exhibit101creditagreemen






Exhibit 10.1    EXECUTION VERSION  AMENDED AND RESTATED CREDIT AGREEMENT  among  KONTOOR BRANDS, INC.,  KONTOOR INTERNATIONAL SAGL,  Other Subsidiary Borrowers from Time to Time Parties Hereto,  The Several Lenders   from Time to Time Parties Hereto,  and   JPMORGAN CHASE BANK, N.A.,  as Administrative Agent  Dated as of November 18, 2021    JPMORGAN CHASE BANK, N.A., BARCLAYS BANK PLC, BOFA SECURITIES, INC.,  HSBC SECURITIES INC. and WELLS FARGO BANK, NATIONAL ASSOCIATION,   as Joint Lead Arrangers and Joint Bookrunners   BNP PARIBAS, CITIBANK, N.A., ING BANK N.V., DUBLIN BRANCH, PNC  BANK, NATIONAL ASSOCIATION, SANTANDER BANK, N.A. and TRUIST BANK,  as Co-Documentation Agents,  BARCLAYS BANK PLC, BOFA SECURITIES, INC., HSBC SECURITIES INC. and  WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Co-Syndication Agents    





 






  i  TABLE OF CONTENTS    PAGE  SECTION 1. DEFINITIONS .................................................................................................................... 1  1.1. Defined Terms .................................................................................................................... 1  1.2. Other Definitional Provisions ........................................................................................... 57  1.3. Currency Conversion ........................................................................................................ 58  1.4. Terms Generally; Pro Forma Calculations ....................................................................... 58  1.5. Swiss terms ....................................................................................................................... 61  1.6. Interest Rates; LIBOR Notification .................................................................................. 61  SECTION 2. AMOUNT AND TERMS OF LOANS AND COMMITMENTS .................................... 62  2.1. [Reserved] ......................................................................................................................... 62  2.2. [Reserved] ......................................................................................................................... 62  2.3. Tranche A Term Commitments ........................................................................................ 63  2.4. Procedure for Tranche A Term Loan Borrowing.............................................................. 63  2.5. Repayment of Term Loans................................................................................................ 63  2.6. Revolving Commitments .................................................................................................. 64  2.7. Procedure for Revolving Loan Borrowing ....................................................................... 65  2.8. Swingline Commitments ................................................................................................... 66  2.9. Procedure for Swingline Borrowing; Refunding of Swingline Loans .............................. 66  2.10. Commitment Fees, etc ...................................................................................................... 67  2.11. Termination or Reduction of Revolving Commitments ................................................... 68  2.12. Optional Prepayments ....................................................................................................... 68  2.13. Mandatory Prepayments ................................................................................................... 69  2.14. Conversion and Continuation Options .............................................................................. 70  2.15. Limitations on Term Benchmark Borrowings .................................................................. 71  2.16. Interest Rates and Payment Dates ..................................................................................... 72  2.17. Computation of Interest and Fees ..................................................................................... 73  2.18. Alternate Rate of Interest .................................................................................................. 74  2.19. Pro Rata Treatment and Payments .................................................................................... 77  2.20. Requirements of Law ........................................................................................................ 79  2.21. Taxes ................................................................................................................................. 81  2.22. Indemnity .......................................................................................................................... 85  2.23. Change of Lending Office ................................................................................................ 86  2.24. Replacement of Lenders ................................................................................................... 86  2.25. Foreign Currency Exchange Rate ..................................................................................... 87  2.26. Extension of the Facilities ................................................................................................. 87  2.27. Incremental Loan Extensions ............................................................................................ 90  2.28. Defaulting Revolving Lenders .......................................................................................... 94  2.29. Designation of Subsidiary Borrowers ............................................................................... 97  2.30. Refinancing Facilities ....................................................................................................... 98  SECTION 3. LETTERS OF CREDIT .................................................................................................... 99  3.1. L/C Commitments ............................................................................................................. 99  3.2. Procedure for Issuance of Letter of Credit ...................................................................... 100  3.3. Fees and Other Charges .................................................................................................. 100  





