation will be  promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in  any event not later than five Business Days after such repatriation) applied (in the case of Excess Cash  Flow,  net  of  additional  taxes  payable  or  reasonably  estimated to  be payable  as a  result thereof) to  the  prepayment of the Term Loans pursuant to this Section 2.11 (provided that no such prepayment of the Term  Loans pursuant to this Section 2.11 shall be required in the case of any such Net Cash Proceeds or Excess  Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse  tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise  have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or  such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the Borrower applies  an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow to such reinvestments or  prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather  than such Foreign Subsidiary, less (in the case of Excess Cash Flow) the amount of additional taxes that  would have been payable or reserved against if such Excess Cash Flow had been repatriated (or, if less, the  Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary).                2.12  Conversion and Continuation Options.  (a)  The Borrower may elect from time to  time to convert Eurodollar Loans to ABR Loans by giving the Administrative Agent prior irrevocable notice  of such election by submitting an Interest Election Request no later than 12:00 Noon, New York City time,  on  the  Business  Day  preceding  the  proposed  conversion  date,  provided  that  any  such  conversion  of  Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto.  The Borrower  may elect from time to time to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent  prior  irrevocable  notice  of  such  election  no  later  than  12:00  Noon,  New  York  City  time,  on  the  third  Business Day preceding the proposed conversion date (which Interest Election Request shall specify the  length of the initial Interest Period therefor), provided that no ABR Loan under a particular Facility may be                                         43  509265-2041-Active.31278172.28  





 






converted  into  a  Eurodollar  Loan  when  any  Event  of  Default  has  occurred  and  is  continuing  and  the  Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or  their sole discretion not to permit such conversions.  Upon receipt of any such Interest Election Request the  Administrative Agent shall promptly notify each relevant Lender thereof.                     (b)   Any Eurodollar Loan may be continued as such upon the expiration of the  then current Interest Period with respect thereto by the Borrower giving irrevocable notice by submitting  an Interest Election Request to the Administrative Agent, in accordance with the applicable provisions of  the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable  to such Loans, provided that no Eurodollar Loan under a particular Facility may be continued as such (i)  when any Event of Default has occurred and is continuing and the Administrative Agent has or the Majority  Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such  continuations  or  (ii)  if  a  Specified  Event  of  Default  is  in  existence,  and  provided,  further,  that  if  the  Borrower shall fail to give any required Interest Election Request as described above in this paragraph or  if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically  converted to ABR Loans on the last day of such then expiring Interest Period.  Upon receipt of any such  Interest Election Request the Administrative Agent shall promptly notify each relevant Lender thereof.               2.13  Limitations on Eurodollar Tranches.  Notwithstanding anything to the contrary in  this Agreement, all borrowings, conversions and continuations of Eurodollar Loans and all selections of  Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after giving  effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each Eurodollar Tranche  shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than 10  Eurodollar Tranches shall be outstanding at any one time.               2.14  Interest Rates and Payment Dates.  Subject to Section 2.16,                      (a)   Each Eurodollar Loan shall bear interest for each day during each Interest  Period with respect thereto at a rate per annum equal to the Adjusted LIBO Rate determined for such day  plus the Applicable Margin.                     (b)   Each ABR Loan shall bear interest at a rate per annum equal to the ABR  plus the Applicable Margin.                     (c)   (i) If all or a portion of the principal amount of any Loan shall not be paid  when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear  interest at a rate per annum equal to the rate that would otherwise be applicable thereto pursuant to the  foregoing provisions of this Section 2.14 plus 2%, and (ii) if all or a portion of any interest payable on any  Loan or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by  acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate  then applicable to ABR Loans under the relevant Facility plus 2% (or, in the case of any such other amounts  that do not relate to a particular Facility, the rate then applicable to ABR Loans under the Initial Term  Facility plus 2%), in each case, with respect to clauses (i) and (ii) above, from the date of such non-payment  until such amount is paid in full (as well after as before judgment).                     (d)   Interest  shall  be  payable  in  arrears  on  each  Interest  Payment  Date,  provided that interest accruing pursuant to paragraph (c) of this Section 2.14 shall be payable from time to  time on demand.               2.15  Computation of Interest and Fees.  (a)  Interest and fees payable pursuant hereto  shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to                                         44  509265-2041-Active.31278172.28  





 






ABR Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon  shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed  (including the first day, but excluding the last day; provided that if a Loan is repaid on the same day on  which it is made, one day’s interest shall be paid on such Loan).  The Administrative Agent shall as soon  as practicable notify the Borrower and the relevant Lenders of each determination of an Adjusted LIBO  Rate.                       (b)   Each  determination  of  an  interest  rate  by  the  Administrative  Agent  pursuant  to any  provision of  this  Agreement  shall  be conclusive  and  binding  on  the Borrower and  the  Lenders in the absence of manifest error.  The Administrative Agent shall, at the request of the Borrower,  deliver  to  the  Borrower  a  statement  showing  the  quotations  used  by  the  Administrative  Agent  in  determining any interest rate pursuant to Section 2.14(a).               2.16  Alternate Rate of Interest.  (a) If prior to the commencement of any Interest Period  for a Eurodollar Borrowing:                     (i)   the  Administrative  Agent  determines  (which  determination  shall  be        conclusive and binding absent manifest error) that adequate and reasonable means do not exist for        ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (including because the LIBO        Screen Rate is not available or published on a current basis), for a Loan for such Interest Period, or                     (ii)  the  Administrative  Agent  is  advised  by  the  Required  Lenders  that  the        Adjusted LIBO Rate or the LIBO Rate, as applicable, for a Loan for such Interest Period will not        adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders)        of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest        Period,   then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone,  telecopy or electronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies  the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist (which  notification shall be made promptly after the Administrative Agent obtains knowledge of the cessation of  the circumstances referenced in clause (i) above or receives notice from the Required Lenders in respect of  the  cessation  of  circumstances  referenced  in  clause  (ii)  above),  (A) any  Interest  Election  Request  that  requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing  shall be ineffective and (B) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing  shall be made as an ABR Borrowing.                     (b)   If at any time the Administrative Agent determines (which determination  shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and  such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not  arisen  but  either  (w)  the  supervisor  for  the  administrator  of  the  LIBO  Screen  Rate  has  made  a  public  statement  that  the  administrator  of  the  LIBO  Screen  Rate  is  insolvent  (and  there  is  no  successor  administrator that will continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO  Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will  permanently or indefinitely cease to be published by it (and there is no successor administrator that will  continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the LIBO Screen  Rate  has  made  a  public  statement  identifying  a  specific  date  after  which  the  LIBO  Screen  Rate  will  permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBO  Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a  public statement identifying a specific date after which the LIBO Screen Rate may no longer be used for  determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to                                         45  509265-2041-Active.31278172.28  





 






establish an alternate rate of interest to the LIBO Rate and Adjusted LIBO Rate that gives due consideration  to the then prevailing market convention for determining a rate of interest for syndicated loans in the United  States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of  interest and such other related changes to this Agreement as may be applicable (but for the avoidance of  doubt, such related changes shall not include a reduction of the Applicable Margin); provided that, if such  alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for  the purposes of this Agreement.  Notwithstanding anything to the contrary in Section 10.1, such amendment  shall become effective without any further action or consent of any other party to this Agreement so long  as the Administrative Agent shall not have received, within five Business Days of the date notice of such  alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that  such Required Lenders object to such amendment.  Until an alternate rate of interest shall be determined in  accordance with this clause (b) (but, in the case of the circumstances described in clause (ii)(w), clause  (ii)(x) or clause (ii)(y) of the first sentence of this Section 2.16(b), only to the extent the LIBO Screen Rate  for  such  Interest  Period is  not available  or  published at  such  time  on  a  current  basis), (x) any  Interest  Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a  Eurodollar  Borrowing  shall  be  ineffective  and  (y)  if  any  Borrowing  Request  requests  a  Eurodollar  Borrowing, such Borrowing shall be made as an ABR Borrowing.               2.17  Pro Rata Treatment and Payments.  (a)  The borrowing by the Borrower from the  Initial Term Lenders hereunder shall be made pro rata according to the Initial Term Percentages of the  Initial Term Lenders.                      (b)   With respect to any Facility, each payment (including each prepayment  under this Agreement) by the Borrower on account of principal of and interest on the Term Loans of such  Facility shall be made pro rata according to the respective outstanding principal amounts of the Term Loans  of such Facility then held by the Term Lenders (except as otherwise provided in Section 2.11(e)).  The  amount of each principal prepayment of the Term Loans pursuant to Section 2.11 shall be applied to reduce  the Initial Term Loans and Incremental Term Loans on a pro rata basis based upon the respective then  remaining principal amounts thereof (unless any Incremental Term Lenders have agreed to less than pro  rata prepayments) and shall be applied within each Facility to the then remaining installments thereof as  directed by the Borrower (or if not so directed, to the then remaining installments thereof in direct order of  maturity).  Amounts repaid (including amounts pursuant to Section 2.11) and prepaid on account of the  Term Loans may not be reborrowed.                     (c)   [Reserved].                     (d)   All  payments  (including  prepayments)  to  be  made  by  the  Borrower  hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or  counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the  Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately  available funds.  The Administrative Agent shall distribute such payments to each relevant Lender promptly  upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7.   If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a  day other than a Business Day, such payment shall be extended to the next succeeding Business Day.  If  any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the  maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension  would be to extend such payment into another calendar month, in which event such payment shall be made  on the immediately preceding Business Day.  In the case of any extension of any payment of principal  pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during  such extension.                                          46  509265-2041-Active.31278172.28  





 






                  (e)   Unless the Administrative Agent shall have been notified in writing by any  Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of  such borrowing available to the Administrative Agent, the Administrative Agent may assume that such  Lender is making such amount available to the Administrative Agent, and the Administrative Agent may,  in reliance upon such assumption, make available to the Borrower a corresponding amount.  If such amount  is not made available to the Administrative Agent by the required time on the Borrowing Date therefor,  such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate  equal to the  greater of (i) the  NYFRB  Rate  and  (ii)  a  rate  determined  by  the  Administrative Agent  in  accordance with banking industry rules on interbank compensation, for the period until such Lender makes  such amount immediately available to the Administrative Agent.  A certificate of the Administrative Agent  submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the  absence  of  manifest  error.   If  such  Lender’s  share  of  such  borrowing  is  not  made  available  to  the  Administrative  Agent  by  such  Lender  within  three  Business  Days  after  such  Borrowing  Date,  the  Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per  annum applicable to ABR Loans under the relevant Facility, on demand, from the Borrower.                     (f)   Unless the Administrative Agent shall have been notified in writing by the  Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower  will not make such payment to the Administrative Agent, the Administrative Agent may assume that the  Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in  reliance  upon  such  assumption,  make  available  to  the  Lenders  their  respective  pro  rata  shares  of  a  corresponding amount.  If such payment is not made to the Administrative Agent by the Borrower within  three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand,  from each Lender to which any amount which was made available pursuant to the preceding sentence, such  amount with interest thereon at the rate per annum equal to the daily average NYFRB Rate.  Nothing herein  shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.                     (g)   If any Lender shall fail to make any payment required to be made by it  pursuant to Section 2.17(e), 2.17(f), 2.19(e) or 9.7, then the Administrative Agent may, in its discretion and  notwithstanding  any  contrary  provision  hereof,  (i)  apply  any  amounts  thereafter  received  by  the  Administrative Agent for the account of such Lender for the benefit of the Administrative Agent to satisfy  such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid,  and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any  future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii)  above, in any order as determined by the Administrative Agent in its discretion.               2.18  Requirements of Law.  (a)  If the adoption of or any change in any Requirement of  Law or in the interpretation, administration, implementation or application thereof or compliance by any  Lender or other Credit Party with any request or directive (whether or not having the force of law) from  any  central  bank  or  other  Governmental  Authority,  in  each  case  made  or  occurring  subsequent  to  the  Closing Date:                     (i)   shall subject any Credit Party 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;                     (ii)  shall  impose,  modify  or  hold  applicable  any  reserve,  special  deposit,        compulsory loan, insurance charge or similar requirement against assets held by, deposits or other        liabilities in or for the account of, advances, loans or other extensions of credit (or participations                                          47  509265-2041-Active.31278172.28  





 






      therein) by, or any other acquisition of funds by, any office of such Lender that is not otherwise        included in the determination of the Adjusted LIBO Rate; or                     (iii) shall impose on such Lender any other condition (other than Taxes);   and the result of any of the foregoing is to increase the cost to such Lender or such other Credit Party, by  an  amount  that  such  Lender  or  other  Credit  Party  deems  to  be  material,  of  making,  converting  into,  continuing or maintaining Loans, or to reduce any amount receivable hereunder in respect thereof, then, in  any such case, the Borrower shall promptly pay such Lender or such other Credit Party, upon its demand,  any additional amounts necessary to compensate such Lender or such other Credit Party for such increased  cost or reduced amount receivable.  If any Lender or such other Credit Party becomes entitled to claim any  additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy to the  Administrative Agent) of the event by reason of which it has become so entitled.                     (b)   If any Lender shall have determined that the adoption of or any change in  any Requirement of Law regarding capital or liquidity requirements or in the interpretation, administration,  implementation or application thereof or compliance by such Lender or any corporation controlling such  Lender with any request or directive regarding capital or liquidity requirements (whether or not having the  force of law) from any Governmental Authority made subsequent to the Closing Date shall have the effect  of  reducing  the  rate  of  return  on  such  Lender’s  or  such  corporation’s  capital  as  a  consequence  of  its  obligations hereunder to a level below that which such Lender or such corporation could have achieved but  for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s  policies with respect to capital adequacy or liquidity) by an amount deemed by such Lender to be material,  then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative  Agent) of a written request therefor, the Borrower shall pay to such Lender such additional amount or  amounts as will compensate such Lender or such corporation for such reduction.                      (c)   Notwithstanding  anything  herein  to  the  contrary,  (i)  all  requests,  rules,  guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel  Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign  regulatory authorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank Wall Street Reform and  Consumer  Protection  Act  and  all  requests, rules,  guidelines,  requirements  and  directives  thereunder  or  issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change  in law, regardless of the date enacted, adopted, issued or implemented.                     (d)   A certificate as to any additional amounts payable pursuant to this Section  2.18 submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive  in  the  absence  of  manifest  error.   Notwithstanding  anything  to  the  contrary  in  this  Section  2.18,  the  Borrower  shall  not  be required  to  compensate  a  Lender pursuant to this  Section  2.18  for any  amounts  incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender’s  intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have  a retroactive effect, then such six-month period shall be extended to include the period of such retroactive  effect.  The obligations of the Borrower pursuant to this Section 2.18 shall survive the termination of this  Agreement and the payment of the Loans and all other amounts payable hereunder.                     (e)   Notwithstanding any other provision of this Section 2.18 to the contrary,  no Lender shall be entitled to receive any compensation pursuant to this Section 2.18 unless it shall be the  general policy or practice of such Lender to seek compensation from other similarly situated borrowers in  the syndicated loan market in the United States with respect to its similarly affected loans under agreements  with such borrowers having provisions similar to this Section 2.18.                                          48  509265-2041-Active.31278172.28  





 






            2.19  Taxes.                       (a)   Any and all payments by or on account of any obligation of any Loan 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 Loan 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 2.19), the amounts received with respect to this agreement equal the sum which would have  been received had no such deduction or withholding been made.                     (b)   The Loan 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,  Other Taxes.                     (c)   As soon as practicable after any payment of Taxes by any Loan Party to a  Governmental Authority pursuant to this Section 2.19, such Loan Party shall deliver to the Administrative  Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such  payment,  a  copy  of  the  return  reporting  such  payment  or  other  evidence  of  such  payment  reasonably  satisfactory to the Administrative Agent.                     (d)   The Loan Parties shall jointly and severally indemnify each Credit Party,  within 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 2.19) payable or paid  by such Credit Party or required to be withheld or deducted from a payment to such Credit Party 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  Borrower  by  a  Lender  (with  a  copy  to  the  Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be  conclusive absent manifest error.                     (e)   Each Lender shall severally indemnify the Administrative Agent, within  10 days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent that any  Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without  limiting the obligation of the Loan Parties to do so) and (ii) any Taxes attributable to such Lender’s failure  to comply with the provisions of Section 10.6(c) relating to the maintenance of a Participant Register, in  either case, that are payable or paid by the Administrative Agent in connection with any Loan Document,  and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were  correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the  amount  of  such  payment  or  liability  delivered  to  any  Lender  by  the  Administrative  Agent  shall  be  conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to setoff 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)   (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 Borrower  and  the  Administrative  Agent,  at  the  time  or  times  reasonably  requested  by  the  Borrower  or  the                                         49  509265-2041-Active.31278172.28  





 






Administrative Agent, such properly completed and executed documentation reasonably requested by the  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 Borrower or the  Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably  requested by the Borrower or the Administrative Agent as will enable the 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  2.19(f)(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  the        Borrower is a U.S. Person,                           (A)   any Lender that is a U.S. Person shall deliver to the Borrower and              the Administrative Agent on or prior to the date on which such Lender becomes a Lender              under this Agreement (and from time to time thereafter upon the reasonable request of the              Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying              that such Lender is exempt from U.S. federal backup withholding tax;                           (B)   any Non-U.S. Lender shall, to the extent it is legally entitled to do              so, deliver to the 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  Non-U.S.  Lender              becomes  a  Lender  under  this  Agreement  (and  from  time  to  time  thereafter  upon  the              reasonable  request  of  the  Borrower  or  the  Administrative  Agent),  whichever  of  the              following is applicable:                                 (1)   in the case of a Non-U.S. Lender claiming the benefits of                          an income tax treaty to which the United States is a party (x) with respect                          to payments of interest under any Loan Document, executed originals of                          IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption                          from,  or  reduction  of,  U.S.  federal  withholding  Tax  pursuant  to  the                          “interest”  article  of  such  tax  treaty  and  (y)  with  respect  to  any  other                          applicable payments under any Loan Document, IRS Form W-8BEN or                          IRS Form W-8BEN-E establishing an exemption from, or reduction of,                          U.S. federal withholding Tax pursuant to the “business profits” or “other                          income” article of such tax treaty;                                 (2)   executed originals of IRS Form W-8ECI;                                 (3)   in the case of a Non-U.S. 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                          Non-U.S.  Lender  is  not  a  “bank”  within  the  meaning  of  Section                          881(c)(3)(A)  of  the  Code,  a  “10  percent  shareholder”  of  the  Borrower                          within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled                          foreign  corporation”  described  in  Section  881(c)(3)(C)  of  the  Code  (a                          “U.S.  Tax  Compliance  Certificate”)  and  (y)  executed  originals  of  IRS                          Form W-8BEN or IRS Form W-8BEN-E; or                                          50  509265-2041-Active.31278172.28  





 






                              (4)   to  the  extent  a  Non-U.S.  Lender  is  not  the  beneficial                          owner, executed originals of IRS Form W-8IMY, accompanied by IRS                          Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a 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 Non-U.S. Lender is a                          partnership and one or more direct or indirect partners of such Non-U.S.                          Lender  are  claiming  the  portfolio  interest  exemption,  such  Non-U.S.                          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 Non-U.S. Lender shall, to the extent it is legally entitled to do              so, deliver to the 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  Non-U.S.  Lender              becomes  a  Lender  under  this  Agreement  (and  from  time  to  time  thereafter  upon  the              reasonable request of the Borrower or the Administrative Agent), executed originals of any              other  form  prescribed  by  applicable  law  as  a  basis  for  claiming  exemption  from  or  a              reduction  in  U.S.  federal  withholding  Tax,  duly  completed,  together  with  such              supplementary  documentation  as  may  be  prescribed  by  applicable  law  to  permit  the              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 U.S. federal withholding Tax imposed by FATCA if such Lender were to fail              to  comply  with  the  applicable  reporting  requirements  of  FATCA  (including  those              contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall              deliver to the Borrower and the Administrative Agent at the time or times prescribed by              law and at such time or times reasonably requested by the Borrower or the Administrative              Agent  such  documentation  prescribed  by  applicable  law  (including  as  prescribed  by              Section  1471(b)(3)(C)(i)  of  the  Code)  and  such  additional  documentation  reasonably              requested  by  the  Borrower  or  the  Administrative  Agent  as  may  be  necessary  for  the              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, if any, to deduct and withhold from such payment.               Solely for purposes of this clause (D), “FATCA” shall include any amendments made to              FATCA after the Closing Date.               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 Borrower and the Administrative Agent in writing of its legal inability to do so.                     (g)   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 2.19  (including  by  the  payment  of  additional  amounts  pursuant  to  this  Section  2.19),  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  2.19  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 (g) (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                                         51  509265-2041-Active.31278172.28  





 






Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified  party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) 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 indemnification payments or additional amounts giving rise to such refund  had never been paid.  This Section 2.19 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.                     (h)   Each  party’s  obligations  under  this  Section  2.19  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 the Loan Documents.                     (i)   For  purposes  of  this  Section  2.19,  the  term  “applicable  law”  includes  FATCA.               2.20  Indemnity.  The Borrower agrees to indemnify each Lender for, and to hold each  Lender harmless from, any loss or expense that such Lender sustains or incurs as a consequence of (a)  default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar Loans  after  the  Borrower  has  given  a  notice  requesting  the  same  in  accordance  with  the  provisions  of  this  Agreement, (b) default by the Borrower in making any prepayment of or conversion from Eurodollar Loans  after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the  making of a prepayment of Eurodollar Loans on a day that is not the last day of an Interest Period with  respect thereto.  Such indemnification may include an amount equal to the excess, if any, of (i) the amount  of interest that would have accrued on the amount so prepaid, or not so borrowed, converted or continued,  for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last  day of such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period  that would have commenced on the date of such failure) in each case at the applicable rate of interest for  such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over  (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to such  Lender on such amount by placing such amount on deposit for a comparable period with leading banks in  the interbank eurodollar market.  A certificate as to any amounts payable pursuant to this Section 2.20  submitted  to  the  Borrower  by  any  Lender  shall  be  conclusive  in  the  absence  of  manifest  error.   This  covenant  shall  survive  the  termination  of  this  Agreement  and  the  payment  of  the  Loans  and  all  other  amounts payable hereunder for nine months.               2.21  Change of Lending Office.  Each Lender agrees that, upon the occurrence of any  event giving rise to the operation of Section 2.18 or 2.19(a) with respect to such Lender, it will, if requested  by  the  Borrower,  use  reasonable  efforts  (subject  to  overall  policy  considerations  of  such  Lender)  to  designate another lending office for any Loans affected by such event or to assign and delegate its rights  and obligations hereunder to another of its offices, branches or Affiliates with the object of avoiding the  consequences of such event; provided, that such designation or assignment is made on terms that, in the  sole judgment of such Lender, cause such Lender and its lending offices to suffer no material economic,  legal or regulatory disadvantage, and provided, further, that nothing in this Section 2.21 shall affect or  postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.18 or  2.19(a).               2.22  Replacement of Lenders.  The Borrower shall be permitted to replace any Lender  that (a) requests reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a) or (b) does not  consent to any proposed amendment, supplement, modification, consent or waiver of any provision of this  Agreement or any other Loan Document that requires the consent of each of the Lenders or each of the                                         52  509265-2041-Active.31278172.28  





 






Lenders  affected  thereby  (so  long  as  the  consent  of  the  Required  Lenders  has  been  obtained),  with  a  replacement financial institution; provided that (i) such replacement does not conflict with any Requirement  of Law, (ii) no Event of Default shall have occurred and be continuing at the time of such replacement, (iii)  prior to any such replacement pursuant to the preceding clause (a), such Lender shall have not eliminated  the continued need for payment of amounts owing pursuant to Section 2.18 or 2.19(a), (iv) the replacement  financial institution shall purchase, at par, all Loans and other amounts owing to such replaced Lender on  or prior to the date of replacement, (v) the Borrower shall be liable to such replaced Lender under Section  2.20 if any Eurodollar Loan owing to such replaced Lender shall be purchased other than on the last day of  the Interest Period relating thereto, (vi) the replacement financial institution, if not already a Lender, an  affiliate of a Lender or an Approved Fund, shall be reasonably satisfactory to the Administrative Agent (in  its capacity as such), (vii) the replaced Lender shall be obligated to make such replacement in accordance  with the provisions of Section 10.6 (provided that the Borrower shall be obligated to pay the registration  and processing fee referred to therein), (viii) until such time as such replacement shall be consummated,  the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.18 or 2.19(a), as the  case may be, and (ix) any such replacement shall not be deemed to be a waiver of any rights that the  Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender.  Each party  hereto  agrees  that  an  assignment  required  pursuant  to  this  paragraph  may  be  effected  pursuant  to  an  Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee, and  that the Lender required to make such assignment need not be a party thereto in order for such assignment  to be effective.               2.23  [Reserved].                 2.24  Incremental Facilities.  (a) The Borrower and any one or more Lenders (including  New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of  their  Incremental  Term  Loans  (which  may  be  effected  by  increasing  the  amount  of  any  then  existing  Facility) by executing and delivering to the Administrative Agent an Incremental Term Loan Activation  Notice specifying (v) the amount of such Incremental Term Loans, (w) the applicable Incremental Term  Loan Closing Date (which shall be a date not less than five Business Days after the date on which such  notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative  Agent)), (x) the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such  Incremental Term Loans and (z) the Applicable Margin for such Incremental Term Loans; provided, that  (i) the aggregate amount of all Incremental Term Loans established on any date, together with the aggregate  amount of Incremental Equivalent Debt incurred on such date, shall not exceed (x) an amount equal to the  Base  Incremental  Amount  on  such  date,  (y)  an  additional  amount  equal  to  the  Voluntary  Prepayment  Amount on such date and (z) an additional amount subject to the Maximum Incremental Amount as of such  date, (ii) each Incremental Term Facility shall be in a minimum aggregate principal amount of $25,000,000  (or such lesser amount as may be approved by the Administrative Agent in its reasonable discretion), (iii)  the Incremental Term Loans in respect of any Incremental Term Facility and all obligations in respect  thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) guaranteed  on a pari passu basis with all of the other Obligations under this Agreement and the other Loan Documents  and (B) secured by the Collateral (and no other property) and the Liens on the Collateral securing such  Incremental Term Loans and all other obligations in respect thereof shall be pari passu with the Liens on  the Collateral securing all of the other Obligations under this Agreement and the other Loan Documents,  (iv) the Incremental Term Loans in respect of any Incremental Term Facility will be entitled to prepayments  on the same basis as the Initial Term Loans unless the applicable Incremental Term Loan Activation Notice  specifies a lesser treatment, (v) such Incremental Term Loans shall have a final maturity no earlier than the  Latest Maturity Date (determined immediately prior to incurrence of such Incremental Term Loans), (vi)  the weighted average life to maturity of such Incremental Term Facility shall be no shorter than that of any  existing Term Loans (except if required in order to make such Incremental Term Loans fungible with any  outstanding Term Loans), (vii) the all-in-yield (whether in the form of interest rate margins, original issue                                         53  509265-2041-Active.31278172.28  