 






  ii  3.4. L/C Participations ........................................................................................................... 100  3.5. Reimbursement Obligation of the Borrowers ................................................................. 101  3.6. Obligations Absolute ...................................................................................................... 102  3.7. Letter of Credit Payments ............................................................................................... 102  3.8. Applications .................................................................................................................... 103  3.9. Provisions Related to Letters of Credit in Respect of Extended Revolving  Commitments ............................................................................................................. 103  SECTION 4. REPRESENTATIONS AND WARRANTIES ............................................................... 103  4.1. Financial Condition ......................................................................................................... 103  4.2. No Change ...................................................................................................................... 104  4.3. Existence; Compliance with Law ................................................................................... 104  4.4. Power; Authorization; Enforceable Obligations ............................................................. 104  4.5. No Legal Bar ................................................................................................................... 104  4.6. Litigation ......................................................................................................................... 104  4.7. No Default....................................................................................................................... 105  4.8. Ownership of Property .................................................................................................... 105  4.9. Intellectual Property ........................................................................................................ 105  4.10. Taxes ............................................................................................................................... 105  4.11. Compliance with Swiss Non-Bank Rules ....................................................................... 105  4.12. Federal Regulations ........................................................................................................ 105  4.13. Labor Matters .................................................................................................................. 106  4.14. ERISA ............................................................................................................................. 106  4.15. Investment Company Act; Other Regulations ................................................................ 106  4.16. Subsidiaries ..................................................................................................................... 106  4.17. Use of Proceeds .............................................................................................................. 106  4.18. Environmental Matters ................................................................................................... 106  4.19. Accuracy of Information, etc .......................................................................................... 107  4.20. Security Documents ........................................................................................................ 107  4.21. Solvency.......................................................................................................................... 108  4.22. Anti-Corruption Laws and Sanctions .............................................................................. 108  4.23. Affected Financial Institutions ........................................................................................ 108  SECTION 5. CONDITIONS PRECEDENT ........................................................................................ 108  5.1. Conditions to the Closing Date ....................................................................................... 108  5.2. Conditions to Each Extension of Credit .......................................................................... 110  SECTION 6. AFFIRMATIVE COVENANTS .................................................................................... 110  6.1. Financial Statements ....................................................................................................... 111  6.2. Certificates; Other Information ....................................................................................... 111  6.3. Payment of Taxes ............................................................................................................ 112  6.4. Maintenance of Existence; Compliance .......................................................................... 112  6.5. Maintenance of Property; Insurance ............................................................................... 112  6.6. Inspection of Property; Books and Records; Discussions .............................................. 112  6.7. Notices ............................................................................................................................ 113  6.8. Environmental Laws ....................................................................................................... 113  6.9. Additional Collateral, etc ................................................................................................ 113  6.10. Designation of Subsidiaries ............................................................................................ 115  





 






  iii  6.11. Post-Closing Real Estate Deliverables ............................................................................ 116  6.12. Post-Closing Obligations ................................................................................................ 117  6.13. Maintenance of Ratings .................................................................................................. 117  SECTION 7. NEGATIVE COVENANTS ........................................................................................... 117  7.1. Financial Condition Covenants ....................................................................................... 118  7.2. Indebtedness.................................................................................................................... 118  7.3. Liens ............................................................................................................................... 122  7.4. Fundamental Changes ..................................................................................................... 126  7.5. Disposition of Property ................................................................................................... 127  7.6. Restricted Payments ........................................................................................................ 130  7.7. [Reserved] ....................................................................................................................... 132  7.8. Investments ..................................................................................................................... 132  7.9. [Reserved] ....................................................................................................................... 136  7.10. Transactions with Affiliates ............................................................................................ 136  7.11. Sales and Leasebacks ...................................................................................................... 137  7.12. Changes in Fiscal Periods ............................................................................................... 138  7.13. Negative Pledge Clauses ................................................................................................. 138  7.14. Lines of Business ............................................................................................................ 139  7.15. Optional Payments and Modifications of Subordinated Indebtedness ........................... 139  7.16. Use of Proceeds .............................................................................................................. 140  SECTION 8. EVENTS OF DEFAULT ................................................................................................ 141  SECTION 9. THE AGENTS ................................................................................................................ 143  9.1. Appointment ................................................................................................................... 143  9.2. Delegation of Duties ....................................................................................................... 144  9.3. Exculpatory Provisions ................................................................................................... 144  9.4. Reliance by Administrative Agent .................................................................................. 144  9.5. Notice of Default ............................................................................................................ 145  9.6. Non-Reliance on Agents and Other Lenders; Acknowledgements of Lenders and  Issuing Lenders ........................................................................................................... 145  9.7. Indemnification ............................................................................................................... 147  9.8. Agent in Its Individual Capacity ..................................................................................... 147  9.9. Successor Administrative Agent ..................................................................................... 148  9.10. Certain ERISA Matters ................................................................................................... 148  9.11. Agents ............................................................................................................................. 149  9.12. Credit Bidding ................................................................................................................. 149  SECTION 10. MISCELLANEOUS ....................................................................................................... 150  10.1. Amendments and Waivers .............................................................................................. 150  10.2. Notices ............................................................................................................................ 152  10.3. No Waiver; Cumulative Remedies ................................................................................. 152  10.4. Survival of Representations and Warranties ................................................................... 152  10.5. Expenses; Limitation of Liability; Indemnity, Etc. ......................................................... 153  10.6. Successors and Assigns; Participations and Assignments .............................................. 154  10.7. Adjustments; Set-off ....................................................................................................... 159  10.8. Counterparts; Effectiveness; Electronic Execution......................................................... 159  