 






discount,  upfront  fees  or  interest  rate  floors)  and  (subject  to  clauses  (v)  and  (vi)  above)  amortization  schedule applicable to such Incremental Term Facility shall be determined by the Borrower and the Lenders  providing  such  Incremental  Term  Facility,  provided  that,  in  the  event  that  the  all-in-yield  for  any  Incremental Term Facility incurred on or prior to the 18-month anniversary of the Closing Date shall be  more than 50 basis points higher than the corresponding all-in-yield for any then-existing Initial Term Loans  as determined by the Administrative Agent in accordance with standard market practices (after giving effect  to  interest  rate  margins,  original  issue  discount,  upfront  fees  or  interest  rate  floors,  but  excluding  arrangement, structuring, underwriting or commitment fees, consent fees paid to consenting Lenders or  other fees that are not paid generally to all lenders of such Incremental Term Loans), then the all-in-yield  with respect to the outstanding Initial Term Loans shall be increased to the amount necessary so that the  difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the  outstanding Initial Term Loans is equal to 50 basis points (it being agreed that (x) original issue discount  and upfront fees shall be equated to interest on the basis of a four-year average life and (y) any increase in  yield to any then-existing Initial Term Loans required due to the application of an interest rate floor shall  be  effected  solely  through  an  increase  in  (or  implementation  of,  as  applicable)  any  interest  rate  floor  applicable to such then existing Initial Term Loans) and (viii) the terms of any Incremental Term Facility  shall be on terms and pursuant to documentation to be determined; provided that such terms shall (except  to the extent permitted by clause (vi) or (vii) above) be consistent with the terms of the Initial Term Facility  or not materially more favorable (taken as a whole) to the Lenders of the applicable Incremental Term  Facility compared to the existing Facilities, as determined in good faith by the Borrower and evidenced by  a  certificate  of  a  Responsible  Officer  of  the  Borrower,  or  otherwise  reasonably  satisfactory  to  the  Administrative Agent (it being understood that (x) no consent shall be required to the extent such terms  apply only after the Latest Maturity Date and (y) to the extent that any financial maintenance covenant is  added for the benefit of any Incremental Term Facility, no consent shall be required from the Administrative  Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of  the existing Facilities).  No Lender shall have any obligation to participate in any increase described in this  paragraph unless it agrees to do so in its sole discretion and the Borrower shall have no obligation to offer  to any Lender the opportunity to so participate.  Any Incremental Term Loan Commitments established  pursuant to an Incremental Term Loan Activation Notice that have identical terms and conditions, and any  Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of  Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement.                     (b)   Any additional bank, financial institution or other entity which, with the  consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld),  elects to become a “Lender” under this Agreement in connection with any transaction described in Section  2.24(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the  form of Exhibit I-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall  become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound  by and entitled to the benefits of this Agreement.                     (c)   [Reserved].                     (d)   Each Incremental Term Loan Activation Notice may, without the consent  of  any  Lender  (other  than  the  applicable  Incremental  Term  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 give effect to the provisions of this Section 2.24.  This Section 2.24 shall supersede  any provision of Section 10.1 to the contrary.                     (e)   It  shall  be  a  condition  precedent  to  the  availability  of  any  Incremental  Term Loans that (i) no Default or Event of Default (or, in the case of any Incremental Limited Condition  Term Facility, no Specified Event of Default shall have occurred and be continuing immediately prior to                                         54  509265-2041-Active.31278172.28  





 






and immediately after giving effect to the making of such Incremental Term Loans, (ii) the representations  and warranties set forth in each Loan Document (or, in the case of any Incremental Limited Condition Term  Facility, the Specified Representations and the Specified Acquisition Agreement Representations) shall be  true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the  Incremental  Term  Loan  Closing  Date  immediately  prior  to  and  immediately  after  giving  effect  to  the  making of such Incremental Term Loans, except to the extent expressly made as of an earlier date, in which  case they shall be so true and correct as of such earlier date and (iii) the Borrower shall have delivered such  customary  legal  opinions,  board  resolutions,  secretary’s  certificate,  officer’s  certificate  and  other  documents,  in  each  case  consistent  with  those  delivered  on  the  Closing  Date,  as  shall  be  reasonably  requested by the Administrative Agent in connection with any Incremental Term Facility.               2.25  Loan Purchases.  (a)  Subject to the terms and conditions set forth or referred to  below, a  Purchasing  Borrower Party  may  from  time to time,  in its  discretion, conduct  modified  Dutch  auctions to make Auction Purchase Offers, each such Auction Purchase Offer to be conducted in accordance  with the procedures, terms and conditions set forth in this Section 2.25 and the Auction Procedures, in each  case, so long as the following conditions are satisfied:                     (i)   no Default or Event of Default shall have occurred and be continuing at        the time of purchase of any Term Loans or on the date of the delivery of each Auction Notice;                     (ii)  the assigning Lender and the Purchasing Borrower Party shall execute and        deliver to the Administrative Agent an Assignment and Assumption;                     (iii) the maximum principal amount (calculated on the face amount thereof) of        Term Loans that the Purchasing Borrower Party offers to purchase in any Auction Purchase Offer        shall be no less than $10,000,000 (unless another amount is agreed to by the Administrative Agent        in its reasonable discretion);                     (iv)  any  Term  Loans  assigned  to  any  Purchasing  Borrower  Party  shall  be        automatically  and  permanently  cancelled  upon  the  effectiveness  of  such  assignment  and  will        thereafter no longer be outstanding for any purpose hereunder, and such Term Loans may not be        resold (it being understood and agreed that any gains or losses by any Purchasing Borrower Party        upon purchase or acquisition and cancellation of such Term Loans shall not be taken into account        in the calculation of Excess Cash Flow, Consolidated Net Income or Consolidated EBITDA);                     (v)   no more than one Auction Purchase Offer with respect to any Facility may        be ongoing at any one time and no more than four Auction Purchase Offers (regardless of Facility)        may be made in any one year;                      (vi)  at the time of each purchase of Term Loans through an Auction Purchase        Offer, the Borrower shall have delivered to the Auction Manager a certificate of a Responsible        Officer certifying as to compliance with the preceding clause (i); and                     (vii) each Auction Purchase Offer shall be made to all Lenders of the applicable        Facility subject to such Auction Purchase Offer.                     (b)   A Purchasing Borrower Party must terminate any Auction Purchase Offer  if it fails to satisfy one or more of the conditions set forth above which are required to be met at the time  which otherwise would have been the time of purchase of Term Loans pursuant to such Auction Purchase  Offer.   If  a  Purchasing  Borrower  Party  commences  any  Auction  Purchase  Offer  (and  all  relevant  requirements set forth above which are required to be satisfied at the time of the commencement of such                                         55  509265-2041-Active.31278172.28  





 






Auction Purchase Offer have in fact been satisfied), and if at such time of commencement the Purchasing  Borrower Party reasonably believes that all required conditions set forth above which are required to be  satisfied  at  the  time  of  the  consummation  of  such  Auction  Purchase  Offer  shall  be  satisfied,  then  the  Purchasing  Borrower  Party  shall  have  no  liability  to  any  Lender  for  any  termination  of  such  Auction  Purchase Offer as a result of the failure to satisfy one or more of the conditions set forth above which are  required to be met at the time which otherwise would have been the time of consummation of such Auction  Purchase Offer, and any such failure shall not result in any Default or Event of Default hereunder.  With  respect to all purchases of Term Loans of any Facility made by a Purchasing Borrower Party pursuant to  this Section 2.25, the Purchasing Borrower Party shall pay on the settlement date of each such purchase all  accrued and unpaid interest (except to the extent otherwise set forth in the relevant offering documents), if  any, on the purchased Term Loans of the applicable Facility up to the settlement date of such purchase.               The Administrative Agent and the Lenders hereby consent to the Auction Purchase Offers  and  the  other  transactions  effected  pursuant  to  and  in  accordance  with  the  terms  of  this  Section  2.25  (provided that no Lender shall have an obligation to participate in any such Auction Purchase Offer).  For  the avoidance of doubt, it is understood and agreed that the provisions of Section 2.17 will not apply to the  purchases of Term Loans pursuant to and in accordance with the provisions of this Section 2.25.  Any party  (if any) selected by the Borrower to manage an Auction Purchase Offer (an “Auction Manager”) acting in  its capacity as such hereunder shall be entitled to the benefits of the provisions of Article VIII and Article  IX to the same extent as if each reference therein to the “Administrative Agent” were a reference to the  Auction Manager, and the Administrative Agent shall cooperate with the Auction Manager as reasonably  requested  by  the  Auction  Manager  in  order  to  enable  it  to  perform  its  responsibilities  and  duties  in  connection with each Auction Purchase Offer.               The foregoing shall not limit the Borrower’s right to purchase Loans in privately negotiated  transactions or through open market purchases, in each case pursuant to Section 10.6(e).               2.26  Loan Modification Offers.  (a)  The Borrower may on one or more occasions after  the Closing Date, by written notice to the Administrative Agent, make one or more offers (each, a “Loan  Modification Offer”) to all (and not fewer than all) the Lenders of one or more Facilities (each Facility  subject  to  such  a  Loan  Modification  Offer,  an  “Affected  Facility”)  to  make  one  or  more  Permitted  Amendments  pursuant to procedures  reasonably  specified  by  the  Administrative  Agent and  reasonably  acceptable to the Borrower.  Such notice shall set forth (i) the terms and conditions of the requested Loan  Modification  Offer  and  (ii)  the  date  on  which  such  Loan  Modification  Offer  is  requested  to  become  effective.  Permitted Amendments shall become effective only with respect to the Loans of the Lenders of  the Affected Facility that accept the applicable Loan Modification Offer (such Lenders, the “Accepting  Lenders”)  and,  in  the  case  of  any  Accepting  Lender,  only  with  respect  to  such  Lender’s  Loans  and  Commitments of such Affected Facility as to which such Lender’s acceptance has been made.  With respect  to  all  Permitted  Amendments  consummated  by  the  Borrower  pursuant  to  this  Section  2.26,  (i)  such  Permitted Amendments shall not constitute voluntary or mandatory payments or prepayments for purposes  of  Section  2.11  and  (ii)  any  Loan  Modification  Offer,  unless  contemplating  a  scheduled  maturity  date  already in effect with respect to any Loans hereunder pursuant to a previously consummated Permitted  Amendment, must be in a minimum amount of $25,000,000 (or such lesser amount as may be approved by  the  Administrative  Agent  in  its  reasonable  discretion);  provided  that  the  Borrower  may  at  its  election  specify  as  a  condition  (a  “Minimum  Extension  Condition”)  to  consummating  any  such  Permitted  Amendment that a minimum amount (to be determined and specified in the relevant Loan Modification  Offer in the Borrower’s sole discretion and which may be waived by the Borrower) of Loans of any or all  Affected Facilities be extended.  If the aggregate principal amount of Loans of any Affected Facility in  respect  of  which  Lenders  shall  have  accepted  the  relevant  Loan  Modification  Offer  shall  exceed  the  maximum aggregate principal amount of Loans of such Affected Facility offered to be extended by the  Borrower pursuant to such Loan Modification Offer, then the Loans of such Lenders shall be extended                                         56  509265-2041-Active.31278172.28  





 






ratably up to such maximum amount based on the relative principal amounts (but not to exceed actual  holdings of record) with respect to which such Lenders have accepted such Loan Modification Offer.                     (b)   A Permitted Amendment shall be effected pursuant to a Loan Modification  Agreement executed and delivered by the Borrower, each Accepting Lender and the Administrative Agent;  provided  that  no  Permitted  Amendment  shall  become  effective  unless  (i)  on  the  date  of  effectiveness  thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true  and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of  such date, except in the case of any such representation and warranty expressly made as of an earlier date,  in which case such representation and warranty shall be so true and correct on and as of such earlier date,  (ii) the Borrower shall have delivered, or agreed to deliver by a date following the effectiveness of such  Permitted Amendment reasonably acceptable to the Administrative Agent, to the Administrative Agent  such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other  documents  (including  reaffirmation  agreements,  supplements  and/or  amendments  to  the  Security  Documents,  in  each case to  the extent  applicable), in  each  case consistent  with  those delivered  on  the  Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and  (iii) any applicable Minimum Extension Condition shall be satisfied (unless waived by the Borrower).  The  Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification  Agreement.  Each Loan Modification Agreement may, without the consent of any Lender other than the  applicable Accepting Lenders, effect such amendments to this Agreement and the other Loan Documents  as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to  the provisions of this Section 2.26, including any amendments necessary to treat the applicable Loans of  the Accepting Lenders as a new Facility of loans hereunder (and the Lenders hereby irrevocably authorize  the Administrative Agent to enter into any such amendments); provided that (i) all prepayments of Loans  (i.e., both extended and non-extended) shall continue to be made on a ratable basis among all Lenders,  based on the relative amounts of their Loans unless a Permitted Amendment provides for lesser treatment  of the Loans of the Accepting Lenders, until the repayment of the non-extended Loans.  The Administrative  Agent and the Lenders hereby acknowledge that in respect of payments on non-extended Loans on the  scheduled maturity date in respect thereof the pro rata payment requirements contained elsewhere in this  Agreement are not intended to apply to the transactions effected pursuant to this Section 2.26.  This Section  2.26 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.               2.27  Refinancing Facilities.                    (a)   The Borrower may, on one or more occasions after the Closing Date, by  written notice to the Administrative Agent, request the establishment hereunder of one or more additional  Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each  Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower  as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing  Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would  be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have  received the prior written consent of the Administrative Agent, which consent shall not unreasonably be  withheld, delayed or conditioned.                     (b)   The Refinancing Term Loan Commitments shall be effected pursuant to  one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing  Term  Lender  providing  such  Refinancing  Term  Loan  Commitments  and  the  Administrative  Agent;  provided  that  no  Refinancing  Term  Loan  Commitments  shall  become  effective  unless  (i) no  Event  of  Default  shall  have  occurred  and  be  continuing  on  the  date  of  effectiveness  thereof,  (ii)  on  the  date  of  effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents  shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case                                         57  509265-2041-Active.31278172.28  





 






on and as of such date, except in the case of any such representation and warranty expressly made as of an  earlier date, in which case such representation and warranty shall be so true and correct on and as of such  earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a  date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions,  board  resolutions,  secretary’s  certificates,  officer’s  certificates  and  other  documents  (including  reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the  extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be  requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the  effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or  prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to  the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued  and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and  expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any  other amounts required to be paid in connection with such prepayment)).  The Borrower shall determine  the  amount  of  such  prepayments  allocated  to  each  Facility  of  outstanding  Term  Loans,  and  any  such  prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments  of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.                     (c)   The Refinancing Facility Agreement shall set forth, with respect to the  Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made  thereunder, to the extent applicable, the following terms thereof:  (i) the designation of such Refinancing  Term  Loan  Commitments  and  Refinancing  Term  Loans  as  a  new  “Facility”  for  all  purposes  hereof  (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments  and  Refinancing  Term  Loans  may  be  treated  as  a  single  “Facility”  with  any  then-outstanding  existing  Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term  Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity  dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and  (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility  of  Term  Loans  so  refinanced,  (iii)  any  amortization  applicable  thereto  and  the  effect  thereon  of  any  prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing  Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term  Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods  applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements  applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments  of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for  so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were  refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among  the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on  the relative amounts of the Loans under such Facilities and (ix) whether the Refinancing Term Loans are  secured or guaranteed; provided that, any Refinancing Term Loans (1) if secured, shall be (A) subject to a  customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower and  (B) secured only by any assets that constitute Collateral and (2) if guaranteed, shall not be guaranteed by  any entities other than the Subsidiary Guarantors.  Except as contemplated by the preceding sentence, the  mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term  Loan  Commitments  and  Refinancing  Term  Loans  of  a  Facility  shall  either  be  (x)  not  materially  more  favorable, taken as a  whole (as conclusively determined  by  the  Borrower in  good  faith)  to  the lenders  providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those  terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to  any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding)  or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined  by the Borrower in good faith.                                         58  509265-2041-Active.31278172.28  





 






                  (d)   The  Administrative  Agent  shall  promptly  notify  each  Lender  as  to  the  effectiveness of each Refinancing Facility Agreement.  Each Refinancing Facility Agreement may, without  the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to  this  Agreement  and  the  other  Loan  Documents  as  may  be  necessary  or  appropriate,  in  the  reasonable  opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any  amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term  Loans  as  a  new  Facility  of  commitments  and/or  loans  hereunder  (and  the  Lenders  hereby  irrevocably  authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede  any provisions in Section 2.17 or Section 10.1 to the contrary.                              SECTION 3.  [RESERVED]                  SECTION 4.  REPRESENTATIONS AND WARRANTIES               To induce the Administrative Agent and the Lenders to enter into this Agreement and to  make the Loans, the Borrower hereby represents and warrants to the Administrative Agent and each Lender  that:               4.1   Financial Condition.  (a) The unaudited pro forma consolidated balance sheet and  related  pro  forma  consolidated  statement  of  income  of  the  Borrower  and  its  consolidated  Restricted  Subsidiaries as of and for the 12 months ended September 30, 2019 (the “Pro Forma Financial Statements”),  copies of which have heretofore been furnished to the Administrative Agent, have been prepared giving  effect (as if such events had occurred on such date (in the case of the balance sheet) or at the beginning of  such period (in the case of the statement of income)) to the consummation of the Transactions and the  payment of fees and expenses in connection therewith and the settlement entered into in connection with  the Vintage Capital Merger and the termination thereof.  The Pro Forma Financial Statements have been  prepared in good faith and are based on assumptions believed by the Borrower to be reasonable as of the  date  of  delivery  thereof,  and  present  fairly  in  all  material  respects  on  a  pro  forma  basis  the  estimated  financial condition and results of operations of Borrower and its consolidated Restricted Subsidiaries as of  and for the 12 months ended at September 30, 2019, assuming that the events specified in the preceding  sentence had actually occurred at such date or at the beginning of such period, as applicable.                     (b)   The  audited  consolidated  balance  sheet  of  the  Borrower  and  its  consolidated Restricted Subsidiaries as at December 31, 2018, and the related consolidated statements of  income, stockholders’ equity and cash flows for the fiscal year ended on such date, reported on by and  accompanied  by  an  unqualified  report  from  KPMG  LLP,  present  fairly,  in  all  material  respects,  the  consolidated financial condition of the Borrower and its consolidated Restricted Subsidiaries as at such  date, and the consolidated results of its operations and its consolidated cash flows for the fiscal year then  ended.   The  unaudited  consolidated  balance  sheet  of  the  Borrower  and  its  consolidated  Restricted  Subsidiaries  as  at  March  31,  2019,  and  the  related  unaudited  consolidated  statement  of  income,  stockholders’ equity and cash flow for the three-month period ended on such date, present fairly, in all  material  respects,  the  consolidated  financial  condition  of  the  Borrower  and  its  consolidated  Restricted  Subsidiaries as at such date, and the consolidated results of its operations and its consolidated cash flow for  the  three-month  period  then  ended  (subject  to  normal  year-end  audit  adjustments  and  the  absence  of  footnotes).  All such financial statements, including the related schedules and notes thereto, have been  prepared  in  accordance  with  GAAP  applied  consistently  throughout  the  periods  involved  (except  as  approved by the aforementioned firm of accountants and disclosed therein), except that the interim financial  statements are subject to year-end adjustments and the absence of footnotes.                   4.2   No Change.  Since December 31, 2018, there has been no development or event  that has had or would reasonably be expected to have a Material Adverse Effect.                                         59  509265-2041-Active.31278172.28  





 






            4.3   Existence; Compliance with Law.  Each Group Member (a) is duly organized or  formed, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has  the corporate or similar organizational power and authority, and the legal right, to own and operate its  property, to lease the property it operates as lessee and to conduct the business in which it is currently  engaged, (c) is duly qualified as a foreign corporation or other organization and in good standing under the  laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business  requires such qualification, except where the failure to be so qualified and in good standing would not, in  the aggregate, reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all  Requirements of Law except to the extent that the failure to comply therewith would not, in the aggregate,  reasonably be expected to have a Material Adverse Effect.               4.4   Power;  Authorization;  Enforceable  Obligations.   (a)  Each  Loan  Party  has  the  corporate or similar organizational power and authority, and the legal right, to make, deliver and perform  the Loan Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit  hereunder.  Each Loan Party has taken all necessary corporate or similar organizational action to authorize  the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of  the Borrower, to authorize the extensions of credit on the terms and conditions of this Agreement.  Each  Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto.  This  Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid and  binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance  with  its  terms,  except  as  enforceability  may  be  limited  by  applicable  bankruptcy,  insolvency,  reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by  general equitable principles (whether enforcement is sought by proceedings in equity or at law).                     (b)   No consent or authorization of, filing with, notice to or other act by or in  respect of, any Governmental Authority or any other Person is required in connection with the extensions  of  credit  hereunder  or  with  the  execution,  delivery,  performance,  validity  or  enforceability  of  this  Agreement or any of the Loan Documents, except (i) consents, authorizations, filings and notices that have  been obtained or made and are in full force and effect, (ii) the filings referred to in Section 4.19, (iii) filings  with the SEC that may be required to be made following the execution and delivery hereof in connection  herewith and (iv) immaterial consents, authorizations, filings and notices.                 4.5   No Legal Bar.  The execution, delivery and performance of this Agreement and  the other Loan Documents, the borrowings hereunder and the use of the proceeds thereof will not violate  any Requirement of Law or any Contractual Obligation of any Group Member, except (other than with  respect to such Group Member’s Organizational Documents) for violations that would not reasonably be  expected to have a Material Adverse Effect, and will not result in, or require, the creation or imposition of  any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or any such  Contractual Obligation (other than the Liens created by the Security Documents).               4.6   Litigation.  No litigation, investigation or proceeding of or before any arbitrator or  Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or against any  Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan  Documents or any of the transactions contemplated hereby or thereby, or (b) that would reasonably be  expected to have a Material Adverse Effect.               4.7   No Default.  No Group Member is in default under or with respect to any of its  Contractual  Obligations  in  any  respect  that  would  reasonably  be  expected  to  have  a  Material  Adverse  Effect.  No Default or Event of Default has occurred and is continuing.                                          60  509265-2041-Active.31278172.28  





 






            4.8   Ownership of Property; Liens.  Each Group Member has title in fee simple to, or a  valid leasehold interest in, all its real property, and good title to, or a valid leasehold interest in, all its other  property (except where the failure to have such title would not reasonably be expected to have a Material  Adverse Effect), and none of such property is subject to any Lien except as permitted by Section 7.3.               4.9   Intellectual Property.  Except as would not reasonably be expected, individually or  in the aggregate, to have a Material Adverse Effect, (i) each Group Member owns or otherwise has a valid  right to use all Intellectual Property material to the conduct of its business as currently conducted, free and  clear of all Liens, except as permitted by Section 7.3, and any such Intellectual Property that is owned by  any Group Member and registered with any Governmental Authority is subsisting, unexpired and, to the  knowledge  of  each  Group  Member,  valid  and  enforceable;  (ii)  the  use  thereof  and  the  conduct  of  the  business of each of the Group Members does not infringe upon or otherwise violate the rights of any Person;  and (iii) no Group Member has, within the past three years, received any material written claim in which  any  Person  challenged  the  use  of  any  Intellectual  Property  by  any  Group  Member,  or  the  validity  or  effectiveness of any Intellectual Property owned by any Loan Party, nor does the Borrower know of any  valid basis for any such material claim.                  4.10  Taxes.  Each Group Member has filed or caused to be filed all federal, state and  other material Tax returns that are required to be filed and has paid all Taxes shown to be due and payable  on said returns or on any assessments made against it or any of its property and all other Taxes, fees or  other charges imposed on it or any of its property by any Governmental Authority (other than (i) the amount  or validity of which are currently being contested in good faith by appropriate proceedings and with respect  to  which  reserves  in  conformity  with  GAAP  have  been  provided  on  the  books  of  the  relevant  Group  Member, or (ii) to the extent that the failure to file or pay, individually or in the aggregate, would not  reasonably be expected to have a Material Adverse Effect).               4.11  Federal Regulations.  No part of the proceeds of any Borrowing hereunder will be  used for “buying” or “carrying” any Margin Stock within the respective meanings of each of the quoted  terms under Regulation U as now and from time to time hereafter in effect except in compliance with the  provisions of the regulations of the Board.               4.12  Labor Matters.  Except as, in the aggregate, would not reasonably be expected to  have a Material Adverse Effect:  (a) there are no strikes or other labor disputes against any Group Member  pending  or,  to  the  knowledge  of  the  Borrower, threatened; (b)  hours  worked  by and  payment made  to  employees of each Group Member have not been in violation of the Fair Labor Standards Act or any other  applicable  Requirement  of  Law  dealing  with  such  matters;  and  (c)  all  payments  due  from  any  Group  Member on account of employee health and welfare insurance have been paid or accrued as a liability on  the books of the relevant Group Member.                4.13  ERISA.   Except  as  would  not  reasonably  be  expected,  individually  or  in  the  aggregate, to have a Material Adverse Effect: (a) each Group Member and each of their respective ERISA  Affiliates (and in the case of a Pension Plan or a Multiemployer Plan, each of their respective ERISA  Affiliates) are in compliance with all applicable provisions and requirements of ERISA and the Code and  other federal and state laws and the regulations and published interpretations thereunder with respect to  each Plan and Pension Plan and have performed all their obligations under each Plan and Pension Plan; (b)  no ERISA Event or Foreign Plan Event has occurred or is reasonably expected to occur, and no ERISA  Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result  in an ERISA Event; (c) each Plan or Pension Plan which is intended to qualify under Section 401(a) of the  Code has received a favorable determination letter from the IRS indicating that such Plan or Pension Plan  is so qualified and the trust related thereto has been determined by the Internal Revenue Service to be  exempt from federal income tax under Section 501(a) of the Code or an application for such a determination                                         61  509265-2041-Active.31278172.28  