 






  iv  10.9. Severability ..................................................................................................................... 160  10.10. Integration ....................................................................................................................... 160  10.11. GOVERNING LAW ....................................................................................................... 160  10.12. Submission To Jurisdiction; Waivers ............................................................................. 160  10.13. [Reserved] ....................................................................................................................... 161  10.14. Releases of Guarantees and Liens................................................................................... 162  10.15. Confidentiality ................................................................................................................ 162  10.16. WAIVERS OF JURY TRIAL ........................................................................................ 164  10.17. Patriot Act ....................................................................................................................... 164  10.18. No Fiduciary Duty .......................................................................................................... 164  10.19. Usury ............................................................................................................................... 164  10.20. Acknowledgement and Consent to Bail-In of Affected Financial Institutions ............... 165  10.21. Conversion of Currencies ............................................................................................... 165  10.22. Separate Obligations ....................................................................................................... 166  10.23. Several Obligations ......................................................................................................... 166  10.24. MIRE Events................................................................................................................... 166  10.25. Acknowledgement Regarding Any Supported QFCs ..................................................... 166  10.26. No Novation .................................................................................................................... 167      SCHEDULES:  1.1A Commitments  1.1B Mortgaged Property  1.1C Existing Letters of Credit  1.1D Permitted Cash Pooling Agreements  1.1E Loan Parties  1.1F Excluded Subsidiary  4.1 Material Obligations  4.4 Consents, Authorizations, Filings and Notices  4.16 Subsidiaries  4.20(a) Financing Statements/Filing Offices  4.20(b) Mortgage Filing Jurisdictions  6.12 Post-Closing Obligations  7.2(d) Existing Indebtedness  7.3(f) Existing Liens  7.3(m) Existing Receivables Financing/ Existing Supply Chain Financing  7.5 Dispositions  7.8(h) Existing Investments  7.10 Transactions with Affiliates   7.13 Negative Pledge  EXHIBITS:  A-1 Form of Guarantee Agreement  A-2 Form of Collateral Agreement  





 






  v  B Form of Compliance Certificate  C Form of Legal Opinions  D Form of Joinder Agreement  E Form of Assignment and Assumption  F-1 Form of U.S. Tax Compliance Certificate    (For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)  F-2 Form of U.S. Tax Compliance Certificate   (For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)  F-3 Form of U.S. Tax Compliance Certificate   (For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax  Purposes)  F-4 Form of U.S. Tax Compliance Certificate   (For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)  G Form of Solvency Certificate  H Form of Administrative Questionnaire  





 






    AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 18, 2021,  among KONTOOR BRANDS, INC., a North Carolina corporation (the “Company”), KONTOOR  INTERNATIONAL SAGL, a Società a Garanzia Limitata organized under the laws of Switzerland and a  Subsidiary of the Company (“Kontoor International”), any other Subsidiary Borrowers (as defined  herein) from time to time parties hereto, the several banks and other financial institutions or entities from  time to time parties to this Agreement (the “Lenders”) and JPMORGAN CHASE BANK, N.A., as  administrative agent.  RECITALS  WHEREAS, the Company and Kontoor International have entered into the Credit Agreement,  dated as of May 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise  modified from time to time prior to the date hereof, the “Existing Credit Agreement”), among the  Company, Kontoor International, the several banks and other financial institutions or entities from time to  time parties thereto and JPMorgan Chase Bank, N.A., as administrative agent.  WHEREAS, the Borrowers have requested that the tranche A term loans and revolving loans  under the Existing Credit Agreement be extended, and the Borrowers intend to repay the tranche B term  loans under the Existing Credit Agreement, such that after giving effect to such extension and repayment  (such extension and repayment, the “Refinancing”) the Lenders party hereto shall extend credit to the  Borrowers in the form of senior secured credit facilities in an aggregate amount of $900,000,000  comprised of (i) a $400,000,000 term loan A facility and (ii) a $500,000,000 revolving credit facility.  WHEREAS, the Borrowers have also requested that each Lender party hereto, which immediately  following the Refinancing constitute all the Lenders, consent to the amendment and restatement of the  Existing Credit Agreement, as set forth in this Agreement.  WHEREAS, the Lenders are willing to extend such credit to the Borrowers and to consent to such  amendment and restatement, in each case, on the terms and subject to the conditions set forth herein.   NOW, THEREFORE, 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.  “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the  Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base  Rate.  All ABR Loans shall be denominated in Dollars.  “Additional Lender”: as defined in Section 2.27(b).    “Additional Refinancing Lender”: as defined in Section 2.30(a).    “Adjusted Daily Simple RFR”: (a) with respect to any RFR Borrowing denominated in Sterling,  an interest rate per annum equal to the Daily Simple RFR for Sterling, and (b) with respect to any RFR  Borrowing denominated in Swiss Francs, an interest rate per annum equal to the Daily Simple RFR for  Swiss Francs; provided that if the Adjusted Daily Simple RFR Rate as so determined would be less than  the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.  





 






  2  “Adjusted EURIBOR Rate”: with respect to any Term Benchmark Borrowing denominated in  Euros for any Interest Period, an interest rate per annum equal to (a) the EURIBOR Rate for such Interest  Period multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted EURIBOR Rate as so  determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the  purposes of this Agreement.  “Adjusted LIBO Rate”: with respect to any Term Benchmark Borrowing denominated in  Dollars 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.  “Adjusted TIBOR Rate”: with respect to any Term Benchmark Borrowing denominated in Yen  for any Interest Period, an interest rate per annum equal to (a) the TIBOR Rate for such Interest Period  multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted TIBOR Rate as so determined  would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this  Agreement.  “Adjustment Date”: as defined in the Pricing Grid.  “Administrative Agent”: JPMCB, together with its affiliates, as the arranger of the  Commitments and as the administrative agent for the Lenders under this Agreement and the other Loan  Documents, together with any of its successors.  “Administrative Questionnaire”:  an Administrative Questionnaire in the form of Exhibit H or  such other form as may be supplied from time to time by the Administrative Agent.  “Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial  Institution.  “Affiliate”: as to any Person, any other Person that, at any time, 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.  “Affiliated Lender”: as defined in Section 10.6(k).  “Agents”: the collective reference to the Joint Lead Arrangers, the Joint Bookrunners, the Co- Documentation Agents, the Co-Syndication Agents and the Administrative Agent.  “Agreed Currencies”: Dollars and each Foreign Currency.  “Agreement”: this Credit Agreement, as amended, supplemented or otherwise modified from  time to time.  “Agreement Currency”: as defined in Section 10.21(b).  “Aggregate Exposure”: with respect to any Lender at any time, an amount equal to the sum of (i)  the aggregate then unpaid principal amount of such Lender’s Term Loans and (ii) the amount of such  Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated,  the amount of such Lender’s Revolving Extensions of Credit then outstanding.  