 






is currently pending before the Internal Revenue Service and, to the knowledge of the Borrower, nothing  has occurred subsequent to the issuance of the most recent determination letter which would cause such  Plan or Pension Plan to lose its qualified status; (d) no liability to the PBGC (other than required premium  payments), the IRS, any Plan or Pension Plan or any trust established under Title IV of ERISA has been or  is expected to be incurred by any Group Member or any of their ERISA Affiliates; (e) each of the Group  Members’ ERISA Affiliates has complied with the requirements of Section 515 of ERISA with respect to  each Multiemployer Plan and is not in “default” (as defined in Section 4219(c)(5) of ERISA) with respect  to payments to a Multiemployer Plan; (f) all amounts required by applicable law with respect to, or by the  terms of, any retiree welfare benefit arrangement maintained by any Group Member or any ERISA Affiliate  or to which any Group Member or any ERISA Affiliate has an obligation to contribute have been accrued  in accordance with ASC Topic 715-60; (g) as of the most recent valuation date for each Multiemployer  Plan  for  which  the  actuarial  report  is available,  no  Group  Member  nor  any  of  their  respective  ERISA  Affiliates has any potential liability for a complete withdrawal from such Multiemployer Plan (within the  meaning  of  Section  4203  of  ERISA),  when  aggregated  with  such  potential  liability  for  a  complete  withdrawal from all Multiemployer Plans, based on information available pursuant to Section 4221(e) of  ERISA; (h) there has been no Prohibited Transaction or violation of the fiduciary responsibility rules with  respect to any Plan or Pension Plan that has resulted or would reasonably be expected to result in a Material  Adverse Effect; and (i) neither any Group Member nor any ERISA Affiliate maintains or contributes to, or  has any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan  other than (i) on the Closing Date, those listed on Schedule 4.13 hereto and (ii) thereafter, Pension Plans  not otherwise prohibited by this Agreement.  The present value of all accumulated benefit obligations under  each Pension Plan, did not, as of the close of its most recent plan year, exceed by more than $10,000,000  the fair market value of the assets of such Pension Plan allocable to such accrued benefits (determined in  both cases using the applicable assumptions under Section 430 of the Code and the Treasury Regulations  promulgated thereunder), and the present value of all accumulated benefit obligations of all underfunded  Pension Plans did not, as of the date of the most recent financial statements reflecting such amounts, exceed  by  more  than  $10,000,000  the  fair  market  value  of  the  assets  of  all  such  underfunded  Pension  Plans  (determined in both cases using the applicable assumptions under Section 430 of the Code and the Treasury  Regulations promulgated thereunder).               4.14  Investment Company Act; Other Regulations.  No Loan Party is an “investment  company” within the meaning of the Investment Company Act of 1940, as amended.               4.15  Subsidiaries; Capital Stock.  As of the Closing Date, (a) Schedule 4.15 sets forth  the  name  and  jurisdiction  of  incorporation  of  each  Subsidiary  and,  as  to  each  such  Subsidiary,  the  percentage  of  each  class  of  Capital  Stock  owned  by  any  Loan  Party  and  (b)  there  are  no  outstanding  subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options  and restricted stock units granted to employees or directors and directors’ qualifying shares) of any nature  relating to any Capital Stock of the Borrower or any Restricted Subsidiary, except (i) with respect to Capital  Stock of Loan Parties, as created by the Loan Documents or the ABL Loan Documents and (ii) otherwise,  as permitted by this Agreement.               4.16  Use  of  Proceeds.   The  proceeds  of  the  Initial  Term  Loans  will  be  used  to  consummate the Existing Indebtedness Refinancing and any such proceeds remaining thereafter will be  used for general corporate purposes.  The proceeds of any Incremental Term Loans shall be used for general  corporate purposes (including Restricted Payments, Permitted Acquisitions, other Investments and other  uses not prohibited by this Agreement).               4.17  Environmental Matters.  Except as, individually or in the aggregate, would not  reasonably be expected to have a Material Adverse Effect:                                          62  509265-2041-Active.31278172.28  





 






                  (a)   Materials of Environmental Concern are not present at, on, under, in, or  about any real property now or formerly owned, leased or operated by any Group Member or at any other  location (including, without limitation, any location to which Materials of Environmental Concern have  been sent for re-use or recycling or for treatment, storage, or disposal), in amounts or concentrations or  under circumstances that constitute a violation of, or would reasonably be expected to give rise to liability  on the part of any Group Member under, any Environmental Law;                     (b)   no  Group Member  has received  or  is  aware  of  any notice  of violation,  alleged violation, non-compliance, liability or potential liability under or relating to any Environmental  Law, nor does the Borrower have knowledge or reason to believe that any such notice will be received or  is being threatened;                     (c)   no judicial, arbitral, governmental or administrative litigation, disclosed- investigation, or similar proceeding is pending or, to the knowledge of the Borrower, threatened, under any  Environmental Law to which any Group Member is or will be named as a party, nor has any Group Member  entered into or agreed to any settlements, consent decrees or other decrees, consent orders, administrative  orders or other orders, or other administrative or judicial agreements relating to compliance with or liability  under any Environmental Law that have not been fully and finally resolved;                     (d)   each  Group  Member  is  in  compliance,  and  within  the  period  of  all  applicable statutes of limitation has been in compliance, with all applicable Environmental Laws; and                     (e)   no  Group  Member  has  assumed  or  retained,  by  or  as  a  result  of  any  contract or other agreement, any liability of any other Person under Environmental Laws or with respect to  any Material of Environmental Concern.               4.18  Accuracy  of  Information,  etc.   As  of  the  Closing  Date,  all  written  information  (other than projections, pro forma financial information, financial estimates, forecasts, forward-looking  information and information of a general or economic nature) furnished by or on behalf of any Loan Party  to the Administrative Agent or the Lenders, or any of them, for use in connection with the transactions  contemplated by this Agreement or the other Loan Documents, did not (taken as a whole) contain, as of the  date such statements, information, documents or certificates were so furnished, any untrue statement of a  material fact or omit to state a material fact necessary to make the statements contained therein (taken as a  whole) not materially misleading in light of the circumstances so made.  The projections and pro forma  financial information contained in the materials referenced above are, as of the Closing Date, based upon  good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time  made, it being recognized by the Lenders that such projections and financial information as they relate to  future events are not to be viewed as fact and that actual results during the period or periods covered by  such financial information may differ from the projected results set forth therein and such difference may  be material.               4.19  Security  Documents.   The  Guarantee  and  Collateral  Agreement  is  effective  to  create  in  favor  of  the  Administrative  Agent,  for  the  benefit  of  the  Secured  Parties,  a  legal,  valid  and  enforceable security interest in the Collateral described therein and the proceeds thereof.  In the case of the  Pledged Collateral (as defined in the Guarantee and Collateral Agreement), when such Pledged Collateral  is  delivered  to  the  Administrative  Agent  (together  with  a  properly  completed  and  signed  undated  endorsement) and in the case of the other Collateral described in the Guarantee and Collateral Agreement  that can be perfected by the filing of a financing statement or other filing, when financing statements and  other filings specified on Schedule 4.19 in appropriate form are filed in the offices specified on Schedule  4.19, the Administrative Agent will have, for the benefit of the Secured Parties, a fully perfected Lien on,  and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds                                         63  509265-2041-Active.31278172.28  





 






thereof, as security for the Obligations (as defined in the Guarantee and Collateral Agreement, in each case  prior and superior in right to the Lien of any other Person (except Liens permitted by Section 7.3).               4.20  Solvency.  As of the Closing Date and after giving effect to the Transactions, the  Borrower and its Restricted Subsidiaries, on a consolidated basis, are Solvent.               4.21  Senior  Indebtedness.   The  Obligations,  and  the  obligations  of  each  Subsidiary  Guarantor under the Guarantee and Collateral Agreement, constitute “senior debt” or “senior indebtedness”  (or any comparable term) under all Indebtedness that is subordinated or required to be subordinated in right  of payment to the Obligations (if applicable).                4.22  [Reserved].                 4.23  Anti-Corruption Laws, Anti-Money Laundering and Sanctions.  The Borrower has  implemented  and  maintains  in  effect  policies  and  procedures  designed  to  ensure  compliance  by  the  Borrower,  its  Subsidiaries  and  their  respective  directors,  officers,  employees  and  agents  with  Anti- Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers  and directors and to the knowledge of the Borrower its employees and agents, are in compliance with Anti- Corruption Laws and applicable Sanctions in all material respects.  Neither the Borrower nor any Subsidiary  of the Borrower, nor, to their knowledge, any of their respective directors, officers, or employees, is a  Sanctioned Person. No Borrowing or the use of proceeds thereof or other transaction contemplated by this  Agreement will violate any Anti-Corruption Law or applicable Sanctions.               4.24  EEA Financial Institutions.  No Loan Party is an EEA Financial Institution.                        SECTION 5.  CONDITIONS PRECEDENT               5.1   Conditions to Initial Extension of Credit.  The agreement of each Lender to make  the initial extension of credit requested to be made by it is subject to the satisfaction, prior to or  concurrently with the making of such extension of credit on the Closing Date, of the following conditions  precedent:                     (a)   Loan Documents.  The Administrative Agent shall have received (i) this  Agreement, executed and delivered by the Administrative Agent, the Borrower and each Person listed on  Schedule 1.1, (ii) the Guarantee and Collateral Agreement, executed and delivered by the Borrower and  each  Subsidiary  Guarantor  and  (iii)  the  Intercreditor  Agreement,  executed  and  delivered  by  the  Administrative Agent, the Borrower and each Person party thereto.                       (b)   Other Indebtedness.                      (i)   The  Administrative  Agent  shall  have  received  evidence  reasonably        satisfactory to it that on or prior to the Closing Date (x) the ABL Credit Agreement is in full force        and effect, (y) the Borrower received at least $300,000,000 in commitments from the lenders under        the ABL Credit Agreement and (z) the commitments referred to in clause (y) of this paragraph are        effective.                      (ii)  Prior to or substantially concurrently with the initial extensions of credit        under this Agreement on the Closing Date, (A) all existing Indebtedness of the Borrower and its        Subsidiaries under the (x) Credit Agreement, dated as of March 19, 2014 (as amended, restated,        amended and restated, modified or supplemented prior to the date hereof), among the Borrower,        the several banks and other financial institutions or entities from time to time party thereto, the co-                                        64  509265-2041-Active.31278172.28  





 






      syndication agents and co-documentation agents named therein, and JPMorgan Chase Bank, N.A.,        as administrative agent, (y) Senior Notes Indenture, dated as of November 2, 2010 (as amended,        modified or  supplemented prior  to  the  date hereof),  among  the Borrower, the  guarantors  party        thereto and The Bank of New York Melon Trust Company, N.A., as trustee and (z) Senior Notes        Indenture,  dated  as  of  May  2,  2013,  (as  amended,  modified  or  supplemented  prior  to  the  date        hereof), among the Borrower, the guarantors party thereto and The Bank of New York Melon Trust        Company,  N.A.,  as  trustee,  shall  in  each  case  have  been  repaid  in  full  and,  if  applicable,  the        commitments  thereunder  terminated  therewith  (such  repayment  and  termination,  the  “Existing        Indebtedness Refinancing”) and (B) all Liens granted in connection with the foregoing shall have        been terminated.                     (c)   Pro  Forma  Financial  Statements;  Financial  Statements.   The  Administrative Agent shall have received (i) the Pro Forma Financial Statements, (ii) audited consolidated  balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and  its Subsidiaries for the 2018 fiscal year, (iii) unaudited consolidated balance sheets and related statements  of income and stockholders’ equity of the Borrower and its Subsidiaries for the fiscal quarter ended March  31, 2019 and (iv) unaudited statements of cash flows of the Borrower and its Subsidiaries for the three- month period ended on March 31, 2019; provided that availability of such reports on the SEC’s EDGAR  information retrieval system shall satisfy the requirements of this Section 5.1(c).                     (d)   Lien Searches.  The Administrative Agent shall have received the results  of a recent Lien search with respect to each Loan Party, and such search shall reveal no Liens on any of the  assets of the Loan Parties except for Liens permitted by Section 7.3 or discharged on or prior to the Closing  Date pursuant to documentation satisfactory to the Administrative Agent.                     (e)   Fees.  All costs, fees and expenses required to be paid by the Borrower to  the Administrative Agent, the Arranger and the Lenders in connection with this Agreement (including the  reasonable and documented fees and expenses of legal counsel to the Administrative Agent) and all costs,  fees and expenses required to be paid by the Borrower pursuant to the letter agreements entered into with  the Arranger shall have been paid or shall have been authorized to be deducted from the proceeds of the  initial extensions of credit under this Agreement to the extent due and invoiced to the Borrower at least  three Business Days prior to the date hereof.                     (f)   Officer’s  Certificate;  Good  Standing  Certificates.   The  Administrative  Agent shall have received (i) a certificate of each Loan Party, dated the Closing Date, substantially in the  form  of  Exhibit  C,  with  appropriate  insertions  and  attachments,  including  (A)  the  certificate  of  incorporation, in the case of a Loan Party that is a corporation, and certificate of formation, in the case of a  Loan  Party  that  is  a  limited  liability  company,  in  each  case,  certified  by  the  relevant  authority  of  the  jurisdiction of organization of such Loan Party as of a recent date, (B) the bylaws, in the case of a Loan  Party that is a corporation, and limited liability company agreement or operating agreement, in the case of  a Loan Party that is a limited liability company, certified as of the Closing Date by its secretary, an assistant  secretary or a Responsible Officer as being in full force and effect without modification or amendment, (C)  resolutions of the governing bodies of each Loan Party approving and authorizing the execution, delivery  and performance of Loan Documents to which it is a party, certified as of the Closing Date by its secretary,  an assistant secretary or a Responsible Officer as being in full force and effect without modification or  amendment and (D) signature and incumbency certificates of the Responsible Officers of each Loan Party  executing the Loan Documents to which it is a party, and (ii) a long form good standing certificate for each  Loan Party from its jurisdiction of organization.                     (g)   Legal  Opinions.   The  Administrative  Agent  shall  have  received  the  executed legal opinions of Sullivan & Cromwell LLP, New York counsel to the Borrower and its Restricted                                         65  509265-2041-Active.31278172.28  





 






Subsidiaries and certain other local counsel to the Borrower and its Restricted Subsidiaries, as reasonably  requested  by  the  Administrative  Agent,  each  in  form  and  substance  reasonably  acceptable  to  the  Administrative Agent.                     (h)   Pledged Stock; Stock Powers; Pledged Notes.  The Administrative Agent  shall have received (i) the certificates representing the shares of Capital Stock pledged pursuant to the  Guarantee  and  Collateral  Agreement,  together  with  an  undated  endorsement  for  each  such  certificate  executed in blank by a duly authorized officer of the pledgor thereof and (ii) each promissory note (if any)  pledged to the Administrative Agent pursuant to the Guarantee and Collateral Agreement endorsed (without  recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.                     (i)   Filings,  Registrations  and  Recordings.   Each  document  (including  any  Uniform  Commercial  Code  financing  statement)  required  by  the  Security  Documents  or  under  law  or  reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in  favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral  described therein, prior and superior in right to any other Person (other than with respect to Liens expressly  permitted by Section 7.3), shall be in proper form for filing, registration or recordation.                     (j)   Officer’s  Certificate.   The  Administrative  Agent  shall  have  received  a  certificate of the Borrower, dated the Closing Date certifying that the conditions in Section 5.1(b), 5.2(a),  Section 5.2(b) have been met.                     (k)   Solvency  Certificate.   The  Administrative  Agent  shall  have  received  a  solvency certificate from a Responsible Officer in the form of Exhibit L.                     (l)   Patriot Act.  The Administrative Agent shall have received, at least three  Business Days prior to the Closing Date, all documentation and other information about any Loan Party  reasonably requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing  Date and that the Administrative Agent reasonably determines is required by United States bank regulatory  authorities  under  applicable  “know  your  customer”  and  anti-money  laundering  rules  and  regulations,  including the Patriot Act.               For the purpose of determining compliance with the conditions specified in this Section  5.1, each Lender that has signed this Agreement shall be deemed to have accepted, and to be satisfied with,  each document or other matter required under this Section 5.1 unless the Administrative Agent shall have  received  written  notice  from  such  Lender  prior  to  the  proposed  Closing  Date  specifying  its  objection  thereto.                 5.2   Conditions to Each Extension of Credit.  The agreement of each Lender to make  any extension of credit requested to be made by it on any date (subject to Section 2.24) is subject to the  satisfaction of the following conditions precedent:                     (a)   Representations  and  Warranties.   Each  of  the  representations  and  warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all  material respects (or in all respects if qualified by materiality) on and as of such date as if made on and as  of such date, except to the extent expressly made as of an earlier date, in which case such representations  and warranties shall have been so true and correct as of such earlier date.                     (b)   No Default.  No Default or Event of Default shall have occurred and be  continuing on such date or after giving effect to the extensions of credit requested to be made on such date.                                          66  509265-2041-Active.31278172.28  





 






            Each borrowing by the Borrower hereunder shall constitute a representation and warranty  by the Borrower as of the date of such extension of credit that the conditions contained in this Section 5.2  have been satisfied.                       SECTION 6.  AFFIRMATIVE COVENANTS               The Borrower hereby agrees that, so long as the Commitments remain in effect or any Loan  or other amount is owing  to any Lender or the Administrative Agent hereunder (other than contingent  obligations and expense reimbursement not yet due and payable), the Borrower shall and, in the case of  Sections 6.3 through 6.8 and 6.10, shall cause each of its Restricted Subsidiaries to and, in the case of  Section 6.12, shall cause each of its Domestic Subsidiaries to:               6.1   Financial  Statements.   Furnish  to  the  Administrative  Agent,  on  behalf  of  each  Lender:                     (a)   as soon as available, but in any event within 90 days after the end of each  fiscal  year  of  the  Borrower,  a  copy  of  the  audited  consolidated  balance  sheet  of  the  Borrower  and  its  consolidated Subsidiaries as at the end of such year and the related audited consolidated statements of  income,  stockholders’  equity  and  cash  flows  for  such  year  (together  with,  in  all  cases,  customary  management discussion and analysis), setting forth in each case in comparative form the figures for the  previous year, reported on without a “going concern” or like qualification or exception (other than any  qualification or exception that is expressed solely with respect to, or resulting solely from, (i) an upcoming  maturity  date  under  any  Indebtedness  or  (ii)  any  actual  or  potential  inability  to  satisfy  a  financial  maintenance covenant at such time or on a future date or in a future period), or qualification arising out of  the scope of the audit, by Ernst & Young LLP or other independent certified public accountants of nationally  recognized standing;                     (b)   as soon as available, but in any event not later than 45 days after the end  of each of the first three quarterly periods of each fiscal year of the Borrower, the unaudited consolidated  balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and the related  unaudited consolidated statements of income, stockholders’ equity and cash flows for such quarter and/or  the  portion  of  the  fiscal  year  through  the  end  of  such  quarter  (together  with,  in  all  cases,  customary  management discussion and analysis), setting forth in each case in comparative form the figures for the  corresponding period or periods of the previous fiscal year (or, in the case of the balance sheet, as of the  end of the previous fiscal year), certified by a Responsible Officer as being fairly stated in all material  respects (subject to normal year-end audit adjustments and the absence of footnotes); and                     (c)   if any Unrestricted Subsidiary exists, concurrently with each delivery of  financial statements under clause (a) or (b) above, financial statements (in substantially the same form as  the financial statements delivered pursuant to clauses (a) and (b) above, as applicable) prepared on the basis  of consolidating the accounts of the Borrower and its Restricted Subsidiaries and treating any Unrestricted  Subsidiaries  as  if  they  were  not  consolidated  with  the  Borrower,  together  with  an  explanation  of  reconciliation adjustments in reasonable detail.   All such financial statements shall be complete and correct in all material respects and shall be prepared in  reasonable detail and in accordance with GAAP applied (except as approved by such accountants or officer,  as the case may be, and disclosed in reasonable detail therein) consistently throughout the periods reflected  therein and with prior periods.               Documents required to be delivered pursuant to Section 6.1(a), (b) or (c) or Section 6.2(c)  or (e) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the                                         67  509265-2041-Active.31278172.28  





 






date on which (i) such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another  relevant 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) or (ii) such  documents are filed of record with the SEC; provided that, upon written request by the Administrative  Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further  distribution  to  each  Lender  until  a  written  request  to  cease  delivering  paper  copies  is  given  by  the  Administrative Agent. The Administrative Agent shall have no obligation to request the delivery of or to  maintain or deliver to Lenders paper copies of the documents referred to above, and in any event shall have  no responsibility to monitor compliance by the Borrower with any such request for delivery, and each  Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper  copies of such documents from the Administrative Agent and maintaining its copies of such documents.                 6.2   Certificates; Other Information.  Furnish to the Administrative Agent, on behalf of  each Lender:                     (a)   [reserved];                     (b)   concurrently  with  the  delivery  of  any  financial  statements  pursuant  to  Sections  6.1(a)  and  6.1(b),  (i)  a  Compliance  Certificate  executed  by  a  Responsible  Officer,  which  Compliance Certificate shall include a statement that such Responsible Officer has obtained no knowledge  of any Default or Event of Default except as specified in such certificate, (ii) in the case of annual financial  statements beginning with the fiscal year ended December 31, 2020, a calculation of Excess Cash Flow and  (iii) in the case of quarterly or annual financial statements, to the extent not previously disclosed to the  Administrative Agent, (x) a description of any change in the jurisdiction of organization of any Loan Party  and  (y)  a  description  of  any  Person  that  has  become  a  Group  Member,  a  Restricted  Subsidiary  or  an  Unrestricted Subsidiary, in each case since the date of the most recent report delivered pursuant to this  clause (iii) (or, in the case of the first such report so delivered, since the Closing Date);                     (c)   as soon as available, and in any event no later than 90 days after the end  of each fiscal year of the Borrower, a detailed consolidated budget for the following fiscal year (including  a projected consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of the end of the  following fiscal year, the related consolidated statements of projected cash flow and projected income and  a  description  of the underlying  assumptions  applicable thereto)  (collectively,  the  “Projections”), which  Projections shall in each case be accompanied by a certificate of a Responsible Officer stating that such  Projections  are based  on  reasonable  estimates, information  and  assumptions  at  the  time  made,  it  being  understood that such Projections as they relate to future events are not to be viewed as fact and that actual  results during the period or periods covered by such Projections may differ from the projected results set  forth therein and such difference may be material;                     (d)   [Reserved];                     (e)   promptly after the same are sent, copies of all financial statements and  reports that the Borrower sends to the holders of any class of its public debt securities or public equity  securities and, promptly after the same are filed, copies of all financial statements and reports that the  Borrower may make to, or file with, the SEC;                      (f)   promptly following receipt thereof, copies of (i) any documents described  in Section 101(k) or 101(l) of ERISA that any Group Member or any ERISA Affiliate may request with  respect to any Multiemployer Plan or any documents described in Section 101(f) of ERISA that any Group  Member or any ERISA Affiliate may request with respect to any Pension Plan; provided, that if the relevant  Group Members or ERISA Affiliates have not requested such documents or notices from the administrator                                         68  509265-2041-Active.31278172.28  





 






or sponsor of the applicable Multiemployer Plans, then, upon reasonable request of the Administrative  Agent, such Group Member or the ERISA Affiliate shall promptly make a request for such documents or  notices from such administrator or sponsor and the Borrower shall provide copies of such documents and  notices to the Administrative Agent promptly after receipt thereof; and                      (g)   promptly, such (x) additional financial and other customary information  as the Administrative Agent (or any Lender through the Administrative Agent) may from time to time  reasonably request  and (y)  information  and  documentation  reasonably  requested  by the  Administrative  Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money  laundering rules and regulations, including the Patriot Act.               6.3   Payment  of Taxes.  Pay,  discharge  or  otherwise  satisfy  as they  become due  or  before they become delinquent, as the case may be, all its material obligations in respect of Taxes, except  where  (a)  the  amount  or  validity  thereof  is  currently  being  contested  in  good  faith  by  appropriate  proceedings and reserves to the extent required by GAAP with respect thereto have been provided on the  books  of  the relevant  Group  Member  or  (b)  the  failure  to  make  such  payments,  individually  or in  the  aggregate, would not reasonably be expected to have a Material Adverse Effect.               6.4   Maintenance of Existence; Compliance.  (a)  (i) Preserve, renew and keep in full  force  and  effect  its  organizational  existence  and  (ii)  take  all  reasonable  action  to  maintain  all  rights,  privileges and franchises necessary in the normal conduct of its business, except, in each case, as otherwise  permitted by Section 7.4 and except, in the case of clause (ii) above, to the extent that failure to do so would  not reasonably be expected to have a Material Adverse Effect; (b) comply with all Requirements of Law  except to the extent that failure to comply therewith would not, in the aggregate, reasonably be expected to  have a Material Adverse Effect; and (c) maintain in effect and enforce policies and procedures designed to  ensure  material  compliance  by  the  Borrower,  its  Subsidiaries  and  their  respective  directors,  officers,  employees and agents with Anti-Corruption Laws and applicable Sanctions.               6.5   Maintenance of Property; Insurance.  (a)  Maintain, with financially sound and  reputable insurance companies (after giving effect to self-insurance), insurance in such amounts and against  such risks as are customarily maintained by companies engaged in the same or similar businesses operating  in the same or similar locations and (b) use commercially reasonable efforts to cause all insurance policies  or certificates, as requested by the Administrative Agent, to be endorsed to the benefit of the Administrative  Agent  (including,  without  limitation,  by  naming  the  Administrative  Agent  as  lender  loss  payee  and/or  additional insured).               6.6   Inspection of Property; Books and Records; Discussions.  (a)  Keep proper books  of records and account in which full, true and correct (in all material respects) entries in conformity with  GAAP (other than for Foreign Subsidiaries, in which case the applicable accounting standard shall be the  accounting standard used in such Foreign Subsidiary’s jurisdiction) and all Requirements of Law shall be  made of all dealings and transactions in relation to its business and activities and (b) upon reasonable prior  notice and subject to the provisions of Section 10.15, permit representatives of the Administrative Agent or  any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books  and records at any reasonable time and as often as may reasonably be desired and to discuss the business,  operations, properties and financial and other condition of the Group Members with officers and employees  of the Group Members and, accompanied by one or more officers or designees of the Borrower if requested  by the Borrower, with their independent certified public accountants; provided that excluding any such  visits and inspections during the continuation of an Event of Default (x) only the Administrative Agent,  acting individually or on behalf of the Lenders may exercise rights under this Section 6.6(b) and (y) the  Administrative Agent shall not exercise rights under this Section 6.6(b) more often than one time during  any calendar year.                                         69  509265-2041-Active.31278172.28  





 