 






  3  “Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio (expressed  as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all  Lenders at such time.  “All-in Yield”: with respect to any Indebtedness, the yield of such Indebtedness, whether in the  form of interest rate, margin, commitment or ticking fees, original issue discount, upfront fees, index  floors or otherwise, in each case, payable generally to the applicable lenders; provided that original issue  discount and upfront fees shall be equated to interest rate assuming a four-year life to maturity; provided  further that “All-in Yield” shall not include arrangement fees, structuring fees, consent fees or other fees  in each case not paid to the applicable lenders generally.   “Alternate Base Rate”: 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 LIBO 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 2.18 (for the avoidance of doubt, only until  the Benchmark Replacement has been determined pursuant to Section 2.18(b)), 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”: all laws, rules and regulations of any jurisdiction applicable to the  Company or its Subsidiaries from time to time concerning or relating to bribery or corruption.  “Applicable Corporate Rating Level”: as defined in the Pricing Grid.  “Applicable Creditor”: as defined in Section 10.21(b).  “Applicable Intercreditor Agreement”: a First Lien Intercreditor Agreement or a Junior Lien  Intercreditor Agreement, as applicable.  “Applicable Margin”: for each Type of Revolving Loan, Swingline Loan and Tranche A Term  Loan, the rate per annum set forth under the relevant column heading below:  ABR Loans /  Canadian Prime  Rate Loans  Term Benchmark  Loans / RFR  Loans / Daily  Simple ESTR  Loans / CDOR  Loans  0.500% 1.500%    provided that from and after the first Adjustment Date occurring after the completion of the first full fiscal  quarter ending after the Closing Date, the Applicable Margin with respect to Revolving Loans, Swingline  Loans and Tranche A Term Loans will be determined pursuant to the Pricing Grid.  





 






  4  “Applicable Minimum Amount”: in the case of Revolving Loans, an amount equal to (i) if such  Loans are denominated in Sterling, £5,000,000 or a whole multiple of £1,000,000 in excess thereof, (ii) if  such Loans are denominated in Euro, €5,000,000 or a whole multiple of €1,000,000 in excess thereof, (iii)  if such Loans are denominated in Canadian Dollars, C$5,000,000 or a whole multiple of C$1,000,000 in  excess thereof, (iv) if such Loans are denominated in Swiss Francs, CHF5,000,000 or a whole multiple of  CHF1,000,000 in excess thereof and (v) if such Loans are denominated in Yen, ¥500,000,000 or a whole  multiple of ¥100,000,000 in excess thereof.  “Applicable Prepayment Percentage”: with respect to any prepayment of the Term Loans  required pursuant to Section 2.13(b) in connection with any Asset Sale or Recovery Event (i) if the Senior  Secured Leverage Ratio is less than 2.00 to 1.00 and greater than or equal to 1.50 to 1.00 as of the last day  of the most recently ended Test Period, 50.0%, (ii) if the Senior Secured Leverage Ratio is less than 1.50  to 1.00 as of the last day of the most recently ended Test Period, 0.0% or (iii) otherwise, 100.0%.  “Application”: with respect to an Issuing Lender, an application, in such form as such Issuing  Lender may specify from time to time, requesting such Issuing Lender to issue or amend a Letter of  Credit.  “Arrangers”: JPMorgan Chase Bank, N.A., Barclays Bank PLC, BofA Securities, Inc., HSBC  Securities Inc. and Wells Fargo Bank, National Association.  “Asset Sale”: any Disposition of property or series of related Dispositions of property permitted  by clause (h) or clause (q) of Section 7.5 that yields Net Cash Proceeds to the Company or any of its  Subsidiaries of greater than $10,000,000 (the “Asset Sale Threshold”).  “Assignee”: as defined in Section 10.6(c).  “Assignment and Assumption”: an Assignment and Assumption, substantially in the form of  Exhibit E.   “Assignor”: as defined in Section 10.6(c).  “Auto-Extension Letter of Credit”: as defined in Section 3.1(a).  “Available Amount”: at any time, an amount equal to, without duplication:  (a) the sum of:  (i) the greater of (x) $65,000,000 and (y) 15% of Consolidated EBITDA for the  most recently ended Test Period calculated on a Pro Forma Basis; plus  (ii) the CNI Growth Amount; plus  (iii) the amount of any capital contributions to or other proceeds of any issuance of  Qualified Capital Stock (other than any amounts received from the Company or any Subsidiary)  received by the Company or any of its Subsidiaries, plus the fair market value (as determined by  the Company in good faith) of Cash Equivalents, marketable securities or other property received  by the Company or any Subsidiary as a capital contribution or in return for any issuance of  Qualified Capital Stock (other than any amounts received from the Company or any Subsidiary),  in each case, during the period from and including the day immediately following the Closing  Date through and including such time; plus  





 