            6.7   Notices.   Promptly  give  notice  to  the  Administrative  Agent,  on  behalf  of  each  Lender, of:                     (a)   the occurrence of any Default or Event of Default;                     (b)   any  litigation,  investigation  or  proceeding  that  may  exist  at  any  time  between  any  Group  Member  and  any  Governmental  Authority  that,  in  each  case,  has  a  reasonable  probability  of  not  being  cured  or  of  being  adversely  determined  and  that,  if  not  cured  or  if  adversely  determined, as the case may be, could reasonably be expected to have a Material Adverse Effect;                     (c)   any litigation or proceeding affecting the Borrower or any of its Restricted  Subsidiaries in which injunctive or similar relief is sought which has a reasonable probability of being  determined adversely and if adversely determined would reasonably be expected to be granted and which,  if granted, would reasonably be expected to have a Material Adverse Effect;                     (d)   (i) as soon as reasonably possible upon becoming aware of the occurrence  of or forthcoming occurrence of any material ERISA Event, a written notice specifying the nature thereof,  what action the Borrower, any of the other Group Members or any of their respective ERISA Affiliates has  taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened  by the IRS, the Department of Labor or the PBGC with respect thereto; and (ii) with reasonable promptness,  upon  the  Administrative  Agent’s  reasonable  request,  copies  of  (A)  each  Schedule  SB  (Actuarial  Information)  to  the  annual  report  (Form  5500  Series)  filed  by  the  Borrower,  any  of  the  other  Group  Members or any of their respective ERISA Affiliates with the IRS with respect to each Pension Plan; (B)  all notices received by the Borrower, any of the other Group Members or any of their respective ERISA  Affiliates from a Multiemployer Plan sponsor concerning a material ERISA Event; and (C) copies of such  other  documents  or  governmental  reports  or  filings  relating  to  any  Plan  or  Pension  Plan  as  the  Administrative Agent shall reasonably request; and                     (e)   any  other  development  or  event  that  has  had  or  would  reasonably  be  expected to have a Material Adverse Effect.   Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible Officer  setting forth details of the occurrence referred to therein and stating what action the relevant Group Member  proposes to take with respect thereto.               6.8   Environmental Laws.  (a)  Comply with, and ensure compliance by all tenants,  subtenants, contractors, subcontractors, and invitees, if any, with, all applicable Environmental Laws, and  obtain and comply with and maintain, and ensure that all tenants, subtenants, contractors, subcontractors,  and invitees obtain and comply with and maintain, any and all Environmental Permits (with respect to  tenants,  subtenants,  contractors,  and  invitees,  the  foregoing  applies  to  their  presence  and  conduct  on,  affecting  or  relating  to  any  property  of  the  Borrower  or  any  of  its  Restricted  Subsidiaries).  It  being  understood that any noncompliance with this Section 6.8(a) shall be deemed not to constitute a breach of  this covenant provided that, upon learning of any actual or suspected noncompliance, the Borrower shall  promptly undertake all reasonable efforts to achieve compliance, and provided further that, in any case,  such  noncompliance,  and  any  other  noncompliance  with  Environmental  Law,  individually  or  in  the  aggregate, would not reasonably be expected to have a Material Adverse Effect.                     (b)   Promptly  comply  with  all  orders  and  directives  of  all  Governmental  Authorities regarding Environmental Laws, other than such orders and directives as to which an appeal has  been timely and properly taken in good faith, and provided that the pendency of any and all such appeals  would not reasonably be expected to give rise to a Material Adverse Effect.                                         70  509265-2041-Active.31278172.28  





 






            6.9   [Reserved].               6.10  Additional Collateral, etc.  (a)  With respect to any property acquired after the  Closing Date by any Loan Party (other than (A) any property described in paragraph (b) or (c) below, (B)  any property subject to a Lien expressly permitted by Section 7.3(g), (C) so long as the ABL Obligations  Payment  Date  has  not  occurred,  any  ABL  Priority  Collateral  as  to  which  the  ABL  Representative  determines, in its reasonable discretion and in consultation with the Borrower, that the cost of obtaining a  security interest therein is excessive in relation to the value of the security to be afforded thereby, (D) any  property (or, so long as the ABL Obligations Payment Date has not occurred, any property other than ABL  Priority Collateral) as to which the Administrative Agent determines, in its reasonable discretion and in  consultation with the Borrower, that the cost of obtaining a security interest therein is excessive in relation  to the value of the security to be afforded thereby and (E) any property that is Excluded Property (as defined  in the Guarantee and Collateral Agreement)) as to which the Administrative Agent, for the benefit of the  Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative  Agent  such  amendments  to  the  Guarantee  and  Collateral  Agreement  or  such  other  documents  as  the  Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent, for  the benefit of the Secured Parties, a security interest in such property and (ii) take all actions necessary or  reasonably advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected  security interest in any such property (with the priority required by the Intercreditor Agreement), including  the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by  the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent.                     (b)   With respect to any new Domestic Subsidiary (other than any Excluded  Subsidiary) created or acquired after the Closing Date by any Loan Party (which, for the purposes of this  paragraph (c), shall include (1) any existing Subsidiary that becomes a Domestic Subsidiary that is not an  Excluded Subsidiary and (2) any existing Domestic Subsidiary that ceases to be an Excluded Subsidiary),  within thirty (30) days after the creation or acquisition of such new Domestic Subsidiary (or such later date  as the Administrative Agent shall agree to in its sole discretion) (i) execute and deliver to the Administrative  Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems  necessary  or reasonably advisable to  grant to  the  Administrative Agent,  for the  benefit  of  the  Secured  Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned  by any Loan Party, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock,  together with undated endorsements, in blank, executed and delivered by a duly authorized officer of the  relevant  Loan  Party  and  (iii)  cause  such  new  Subsidiary  (A)  to  become  a  party  to  the  Guarantee  and  Collateral  Agreement,  (B)  to  take  such  actions  necessary  or  reasonably  advisable  to  grant  to  the  Administrative Agent for the benefit of the Secured Parties a perfected security interest with the priority  required  by  the  Intercreditor  Agreement  in  the  Collateral  described  in  the  Guarantee  and  Collateral  Agreement  with  respect  to  such  new  Subsidiary,  including  the  filing  of  Uniform  Commercial  Code  financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement  or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative  Agent a certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions  and attachments.                     (c)   With respect to any new CFC Holding Company or Foreign Subsidiary  created or acquired after the Closing Date by any Loan Party (which, for the purposes of this paragraph (d)  shall include any existing Subsidiary that becomes a CFC Holding Company or a Foreign Subsidiary),  within sixty (60) days after the creation or acquisition of such new CFC Holding Company or Foreign  Subsidiary (or such later date as the Administrative Agent shall agree to in its sole discretion) (i) execute  and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as  the Administrative Agent deems necessary or reasonably advisable to grant to the Administrative Agent,  for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such                                         71  509265-2041-Active.31278172.28  





 






CFC Holding Company or Foreign Subsidiary that is owned by any such Loan Party (provided that in no  event shall more than 65% of the total outstanding voting Capital Stock of any such CFC Holding Company  or  Foreign  Subsidiary  be  required  to  be  so  pledged)  and  (ii)  deliver  to  the  Administrative  Agent  the  certificates representing such pledged Capital Stock, together with undated stock powers, in blank, executed  and delivered by a duly authorized officer of the relevant Loan Party, and take such other action as the  Administrative  Agent  deems  necessary  or  reasonably  advisable  to  perfect  the  Administrative  Agent’s  security interest therein.               6.11  Designation of Subsidiaries.  The Borrower may at any time after the Closing Date  designate  any  Restricted  Subsidiary  as  an  Unrestricted  Subsidiary  or  any  Unrestricted  Subsidiary  as  a  Restricted  Subsidiary  by  delivering  to  the  Administrative  Agent  a  certificate  of  a  Responsible  Officer  specifying such designation and certifying that the conditions to such designation set forth in this Section  6.11 are satisfied; provided that:                     (a)   both immediately before and immediately after any such designation, no  Event of Default shall have occurred and be continuing;                     (b)   in the case of a designation of a Restricted Subsidiary as an Unrestricted  Subsidiary, the pro forma Consolidated Leverage Ratio for the Applicable Reference Period is no greater  than 3.00 to 1.00;                      (c)   in the case of a designation of a Restricted Subsidiary as an Unrestricted  Subsidiary, each Subsidiary of such Subsidiary has been, or concurrently therewith will be, designated as  an Unrestricted Subsidiary in accordance with this Section 6.11;                     (d)   in the case of a designation of a Restricted Subsidiary as an Unrestricted  Subsidiary,  such  Subsidiary  shall  substantially  simultaneously  be  designated  as  an  “Unrestricted  Subsidiary” under the ABL Credit Agreement (and, to the extent applicable, any other agreement governing  Permitted Refinancing Indebtedness in respect of the ABL Loans) and in the case of a designation of an  Unrestricted Subsidiary as a Restricted Subsidiary, such Subsidiary shall substantially simultaneously be  designated as a “Restricted Subsidiary” under the ABL Credit Agreement (and, to the extent applicable,  any other agreement governing Permitted Refinancing Indebtedness in respect of the ABL Loans).   The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment  by the Borrower in such Subsidiary on the date of designation in an amount equal to the fair market value  of the Borrower’s Investment therein (as determined reasonably and in good faith by a Responsible Officer).   The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at  the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time.               6.12  Maintenance  of  Ratings.   Use  commercially  reasonable  efforts  to  obtain  and  maintain (i) a public corporate family rating of the Borrower and a rating of the Facilities, in each case from  Moody’s, and (ii) a public corporate credit rating of the Borrower and a rating of the Facilities, in each case  from S&P (it being understood and agreed that “commercially reasonable efforts” shall in any event include  the payment by the Borrower of customary rating agency fees and cooperation with reasonable information  and data requests by Moody’s and S&P in connection with their ratings process), it being agreed that there  is no obligation to maintain any particular ratings at any time.                          SECTION 7.  NEGATIVE COVENANTS               The Borrower hereby agrees that, so long as the Commitments remain in effect or any Loan  or other amount is owing  to any Lender or the Administrative Agent hereunder (other than contingent                                         72  509265-2041-Active.31278172.28  





 






obligations and expense reimbursement not yet due and payable), the Borrower shall not, and shall not  permit any of its Restricted Subsidiaries to, directly or indirectly:               7.1   [Reserved].                 7.2   Indebtedness.  Create, issue, incur, assume, become liable in respect of or suffer to  exist any Indebtedness, except:                     (a)   Indebtedness  of  any  Loan  Party  under  this  Agreement  (including  Indebtedness in respect of any Incremental Term Facility) and any Permitted Refinancing Indebtedness in  respect of the Term Loans (any such Permitted Refinancing Indebtedness, the “Term Loan Refinancing  Indebtedness”); provided that (i) such Term Loan Refinancing Indebtedness, if secured, is secured only by  the Collateral on a pari passu or junior basis with the Obligations under this Agreement (provided that the  Term Loan Refinancing Indebtedness shall not consist of syndicated term loans that are secured on a pari  passu basis with the Obligations under this Agreement), (ii) no Person, other than a Loan Party, shall be an  obligor  or  guarantor  with  respect  to  any  Term  Loan  Refinancing  Indebtedness,  (iii)  the  mandatory  prepayment and redemption terms, covenants and events of default of any such Term Loan Refinancing  Indebtedness (excluding pricing, fees, rate floors and optional prepayment or redemption terms) either (x)  taken  as  a  whole  are  not  (as  conclusively  determined  by  the  Borrower  in  good  faith)  materially  more  restrictive than those applicable to the Indebtedness being refinanced (other than any covenants or other  provisions applicable only to periods after the Latest Maturity Date (as in effect on the date of incurrence  of such Term Loan Refinancing Indebtedness) or are applied for the benefit of the Initial Term Loans (and  Incremental Term Loans, if applicable) then outstanding) or (y) reflect market terms at the time of issuance  thereof (as conclusively determined  by the  Borrower in  good  faith),  (iv)  such Term Loan  Refinancing  Indebtedness shall share ratably or less than ratably with (or, if junior in right of payment or as to security,  on a junior basis with respect to) any prepayments or repayments of the Initial Term Loans (and Incremental  Term Loans, if applicable) and (v) such Term Loan Refinancing Indebtedness, if secured, shall be subject  to intercreditor arrangements reasonably satisfactory to the Administrative Agent;                     (b)   Indebtedness of the Loan Parties under the ABL Credit Agreement in an  aggregate outstanding amount not to exceed $450,000,000 and any Permitted Refinancing Indebtedness in  respect thereof;                     (c)   Indebtedness of the Borrower or any Restricted Subsidiary owing to the  Borrower  or  any  Restricted  Subsidiary;  provided  that  (i)  any  Indebtedness  of  any  Loan  Party  shall be  unsecured  and  shall  be  subordinated  in  right  of  payment  to  the  Obligations  on  terms  customary  for  intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent and (ii)  any such Indebtedness owing by any Restricted Subsidiary that is not a Loan Party to any Loan Party shall  be incurred in compliance with Section 7.7;                     (d)   Guarantee Obligations incurred by any Group Member of obligations of  any Group Member to the extent such obligations are not prohibited hereunder; provided that (i) to the  extent any such obligations are subordinated to the Obligations, any such related Guarantee Obligations  incurred by a Loan Party shall be subordinated to the guarantee of such Loan Party of the Obligations on  terms no less favorable to the Lenders than the subordination provisions of the obligations to which such  Guarantee Obligation relates and (ii) any Guarantee Obligations incurred by any Loan Party of obligations  of a Restricted Subsidiary that is not a Loan Party shall be permitted to the extent the aggregate amount of  outstanding Guarantee Obligations incurred pursuant to this clause (ii) does not exceed $25,000,000;                                          73  509265-2041-Active.31278172.28  





 






                  (e)   Indebtedness outstanding on the Closing Date (provided that Indebtedness  in  an  aggregate  principal  amount  in  excess  of  $5,000,000  shall  be  listed  on  Schedule  7.2(e))  and  any  Permitted Refinancing Indebtedness in respect thereof;                     (f)   Indebtedness of any Group Member incurred to finance the acquisition of  fixed or capital assets (and any Permitted Refinancing Indebtedness in respect thereof) in an aggregate  principal amount not to exceed $25,000,000 at any time outstanding;                     (g)   Indebtedness representing deferred compensation to employees, officers  or directors of the Borrower and its Restricted Subsidiaries incurred in the ordinary course of business;                     (h)   Indebtedness  incurred  in  the  ordinary  course  of  business  and  owed  in  respect of any overdrafts and related liabilities arising from treasury, depository and cash management  services or in connection with any automated clearing-house transfers of funds;                     (i)   Indebtedness  arising  under  any  Swap  Agreement  permitted  by  Section  7.11;                      (j)   Indebtedness (other than for borrowed money) that may be deemed to exist  pursuant  to  any  guarantees,  warranty  or  contractual  service  obligations,  performance,  surety,  statutory,  appeal,  bid,  prepayment  guarantee,  payment  (other  than  payment  of  Indebtedness)  or  completion  of  performance guarantees or similar obligations incurred in the ordinary course of business;                     (k)   Indebtedness  in  respect  of  workers’  compensation  claims,  payment  obligations in connection with health, disability or other types of social security benefits, unemployment or  other insurance obligations, reclamation and statutory obligations, in each case in the ordinary course of  business;                     (l)   Indebtedness  arising  from  the  honoring  by  a  bank  or  other  financial  institution  of  a  check,  draft  or  similar  instrument  drawn  against  insufficient  funds,  so  long  as  such  Indebtedness is covered or extinguished within five Business Days;                     (m)   Indebtedness consisting of (i) the financing of insurance premiums or self- insurance obligations or (ii) take-or-pay obligations contained in supply or similar agreements in each case  in the ordinary course of business;                     (n)   Indebtedness  in  the  form  of  purchase  price  adjustments  (including  in  respect  of  working  capital),  earnouts,  deferred  compensation,  indemnification  or  other  arrangements  representing acquisition consideration or deferred payments of a similar nature incurred in connection with  any Permitted Acquisitions or other Investments permitted under Section 7.7 or Dispositions permitted  under Section 7.5;                     (o)   (i) Indebtedness of any Person that becomes a Restricted Subsidiary (or of  any Person not previously a Restricted Subsidiary that is merged or consolidated with or into the Borrower  or a Restricted Subsidiary in a transaction permitted hereunder) after the Closing Date, or Indebtedness of  any Person that is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition  of assets by the Borrower or such Restricted Subsidiary in a Permitted Acquisition; provided that such  Indebtedness  exists  at  the  time  such  Person  becomes  a  Restricted  Subsidiary  (or  is  so  merged  or  consolidated) or such assets are acquired and is not created in contemplation of or in connection with such  Person becoming a Restricted Subsidiary (or such merger or consolidation) or such assets being acquired  and (ii) Permitted Refinancing Indebtedness in respect of such Indebtedness; provided that after giving                                         74  509265-2041-Active.31278172.28  





 






effect to the applicable acquisition (or merger or consolidation) or such assumption of Indebtedness, the  Consolidated Leverage Ratio for the Applicable Reference Period, calculated on a Pro Forma Basis as of  the date of such acquisition (or merger or consolidation) or assumption, is not in excess of 3.00 to 1.00;  provided  further  that  the aggregate  principal amount of  Indebtedness  of Subsidiaries that are  not  Loan  Parties outstanding under this Section 7.2(o) shall not exceed $20,000,000;                     (p)   Guarantee  Obligations  of the Borrower  or  any Restricted  Subsidiary  in  respect  of  Indebtedness  of  franchisees in  an  aggregate  amount  not  to  exceed  $25,000,000  at  any  time  outstanding;                     (q)   Indebtedness  of  the  Borrower  and  any  Restricted  Subsidiary  to  the  Insurance Subsidiary in an aggregate principal amount not to exceed $75,000,000 at any time outstanding  that cannot be subordinated to the obligations of any Loan Party under the Loan Documents for regulatory  reasons or would cause the carrying value for regulatory valuation purposes to be increased;                     (r)   Indebtedness of the Insurance Subsidiary permitted by Section 7.7(y)(i);                     (s)   [reserved];                      (t)   Incremental Equivalent Debt and Permitted Refinancing Indebtedness in  respect thereof; provided that (i) immediately prior to and immediately after giving effect to the incurrence  of any Permitted Unsecured Indebtedness under this Section 7.2(t), no Default or Event of Default shall  have  occurred  and  be  continuing  and  (ii)  the  aggregate  amount  of  Incremental  Term  Commitments  established  pursuant  to  Section  2.24  on  any  date,  together  with  the  aggregate  principal  amount  of  Incremental Equivalent Debt incurred under this Section 7.2(t) on such date, shall not exceed an amount  equal to (x) the Base Incremental Amount in effect on such date, plus (y) the Voluntary Prepayment Amount  in effect on such date, plus (z) an additional amount subject to the Maximum Incremental Amount as of  such date;                     (u)   (i) Permitted Unsecured Indebtedness so long as, at the time of incurrence  of such Permitted Unsecured Indebtedness, the Consolidated Leverage Ratio for the Applicable Reference  Period,  calculated  on  a  Pro  Forma  Basis  as  of  the  date  of  incurrence  thereof  (but  excluding  from  Unrestricted Cash in making such pro forma calculation the Net Cash Proceeds of such Indebtedness), is  not in excess of 2.50 to 1.00; provided that (A) immediately prior to and immediately after giving effect to  the incurrence of any Permitted Unsecured Indebtedness under this Section 7.2(u), no Default or Event of  Default shall have occurred and be continuing, (B) the Borrower will, at least five (5) Business Days prior  to the date of incurrence of such Indebtedness in a principal amount in excess of $10,000,000, deliver to  the Administrative Agent a certificate of a Responsible Officer, dated such date, confirming the satisfaction  of  the  conditions  set  forth  above  and  attaching  a  reasonably  detailed  calculation  of  the  Consolidated  Leverage  Ratio  on  a  Pro  Forma  Basis  as  of  the  applicable  date  identifying  the  Permitted  Unsecured  Indebtedness being incurred and specifying that it is being incurred pursuant to this Section 7.2(u) and (C)  the aggregate principal amount of Permitted Unsecured Indebtedness of Restricted Subsidiaries that are not  Loan Parties outstanding under this Section 7.2(u) shall not exceed $20,000,000 and (ii) any Permitted  Refinancing Indebtedness in respect thereof;                     (v)   [reserved];                      (w)   additional  Indebtedness  of  the  Borrower  or  any  of  its  Restricted  Subsidiaries in an aggregate principal amount (for the Borrower and all Restricted Subsidiaries) not to  exceed at any time outstanding the greater of (i) $300,000,000 and (ii) 100% of Consolidated EBITDA (for  the  Applicable  Reference  Period);  provided  that  the  aggregate  principal  amount  of  Indebtedness  of                                         75  509265-2041-Active.31278172.28  





 






Restricted Subsidiaries that are not Loan Parties outstanding under this Section 7.2(w) shall not exceed  $50,000,000;                     (x)   Attributable  Indebtedness  (i)  arising  out  of  the  sale-leaseback  of  the  Company Headquarters and (ii) otherwise in an aggregate principal amount not to exceed $15,000,000 at  any  time  outstanding,  in  each  case  which  Attributable  Indebtedness  arises  out  of  a  sale  and  leaseback  transaction permitted under Section 7.10;                     (y)   Indebtedness of any Loan Party in an aggregate principal amount not to  exceed the Net Cash Proceeds (Not Otherwise Applied) received after the Closing Date and on or prior to  such date from any issuance of Qualified Capital Stock by the Borrower (other than any such issuance to a  Group Member);                     (z)   Guarantee Obligations incurred by any Group Member of obligations of  any Joint Venture or Unrestricted Subsidiary to the extent permitted under Section 7.7(v); and                     (aa)  Indebtedness of the Borrower to the Insurance Subsidiary in connection  with an Investment that is permitted pursuant to Section 7.7(bb).   For purposes of determining compliance with this Section 7.2, in the event that an item of Indebtedness  meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (aa)  above, the Borrower may, in its sole discretion, divide or classify or later divide, classify or reclassify all  or a portion of such item of Indebtedness in a manner that complies with this Section 7.2 and will only be  required to include the amount and type of such Indebtedness in one or more of the above clauses; provided  that all Indebtedness outstanding under the Loan Documents and the ABL Credit Agreement and, in each  case,  any  Permitted  Refinancing  Indebtedness  in  respect  thereof,  will  at  all  times  be  deemed  to  be  outstanding in reliance only on the exception in Section 7.2(a) and Section 7.2(b), respectively.   For the avoidance of doubt, a permitted refinancing in respect of Indebtedness incurred pursuant to a  Dollar-denominated or Consolidated EBITDA-governed basket shall not increase capacity to incur  Indebtedness under such Dollar-denominated or Consolidated EBITDA-governed basket, and such  Dollar-denominated or Consolidated EBITDA-governed basket shall be deemed to continue to be utilized  by the amount of the original Indebtedness incurred unless and until the Indebtedness incurred to effect  such permitted refinancing is no longer outstanding.               7.3   Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property,  whether now owned or hereafter acquired, except:                     (a)   Liens for Taxes, assessments or other government charges or levies not  yet due or that are being contested in good faith by appropriate proceedings; provided that adequate reserves  with respect thereto are maintained on the books of the Borrower or its Restricted Subsidiaries, as the case  may be, to the extent required by GAAP;                     (b)   carriers’,  warehousemen’s,  mechanics’,  materialmen’s,  repairmen’s  or  other like Liens arising in the ordinary course of business that are not overdue for a period of more than 60  days or that are being contested in good faith by appropriate proceedings;                     (c)   pledges  or  deposits  in  connection  with  workers’  compensation,  unemployment insurance and other social security legislation;                                          76  509265-2041-Active.31278172.28  





 






                  (d)   pledges or deposits to secure the performance of bids, supplier and other  trade contracts (other than for borrowed money), leases, statutory obligations (other than for borrowed  money), leases, statutory obligations (other than any such obligation imposed pursuant to Section 430(k)  of the Code or Sections 303(k) or 4068 of ERISA), surety and appeal bonds, performance bonds and other  obligations of a like nature incurred in the ordinary course of business;                     (e)   [reserved];                     (f)   Liens in existence on the Closing Date (provided that Liens securing any  Indebtedness in an aggregate principal amount in excess of $5,000,000 shall be listed on Schedule 7.3(f)),  securing  Indebtedness  permitted  by  Section  7.2(e);  provided  that  no  such  Lien  is  spread  to  cover  any  additional property  after  the  Closing  Date  and  that  the  amount  of  Indebtedness  secured  thereby  is  not  increased  (other  than,  in  the  case  of  Permitted  Refinancing  Indebtedness,  by  any  Additional  Permitted  Amount);                     (g)   Liens securing Indebtedness of any Group Member incurred pursuant to  Section 7.2(f); provided that (i) such Liens shall be created within 180 days of the acquisition of such fixed  or capital assets and (ii) such Liens do not at any time encumber any property other than the property  financed by such Indebtedness and the proceeds and products and extensions thereof; provided further that  in the event that purchase money obligations are owed to any Person with respect to financing of more than  one purchase of any fixed or capital assets, such Liens may secure all such purchase money obligations and  may apply to all such fixed or capital assets financed by such Person;                     (h)   (i) Liens on the Collateral created pursuant to the Security Documents (or  any Term Loan Security Documents (as defined in the Intercreditor Agreement)), (ii) Liens on cash granted  in favor of any lender under the ABL Credit Agreement or the Issuing Lender (as defined in the ABL Credit  Agreement) created as a result of any requirement to provide cash collateral pursuant to the ABL Credit  Agreement and (iii) subject to the Intercreditor Agreement, Liens on the Collateral created pursuant to the  ABL Security Documents (or any ABL Security Documents (as defined in the Intercreditor Agreement));                     (i)   any interest or title of a lessor under any lease entered into by any Group  Member in the ordinary course of its business and covering only the assets so leased;                     (j)   Liens solely on any cash earnest money deposits made by the Borrower or  any  Restricted  Subsidiary  in  connection  with  any  letter  of  intent  or  purchase  agreement  relating  to  a  Permitted Acquisition or other third party Investment;                     (k)   Liens in favor of any Loan Party so long as (in the case of any Lien granted  by a Loan Party) such Liens are junior to the Liens created pursuant to the Security Documents;                     (l)   Liens arising from filing Uniform Commercial Code or personal property  security financing statements (or substantially equivalent filings outside of the United States) regarding  leases;                     (m)   any  option  or  other  agreement  to  purchase  any  asset  of  any  Group  Member, the purchase, sale or other disposition of which is not prohibited by Section 7.5;                     (n)   Liens arising from the rendering of an interim or final judgment or order  against any Group Member that does not give rise to an Event of Default;                                          77  509265-2041-Active.31278172.28  





 






                  (o)   Liens existing on any asset prior to the acquisition thereof by the Borrower  or any Restricted Subsidiary or existing on any asset of any Person that becomes a Restricted Subsidiary  (or of any  Person  not previously a  Restricted  Subsidiary  that is  merged  or consolidated  with  or into a  Restricted Subsidiary in a transaction permitted hereunder) after the Closing Date prior to the time such  Person becomes a Restricted Subsidiary (or is so merged or consolidated) to the extent the Liens on such  assets  secure  Indebtedness  permitted  by  Section  7.2(o)  so  long  as  the  aggregate  outstanding  principal  amount  of  the  obligations  secured  thereby  (as  to  all  Group  Members)  does  not  exceed  $100,000,000;  provided that (i) such Liens are not created in contemplation of or in connection with such acquisition or  such Person becoming a Restricted Subsidiary (or such merger or consolidation) and (ii) such Liens attach  at all times only to the same assets or category of assets that such Liens (other than after acquired property  that is affixed or incorporated into the property covered by such Lien) attached to, and secure only the same  Indebtedness or obligations (or any Permitted Refinancing Indebtedness in respect thereof permitted by  Section 7.2(o)) that such Liens secured, immediately prior to such permitted acquisition;                      (p)   Liens arising out of conditional sale, title retention, consignment or similar  arrangements for sale of goods entered into by the Borrower or any other Restricted Subsidiary in the  ordinary course of business and permitted by this Agreement;                     (q)   [reserved];                      (r)   Liens encumbering reasonable and customary initial deposits and margin  deposits and similar Liens attaching to brokerage accounts incurred in the ordinary course of business and  not for speculative purposes;                      (s)   Liens in favor of customs and revenue authorities arising as a matter of  law to secure payment of customs duties in connection with the importation of goods in the ordinary course  of business;                     (t)   Liens on premium refunds granted in favor of insurance companies (or  their financing affiliates) in connection with the financing of insurance premiums;                     (u)   banker’s liens, rights of setoff or similar rights and remedies as to deposit  accounts or other funds maintained with depository institutions and securities accounts and other financial  assets maintained with a securities intermediary; provided that such deposit accounts or funds and securities  accounts or other financial assets are not established or deposited for the purpose of providing collateral for  any Indebtedness and are not subject to restrictions on access by the Borrower or any Restricted Subsidiary  in excess of those required by applicable banking regulations;                       (v)   Liens (i)  on  cash  advances  in  favor  of the  seller  of  any  property to  be  acquired in an Investment permitted pursuant to Section 7.7 to be applied against the purchase price for  such Investment or (ii) consisting of an agreement to dispose of any property in a Disposition permitted by  Section 7.5, in each case, solely to the extent such Investment or Disposition, as the case may be, would  have been permitted on the date of the creation of such Lien;                      (w)   Liens on assets of Restricted Subsidiaries that are not Loan Parties so long  as the aggregate outstanding principal amount of the obligations secured thereby does not exceed (as to all  Group Members) $50,000,000;                      (x)   Liens on the Collateral securing (i) Incremental Equivalent Debt permitted  under Section 7.2(t) on a pari passu or junior basis with the Liens on the Collateral securing the Obligations  and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided that the Liens on the Collateral                                         78  509265-2041-Active.31278172.28  





 






securing Incremental Equivalent Debt or any such Permitted Refinancing Indebtedness shall be subject to  the  Intercreditor  Agreement  or  such  other  intercreditor  agreement  in  form  and  substance  reasonably  satisfactory to the Administrative Agent;                     (y)   [reserved];                     (z)   Liens not otherwise permitted by this Section 7.3 so long as the aggregate  outstanding principal amount of the obligations secured thereby does not exceed (as to all Group Members)  $25,000,000;                     (aa)  Liens on property purportedly rented to, or leased by, the Borrower or any  of its Restricted Subsidiaries pursuant to a sale and leaseback transaction permitted under Section 7.10;  provided  that  (i)  such  Liens  do  not  encumber  any  other  property  of  the  Borrower  or  its  Restricted  Subsidiaries and (ii) such Liens secure only Indebtedness permitted under Section 7.2(x);                     (bb)  Liens in favor of the applicable trustee on amounts deposited into escrow  in connection with the redemption, defeasance or satisfaction and discharge of bonds, debentures, notes or  similar instruments (including in connection with the Existing Indebtedness Refinancing);                     (cc)  (i) pledges and deposits and other Liens made in the ordinary course of  business in compliance with the Federal Employers Liability Act or any other workers’ compensation,  unemployment insurance and other social security laws or regulations and deposits securing liability to  insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (ii)  pledges and deposits and other Liens securing liability for reimbursement or indemnification obligations of  (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers  providing property, casualty or liability insurance to any Group Member;                     (dd)  easements, trackage rights, leases, licenses, special assessments, rights of  way covenants, zoning restrictions, covenants, conditions, restrictions and declarations on or with respect  to  the  use  of  real  property,  servicing  agreements,  development  agreements,  site  plan  agreements,  encumbrances and title defects or irregularities that are of a minor nature that, in each case, do not, in the  aggregate, interfere in any material respect with the ordinary conduct of the business of Borrower or any of  the Restricted Subsidiaries;                     (ee)  Liens on Capital Stock of any joint venture (i) securing obligations of such  joint venture or (ii) pursuant to the relevant joint venture agreement or arrangement; and                     (ff)  Liens  securing  Indebtedness  of  any  Foreign  Subsidiary  that  is  not  a  Subsidiary  Guarantor  securing  Indebtedness  of  such  Foreign  Subsidiary  that  is  permitted  by  this  Agreement.   provided that until the Disposition of the Company Headquarters in a manner permitted by this Agreement,  no Lien shall encumber the Company Headquarters other than non-consensual Liens arising by operation  of law and Liens described in, and permitted under, Section 7.3(b), 7.3(m) or 7.3(dd).   For purposes of determining compliance with this Section 7.3, in the event that a Lien securing an item of  Indebtedness  (or  any  portion  thereof)  meets  the  criteria  for  more  than  one  of  the  categories  of  Liens  described in clauses (a) through (ff) above, the Borrower may, in its sole discretion, divide or classify or  later divide, classify or reclassify all or a portion of such Lien in a manner that complies with this Section  7.3 and will only be required to include the amount and type of such Lien in one or more of the above  clauses; provided that all Liens securing Indebtedness outstanding under the Loan Documents and the ABL                                         79  509265-2041-Active.31278172.28  





 






Credit Agreement, and, in each case, any Permitted Refinancing thereof, will at all times be deemed to be  outstanding in reliance only on the exception in Section 7.3(h).               7.4   Fundamental Changes.  Enter into any merger, consolidation or amalgamation, or  liquidate,  wind  up  or  dissolve  itself  (or  suffer  any  liquidation  or  dissolution),  or  Dispose  of  all  or  substantially all of its property or business, except that:                     (a)   any Restricted Subsidiary of the Borrower may be merged or consolidated  with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or  with or into any other Restricted Subsidiary (provided, that when any Subsidiary Guarantor is merging with  or into another Restricted Subsidiary that is not a Subsidiary Guarantor (except as permitted by Section  7.4(b)), such Subsidiary Guarantor shall be the continuing or surviving corporation or the continuing or  surviving  corporation  shall,  substantially  simultaneously  with  such  merger  or  consolidation,  become  a  Subsidiary Guarantor);                     (b)   any Restricted Subsidiary may merge, consolidate or amalgamate with any  other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.7;  provided that if such Restricted Subsidiary is a Subsidiary Guarantor the continuing or surviving Person  shall be a Subsidiary Guarantor;                      (c)   any Restricted Subsidiary of the Borrower may Dispose of any or all of its  assets (i) to the Borrower or any Subsidiary Guarantor (upon voluntary liquidation or otherwise) or (ii)  pursuant to a Disposition permitted by Section 7.5; and                     (d)   any  Restricted  Subsidiary  of  the  Borrower  that  is  not  a  Subsidiary  Guarantor  may  (i)  dispose  of  any  or  all  or  substantially  all  of  its  assets  to  any  Group  Member  (upon  voluntary liquidation or otherwise) or (ii) liquidate or dissolve if the Borrower determines in good faith that  such liquidation or dissolution is in the best interest of the Borrower and is not materially disadvantageous  to the Administrative Agent or the Lenders.               7.5   Disposition of Property.  Dispose of any of its property, whether now owned or  hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted  Subsidiary’s Capital Stock to any Person, except:                     (a)   the Disposition of surplus, outdated, obsolete or worn out property in the  ordinary course of business;                     (b)   Dispositions  of  inventory,  equipment  held  for  sale,  cash  and  Cash  Equivalents, in each case, in the ordinary course of business;                     (c)   Dispositions permitted by Section 7.4(c)(i) or Section 7.4(d)(i);                     (d)   the sale or issuance of any Restricted Subsidiary’s Capital Stock to the  Borrower or any Subsidiary Guarantor or on a pro rata basis to the owners of its Capital Stock;                      (e)   Dispositions of accounts receivable in connection with the compromise,  settlement or collection thereof in the ordinary course of business consistent with past practice and not as  part of any accounts receivables financing transaction;                     (f)   Dispositions of assets (including as a result of like-kind exchanges) to the  extent that (i) such assets are exchanged for credit (on a fair market value basis) against the purchase price                                         80  509265-2041-Active.31278172.28  





 






of similar or replacement assets or (ii) such asset is Disposed of for fair market value and the proceeds of  such Disposition are promptly applied to the purchase price of similar or replacement assets;                     (g)   Dispositions resulting from any casualty or other insured damage to, or  any taking under power of eminent domain or by condemnation or similar proceeding of, any asset of any  Group Member;                     (h)   licenses  and  sublicenses  and  similar  rights  granted  with  respect  to  Intellectual Property granted in the ordinary course of business;                     (i)   the abandonment, cancellation, non-renewal or discontinuance of use or  maintenance of non-material Intellectual Property or rights relating thereto that the Borrower determines in  its reasonable judgment to be desirable to the conduct of its business and not materially disadvantageous to  the interests of the Lenders;                      (j)   licenses, leases or subleases entered into in the ordinary course of business,  to  the  extent that  they  do  not  materially  interfere  with  the business of  the  Borrower  or  any Restricted  Subsidiary;                     (k)   Dispositions to any Group Member; provided that any such Disposition  involving a Restricted Subsidiary that is not a Subsidiary Guarantor shall be made in compliance with  Sections 7.7 and 7.9;                     (l)   (i)  Dispositions of assets to the extent that such Disposition constitutes an  Investment referred to in and permitted by Section 7.7, (ii) Dispositions of assets to the extent that such  Disposition constitutes a Restricted Payment referred to in and permitted by Section 7.6, (iii) Dispositions  set forth on Schedule 7.5(l) and (iv) sale and leaseback transactions permitted under Section 7.10;                     (m)   [reserved];                     (n)   other Dispositions of assets (including Capital Stock); provided that (A) it  shall be for fair market value (determined as if such Disposition was consummated on an arm’s-length  basis), (B) at least 75% of the total consideration for any such Disposition in excess of $10,000,000 received  by the Borrower and its Restricted Subsidiaries shall be in the form of cash or Cash Equivalents, (C) no  Event of Default then exists or would result from such Disposition (except if such Disposition is made  pursuant to an agreement entered into at a time when no Event of Default exists) and (D) the requirements  of Section 2.11(b), to the extent applicable, are complied with in connection therewith; provided, however,  that for purposes of clause (B) above, the following shall be deemed to be cash: (I) any liabilities (as shown  on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the  footnotes thereto) of the Borrower or such Restricted Subsidiary (other than liabilities that are by their terms  subordinated  to  the  Obligations)  that  are  assumed  by  the  transferee  with  respect  to  the  applicable  Disposition and for which the Borrower and its Restricted Subsidiaries shall have been validly released by  all applicable creditors in writing, (II) any securities received by the Borrower or such Restricted Subsidiary  from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash  Equivalents (to the extent of the cash or Cash Equivalents received in the conversion) within 180 days  following  the  closing  of  the  applicable  Disposition  and  (III)  any  Designated  Non-Cash  Consideration  received by the Borrower or any of its Restricted Subsidiaries in such Disposition having an aggregate fair  market value, taken together with all other Designated Non-Cash Consideration received pursuant to this  Section 7.5(n) that is at that time outstanding, not to exceed $25,000,000 (with the fair market value of each  item of Designated Non-Cash Consideration being measured at the time received and without giving effect  to subsequent changes in value);                                         81  509265-2041-Active.31278172.28  





 






                  (o)   other Dispositions in any fiscal year of other property having a fair market  value not to exceed 7.5% of Consolidated Total Assets when made; provided that (i) the requirements of  Section 2.11(b), to the extent applicable, are complied with in connection therewith and (ii) no Event of  Default then exists or would result from such Disposition (except if such Disposition is made pursuant to  an agreement entered into at a time when no Event of Default exists);                     (p)   Dispositions (i) to or by the Insurance Subsidiary of Capital Stock of the  Borrower, (ii) to or by the Insurance Subsidiary of Indebtedness described in Section 7.2(r) to the Borrower  or any Wholly Owned Subsidiary that is a Loan Party and (iii) by the Insurance Subsidiary effected solely  for the purpose of liquidating assets in order to permit the Insurance Subsidiary to pay expenses and to  make payments on insurance claims of the Borrower or any of its Restricted Subsidiaries with the proceeds  of such Disposition;                     (q)   Dispositions of real property in the ordinary course to the extent such real  property is Disposed of for fair market value and the proceeds of such Disposition are applied within 360  days to the purchase price of similar or replacement real property;                     (r)   Dispositions  of  non-core  assets  acquired  in  connection  with  any  acquisition  or  Investment  permitted  hereunder  which,  on  or  prior  to  the  date  of  such  acquisition  or  Investment, are designated in writing to the Administrative Agent as being held for sale and not for the  continued  operation  of  the  Borrower  or  any  of  its  Restricted  Subsidiaries  or  any  of  their  respective  businesses; provided that (i) the Consolidated EBITDA generated by such non-core assets (as determined  by the Borrower in good faith) shall not have been included in the calculation of Consolidated EBITDA in  respect of any testing of ratios or governors on a Pro Forma Basis in connection with such acquisition, and  (ii)  no  Event  of  Default  exists  on  the  date  on  which  the  definitive  agreement  governing  the  relevant  Disposition is executed; and                     (s)   Dispositions of the Mexico Operations for fair market value.               7.6   Restricted Payments.  Declare or pay any dividend (other than dividends payable  solely in common stock of the Person making such dividend) on, or make any payment on account of, or  set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement  or other acquisition of, any Capital Stock (other than Disqualified Capital Stock) of any Group Member,  whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or  indirectly, whether in cash or property or in obligations of any Group Member (collectively, “Restricted  Payments”), except that:                     (a)   any Restricted Subsidiary may  make Restricted Payments ratably to its  equity holders (or if not ratably, on a basis more favorable to the Borrower and the other Loan Parties);                      (b)   the Borrower may purchase or redeem its common stock or common stock  options from present, future or former directors, officers or employees of any Group Member upon the  death, disability or termination of employment of such director, officer or employee, provided, that the  aggregate amount of payments under this Section 7.6(b) after the Closing Date (net of any proceeds received  by the Borrower after the Closing Date in connection with resales of any common stock or common stock  options so purchased) shall not exceed $5,000,000 in any fiscal year (with unused amounts in any period  permitted to be carried over to succeeding periods until used in full; provided that the total amount of such  purchases or redemptions under this Section 7.6(b) in any fiscal year shall not exceed $10,000,000);                     (c)   the Borrower may declare and pay dividends with respect to its Capital  Stock payable solely in shares of Qualified Capital Stock;                                         82  509265-2041-Active.31278172.28  





 






                  (d)   the Borrower may make cash payments in lieu of the issuance of fractional  shares  representing  insignificant interests  in the  Borrower  in connection  with  the  exercise  of  warrants,  options or other securities convertible into or exchangeable for Capital Stock in the Borrower;                     (e)   the  Borrower  may  acquire  its  Capital  Stock  upon the exercise of stock  options for such Capital Stock of the Borrower if such Capital Stock represents a portion of the exercise  price of such stock options or in connection with tax withholding obligations arising in connection with the  exercise of options by, or the vesting of restricted Capital Stock held by, any current or former director,  officer or employee of any Group Member;                     (f)   the Borrower may convert or exchange any of its Capital Stock for or into  Qualified Capital Stock;                     (g)   so long as no Event of Default shall have occurred and be continuing or  would result therefrom, the Borrower may on any date make Restricted Payments in an amount equal to the  Available Amount on such date; provided that at the time of the making of any such Restricted Payments  and immediately after giving effect to such Restricted Payments, the Consolidated Leverage Ratio for the  Applicable Reference Period, calculated on a Pro Forma Basis, is not in excess of 3.75 to 1.00;                      (h)   so long as no Event of Default shall have occurred and be continuing or  would result therefrom, the Borrower may on any date make Restricted Payments in an aggregate amount,  together with Restricted Debt Payments made under Section 7.8(a)(iv), not to exceed $50,000,000 in any  fiscal year;                     (i)   so long as no Event of Default shall have occurred and be continuing or  would result therefrom, the Borrower may on any date make Restricted Payments; provided that at the time  of the  making  of  any such  Restricted  Payments and immediately  after  giving  effect to  such  Restricted  Payments, the Consolidated Leverage Ratio for the Applicable Reference Period, calculated on a Pro Forma  Basis, is not in excess of 3.00 to 1.00;                      (j)   so  long  as  no  Default  or  Event  of  Default  shall  have  occurred  and  be  continuing or would result therefrom, the Borrower may on any date pay dividends to its shareholders in  an aggregate amount not to exceed in any fiscal year 6.00% of Market Capitalization;                      (k)   the  Borrower  may  repurchase  shares  of  its  common  stock  from  the  Insurance  Subsidiary  in  an  amount  necessary  to  (i)  pay  operating  costs  and  expenses  of  the  Insurance  Subsidiary  incurred  in  the  ordinary  course  of  business  (not  to  exceed  $250,000  per  fiscal  year  of  the  Borrower) and (ii) permit the Insurance Subsidiary to make payments on insurance claims of the Borrower  and/or any of its Subsidiaries with the proceeds of such repurchase;                     (l)   the Insurance Subsidiary may purchase shares of the common stock of the  Borrower from the Borrower or any Restricted Subsidiary; and                     (m)   the  Borrower  may  repurchase  shares  of  its  common  stock  from  the  Insurance Subsidiary in exchange for the issuance of one or more notes or other forms of Indebtedness  owed to the Insurance Subsidiary.   For purposes of determining compliance with this Section 7.6, in the event that a Restricted Payment meets  the criteria of more than one of the categories of Restricted Payments described in clauses (a) through (m)  above, the Borrower may, in its sole discretion, divide or classify or later divide, classify or reclassify all                                          83  509265-2041-Active.31278172.28  





 






or a portion of such Restricted Payment in a manner that complies with this Section 7.6 and will only be  required to include the amount and type of such Restricted Payment in one or more of the above clauses.               7.7   Investments.  Make any advance, loan, extension of credit (by way of guaranty or  otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt  securities of, or any assets constituting a business unit of, or make any other investment in, any other Person  (all of the foregoing, “Investments”), except:                     (a)   extensions of trade credit in the ordinary course of business;                     (b)   investments in cash and Cash Equivalents;                     (c)   Guarantee Obligations permitted by Section 7.2 (other than any Guarantee  Obligations incurred under Section 7.2(z), which Guarantee Obligations shall solely be permitted to the  extent permitted pursuant to Section 7.7(v));                     (d)   loans  and  advances  to  directors,  officers  and  employees  of  any  Group  Member in the ordinary course of business (including for travel, entertainment and relocation expenses) in  an aggregate amount for the Borrower and its Restricted Subsidiaries not to exceed $5,000,000 at any one  time outstanding;                     (e)   [reserved];                      (f)   Investments  in  assets  useful  in  the  business  of  the  Borrower  and  its  Restricted  Subsidiaries  made  by  any  Group  Member  with  the  proceeds  of  any  Reinvestment  Deferred  Amount;                     (g)   intercompany  Investments  by  any  Group  Member  in  any  other  Group  Member; provided that any Investment by any Loan Party in a Restricted Subsidiary that is not a Loan Party  shall be permitted to the extent the aggregate amount of outstanding Investments pursuant to this clause (g)  (less  any  returns  (including  dividends,  interest,  distributions,  returns  of  principal,  profits  on  sale,  repayments, income and similar amounts) actually received in respect of any such Investments (excluding  any returns in excess of the amount originally invested)) does not exceed $25,000,000;                      (h)   any  Permitted  Acquisition;  provided  that  the  aggregate  amount  of  Investments pursuant to this Section 7.7(h) (less any returns (including dividends, interest, distributions,  returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect  of any such Investments (excluding any returns in excess of the amount originally invested)) in respect of  acquisitions of Persons that do not, upon acquisition thereof, become Subsidiary Guarantors, or property  that is not, upon acquisition thereof, owned by Loan Parties (whether such Investment is consummated with  cash or equity (including Disqualified Capital Stock of any Subsidiaries not organized under the laws of  any jurisdiction within the United States, but excluding any other equity of such Subsidiaries), and with  such Investment as valued in good faith by the Borrower) shall not exceed at any time outstanding the  greater of (x) $80,000,000 and (y) 5.00% of Consolidated Total Assets as of the date of consummation of  such purchase or other acquisition (or at the Borrower’s option, as of the date of entry into the binding  documentation in respect of such purchase or other acquisition);                     (i)   promissory notes and other non-cash consideration received in connection  with Dispositions permitted by Section 7.5;                                          84  509265-2041-Active.31278172.28  





 






                  (j)   Investments acquired as a result of the purchase or other acquisition by  any Group Member in connection with a Permitted Acquisition; provided, that such Investments were not  made in contemplation of such Permitted Acquisition and were in existence at the time of such Permitted  Acquisition;                     (k)   Investments existing on the Closing Date (provided that Investments in an  aggregate  outstanding  amount  in  excess  of  $5,000,000  shall  be  set  forth  on  Schedule  7.7(k))  and  any  modification, refinancing, renewal, refunding, replacement or extension thereof; provided that the amount  of  any  Investment  permitted  pursuant  to  this  Section  7.7(k)  is  not  increased  from  the  amount  of  such  Investment on the Closing Date;                     (l)   Investments received in connection with the bankruptcy or reorganization  of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the  ordinary course of business;                     (m)   Investments of a Restricted Subsidiary acquired after the Closing Date or  of a corporation merged into the Borrower or merged or consolidated with any Restricted Subsidiary, in  each case in accordance with Section 7.4 after the Closing Date, to the extent that such Investments were  not made in contemplation of or in connection with such acquisition, merger or consolidation and were in  existence on the date of such acquisition, merger or consolidation;                     (n)   Guarantees by the Borrower or any Restricted Subsidiary of leases (other  than Finance Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case  entered into in the ordinary course of business;                      (o)   Investments  made  to  effect  the  pledges  and  deposits  described  in,  and  permitted under, Section 7.3(c) and (d);                     (p)   Investments  by  the  Borrower  or  any  Restricted  Subsidiary  that  result  solely from the receipt by the Borrower or such Restricted Subsidiary from any of its Subsidiaries of a  dividend or other Restricted Payment in the form of Capital Stock, evidences of Indebtedness or other  securities (but not any additions thereto made after the date of the receipt thereto);                     (q)   mergers and consolidations permitted under Section 7.4 that do not involve  any Person other than the Borrower and Restricted Subsidiaries that are Wholly Owned Subsidiaries;                     (r)   so long as no Event of Default has occurred and is continuing or would  result therefrom, Investments in an aggregate amount not to exceed the Available Amount at such time;                      (s)   [reserved];                     (t)   so  long  as  no  Specified  Event  of  Default  shall  have  occurred  and  be  continuing or would result therefrom, other Investments, if, at the time of such Investment, the Consolidated  Leverage Ratio for the Applicable Reference Period, calculated on a Pro Forma Basis as of the date of such  Investment, is not in excess of 3.00 to 1.00;                      (u)   Investments by the Borrower or any of its Restricted Subsidiaries in an  aggregate amount (valued at cost), taken together with all other outstanding Investments made pursuant to  this Section 7.7(u) (less any returns (including dividends, interest, distributions, returns of principal, profits  on sale, repayments, income and similar amounts) actually received in respect of any such Investments  (excluding  any  returns  in  excess  of  the  amount  originally  invested)),  not  to  exceed  from  and  after  the                                         85  509265-2041-Active.31278172.28  





 






Closing Date the greater of (i) $20,000,000 and (ii) 9% of Consolidated EBITDA (as of the most recent  fiscal quarter end for which financial statements have been delivered pursuant to Section 6.1(a) or (b));                     (v)   (i) any Investment in any Joint Venture or Unrestricted Subsidiary and (ii)  any Permitted Acquisition of Persons that do not, upon acquisition thereof, become Subsidiary Guarantors,  and  property  that is  not, upon  acquisition  thereof, owned  by  Loan  Parties;  provided  that  the  aggregate  outstanding amount of the Investments and Permitted Acquisitions consummated pursuant to this Section  7.7(v) (with respect to Investments pursuant to clause (i), valued at cost, and with respect to Permitted  Acquisitions pursuant to clause (ii), the Investment amount thereof shall be as valued in good faith by the  Borrower and shall include cash and equity (including Disqualified Capital Stock of any Subsidiaries not  organized under the laws of any jurisdiction within the United States, but excluding any other equity of  such Subsidiaries)), less any returns (including dividends, interest, distributions, returns of principal, profits  on sale, repayments, income and similar amounts) actually received in respect of any such Investments  (excluding any returns in excess of the amount originally invested), shall not exceed at any time outstanding  the greater of (i) $25,000,000 and (ii) 11% of Consolidated EBITDA (as of the most recent fiscal quarter  end for which financial statements have been delivered pursuant to Section 6.1(a) or (b));                      (w)   Investments, taken together with all other outstanding Investments made  pursuant  to this  Section  7.7(w) (less  any returns (including dividends, interest, distributions, returns  of  principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such  Investments (excluding any returns in excess of the amount originally invested)), in an aggregate amount  (valued at cost) not to exceed the Net Cash Proceeds (Not Otherwise Applied) received after the Closing  Date and on or prior to such date from any issuance of Qualified Capital Stock by the Borrower (other than  any such issuance to a Group Member);                      (x)   Investments made in the Insurance Subsidiary (i) to the extent required to  meet regulatory capital guidelines, policies or rules in an amount not exceed $35,000,000 in the aggregate  at any one time outstanding and (ii) in amounts not to exceed, in any fiscal year of the Borrower, the lesser  of  (x)  $75,000,000  and  (y)  the  amount  that  will  appear  as  an  expense  for  self-insurance  costs  on  the  Borrower’s consolidated income statement;                     (y)   Investments in the Insurance Subsidiary consisting of the contribution of  common stock of the Borrower and Investments by the Insurance Subsidiary in the common stock of the  Borrower;                     (z)   Investments  by  the  Insurance  Subsidiary  in  Indebtedness  of  the  Group  Members permitted by Section 7.2(q);                     (aa)  Investments made to consummate the Merchants Preferred Acquisition;  and                     (bb)   Investments by the Borrower in the Insurance Subsidiary in connection  with the repurchase of the Borrower’s common stock from the Insurance Subsidiary in exchange for the  issuance of one or more notes or other forms of Indebtedness owed to the Insurance Subsidiary.   For purposes of determining compliance with this Section 7.7, in the event that an Investment meets the  criteria of more than one of the categories of Investments described in clauses (a) through (bb) above, the  Borrower may, in its sole discretion, divide or classify or later divide, classify or reclassify all or a portion  of such Investment in a manner that complies with this Section 7.7 and will only be required to include the  amount and type of such Investment in one or more of the above clauses.                                          86  509265-2041-Active.31278172.28  