  5  (iv) the aggregate principal amount of any Indebtedness or Disqualified Capital  Stock, in each case, of the Company or any Subsidiary issued after the Closing Date (other than  Indebtedness or such Disqualified Capital Stock issued to the Company or any Subsidiary), which  has been converted into or exchanged for Capital Stock of the Company or any Subsidiary that  does not constitute Disqualified Capital Stock, together with the fair market value of any cash or  Cash Equivalents (as determined by the Company in good faith) and the fair market value (as  determined by the Company in good faith) of any property or assets received by the Company or  such Subsidiary upon such exchange or conversion, in each case, during the period from and  including the day immediately following the Closing Date through and including such time; plus  (v) the net proceeds received by the Company or any Subsidiary during the period  from and including the day immediately following the Closing Date through and including such  time in connection with the Disposition to any Person (other than the Company or any  Subsidiary) of any Investment made pursuant to Section 7.8(l) in an amount, together with  amounts added pursuant to clauses (vi) and (vii)(C), not to exceed the original Investment; plus  (vi) to the extent not already reflected as a return of capital with respect to such  Investment for purposes of determining the amount of such Investment, the proceeds received by  the Company or any Subsidiary during the period from and including the day immediately  following the Closing Date through and including such time in connection with cash returns, cash  profits, cash distributions and similar cash amounts, including cash principal repayments of loans  and interest payments on loans, in each case received in respect of any Investment made pursuant  to Section 7.8(l) in an amount, together with amounts added pursuant to clauses (v) and (vii)(C),  not to exceed the original Investment; plus  (vii) an amount equal to the sum of (A) the amount of any Investments by the  Company or any Subsidiary pursuant to Section 7.8(l) in any Unrestricted Subsidiary that has  been re-designated as a Subsidiary, (B) the amount of any Investments by the Company or any  Subsidiary pursuant to Section 7.8(l) in any Unrestricted Subsidiary or any Joint Venture that is  not a Subsidiary that has been merged, consolidated or amalgamated with or into, or is liquidated,  wound up or dissolved into, the Company or any Subsidiary and (C) the fair market value (as  determined by the Company in good faith) of the property or assets of any Unrestricted  Subsidiary or any Joint Venture that is not a Subsidiary that have been transferred, conveyed or  otherwise distributed to the Company or any Subsidiary, in each case, during the period from and  including the day immediately following the Closing Date through and including such time in an  amount not to exceed, together with amounts added pursuant to clauses (v) and (vi), the  Investments made in such Unrestricted Subsidiary or Joint Venture pursuant to Section 7.8(l);  plus  (viii) the amount of any Declined Proceeds; plus  (ix) the amount of any Retained Asset Sale Proceeds; minus  (b) an amount equal to the sum of (i) Restricted Payments made pursuant to Section 7.6(g),  plus (ii) Restricted Debt Payments made pursuant to Section 7.15(e), plus (iii) Investments made pursuant  to Section 7.8(l), in each case, during the period from and including the day immediately following the  Closing Date through and including such time.  “Available Revolving Commitment”: as to any Revolving Lender at any time, an amount equal  to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over (b) such Lender’s  Revolving Extensions of Credit then outstanding; provided, that in calculating any Lender’s Revolving  





 