 






            7.8   Optional Payments and Modifications of Certain Debt Instruments.  (a) Make or  offer to make any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise  optionally or voluntarily defease or segregate funds with respect to any Junior Indebtedness (any of the  foregoing, a “Restricted Debt Payment”) other than:                      (i)   refinancings  of  Junior  Indebtedness  with  the  proceeds  of  Permitted        Refinancing Indebtedness permitted in respect thereof under Section 7.2;                      (ii)  payments  of  or  in  respect  of  Junior  Indebtedness  made  solely  with        Qualified Capital Stock or the conversion of any Junior Indebtedness into Qualified Capital Stock;                      (iii) prepayments  of  intercompany  Junior  Indebtedness  permitted  hereunder        owed by the Borrower or any Restricted Subsidiary to the Borrower or any Restricted Subsidiary;        provided that no prepayment of any Junior Indebtedness owed by any Loan Party to any Restricted        Subsidiary that is not a Loan Party shall be permitted so long as an Event of Default shall have        occurred and be continuing or would result therefrom;                      (iv)  so long as no Event of Default has occurred and is continuing or would        result  therefrom,  Restricted  Debt  Payments   in  an  aggregate  amount,  together  with  Restricted        Payments made under Section 7.6(h)), not to exceed $50,000,000 in any fiscal year;                      (v)   so long as no Event of Default has occurred and is continuing or would        result therefrom, Restricted Debt Payments in an amount equal to the Available Amount on such        date; provided that at the time of the making of such Restricted Debt Payment and immediately        after giving effect thereto, the Consolidated Leverage Ratio for the Applicable Reference Period,        calculated on a Pro Forma Basis, is not in excess of 3.75 to 1.00; and                     (vi)  so long as no Event of Default has occurred and is continuing or would        result therefrom, Restricted Debt Payments if, at the time of making such Restricted Debt Payment        and immediately after giving effect thereto, the Consolidated Leverage Ratio for the Applicable        Reference Period, calculated on a Pro Forma Basis, is not in excess of 3.00 to 1.00.         For purposes of determining compliance with this Section 7.8(a), in the event that a Restricted Debt  Payment meets the criteria of more than one of the categories of Restricted Debt Payments described in  clauses (i) through (vi) above, the Borrower may, in its sole discretion, divide or classify or later divide,  classify or reclassify all or a portion of such Restricted Debt Payment in a manner that complies with this  Section 7.7(a) and will only be required to include the amount and type of such Restricted Debt Payment  in one or more of the above clauses.         Notwithstanding anything to the contrary contained in this Section 7.8(a), in no event shall any  payment  in  respect  of  Subordinated  Indebtedness  be  permitted  if  such  payment  is  in  violation  of  the  subordination provisions of such Subordinated Indebtedness.                      (b)   Amend, modify, waive or otherwise change, or consent or agree to any  amendment, modification, waiver or other change to, any of the terms of any Junior Indebtedness (other  than any such amendment, modification, waiver or other change that would not materially and adversely  affect the interests of the Lenders).               7.9   Transactions with Affiliates.  Enter into any transaction, including any purchase,  sale,  lease  or  exchange  of  property,  the  rendering  of  any  service  or  the  payment  of  any  management,  advisory or similar fees, with any Affiliate in excess of $10,000,000, unless such transaction is on terms                                         87  509265-2041-Active.31278172.28  





 






not materially less favorable to the Borrower or such Restricted Subsidiary, as applicable, than would be  obtainable in a comparable arms-length transaction with a person that is not an Affiliate; provided that this  Section 7.9 shall not limit:                     (a)   Issuances  of  securities,  or  other  payments,  awards  or  grants  in  cash,  securities  or  otherwise  pursuant  to,  or  the  funding  of,  employment  arrangements,  equity  purchase  agreements, stock options, stock ownership plans and similar and like arrangements approved by the board  of directors of the Borrower;                     (b)   compensation, insurance, employment,  employee benefit  and  severance  arrangements between the Borrower or any Subsidiary and any director, officer, employee or consultant  thereof;                     (c)   the payment of directors’ fees and indemnification and reimbursement of  expenses to directors, officers or employees;                     (d)   transactions between or among the Loan Parties;                      (e)   transactions  between  or  among  the  Borrower  and  its  Restricted  Subsidiaries or by and among Restricted Subsidiaries in the ordinary course of business;                     (f)   Investments  permitted  by  Section  7.7(d),  Restricted  Payments  or  Restricted Debt Payments expressly permitted by this Agreement;                     (g)   intercompany  transactions  undertaken  in  good  faith  for  the  purpose  of  improving the consolidated tax efficiency of the Group Members;                     (h)   transactions  disclosed  in  the  Borrower’s  SEC  filings  made  prior  to  the  Closing Date;                     (i)   any transaction with any Person who is not an Affiliate immediately before  the consummation of such transaction that becomes an Affiliate as a result of such transaction; and                      (j)   payroll, travel, business entertainment and similar advances to officers,  directors, employees and consultants of the Borrower or any Subsidiary to cover matters that are expected  at the time of such advances to be treated as expenses of the Borrower or such Subsidiary for accounting  purposes and that are made in the ordinary course of business.               7.10  Sales and Leasebacks.  Enter into any arrangement with any Person providing for  the leasing by any Group Member of real property that has been or is to be sold or transferred by such  Group Member to such Person or to any other Person to whom funds have been or are to be advanced by  such Person on the security of such property or rental obligations of such Group Member, unless (a) the  Net Cash Proceeds received by the applicable Group Member in connection with such transaction are at  least equal to the fair market value (as determined by the Borrower) of such property and (b) the Borrower  or the applicable Subsidiary applies the Net Cash Proceeds of such transaction in accordance with Section  2.11;  provided  that,  other  than  with  respect  to  the  sale-leaseback  of  the  Company  Headquarters,  the  aggregate amount of consideration paid to the Group Members (and the aggregate principal amount of any  Attributable Indebtedness) in respect of transactions permitted under this Section 7.10 shall not exceed  $15,000,000.                                          88  509265-2041-Active.31278172.28  





 






            7.11  Swap Agreements.  Enter into any Swap Agreement, except Swap Agreements  entered into for bona fide hedging purposes and not for speculation.               7.12  Changes in Fiscal Periods.  Permit the fiscal year of the Borrower to end on a day  other than calendar year end or change the Borrower’s method of determining fiscal quarters, in each case  without the consent of the Administrative Agent.               7.13  Negative Pledge Clauses.  Enter into or suffer to exist or become effective any  agreement that prohibits or limits the ability of any Group Member (other than the Insurance Subsidiary)  to create, incur, assume or suffer to exist any Lien upon any of its property or revenues, whether now owned  or hereafter acquired to secure its obligations under the Loan Documents to which it is a party other than  (a)  (i)  this  Agreement,  the  other  Loan  Documents  and  the  ABL  Loan  Documents,  (ii)  any  agreement  governing any Indebtedness incurred pursuant to Section 7.2 to the extent such prohibition or limitation is  customary in agreements governing Indebtedness of such type and in any event so long as such agreement  is not materially more restrictive (taken as a whole) than the Loan Documents (as conclusively determined  by the Borrower in good faith) and (iii) any agreement governing any Permitted Refinancing Indebtedness  in respect of the Loans, the ABL Loans or Indebtedness incurred pursuant to Section 7.2, in each case, with  respect to this clause (iii), so long as any such agreement is not materially more restrictive (taken as a  whole) than the Loan Documents, the ABL Loan Documents or the documents governing the Indebtedness  being  refinanced,  as  applicable  (as  conclusively  determined  by  the  Borrower  in  good  faith),  (b)  any  agreements governing any purchase money Liens or Finance Lease Obligations otherwise permitted hereby  (in which case, any prohibition or limitation shall only be effective against the assets financed thereby), (c)  any agreement in effect at the time any Subsidiary becomes a Restricted Subsidiary of the Borrower, so  long as such prohibition or limitation applies only to such Restricted Subsidiary (and, if applicable, its  Subsidiaries)  and  such  agreement  was  not  entered  into  in  contemplation  of  such  Person  becoming  a  Restricted  Subsidiary  of  the  Borrower,  as  such  agreement  may  be  amended,  restated,  supplemented,  modified  extended  renewed  or  replaced,  so  long  as  such  amendment,  restatement,  supplement,  modification, extension, renewal or replacement does not expand in any material respect the scope of any  restriction  contemplated  by  this  Section  7.13  contained  therein,  (d)  customary  provisions  restricting  assignments, subletting, sublicensing, pledging or other transfers contained in leases, subleases, licenses or  sublicenses, so long as such restrictions are limited to the property or assets subject to such leases, subleases,  licenses or sublicenses, as the case may be, (e) (i) restrictions imposed by applicable law and (ii) contractual  encumbrances  or  restrictions  in  effect  on  the  Closing  Date  and  listed on  Schedule  7.13,  (f)  customary  provisions in joint venture agreements and other similar agreements entered into in the ordinary course of  business, (g) customary provisions restricting assignment of any agreement entered into in the ordinary  course of business, (h) customary restrictions and conditions contained in the document relating to any Lien  other than relating to Indebtedness, so long as (i) such Lien is a Lien permitted by Section 7.3 and such  restrictions or conditions relate only to the specific asset subject to such Lien and (ii) such restrictions and  conditions are not created for the purpose of avoiding the restrictions imposed by this Section 7.13, (i)  customary net worth provisions contained in real property leases entered into by the Group Members, so  long as the Borrower has determined in good faith that such net worth provisions would not reasonably be  expected to impair the ability of the Group Members to meet their ongoing obligations, (j) restrictions on  cash or other deposits imposed by customers under contracts entered into in the ordinary course of business  and (k) customary restrictions and conditions contained in agreements relating to the sale of a Restricted  Subsidiary or any assets pending such sale, provided that such restrictions or conditions apply only to the  Restricted Subsidiary or assets that is to be sold and such sale is permitted hereunder.               7.14  Clauses  Restricting  Subsidiary  Distributions.   Enter  into  or  suffer  to  exist  or  become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of  the Borrower to (a) make Restricted Payments in respect of any Capital Stock of such Restricted Subsidiary  held by, or pay any Indebtedness owed to, any Group Member, (b) make loans or advances to, or other                                         89  509265-2041-Active.31278172.28  





 






Investments in, any Group Member or (c) transfer any of its assets to any Group Member, except for (i) any  encumbrances or restrictions existing under (A) this Agreement, the other Loan Documents or the ABL  Loan Documents, (B) any agreement governing Indebtedness incurred pursuant to Section 7.2 so long as  such encumbrance or restriction is customary in agreements governing Indebtedness of such type and is not  materially more restrictive (taken as a whole) than the Loan Documents (as conclusively determined by the  Borrower in good faith) or (C) any agreement governing Permitted Refinancing Indebtedness in respect of  the Loans, any ABL Loans or any other Indebtedness incurred pursuant to Section 7.2, in each case so long  as any such agreement is not materially more restrictive (taken as a whole) than the Loan Documents, the  ABL Loan Documents or the documents governing the Indebtedness being refinanced, as applicable (as  conclusively determined by the Borrower in good faith), (ii) any encumbrances or restrictions with respect  to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into in connection with  the Disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary, (iii)  any encumbrance or restriction applicable to a Restricted Subsidiary (and, if applicable, its Subsidiaries)  under any agreement of such Restricted Subsidiary in effect at the time such Person becomes a Restricted  Subsidiary of the Borrower, so long as such agreement was not entered into in contemplation of such Person  becoming  a  Restricted  Subsidiary  of  the  Borrower,  as  such  agreement  may  be  amended,  restated,  supplemented,  modified  extended  renewed  or  replaced,  so  long  as  such  amendment,  restatement,  supplement, modification, extension, renewal or replacement does not expand in any material respect the  scope of any restriction contemplated by this Section 7.14 contained therein, (iv) customary provisions  restricting assignments, subletting, sublicensing, pledging or other transfers contained in leases, subleases,  licenses or sublicenses, so long as such restrictions are limited to the property or assets subject to such  leases, subleases, licenses or sublicenses, as the case may be, (v) customary restrictions and conditions  contained in agreements relating to the sale of a Restricted Subsidiary or any assets pending such sale,  provided that such restrictions or conditions apply only to the Restricted Subsidiary or assets that is to be  sold and such sale is permitted hereunder, (vi) consensual arrangements with insurance regulators with  respect to the Insurance Subsidiary, (vii) (A) restrictions imposed by applicable law and (B) contractual  encumbrances or restrictions in effect on the Closing Date and listed on Schedule 7.14, (viii) customary  provisions in joint venture agreements and other similar agreements entered into in the ordinary course of  business, (ix) customary provisions restricting assignment of any agreement entered into in the ordinary  course of business, (h) customary net worth provisions contained in real property leases entered into by the  Group Members, so long as the Borrower has determined in good faith that such net worth provisions would  not reasonably be expected to impair the ability of the Group Members to meet their ongoing obligations  and (i) restrictions on cash or other deposits imposed by customers under contracts entered into in the  ordinary course of business.               7.15  Lines  of  Business.   (a)  Enter  into  any  business,  either  directly  or  through  any  Restricted  Subsidiary,  except  for  those  businesses  in  which  the  Group  Members  were  engaged  on  the  Closing Date and any similar, corollary, related, incidental or complementary business or business activities  or any reasonable extension, development or expansion thereof (as determined by the Borrower in good  faith).               (b) In the case of the Insurance Subsidiary, enter into any business, except for providing  insurance services to the Borrower and its Restricted Subsidiaries and activities reasonably related thereto.                7.16  Use of Proceeds.  Use, and the respective directors, officers, employees and agents  of the Borrower and its Subsidiaries shall not use, the proceeds of any Loan (a) in furtherance of an offer,  payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to  any  Person  in  violation  of  any  Anti-Corruption  Laws,  (b)  for  the  purpose  of  funding,  financing  or  facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned  Country, or (c) in any manner that would result in the violation of any Sanctions applicable to any party  hereto.                                         90  509265-2041-Active.31278172.28  





 






                       SECTION 8.  EVENTS OF DEFAULT               If any of the following events shall occur and be continuing:                     (a)   the  Borrower  shall  fail  to  pay  any  principal  of  any  Loan  when  due  in  accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan, or any other  amount payable hereunder or under any other Loan Document, within five Business Days after any such  interest or other amount becomes due in accordance with the terms hereof; or                     (b)   any representation or warranty made or deemed made by any Loan Party  herein or in any other Loan Document or that is contained in any certificate, document or financial or other  statement furnished by it at any time under or in connection with this Agreement or any such other Loan  Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed  made; or                     (c)   any  Loan  Party  shall  default  in  the  observance  or  performance  of  any  agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect to the Borrower only), Section 6.7(a)  or Section 7 of this Agreement; or                     (d)   any Loan Party shall default in the observance or performance of any other  agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs  (a) through (c) of this Section 8), and such default shall continue unremedied for a period of 30 days after  written notice to the Borrower from the Administrative Agent or the Required Lenders; or                     (e)   any  Group  Member  shall  (i)  default  in  making  any  payment  of  any  principal of any Material Indebtedness (including any Guarantee Obligation) on the scheduled or original  due date with respect thereto; or (ii) default in making any payment of any interest on any such Material  Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such  Material Indebtedness was created; (iii) other than with respect to Indebtedness outstanding under the ABL  Credit Agreement, default in the observance or performance of any other agreement or condition relating  to any such Material Indebtedness or contained in any instrument or agreement evidencing, securing or  relating thereto, the effect of which default is to cause (with all applicable grace periods having expired),  or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder  or beneficiary) to cause (with all applicable grace periods having expired), with the giving of notice if  required, such Material Indebtedness to become due prior to its stated maturity or (in the case of any such  Indebtedness constituting a Guarantee Obligation) to become payable (provided that this clause (iii) shall  not apply to any Indebtedness that becomes due as a result of a refinancing in full thereof as permitted by  the  terms  of  this  Agreement);  or  (iv)  with  respect  to  Indebtedness  outstanding  under  the  ABL  Credit  Agreement, default in the observance or performance of any other agreement or condition relating to such  Indebtedness or contained in any ABL Loan Document, the effect of which default is to cause (with all  applicable grace periods having expired), or to permit the ABL Administrative Agent or the lenders under  the ABL Credit Agreement to cause (with all applicable grace periods having expired), with the giving of  notice if required, the ABL Loans to become due prior to their stated maturity and/or the ABL Commitments  to terminate prior to their stated termination date (provided that, in the case of this clause (iv), such default  shall not constitute an Event of Default hereunder unless (1) the holders of the ABL Loans cause the ABL  Loans to become due prior to their stated maturity (and such acceleration has not been rescinded) and/or  the ABL Commitments to terminate prior to their stated termination date or (2) the ABL Administrative  Agent and/or the lenders under the ABL Credit Agreement exercise secured creditor remedies as a result  of such default); or                                          91  509265-2041-Active.31278172.28  





 






                  (f)   (i)  the  Borrower or  any  Material  Subsidiary  shall  commence  any  case,  proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign,  relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief  entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,  arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to  it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar  official for it or for all or any substantial part of its assets; or (ii) there shall be commenced against the  Borrower or any Material Subsidiary any case, proceeding or other action of a nature referred to in clause  (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B)  remains undismissed or undischarged for a period of 60 consecutive days; or (iii) there shall be commenced  against the Borrower or any Material Subsidiary any case, proceeding or other action seeking issuance of a  warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets  that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed  or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower or any Material  Subsidiary shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence  in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any Material Subsidiary  shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they  become due; or (vi) the Borrower or any Material Subsidiary shall make a general assignment for the benefit  of its creditors; or                     (g)   (i) an ERISA Event and/or a Foreign Plan Event shall have occurred; (ii)  a trustee shall be appointed by a United States district court to administer any Pension Plan; (iii) the PBGC  shall institute proceedings to terminate any Pension Plan; (iv) any Group Member or any of their respective  ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or  will be assessed Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable  grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely  and appropriate manner; or (v) any other event or condition shall occur or exist with respect to a Plan, a  Foreign Benefit Arrangement, or a Foreign Plan; and in each case in clauses (i) through (v) above, such  event or condition, together with all other such events or conditions, if any, would reasonably be expected  to result in a Material Adverse Effect; or                     (h)   one or more judgments or decrees shall be entered against the Borrower or  any Material Subsidiary involving in the aggregate a liability (not paid or fully covered by insurance as to  which the relevant insurance company has not disputed coverage) of $75,000,000 or more, and all such  judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60  consecutive days from the entry thereof; or                     (i)   any of the Security Documents or the Intercreditor Agreement shall cease,  for any reason, to be in full force and effect, or any Loan Party or any Affiliate of any Loan Party shall so  assert, or any Lien created by any of the Security Documents on assets that constitute a material portion of  the Collateral shall cease to be enforceable and of the same effect and priority purported to be created  thereby (and, for the avoidance of doubt, as required by the Intercreditor Agreement), except (i) the release  thereof as provided in the applicable Loan Document or Section 10.14 or (ii) as a result of the failure of the  Administrative  Agent  to  maintain  possession  of  any  stock  certificates,  promissory  notes  or  other  instruments delivered to it under the Guarantee and Collateral Agreement; or                     (j)   the  guarantee  contained  in  Article  II  of  the  Guarantee  and  Collateral  Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or any Subsidiary of  any Loan Party shall so assert; or                                          92  509265-2041-Active.31278172.28  





 






                  (k)   the subordination provisions contained in any Subordinated Indebtedness  with an aggregate principal amount in excess of $75,000,000 shall cease, for any reason, to be in full force  and effect, or any Loan Party or any Subsidiary of any Loan Party shall so assert; or                     (l)   a Change of Control shall occur;    then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph  (f) above with respect to the Borrower, automatically the Commitments shall immediately terminate and  the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other  Loan Documents shall immediately become due and payable, and (B) if such event is any other Event of  Default, either or both of the following actions may be taken:  with the consent of the Required Lenders,  the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall,  by notice to the Borrower, declare the Loans (with accrued interest thereon) and all other amounts owing  under this Agreement and the other Loan Documents to be due and payable forthwith, whereupon the same  shall  immediately  become  due  and  payable.   Except  as  expressly  provided  above  in  this  Section  8,  presentment,  demand,  protest  and  all  other  notices  of  any  kind  are  hereby  expressly  waived  by  the  Borrower.               In addition to any other rights and remedies granted to the Administrative Agent and the  Lenders in the Loan Documents, the Administrative Agent on behalf of the Lenders may exercise all rights  and remedies of a secured party under the New York Uniform Commercial Code or any other applicable  law.   Without  limiting  the  generality  of  the  foregoing,  the  Administrative  Agent,  without  demand  of  performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice  required by law referred to below) to or upon any Loan Party or any other Person (all and each of which  demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith  collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by the  Loan Parties of any cash collateral arising in respect of the Collateral on such terms as the Administrative  Agent deems reasonable, and/or may forthwith sell, lease, assign give an option or options to purchase or  otherwise dispose of and deliver, or acquire by credit bid on behalf of the Lenders, the Collateral or any  part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales,  at any exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere, upon  such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on  credit or for future delivery, all without assumption of any credit risk. The Administrative Agent or any  Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon  any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right  or equity of redemption in any Loan Party, which right or equity is hereby waived and released.  The  Borrower further agrees, at the Administrative Agent’s request, to assemble, or cause the applicable Loan  Party to assemble, the Collateral and make it available to the Administrative Agent at places which the  Administrative Agent shall reasonably select, whether at the Borrower’s or such Loan Party’s premises or  elsewhere.  The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this  Section 8, after deducting all reasonable costs and expenses of every kind incurred in connection therewith  or incidental to the care or safekeeping of any of the Collateral or in any other way relating to the Collateral  or the rights of the Administrative Agent and the Lenders hereunder, including reasonable attorneys’ fees  and disbursements, to the payment in whole or in part of the obligations of the Loan Parties under the Loan  Documents, in such order as the Administrative Agent may elect, and only after such application and after  the payment by the Administrative Agent of any other amount required by any provision of law, including  Section 9-615(a)(3) of the New York UCC, need the Administrative Agent account for the surplus, if any,  to any Loan Party.  To the extent permitted by applicable law, the Borrower on behalf of itself and the other  Loan Parties, waives all claims, damages and demands it or any other Loan Party may acquire against the  Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder.  If any                                          93  509265-2041-Active.31278172.28  





 






notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be  deemed reasonable and proper if given at least 10 days before such sale or other disposition.                              SECTION 9.  THE AGENTS               9.1   Appointment.  (a) As to any matters not expressly provided for herein and in the  other  Loan  Documents  (including  enforcement  or  collection),  the  Administrative  Agent  shall  not  be  required to exercise any discretion or take any action, but shall be required to act or to refrain from acting  (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the  Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the  terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding  upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action  that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative  Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Lenders with  respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law,  including any action that may be in violation of the automatic stay under any requirement of law relating  to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification  or  termination  of  property  of  a  Lender  in  violation  of  any  requirement  of  law  relating  to  bankruptcy,  insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek  clarification or direction from the Required Lenders prior to the exercise of any such instructed action and  may refrain from acting until such clarification or direction has been provided. Except as expressly set forth  in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable  for the failure to disclose, any information relating to the Borrower, any Subsidiary or any Affiliate of any  of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any  of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend  or  risk  its  own  funds  or  otherwise  incur  any  financial  liability  in  the  performance  of  any  of  its  duties  hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing  that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured  to it.                     (b)   Each  Lender  hereby  irrevocably  appoints  the  entity  named  as  Administrative  Agent  in  the  heading  of  this  Agreement  and  its  successors  and  assigns  to  serve  as  the  administrative agent under the Loan Documents and each Lender authorizes the Administrative Agent to  take such actions as agent on its behalf and to exercise such powers under this Agreement and the other  Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such  powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes  the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan  Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies  that the Administrative Agent may have under such Loan Documents.                     (c)   In performing its functions and duties hereunder and under the other Loan  Documents,  the  Administrative  Agent  is  acting  solely  on  behalf  of  the  Lenders  (except  in  limited  circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are  entirely  mechanical  and  administrative  in  nature.  Without  limiting  the  generality  of  the  foregoing,  the  Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or  any other relationship as the agent, fiduciary or trustee of or for any Lender, other than as expressly set  forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has  occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar  term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to  connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any  applicable law, and that such term is used as a matter of market custom and is intended to create or reflect                                         94  509265-2041-Active.31278172.28  





 






only an administrative relationship between contracting parties); additionally, each Lender agrees that it  will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by  the Administrative Agent in connection with this Agreement and/or the transactions contemplated hereby.                     (d)   Nothing  in  this  Agreement  or  any  Loan  Document  shall  require  the  Administrative Agent to account to any Lender for any sum or the profit element of any sum received by  the Administrative Agent for its own account.                     (e)   The Administrative Agent may perform any 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  of  their  respective  duties  and  exercise  their  respective  rights  and  powers  through  their  respective  Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the  Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective  activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence  or misconduct of any sub-agent 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-agent.                     (f)   The  Arranger  shall  have  no  obligations  or  duties  whatsoever  in  such  capacity  under  this  Agreement  or  any  other  Loan  Document  and  shall  incur  no  liability  hereunder  or  thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for  hereunder.                     (g)   In case of the pendency of any proceeding with respect to any Loan Party  under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in  effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and  payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative  Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated)  by intervention in such proceeding or otherwise:                     (i)   to file and prove a claim for the whole amount of the principal and interest        owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and        to file such other documents as may be necessary or advisable in order to have the claims of the        Lenders and the Administrative Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.17        and 9.3) allowed in such judicial proceeding; and                     (ii)  to collect and receive any monies or other property payable or deliverable        on any such claims and to distribute the same;    and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  proceeding is hereby authorized by each Lender and each other Secured Party 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 or the other Secured Parties, to pay to the Administrative Agent any  amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under  Section 9.3). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize  or  consent  to  or  accept  or  adopt  on  behalf  of  any  Lender  any  plan  of  reorganization,  arrangement,  adjustment  or  composition  affecting  the  Obligations  or  the  rights  of  any  Lender   to  authorize  the  Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.                                         95  509265-2041-Active.31278172.28  





 