  6  Extensions of Credit for the purpose of determining such Lender’s Available Revolving Commitment  pursuant to Section 2.10(a), the aggregate principal amount of Swingline Loans then outstanding shall be  deemed to be zero.  “Available Tenor”: as of any date of determination and with respect to the then-current  Benchmark for any Agreed Currency, as applicable, any tenor for such Benchmark (or component  thereof) or payment period for interest calculated with reference to such Benchmark (or component  thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term  rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to  this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such  Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of  Section 2.18.  “Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of  Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law, regulation rule or requirement for such EEA Member Country from time to time  which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,   Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law,  regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks,  investment firms or other financial institutions or their affiliates (other than through liquidation,  administration or other insolvency proceedings).  “Benchmark”: initially, with respect to any (i) RFR Loan in any Agreed Currency, the applicable  Relevant Rate for such Agreed Currency, (ii) Term Benchmark Loan, the Relevant Rate for such Agreed  Currency or (iii) CDOR Loan, the Relevant Rate for Canadian Dollars; provided that if a Benchmark  Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other Benchmark Rate  Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the  applicable Relevant Rate or the then-current Benchmark for such Agreed Currency, then “Benchmark”  means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has  replaced such prior benchmark rate pursuant to clause (b) or clause (c) of Section 2.18.  “Benchmark Replacement”: for any Available Tenor, the first alternative set forth in the order  below that can be determined by the Administrative Agent for the applicable Benchmark Replacement  Date; provided that, in the case of any Loan denominated in an Foreign Currency or in the case of an  Other Benchmark Rate Election, “Benchmark Replacement” shall mean the alternative set forth in (3)  below:  (1) in the case of any Loan denominated in Dollars, the sum of: (a) Term SOFR and  (b) the related Benchmark Replacement Adjustment;  (2) in the case of any Loan denominated in Dollars, the sum of: (a) Daily Simple  SOFR and (b) the related Benchmark Replacement Adjustment;  (3) the sum of: (a) the alternate benchmark rate that has been selected by the  Administrative Agent and the Borrowers as the replacement for the then-current Benchmark for  the applicable Corresponding Tenor giving due consideration to (i) any selection or  recommendation of a replacement benchmark rate or the mechanism for determining such a rate  by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for  





 






  7  determining a benchmark rate as a replacement for the then-current Benchmark for syndicated  credit facilities denominated in the applicable Agreed Currency at such time in the United States  and (b) the related Benchmark Replacement Adjustment;  provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen  or other information service that publishes such rate from time to time as selected by the Administrative  Agent in its reasonable discretion; provided further that, in the case of clause (3), when such clause is  used to determine the Benchmark Replacement in connection with the occurrence of an Other Benchmark  Rate Election, the alternate benchmark rate selected by the Administrative Agent and the Borrowers shall  be the term benchmark rate that is used in lieu of a LIBOR-based rate in the relevant other Dollar- denominated syndicated credit facilities; provided further that, notwithstanding anything to the contrary  in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition  Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the  “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b)  the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the  first proviso above).  If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be  less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this  Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment”: with respect to any replacement of the then-current  Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available  Tenor for any setting of such Unadjusted Benchmark Replacement:  (1) for purposes of clauses (1) and (2) of the definition of “Benchmark  Replacement,” the first alternative set forth in the order below that can be determined by the  Administrative Agent:  (a) the spread adjustment, or method for calculating or determining such  spread adjustment, (which may be a positive or negative value or zero) as of the  Reference Time such Benchmark Replacement is first set for such Interest Period that has  been selected or recommended by the Relevant Governmental Body for the replacement  of such Benchmark with the applicable Unadjusted Benchmark Replacement for the  applicable Corresponding Tenor;  (b) the spread adjustment (which may be a positive or negative value or  zero) as of the Reference Time such Benchmark Replacement is first set for such Interest  Period that would apply to the fallback rate for a derivative transaction referencing the  ISDA Definitions to be effective upon an index cessation event with respect to such  Benchmark for the applicable Corresponding Tenor; and  (2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the  spread adjustment, or method for calculating or determining such spread adjustment, (which may  be a positive or negative value or zero) that has been selected by the Administrative Agent and  the Borrowers for the applicable Corresponding Tenor giving due consideration to (i) any  selection or recommendation of a spread adjustment, or method for calculating or determining  such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted  Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark  Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining  a spread adjustment, or method for calculating or determining such spread adjustment, for the  





 