                  (h)   The  provisions  of  this  Article  are  solely  for  the  benefit  of  the  Administrative Agent, the Lenders, and, except solely to the extent of the Borrower’s rights to consent  pursuant to and subject to the conditions set forth in this Article, none of the Borrower or any Subsidiary,  or  any  of  their  respective  Affiliates,  shall  have  any  rights  as  a  third  party  beneficiary  under  any  such  provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the  benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to  have agreed to the provisions of this Article.               9.2   Administrative  Agent’s  Reliance,  Indemnification,  Etc.  (a)  Neither  the  Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be  taken by such party, the Administrative Agent or any of its Related Parties under or in connection with this  Agreement or the other Loan Documents (x) with the consent of 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 to be necessary, under the circumstances as provided in the Loan Documents) or  (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless  otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment) or (ii)  responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties  made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document  or in any certificate, report, statement or other document referred to or provided for in, or received by the  Administrative Agent under or in connection with, this Agreement or any other Loan Document or for the  value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other  Loan Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder.                     (b)   The Administrative Agent shall be deemed not to have knowledge of any  Default  unless  and  until  written  notice  thereof  (stating  that  it  is  a  “notice  of  default”)  is  given  to  the  Administrative Agent by the Borrower, a Lender, and the Administrative Agent shall not be responsible for  or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in  connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered  thereunder  or  in  connection  therewith,  (iii)  the  performance  or  observance  of  any  of  the  covenants,  agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default,  (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any  other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article IV or  elsewhere in any Loan Document, other than to confirm receipt of items (which on their face purport to be  such items) expressly required to be delivered to the Administrative Agent or satisfaction of any condition  that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative  Agent, (vi) the creation, perfection or priority of Liens on the Collateral or (vii) compliance by Affiliated  Lenders with the terms hereof relating to Affiliated Lenders.                      (c)   Without limiting the foregoing, the Administrative Agent (i) may treat the  payee of any promissory note as its holder until such promissory note has been assigned in accordance with  Section 9.5, (ii) may rely on the Register to the extent set forth in Section 10.6(b), (iii) may consult with  legal  counsel  (including  counsel  to  the  Borrower),  independent  public  accountants  and  other  experts  selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in  accordance  with  the  advice  of  such  counsel,  accountants  or  experts,  (iv)  makes  no  warranty  or  representation to any Lender and shall not be responsible to any Lender for any statements, warranties or  representations made by or on behalf of any Loan Party in connection with this Agreement or any other  Loan Document, (v) in determining compliance with any condition hereunder to the making of a Loan by  its terms must be fulfilled to the satisfaction of a Lender, may presume that such condition is satisfactory  to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender  sufficiently in advance of the making of such Loan and (vi) shall be entitled to rely on, and shall incur no                                         96  509265-2041-Active.31278172.28  





 






liability under or in respect of this Agreement or any other Loan Document by acting upon, any notice,  consent, certificate or other instrument or writing (which writing may be a fax, any electronic message,  Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone  and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties  (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the  maker thereof).               9.3   Posting  of  Communications.  (a)  The  Borrower  agrees  that  the  Administrative  Agent may, but shall not be obligated to, make any Communications available to the Lenders by posting  the Communications on IntraLinksTM, DebtDomain, SyndTrak, ClearPar or any other electronic platform  chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic  Platform”).                     (b)   Although the Approved Electronic Platform and its primary web portal are  secured  with  generally-applicable  security  procedures  and  policies  implemented  or  modified  by  the  Administrative Agent from time to time (including, as of the Closing Date, a user ID/password authorization  system) and the Approved Electronic Platform is secured through a per-deal authorization method whereby  each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders  and the Borrower acknowledges and agrees that the distribution of material through an electronic medium  is not  necessarily  secure,  that the  Administrative  Agent  is  not responsible for approving or  vetting the  representatives or contacts of any Lender that are added to the Approved Electronic Platform, and that there  may  be  confidentiality  and  other  risks  associated  with  such  distribution.  Each  of  the  Lenders  and  the  Borrower hereby approves distribution of the Communications through the Approved Electronic Platform  and understands and assumes the risks of such distribution.                     (c)   THE  APPROVED     ELECTRONIC   PLATFORM     AND   THE  COMMUNICATIONS  ARE  PROVIDED  “AS  IS”  AND  “AS  AVAILABLE”.  THE  APPLICABLE  PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF  THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM  AND  EXPRESSLY  DISCLAIM  LIABILITY  FOR  ERRORS  OR  OMISSIONS  IN  THE  APPROVED  ELECTRONIC  PLATFORM  AND  THE  COMMUNICATIONS.  NO  WARRANTY  OF  ANY  KIND,  EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,  FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR  FREEDOM  FROM  VIRUSES  OR  OTHER  CODE  DEFECTS,  IS  MADE  BY  THE  APPLICABLE  PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC  PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, THE ARRANGER OR ANY  OF  THEIR  RESPECTIVE  RELATED  PARTIES  (COLLECTIVELY,  “APPLICABLE  PARTIES”)  HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER, OR ANY OTHER PERSON OR  ENTITY  FOR  DAMAGES  OF  ANY  KIND,  INCLUDING  DIRECT  OR  INDIRECT,  SPECIAL,  INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,  CONTRACT  OR  OTHERWISE)  ARISING  OUT  OF  ANY  LOAN  PARTY’S  OR  THE  ADMINISTRATIVE  AGENT’S  TRANSMISSION  OF  COMMUNICATIONS  THROUGH  THE  INTERNET OR THE APPROVED ELECTRONIC PLATFORM.                     (d)   Each  Lender agrees that  notice to  it  (as  provided in the  next sentence)  specifying that Communications have been posted to the Approved Electronic Platform shall constitute  effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender  agrees  (i)  to  notify  the  Administrative  Agent  in  writing  (which  could  be  in  the  form  of  electronic  communication) from time to time of such Lender’s  email address to which the foregoing notice may be  sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.                                          97  509265-2041-Active.31278172.28  





 






                  (e)   Each  of  the  Lenders  and  the  Borrower  agrees  that  the  Administrative  Agent  may,  but  (except  as  may  be  required  by  applicable  law)  shall  not  be  obligated  to,  store  the  Communications  on  the  Approved  Electronic  Platform  in  accordance  with  the  Administrative  Agent’s  generally applicable document retention procedures and policies.                     (f)   Nothing herein shall prejudice the right of the Administrative Agent or any  Lender to give any notice or other communication pursuant to any Loan Document in any other manner  specified in such Loan Document.               9.4   The  Administrative  Agent  Individually.  With  respect  to  its  Commitment  and  Loans, the Person serving as the Administrative Agent shall have and may exercise the same rights and  powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein  for any other Lender, as the case may be. The terms “Lenders”, “Required Lenders” and any similar terms  shall, unless the  context clearly  otherwise  indicates, include  the  Administrative Agent  in  its individual  capacity  as  a  Lender  or  as  one  of  the  Required  Lenders,  as  applicable.  The  Person  serving  as  the  Administrative Agent 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 banking,  trust or other business with, the Borrower, any Subsidiary or any Affiliate of any of the foregoing as if such  Person was not acting as the Administrative Agent and without any duty to account therefor to the Lenders.               9.5   Successor Administrative Agent. (a) The Administrative Agent may resign at any  time by giving 30 days’ prior written notice thereof to the Lenders and the Borrower, whether or not a  successor Administrative Agent has been appointed. Upon any such resignation, the Required Lenders shall  have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have  been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after  the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent  may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a bank with an  office in New York, New York or an Affiliate of any such bank. In either case, (i) such appointment shall  be subject to the prior written approval of the Borrower (which approval may not be unreasonably withheld  and shall not be required while an Event of Default has occurred and is continuing) and (ii) in no event shall  a successor Administrative Agent be a Disqualified Lender. Upon the acceptance of any appointment as  Administrative Agent  by  a  successor  Administrative Agent,  such  successor  Administrative  Agent  shall  succeed  to,  and  become  vested  with,  all  the  rights,  powers,  privileges  and  duties  of  the  retiring  Administrative  Agent.  Upon  the  acceptance  of  appointment  as  Administrative  Agent  by  a  successor  Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and obligations  under  this  Agreement  and  the  other  Loan  Documents.  Prior  to  any  retiring  Administrative  Agent’s  resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as  may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative  Agent under the Loan Documents.                     (b)   Notwithstanding  paragraph  (a)  of  this  Section  9.5,  in  the  event  no  successor Administrative Agent shall have been so appointed and shall have accepted such appointment  within  30  days  after  the  retiring  Administrative  Agent  gives  notice  of  its  intent  to  resign,  the  retiring  Administrative  Agent  may  give  notice  of  the  effectiveness  of  its  resignation  to  the  Lenders  and  the  Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring  Administrative Agent shall be discharged from its duties and obligations hereunder and under the other  Loan Documents; provided that, solely for purposes of maintaining any security interest granted to the  Administrative Agent  under  any  Security  Document  for  the  benefit  of  the  Secured  Parties, the retiring  Administrative Agent  shall  continue to  be  vested  with  such  security interest  as collateral agent for  the  benefit of the Secured Parties, and continue to be entitled to the rights set forth in such Security Document  and Loan Document, and, in the case of any Collateral in the possession of the Administrative Agent, shall                                         98  509265-2041-Active.31278172.28  





 






continue  to  hold  such  Collateral,  in  each  case  until  such  time  as  a  successor  Administrative  Agent  is  appointed and accepts such appointment in accordance with this Section 9.5 (it being understood and agreed  that the retiring Administrative Agent shall have no duty or obligation to take any further action under any  Security Document, including any action required to maintain the perfection of any such security interest),  and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and  duties of the retiring Administrative Agent; provided that (A) all payments required to be made hereunder  or under any other Loan Document to the Administrative Agent for the account of any Person other than  the  Administrative  Agent  shall  be  made  directly  to  such  Person  and  (B)  all  notices  and  other  communications required or contemplated to be given or made to the Administrative Agent shall directly  be given or made to each Lender. Following the effectiveness of the Administrative Agent’s resignation  from  its  capacity  as  such,  the  provisions  of  this  Article  and  Section  10.3,  as  well  as  any  exculpatory,  reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in  effect for the benefit of such retiring 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  Administrative Agent was acting as Administrative Agent and in respect of the matters referred to in the  proviso under clause (i) above.               9.6   Acknowledgements of Lenders. (a) Each Lender represents that it is engaged in  making,  acquiring  or  holding  commercial  loans  in  the  ordinary  course  of  its  business  and  that  it  has,  independently and without reliance upon the Administrative Agent, the Arranger or any other Lender, or  any of the Related Parties of any of the foregoing, and based on such documents and information as it has  deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender,  and to make, acquire or hold Loans hereunder. Each Lender also acknowledges that it will, independently  and without reliance upon the Administrative Agent, the Arranger or any other Lender, or any of the Related  Parties of any of the foregoing, and based on such documents and information (which may contain material,  non-public information within the meaning of the United States securities laws concerning the Borrower  and its Affiliates) 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.                     (b)   Each Lender, by delivering its signature page to this Agreement on the  Closing  Date,  or  delivering  its  signature  page  to  an  Assignment  and  Assumption  or  any  other  Loan  Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged  receipt of, and consented to and approved, each Loan Document and each other document required to be  delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Closing  Date.               9.7   Collateral  Matters.  (a)  Except  with  respect  to  the  exercise  of  setoff  rights  in  accordance  with  Section  9.8  or  with  respect  to  a  Secured  Party’s  right  to  file  a  proof  of  claim  in  an  insolvency  proceeding,  no  Secured  Party  shall  have  any  right  individually  to  realize  upon  any  of  the  Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers,  rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on  behalf of the Secured Parties in accordance with the terms thereof.                     (b)   The Secured Parties irrevocably authorize the Administrative Agent, at its  option and in its discretion, to subordinate any Lien on any property granted to or held by the Administrative  Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section  7.3. 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 Loan                                          99  509265-2041-Active.31278172.28  





 






Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders or  any other Secured Party for any failure to monitor or maintain any portion of the Collateral.               9.8   Credit  Bidding.  The  Secured  Parties  hereby  irrevocably  authorize  the  Administrative  Agent,  at  the  direction  of  the  Required  Lenders,  to  credit  bid  all  or  any  portion  of  the  Obligations  (including  by  accepting  some  or  all  of  the  Collateral  in  satisfaction  of  some  or  all  of  the  Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either  directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale  thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or  1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject,  or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the  consent  or  at  the  direction  of)  the  Administrative  Agent  (whether  by  judicial  action  or  otherwise)  in  accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations  owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at  the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or  unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest  upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent  claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the  equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with  such purchase). In connection with any such bid, (i) the Administrative Agent shall be authorized to form  one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or  vehicles, (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be  deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the  purpose  of  closing  such  sale,  (iii)  the  Administrative  Agent  shall  be  authorized  to  adopt  documents  providing  for  the  governance  of  the  acquisition  vehicle  or  vehicles  (provided  that  any  actions  by  the  Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the  assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents  shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms  of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case  may be, irrespective of the termination of this Agreement and without giving effect to the limitations on  actions by the Required Lenders contained in Section 9.2 of this Agreement), (iv) the Administrative Agent  on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties,  ratably  on  account  of  the  relevant  Obligations  which  were  credit  bid,  interests,  whether  as  equity,  partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle  and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or  acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an  acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher  or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of  Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be  reassigned to the Secured Parties pro rata with their original interest in such Obligations and the equity  interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall  automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any  further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed  assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall  execute such documents and provide such information regarding the Secured Party (and/or any designee of  the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as  the  Administrative  Agent  may  reasonably  request  in  connection  with  the  formation  of  any  acquisition  vehicle,  the  formulation  or  submission  of  any  credit  bid  or  the  consummation  of  the  transactions  contemplated by such credit bid.                                         100  509265-2041-Active.31278172.28  





 






            9.9    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, and the Arranger and its respective Affiliates, and not, for the avoidance of doubt,  to or for the benefit of the Borrower or any other Loan Party, that at least one of the  following is and will  be true:                     (i)   such Lender is not using “plan assets” (within the meaning of the Plan        Asset  Regulations) of one or more Benefit Plans in connection with the Loans or the Commitments,                     (ii)  the transaction exemption set forth in one or more PTEs, such as PTE 84-       14 (a class  exemption for certain transactions determined by independent qualified professional        asset  managers),  PTE  95-60  (a  class  exemption  for  certain  transactions  involving  insurance        company   general  accounts),  PTE  90-1  (a  class  exemption  for  certain  transactions  involving        insurance   company  pooled  separate  accounts),  PTE  91-38  (a  class  exemption  for  certain        transactions  involving bank collective investment funds) or PTE 96-23 (a class exemption for        certain  transactions determined by in-house asset managers), is applicable with respect to such        Lender’s   entrance  into,  participation  in,  administration  of  and  performance  of  the  Loans,  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  Commitments and this Agreement,  (C) the        entrance into, participation in, administration of and performance of the Loans, 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 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 sub-clause (i) in the immediately preceding clause (a)  is true with respect to a Lender or such Lender has provided another representation, warranty and covenant  as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents  and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date  such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for  the benefit of, the Administrative Agent, and the Arranger and their respective Affiliates, and not, for the  avoidance  of  doubt,  to  or  for  the  benefit  of  the  Borrower  or  any  other  Loan  Party,  that  none  of  the  Administrative Agent, or the Arranger or any of their respective Affiliates is a fiduciary with respect to the  Collateral or the assets of such Lender (including in connection with the reservation or exercise of any  rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to  hereto or thereto).                     (c)   The  Administrative  Agent  hereby  informs  the  Lenders  that  each  such  Person  is  not  undertaking  to  provide  investment  advice  or  to  give  advice  in  a  fiduciary  capacity,  in  connection with the transactions contemplated hereby, and that such Person has a financial interest in the  transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other  payments with respect to the Loans, the Commitments, this Agreement and any other Loan Documents (ii)  may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount                                        101  509265-2041-Active.31278172.28  





 






being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other  payments  in  connection  with  the transactions  contemplated  hereby,  the  Loan  Documents or  otherwise,  including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees,  ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees,  letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees,  term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the  foregoing.                          SECTION 10.    MISCELLANEOUS               10.1  Amendments and Waivers.  Subject to Section 2.16(b), neither this Agreement,  any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified  except in accordance with the provisions of this Section 10.1.  The Required Lenders and each Loan Party  party  to  the  relevant  Loan  Document  may,  or,  with  the  written  consent  of  the  Required  Lenders,  the  Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time,  (a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents  for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in  any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such  terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify  in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default  or Event of Default and its consequences; provided, however, that no such waiver and no such amendment,  supplement or modification shall (i) forgive the principal amount or extend the final scheduled date of  maturity of any Loan, extend the scheduled date of any amortization payment in respect of any Term Loan,  reduce the stated rate of any interest or fee payable hereunder (except (x) in connection with the waiver of  applicability of any post-default increase in interest rates (which waiver shall be effective with the consent  of  the  Majority  Facility  Lenders  of  each  adversely  affected  Facility)  and  (y)  that  any  amendment  or  modification  of  defined  terms  used  in  the  financial  covenants  in  this  Agreement  shall  not  constitute a  reduction in the rate of interest or fees for purposes of this clause (i)) or extend the scheduled date of any  payment thereof, or increase the amount or extend the expiration date of any Lender’s Commitment, in each  case without the written consent of each Lender directly affected thereby; (ii) eliminate or reduce the voting  rights of any Lender under this Section 10.1 without the written consent of such Lender; (iii) reduce any  percentage specified in the definition of “Required Lenders” without the written consent of each Lender,  reduce any percentage specified in the definition of “Majority Facility Lenders” without the written consent  of each Lender of the applicable Facility or change any other provision of this Agreement or any other Loan  Document specifying the number or percentage of Lenders (or Lenders of any Facility) required to waive,  amend  or  otherwise  modify  any  rights  thereunder  or  make  any  determination  or  grant  any  consent  thereunder  without  the  written  consent  of  each  Lender  (or  each  Lender  of  the  applicable  Facility,  as  applicable), (iv) consent to the assignment or transfer by the Borrower of any of its rights and obligations  under this Agreement and the other Loan Documents, release all or substantially all of the Collateral or  release all or substantially all of the value of the guarantees provided by the Subsidiary Guarantors taken  as  a  whole,  in  each  case without  the  written  consent  of  all  Lenders;  (v)  amend,  modify  or  waive  any  provision of Section 2.17 without the written consent of each Lender; or (vi) amend, modify or waive any  provision of Section 9 or any other provision of any Loan Document that affects the Administrative Agent  without  the  written consent  of the  Administrative  Agent.   Any  such  waiver  and  any such  amendment,  supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan  Parties, the Lenders, the Administrative Agent and all future holders of the Loans.  In the case of any waiver,  the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and  rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall  be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other  Default or Event of Default, or impair any right consequent thereon.                                        102  509265-2041-Active.31278172.28  





 






            Notwithstanding the foregoing, this Agreement may be amended (or amended and restated)  with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add  one or more additional credit facilities to this Agreement and to permit the extensions of credit from time  to time outstanding thereunder and the accrued interest and fees in respect thereof to share in the benefits  of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in  respect  thereof  and  (b)  to  include  appropriately  the  Lenders  holding  such  credit  facilities  in  any  determination of the Required Lenders and Majority Facility Lenders.               Furthermore, notwithstanding the foregoing, (i) the Administrative Agent, with the consent  of the Borrower, may amend, modify or supplement any Loan Document without the consent of any Lender  or the Required Lenders in order to correct, amend or cure any ambiguity, inconsistency or defect or correct  any typographical error or other manifest error in any Loan Document and (ii) the Loan Documents may  be amended in accordance with Sections 2.24, 2.25, 2.26 and 2.27.               10.2  Notices.  All notices, requests and demands to or upon the respective parties hereto  to  be  effective  shall  be  in  writing  (including  by  facsimile  or  e-mail),  and,  unless  otherwise  expressly  provided herein, shall be deemed to have been duly given or made when delivered, or three Business Days  after being deposited in the mail, postage prepaid, or, in the case of facsimile or e-mail notice, 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), addressed as follows in the case of  the Borrower and the Administrative Agent, and as set forth in an administrative questionnaire delivered to  the Administrative Agent in the case of the Lenders, or to such other address as may be hereafter notified  by the respective parties hereto:                Borrower:                Rent-A-Center, Inc.                                        5501 Headquarters Drive                                        Plano, Texas 75024                                        Attention:   Maureen  B.  Short,  Chief  Financial                                        Officer                                        Facsimile: (972) 943-0116                                        E-mail:  Maureen.short@rentacenter.com                with a copy to:          Sullivan & Cromwell LLP                                        125 Broad Street                                        New York, New York 10004                                        Attention:  Ari B. Blaut                                        Facsimile: (212) 291-9219                                        E-mail: blauta@sullcrom.com                Administrative Agent:    JPMorgan Chase Bank, N.A.                                        Mail Code IL1-0010, L2 Floor                                         JPM Loan & Agency Services                                         10 S. Dearborn Street                                         Chicago, IL 60603                                        Attention: Corina Ramos                                        Facsimile: (844) 490-5663                                        E-mail: corina.c.ramos@chase.com;                                        jpm.agency.cri@jpmorgan.com                                         103  509265-2041-Active.31278172.28  





 






            Notices and other communications to the Lenders hereunder may be delivered or furnished  by electronic communications pursuant to procedures approved by the Administrative Agent; provided that  the foregoing shall not apply to notices delivered to any Lender pursuant to Section 2 if such Lender has  notified the Administrative Agent that it is incapable of receiving notices under such Section by electronic  communication.  The Administrative Agent or the Borrower may, in its discretion, agree to accept notices  and other communications to it hereunder by electronic communications pursuant to procedures approved  by it; provided that approval of such procedures may be limited to particular notices or communications.               10.3  No  Waiver;  Cumulative  Remedies.   No  failure  to  exercise  and  no  delay  in  exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege  hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or  partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise  thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and  privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges  provided by law.               10.4  Survival of Representations and Warranties.  All representations and warranties  made hereunder, in the other Loan Documents and in any document, certificate or statement delivered  pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and  the making of the Loans and other extensions of credit hereunder.               10.5  Payment of Expenses and Taxes.  The Borrower agrees (a) to pay or reimburse the  Administrative Agent and the Arranger for all of their respective reasonable and documented out-of-pocket  costs  and  expenses  incurred  in  connection  with  the  syndication  of  the  Initial  Term  Facility  and  the  development,  preparation  and  execution  of,  and  any  amendment,  supplement  or  modification  to,  this  Agreement and the other Loan Documents and any other documents prepared in connection herewith or  therewith, and the consummation and administration of the transactions contemplated hereby and thereby,  including the reasonable and documented fees, disbursements and other charges of one primary counsel to  the  Administrative  Agent  and  the  Arranger  and,  if  necessary,  one  local  counsel  in  each  applicable  jurisdiction and filing and recording fees and expenses, with statements with respect to the foregoing to be  submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing Date)  and from time to time thereafter on a quarterly basis or such other periodic basis as the Administrative  Agent shall deem appropriate, (b) to pay or reimburse each Lender and the Administrative Agent for its  reasonable and documented costs and out-of-pocket expenses incurred in connection with the enforcement  or  preservation  of  any  rights  under  this  Agreement,  the  other  Loan  Documents  and  any  such  other  documents, including the reasonable and documented fees, disbursements and other charges of counsel to  the Administrative Agent and the Lenders and including the reasonable and documented costs and expenses  incurred during any workout, restructuring or negotiations, (c) to pay, indemnify, and hold each Lender and  the Administrative Agent harmless from, any and all recording and filing fees and any and all liabilities  with respect to, or resulting from any delay in paying, stamp, excise and other Taxes, if any, that may be  payable or determined to be payable in connection with the execution and delivery of, or consummation or  administration of any of the transactions contemplated by, or any amendment, supplement or modification  of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such  other documents, and (d) to pay, indemnify, and hold each Lender, the Arranger and the Administrative  Agent, their respective affiliates, and their respective officers, directors, employees, agents, advisors and  controlling  persons  (each,  an  “Indemnitee”)  harmless  from  and  against  any  and  all  other  liabilities,  obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements  of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and  administration of this Agreement, the other Loan Documents and any such other documents, including any  claim, litigation, investigation or proceeding regardless of whether any Indemnitee is a party thereto and  whether or not the same are brought by the Borrower, its equity holders, affiliates or creditors or any other                                        104  509265-2041-Active.31278172.28  





 






Person, including any of the foregoing relating to the use of proceeds of the Loans or the violation of,  noncompliance with or liability under, any Environmental Law applicable to any Group Member or its  operations or properties, and the reasonable and documented fees, disbursements and other charges of legal  counsel  (limited  to  reasonable  and  documented  fees,  disbursements  and  other  charges  of  one  primary  counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of local counsel in each appropriate  jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees,  taken as a whole, and one firm of special regulatory counsel for all Indemnitees, taken as a whole (and, in  the case of an actual or potential conflict of interest, where an Indemnitee affected by such conflict informs  the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such  affected Indemnitee and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may  include a single special counsel acting in multiple jurisdictions) for such affected Indemnitee and one firm  of  special  regulatory  counsel  for  such  affected  Indemnitee))  in  connection  with  claims,  actions  or  proceedings by any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this  clause (d), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no obligation  hereunder  to  any  Indemnitee  with  respect  to  Indemnified  Liabilities  to  the  extent  such  Indemnified  Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have  resulted from (x) the bad faith, gross negligence or willful misconduct of such Indemnitee (or any of its  Affiliates, officers, directors, employees, agents, advisors or controlling persons), (y) a material breach by  such Indemnitee of its obligations under the Loan Documents or (z) disputes or proceedings that are brought  by  an  Indemnitee  against  any  other  Indemnitee  (other  than  any  claims  against  the  Arranger  or  the  Administrative  Agent  in  its  capacity  or  in  fulfilling  its  roles  as  the  Arranger  or  Administrative  Agent  hereunder or any similar role with respect to any Facility) to the extent such disputes do not arise from any  act or omission of any Loan Party or any of its Affiliates, and provided, further, that this Section 10.5(d)  shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from  any non-Tax claim. Except as provided in this Section 10.5, and to the extent permitted by applicable law,  the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees  to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to  all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind  or nature, arising under any Environmental Laws, that any of them has by statute or otherwise against any  Indemnitee.  No Indemnitee shall be liable for any damages arising from the use by others of information  or  other  materials  obtained  through  electronic,  telecommunications  or  other  information  transmission  systems, except to the extent any such damages are found by a final and nonappealable decision of a court  of competent jurisdiction to have resulted from (x) the bad faith, gross negligence or willful misconduct of  such Indemnitee (or any of its Affiliates, officers, directors, employees, agents, advisors or controlling  persons) or (y) a material breach by such Indemnitee of its obligations under the Loan Documents.  No  Indemnitee  shall  be  liable  for  any  indirect,  special,  exemplary,  punitive  or  consequential  damages  in  connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or  thereby.  All amounts due under this Section 10.5 shall be payable not later than 15 days after written  demand therefor.  The agreements in this Section 10.5 shall survive the termination of this Agreement and  the repayment of the Loans and all other amounts payable hereunder.               10.6  Successors and Assigns; Participations and Assignments.  (a)  The provisions of  this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective  successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer  any  of  its  rights  or  obligations  hereunder  without  the  prior  written  consent  of  each  Lender  (and  any  attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no  Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this  Section 10.6.                     (b)   (i)  Subject  to  the  conditions  set  forth  in  paragraph  (b)(ii)  below,  any  Lender may assign to one or more Eligible Assignees (each, an “Assignee”), all or a portion of its rights                                        105  509265-2041-Active.31278172.28  





 






and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the  time owing to it) with the prior written consent of:                           (A)   the  Borrower  (such  consent  not  to  be  unreasonably  withheld),              provided that no consent of the Borrower shall be required for an assignment to a Lender,              an affiliate of a Lender, an Approved Fund (as defined below) or, if a Specified Event of              Default has occurred and is continuing, any other Person; and provided, further, that the              Borrower shall be deemed to have consented to any such assignment unless the Borrower              shall object thereto by written notice to the Administrative Agent within 10 Business Days              after having received notice thereof; and                           (B)   the  Administrative  Agent,  provided  that  no  consent  of  the              Administrative Agent shall be required for an assignment of all or any portion of a Term              Loan to a Lender, an affiliate of a Lender or an Approved Fund.                     (ii)  Assignments shall be subject to the following additional conditions:                            (A)   except in the case of an assignment to a Lender, an affiliate of a              Lender  or  an  Approved  Fund  or  an  assignment  of  the  entire  remaining  amount  of  the              assigning  Lender’s  Commitments  or  Loans  under  any  Facility,  the  amount  of  the              Commitments  or  Loans  of  the  assigning  Lender  subject  to  each  such  assignment              (determined as of the date the Assignment and Assumption with respect to such assignment              is delivered to the Administrative Agent) shall not be less than $1,000,000) unless each of              the Borrower and the Administrative Agent otherwise consent, provided that (1) no such              consent of the Borrower shall be required if a Specified Event of Default has occurred and              is continuing and (2) such amounts shall be aggregated in respect of each Lender and its              affiliates or Approved Funds, if any;                            (B)   (1) 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 and (2) the assigning Lender shall have paid in full any amounts              owing by it to the Administrative Agent; and                            (C)   the  Assignee,  if  it  shall  not  be  a  Lender,  shall  deliver  to  the              Administrative Agent an administrative questionnaire in which the Assignee designates              one or more credit contacts to whom all syndicate-level information (which may contain              material  non-public  information  about  the  Borrower and  its  Affiliates  and  their  related              parties or their respective securities) will be made available and who may receive such              information in accordance with the Assignee’s compliance procedures and applicable laws,              including Federal and state securities laws.               For the purposes of this Section 10.6, “Approved Fund” means any Person (other than a  natural  person)  that  is  engaged  in  making,  purchasing,  holding  or  investing  in  bank  loans  and  similar  extensions of credit in the ordinary course of its business and that is administered or managed by (a) a  Lender, (b) an affiliate of a Lender or (c) an entity or an affiliate of an entity that administers or manages a  Lender.                     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)        below, from and after the effective date specified in each Assignment and Assumption the Assignee        thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment        and  Assumption,  have  the  rights  and  obligations  of  a  Lender  under  this  Agreement,  and  the                                        106  509265-2041-Active.31278172.28  





 






      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 2.18, 2.19, 2.20 and 10.5).  Any assignment or transfer by a Lender of rights        or obligations under this Agreement that does not comply with this Section 10.6 shall be treated for        purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations        in accordance with paragraph (c) of this Section 10.6.                     (iv)  The  Administrative  Agent,  acting  for  this  purpose  as  an  agent  of  the        Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered        to it and a register for the recordation of the names and addresses of the Lenders and the principal        amount (and stated interest) of 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 Borrower, 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, notwithstanding notice to the contrary.                     (v)   Upon  its  receipt  of  a  duly  completed  Assignment  and  Assumption        executed  by  an  assigning  Lender  and  an  Assignee,  the  Assignee’s  completed  administrative        questionnaire  (unless  the  Assignee  shall  already  be  a  Lender  hereunder),  the  processing  and        recordation fee referred to in paragraph (b) of this Section 10.6 and any written consent to such        assignment required by paragraph (b) of this Section 10.6, the Administrative Agent shall accept        such Assignment and Assumption and record the information contained therein in the Register.  No        assignment shall be effective for purposes of this Agreement unless it has been recorded in the        Register as provided in this paragraph.                     (vi)  Each  assignee,  by  its  execution  and  delivery  of  an  Assignment  and        Assumption, shall be deemed to have represented to the assigning Lender and the Administrative        Agent that such assignee is an Eligible Assignee. In no event shall the Administrative Agent be        obligated to ascertain, monitor or inquire as to whether any prospective assignee is an Eligible        Assignee or have any liability with respect to any assignment made to a Disqualified Lender or any        other Person that is not an Eligible Assignee                     (c)   Any  Lender  may,  without  the  consent  of  the  Borrower  or  the  Administrative Agent, sell participations to one or more Eligible Assignees (a “Participant”) in all or a  portion of such Lender’s rights  and  obligations  under  this  Agreement  (including all  or a portion  of its  Commitments and the Loans owing to it); provided that (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) the Borrower, the Administrative Agent and the other Lenders  shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and  obligations under this Agreement.  Any agreement 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 may  provide  that  such  Lender  will  not,  without  the  consent  of  the  Participant,  agree  to  any  amendment,  modification or waiver that (i) requires the consent of each Lender directly affected thereby pursuant to the  proviso to the second sentence of Section 10.1 and (ii) directly affects such Participant.  Each Lender that  sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate  with the Borrower to effectuate the provisions of Section 2.22 with respect to any Participant.  The Borrower  agrees that each Participant shall be entitled to the benefits of Sections 2.18, 2.19 and 2.20 (subject to the  requirements and limitations therein, including the requirements under Section 2.19(f) (it being understood                                        107  509265-2041-Active.31278172.28  





 






that the documentation required under Section 2.19(f) 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 10.6; provided that such Participant (i) agrees to be subject to the provisions of Sections 2.18  and 2.19 as if it were an assignee under paragraph (b) of this Section 10.6 and (ii) shall not be entitled to  receive  any  greater  payment  under  Sections  2.18  or  2.19,  with  respect  to  any  participation,  than  its  participating  Lender  would  have  been  entitled  to  receive,  except  to  the  extent  that such  entitlement  to  receive a greater payment results from an adoption of or any change in any Requirement of Law or in the  interpretation or application thereof or compliance by any Lender with any request or directive (whether or  not having the force of law) from any central bank or other Governmental Authority made subsequent to  the  Closing  Date  that  occurs  after  the  Participant  acquired  the  applicable  participation.   To  the  extent  permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as though it were  a Lender, provided such Participant shall be subject to Section 10.7(a) as though it were a Lender.  Each  Lender  that  sells  a  participation  shall,  acting  solely  for  this  purpose  as  a  non-fiduciary  agent  of  the  Borrower, maintain a register on which it enters the name and address of each Participant and the principal  amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan  Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all  or any portion of the Participant Register to any Person (including the identity of any Participant or any  information relating to a Participant’s interest in any Commitments, Loans or its other obligations under  any  Loan  Document)  except  to  the  extent  that  such  disclosure  is  necessary  to  establish  that  such  Commitment, Loan 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.                     (d)   Any Lender may at any time pledge or assign a security interest in all or  any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge  or assignment to secure obligations to a Federal Reserve Bank or any other central banking authority, and  this Section 10.6 shall not apply to any such pledge or assignment of a security interest; provided that no  such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder  or substitute any such pledgee or Assignee for such Lender as a party hereto.  The Borrower, upon receipt  of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate  transactions of the type described in this paragraph (d).                     (e)   Any Lender may, so long as no Default or Event of Default has occurred  and is continuing and no proceeds of ABL Loans are used, directly or indirectly, to fund the consideration  for any such assignment, at any time assign all or a portion of its rights and obligations with respect to Term  Loans under a Facility under this Agreement to the Borrower through, notwithstanding any other provision  of this Agreement, privately negotiated transactions or open market purchases on a non pro rata basis;  provided  that,  (A)  at  the  time  of  any  such  assignment,  the  Borrower  shall  make  a  No  Undisclosed  Information  Representation,  (B)  any  Term  Loans  assigned  to  the  Borrower  shall  be  automatically  and  permanently  cancelled  upon  the  effectiveness  of  such  assignment  and  will  thereafter  no  longer  be  outstanding for any purpose hereunder, and such Term Loans may not be resold (it being understood and  agreed that any gains or losses by the Borrower upon purchase or acquisition and cancellation of such Term  Loans shall not be taken into account in the calculation of Excess Cash Flow, Consolidated Net Income or  Consolidated EBITDA) and (C) the Borrower shall promptly provide notice to the Administrative Agent  of such assignment of such Term Loans and the Administrative Agent, upon receipt of such notice, shall  reflect the cancellation of the applicable Term Loans in the Register.                                          108  509265-2041-Active.31278172.28  





 






                  (f)   The list of Disqualified Lenders (i) shall be made available to the Lenders  by posting on IntraLinks/IntraAgency or another relevant 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) and (ii) shall be provided to any Lender upon request by such  Lender to the Administrative Agent.  A Lender may provide the list of Disqualified Lenders to any potential  assignee or participant on a confidential basis in accordance with Section 10.15 hereof for the purpose of  verifying whether such Person is a Disqualified Lender.                     (g)   (i)  If any assignment or participation is made to any Disqualified Lender  in  violation  of  this  Section  10.6,  the  Borrower  may,  at  its sole  expense  and  effort,  upon  notice  to  the  applicable Disqualified Lender and the Administrative Agent, (A) purchase or prepay such Term Loan by  paying the lowest of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid  to acquire such Term Loans, in each case plus accrued interest, accrued fees and all other amounts (other  than principal amounts) payable to it hereunder and/or (B) require such Disqualified Lender to assign,  without recourse (in accordance with and subject to the restrictions contained in this Section 10.6), all of  its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the lowest of  (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such  interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other  than principal amounts) payable to it hereunder.                     (ii)  Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement,        Disqualified  Lenders  (A)  will  not  (x)  have  the  right  to  receive  information,  reports  or  other        materials provided to Lenders by the Borrower, the Administrative Agent or any other Lender, (y)        attend  or  participate  in  meetings  attended by  the  Lenders  and the  Administrative Agent,  or  (z)        access any electronic site established for the Lenders or confidential communications from counsel        to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for purposes of any        consent to any amendment, waiver or modification of, or any action under, and for the purpose of        any direction to the Administrative Agent or any Lender to undertake any action (or refrain from        taking any action) under this Agreement or any other Loan Document, each Disqualified Lender        will be deemed to have consented in the same proportion as the Lenders that are not Disqualified        Lender consented to such matter, and (y) for purposes of voting on any Bankruptcy Plan, each        Disqualified Lender party hereto hereby agrees (1) not to vote on such Bankruptcy Plan, (2) if such        Disqualified  Lender  does  vote  on  such  Bankruptcy  Plan  notwithstanding  the  restriction  in  the        foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated”        pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor        Relief Laws), and such vote shall not be counted in determining whether the applicable class has        accepted or rejected such Bankruptcy Plan in accordance with Section 1126(c) of the Bankruptcy        Code (or any similar provision in any other Debtor Relief Laws) and (3) not to contest any request        by any party for a determination by the Bankruptcy Court (or other applicable court of competent        jurisdiction) effectuating the foregoing clause (2).               10.7  Adjustments; Set-off.  (a)  Except to the extent that this Agreement or a court order  expressly provides for payments to be allocated to a particular Lender or to the Lenders under a particular  Facility, if any Lender (a “Benefitted Lender”) shall receive any payment of all or part of the Obligations  owing to it (other than in connection with an assignment made pursuant to Section 10.6), or receive any  collateral  in  respect  thereof  (whether  voluntarily  or  involuntarily,  by  set-off,  pursuant  to  events  or  proceedings of the nature referred to in Section 8(f), or otherwise), in a greater proportion than any such  payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such  other Lender, such Benefitted Lender shall purchase for cash from the other Lenders a participating interest  in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders  with the benefits of any such collateral, as shall be necessary to cause such Benefitted Lender to share the                                        109  509265-2041-Active.31278172.28  





 






excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if  all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender,  such  purchase  shall  be  rescinded,  and  the  purchase  price  and  benefits  returned,  to  the  extent  of  such  recovery, but without interest.                     (b)   In addition to any rights and remedies of the Lenders provided by law,  each Lender shall have the right, without notice to the Borrower, any such notice being expressly waived  by the Borrower to the extent permitted by applicable law, upon any Obligations becoming due and payable  by the Borrower (whether at the stated maturity, by acceleration or otherwise), to apply to the payment of  such  Obligations,  by  setoff  or  otherwise,  any  and  all  deposits  (general  or  special,  time  or  demand,  provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each  case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by  such Lender, any affiliate thereof or any of their respective branches or agencies to or for the credit or the  account of the Borrower.  Each Lender agrees promptly to notify the Borrower and the Administrative  Agent after any such application made by such Lender, provided that the failure to give such notice shall  not affect the validity of such application.               10.8  Counterparts.  This Agreement may be executed by one or more of the parties to  this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be  deemed  to  constitute  one  and  the  same  instrument.   Delivery  of  an  executed  signature  page  of  this  Agreement  by  e-mail  or  facsimile  transmission  shall  be  effective  as  delivery  of  a  manually  executed  counterpart hereof.  A set of the copies of this Agreement signed by all the parties shall be lodged with the  Borrower and the Administrative Agent.               10.9  Severability.  Any provision of this Agreement that is prohibited or unenforceable  in  any  jurisdiction  shall,  as  to  such  jurisdiction,  be  ineffective  to  the  extent  of  such  prohibition  or  unenforceability  without  invalidating  the  remaining  provisions  hereof,  and  any  such  prohibition  or  unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other  jurisdiction.               10.10 Integration.  This Agreement and the other Loan Documents represent the entire  agreement of the Borrower, the Administrative Agent and the Lenders with respect to the subject matter  hereof  and  thereof,  and  there  are  no  promises,  undertakings,  representations  or  warranties  by  the  Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred  to herein or in the other Loan Documents.               10.11 GOVERNING  LAW.   THIS  AGREEMENT  AND  THE  RIGHTS  AND  OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND  CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW  YORK.               10.12 Submission  To  Jurisdiction;  Waivers.   Each  of  the  parties  hereto  hereby  irrevocably and unconditionally:                     (a)   submits for itself and its property in any legal action or proceeding relating  to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement  of any judgment in respect thereof, to the exclusive jurisdiction of the United States District Court for the  Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter  jurisdiction, the Supreme Court of the State of New York sitting in the  Borough of Manhattan), and any  appellate court from any thereof; provided, that nothing contained herein or in any other Loan Document  will prevent any Lender or the Administrative Agent from bringing any action to enforce any award or                                        110  509265-2041-Active.31278172.28  





 






judgment or exercise any right under the Security Documents or against any Collateral or any other property  of any Loan Party in any other forum in which jurisdiction can be established;                     (b)   consents that any such action or proceeding may be brought in such courts  and waives any objection that it may now or hereafter have to the venue of any such action or proceeding  in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to  plead or claim the same;                     (c)   agrees that service of process in any such action or proceeding may be  effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail),  postage prepaid, in the manner set forth in Section 10.2;                     (d)   agrees that nothing herein shall affect the right to effect service of process  in any other manner permitted by law; and                     (e)   waives, to the maximum extent not prohibited by law, any right it may  have to claim or recover in any legal action or proceeding referred to in this Section 10.12 any indirect,  special, exemplary, punitive or consequential damages.               10.13 Acknowledgements.  The Borrower hereby acknowledges and agrees that (a) no  fiduciary, advisory or agency relationship between the Loan Parties and the Credit Parties is intended to be  or has been created in respect of any of the transactions contemplated by this Agreement or the other Loan  Documents, irrespective of whether the Credit Parties have advised or are advising the Loan Parties on  other matters, and the relationship between the Credit Parties, on the one hand, and the Loan Parties, on the  other hand, in connection herewith and therewith is solely that of creditor and debtor, (b) the Credit Parties,  on the one hand, and the Loan Parties, on the other hand, have an arm’s length business relationship that  does not directly or indirectly give rise to, nor do the Loan Parties rely on, any fiduciary duty to the Loan  Parties or their affiliates on the part of the Credit Parties, (c) the Loan Parties are capable of evaluating and  understanding,  and  the  Loan  Parties  understand  and  accept,  the  terms,  risks  and  conditions  of  the  transactions contemplated by this Agreement and the other Loan Documents, (d) the Loan Parties have  been advised that the Credit Parties are engaged in a broad range of transactions that may involve interests  that differ from the Loan Parties’ interests and that the Credit Parties have no obligation to disclose such  interests  and  transactions  to  the  Loan  Parties,  (e)  the  Loan  Parties  have  consulted  their  own  legal,  accounting,  regulatory  and  tax  advisors  to  the  extent  the  Loan  Parties  have  deemed  appropriate  in  the  negotiation, execution and delivery of this Agreement and the other Loan Documents, (f) each Credit Party  has been, is, and will be acting solely as a principal and, except as otherwise expressly agreed in writing by  it and the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for  the Loan Parties, any of their affiliates or any other Person, (g) none of the Credit Parties has any obligation  to the Loan Parties or their affiliates with respect to the transactions contemplated by this Agreement or the  other Loan Documents except those obligations expressly set forth herein or therein or in any other express  writing executed and delivered by such Credit Party and the Loan Parties or any such affiliate and (h) no  joint  venture  is  created  hereby  or  by  the  other  Loan  Documents  or  otherwise  exists  by  virtue  of  the  transactions  contemplated  hereby  among  the  Credit  Parties  or  among  the  Loan  Parties  and  the  Credit  Parties.               10.14 Releases of Guarantees and Liens.  (a)  Upon any sale, transfer or other Disposition  by any Loan Party (other than any such sale, transfer or other Disposition to another Loan Party) of any  Collateral in a transaction permitted by this Agreement or upon the effectiveness of any written consent to  the  release  of  the  security  interest  in  any  Collateral  created  under  any  Security  Document  pursuant  to  Section  10.1,  the  security  interests  in  such  Collateral  created  by  the  Security  Documents  shall  be  automatically  released.   In  connection  with  any  termination  or  release  pursuant  to  this  clause  (a),  the                                        111  509265-2041-Active.31278172.28  





 






Administrative  Agent  shall  execute  and  deliver  to  any  Loan  Party,  at  such  Loan  Party’s  expense,  all  documents that such Loan Party shall reasonably request to evidence such release.                     (b)   At  such  time  as  the  Loans  and  the  other  obligations  (other  than  indemnification or reimbursement obligations under Section 2.18, 2.19(a), 2.19(d) or 2.20 for which the  Borrower has not been notified and contingent indemnification obligations) under the Loan Documents  shall have been paid in full and the Commitments have been terminated, the Collateral shall be released  from the Liens created by the Security Documents, and the Security Documents and all obligations (other  than those expressly stated to survive such termination) of the Administrative Agent and each Loan Party  under the Security Documents shall terminate, all without delivery of any instrument or performance of any  act  by  any  Person.  In  connection  with  any  termination  or  release  pursuant  to  this  clause  (b),  the  Administrative  Agent  shall  execute  and  deliver  to  any  Loan  Party,  at  such  Loan  Party’s  expense,  all  documents that such Loan Party shall reasonably request to evidence such termination or release.                      (c)   Notwithstanding anything to the contrary contained herein or in any other  Loan  Document,  the  Administrative  Agent  is  hereby  irrevocably  authorized  by  each  Lender  (without  requirement of notice to or consent of any Lender except as expressly required by Section 10.1) to take any  action requested by the Borrower having the effect of releasing any Collateral or guarantee obligations (i)  to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document  or that has been consented to in accordance with Section 10.1 or (ii) under the circumstances described in  paragraphs (a) or (b) above.               10.15 Confidentiality.  Each of the Administrative Agent and each Lender agrees to keep  confidential all non-public information provided to it by any Loan Party, the Administrative Agent or any  Lender pursuant to or in  connection  with this  Agreement that is  designated  by  the provider thereof  as  confidential;  provided  that  nothing  herein  shall  prevent  the  Administrative  Agent  or  any  Lender  from  disclosing any such information (a) to the Administrative Agent, any other Lender or any affiliate thereof,  (b) subject to an agreement to comply with the provisions of this Section 10.15, to any actual or prospective  Transferee or any direct or indirect counterparty to any Swap Agreement (or any professional advisor to  such counterparty), (c) to its employees, directors, agents, attorneys, accountants and other professional  advisors or those of any of its affiliates, (d) upon the request or demand of any Governmental Authority,  (e) in response to any order of any court or other Governmental Authority or as may otherwise be required  pursuant to any Requirement of Law, (f) if requested or required to do so in connection with any litigation  or similar proceeding, (g) that has been publicly disclosed, (h) to the National Association of Insurance  Commissioners or any similar organization or any nationally recognized rating agency that requires access  to information about a Lender’s investment portfolio in connection with ratings issued with respect to such  Lender, (i) in connection with the exercise of any remedy hereunder or under any other Loan Document,  (j) to data service providers (including league table providers) that serve the lending industry to the extent  such information is of the type customarily provided to such providers or (k) if agreed by the Borrower in  its sole discretion, to any other Person.               Each Lender acknowledges that information furnished to it pursuant to this Agreement or  the other Loan Documents may include material non-public information concerning the Borrower and its  Affiliates  and  their  Related  Parties  or  their  respective  securities,  and  confirms  that  it  has  developed  compliance procedures regarding the use of material non-public information and that it will handle such  material non-public information in accordance with those procedures and applicable law, including Federal  and state securities laws.               All  information,  including  requests  for  waivers  and  amendments,  furnished  by  the  Borrower or the Administrative Agent pursuant to, or in the course of administering, this Agreement or the  other  Loan  Documents  will  be  syndicate-level  information,  which  may  contain  material  non-public                                        112  509265-2041-Active.31278172.28  





 






information about the Borrower and its Affiliates and their Related Parties or their respective securities.   Accordingly, each Lender represents to the Borrower and the Administrative Agent that it has identified in  its administrative questionnaire a credit contact who may receive information that may contain material  non-public information in accordance with its compliance procedures and applicable law, including Federal  and state securities laws.               The  Borrower  represents  and  warrants  that  it  and  its  Subsidiaries  either  (i)  have  no  registered or publicly traded securities outstanding, or (ii) files its financial statements with the SEC and/or  makes its financial statements available to potential holders of its 144A securities, and, accordingly, the  Borrower hereby (i) authorizes the Administrative Agent to make the financial statements to be provided  under Section 6.1(a) and (b), along with the Loan Documents, available to Public-Siders and (ii) agrees that  at the time such financial statements are provided hereunder, they shall already have been made available  to holders of its securities.  The Borrower will not request that any other material be posted to Public-Siders  without expressly representing and warranting to the Administrative Agent in writing that such materials  do not constitute material non-public information within the meaning of the federal securities laws or that  the Borrower and its Subsidiaries have no outstanding publicly traded securities, including 144A securities.  For the avoidance of doubt, the Projections shall not be posted to Public-Siders.               The Borrower hereby acknowledges that (a) the Administrative Agent will make available  to  the  Lenders  materials  and/or  information  provided  by  or  on  behalf  of  the  Loan  Parties  hereunder  (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntraLinks/IntraAgency or  another similar electronic system (the “Platform”) and (b) certain of the Lenders may be Public-Siders.  If  any Borrower Materials are designated by the Loan Parties as “PRIVATE”, such Borrower Materials will  not be made available to that portion of the Platform designated “Public Investor,” which is intended to  contain only information that is either publicly available or not material information (though it may be  sensitive  and  proprietary)  with  respect  to  Borrower, its  Subsidiaries  or  their  securities  for  purposes  of  federal and state securities laws. The Administrative Agent shall be entitled to treat any Borrower Materials  that  are  not  marked  “PRIVATE”  or  “CONFIDENTIAL”  as  not  containing  any  material  non-public  information with respect to the Borrower, its Subsidiaries or their securities for purposes of federal and  state securities laws.               10.16 WAIVERS    OF    JURY    TRIAL.   THE    BORROWER,      THE  ADMINISTRATIVE  AGENT  AND  THE  LENDERS  HEREBY  IRREVOCABLY  AND  UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  AND  FOR  ANY  COUNTERCLAIM THEREIN.               10.17 USA Patriot Act.  Each Lender hereby notifies the Borrower that pursuant to the  requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the  “Patriot Act”), it is required to obtain, verify and record information that identifies the Borrower, which  information includes the name and address of the Borrower and other information that will allow such  Lender to identify the Borrower in accordance with the Patriot Act.               10.18 Intercreditor  Agreement.   Each  Lender  hereby  authorizes  and  directs  the  Administrative Agent (a) to enter into the Intercreditor Agreement on its behalf, perform the Intercreditor  Agreement on its behalf and take any actions thereunder as determined by the Administrative Agent to be  necessary or advisable to protect the interest of the Lenders, and each Lender agrees to be bound by the  terms of the Intercreditor Agreement and (b) to enter into any other intercreditor agreement reasonably  satisfactory to the Administrative Agent on its behalf, perform such intercreditor agreement on its behalf  and take any actions thereunder as determined by the Administrative Agent to be necessary or advisable to  protect the interests of the Lenders, and each Lender agrees to be bound by the terms of such intercreditor                                        113  509265-2041-Active.31278172.28  





 






agreement. Each Lender acknowledges that the Intercreditor Agreement governs, among other things, Lien  priorities and rights of the Lenders and the ABL Secured Parties (as defined in the Intercreditor Agreement)  with respect to the Collateral, including the ABL Priority Collateral.                10.19 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 EEA  Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion  Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be  bound by:                     (a)   the application of any Write-Down and Conversion Powers by an EEA  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party  hereto that is an EEA Financial Institution; and                     (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 EEA Financial Institution, its parent entity, or a bridge institution        that may be issued to it or otherwise conferred on it, and that such shares or other instruments of        ownership will be accepted by it in lieu of any rights with respect to any such liability under this        Agreement or any other Loan Document; or                     (iii) the variation of the terms of such liability in connection with the exercise        of the Write-Down and Conversion Powers of any EEA Resolution Authority.                10.20 Acknowledgement Regarding Any Supported QFCs.  To the extent that the Loan  Documents  provide  support,  through  a  guarantee  or  otherwise,  for  hedging  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 Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the  Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated  thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit  Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported  QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States  or any other state of the United States).   In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject  to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit  of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such  QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support)  from such Covered Party will be effective to the same extent as the transfer would be effective under the  U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest,  obligation and rights in property) were governed by the laws of the United States or a state of the United  States. In  the  event a  Covered  Party  or  a  BHC  Act Affiliate of  a  Covered  Party  becomes  subject to  a  proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might  otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such  Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised                                        114  509265-2041-Active.31278172.28  





 






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.              [Remainder of this page intentionally left blank.  Signature pages follow.]                                         115  509265-2041-Active.31278172.28