  8  replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for  syndicated credit facilities denominated in the applicable Agreed Currency at such time;  provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other  information service that publishes such Benchmark Replacement Adjustment from time to time as  selected by the Administrative Agent in its reasonable discretion.  “Benchmark Replacement Conforming Changes”: with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the definition of  “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and  frequency of determining rates and making payments of interest, timing of borrowing requests or  prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage  provisions, and other technical, administrative or operational matters) that the Administrative Agent  decides, following consultation with the Borrower, may be appropriate to reflect the adoption and  implementation of such Benchmark Replacement and to permit the administration thereof by the  Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative  Agent decides that adoption of any portion of such market practice is not administratively feasible or if  the Administrative Agent determines that no market practice for the administration of such Benchmark  Replacement exists, in such other manner of administration as the Administrative Agent decides is  reasonably necessary in connection with the administration of this Agreement and the other Loan  Documents).  “Benchmark Replacement Date”: with respect to any Benchmark, the earliest to occur of the  following events with respect to such then-current Benchmark:  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,”  the later of (a) the date of the public statement or publication of information referenced therein  and (b) the date on which the administrator of such Benchmark (or the published component used  in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of  such Benchmark (or such component thereof);  (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the  first date on which such Benchmark (or the published component used in the calculation thereof)  has been determined and announced by the regulatory supervisor for the administrator of such  Benchmark (or such component thereof) to be no longer representative; provided, that such non- representativeness will be determined by reference to the most recent statement or publication  referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such  component thereof) continues to be provided on such date;  (3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days  after the date a Term SOFR Notice is provided to the Lenders and the Borrower pursuant to  Section 2.18(c); or  (4) in the case of an Early Opt-in Election or an Other Benchmark Rate Election, the  sixth (6th) Business Day after the date notice of such Early Opt-in Election or Other Benchmark  Rate Election, as applicable, is provided to the Lenders, so long as the Administrative Agent has  not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date  notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided  to the Lenders, written notice of objection to such Early Opt-in Election or Other Benchmark  Rate Election, as applicable, from Lenders comprising the Required Lenders.  





 






  9  For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date  occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the  Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such  determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of  clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set  forth therein with respect to all then-current Available Tenors of such Benchmark (or the published  component used in the calculation thereof).  “Benchmark Transition Event”: with respect to any Benchmark, the occurrence of one or more  of the following events with respect to such then-current Benchmark:  (1) a public statement or publication of information by or on behalf of the administrator  of such Benchmark (or the published component used in the calculation thereof) announcing that  such administrator has ceased or will cease to provide all Available Tenors of such Benchmark  (or such component thereof), permanently or indefinitely, provided that, at the time of such  statement or publication, there is no successor administrator that will continue to provide any  Available Tenor of such Benchmark (or such component thereof);  (2) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof),  the Federal Reserve Board, the NYFRB, the central bank for the Agreed Currency applicable to  such Benchmark, an insolvency official with jurisdiction over the administrator for such  Benchmark (or such component), a resolution authority with jurisdiction over the administrator  for such Benchmark (or such component) or a court or an entity with similar insolvency or  resolution authority over the administrator for such Benchmark (or such component), in each  case, which states that the administrator of such Benchmark (or such component) has ceased or  will cease to provide all Available Tenors of such Benchmark (or such component thereof)  permanently or indefinitely; provided that, at the time of such statement or publication, there is no  successor administrator that will continue to provide any Available Tenor of such Benchmark (or  such component thereof); or  (3) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that all Available Tenors of such Benchmark (or such component thereof) are no  longer, or as of a specified future date will no longer be, representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred  with respect to any Benchmark if a public statement or publication of information set forth above has  occurred with respect to each then-current Available Tenor of such Benchmark (or the published  component used in the calculation thereof).  “Benchmark Unavailability Period”: with respect to any Benchmark, the period (if any) (x)  beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition  has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for  all purposes hereunder and under any Loan Document in accordance with Section 2.18 and (y) ending at  the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes  hereunder and under any Loan Document in accordance with Section 2.18.  “Beneficial Ownership Certification”: with respect to any Borrower that is a “legal entity  customer” as such term is defined in the Beneficial Ownership Regulation, a certification regarding  beneficial ownership as required by the Beneficial Ownership Regulation.  





 






  10  “Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.  “Benefit Plan”: 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”.  “Benefitted Lender”: as defined 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.  “Blocking Regulation”: as defined in Section 4.22.  “Board”: the Board of Governors of the Federal Reserve System of the United States (or any  successor).   “Borrower”: (a) with respect to the Tranche A Term Facility, the Company and (b) with respect  to the Revolving Facility, the Company, Kontoor International and each other Subsidiary Borrower. The  Company, Kontoor International and the other Subsidiary Borrowers are referred to herein collectively as  the “Borrowers”.  “Borrowing”: Loans of the same Type and Agreed Currency, made, converted or continued on  the same date and, in the case of Term Benchmark Loans and CDOR Loans, as to which a single Interest  Period is in effect.  “Borrowing Date”: any Business Day specified by the applicable Borrower as a date on which  such Borrower requests the relevant Lenders to make Loans hereunder.  “Business”: as defined in Section 4.18(b).  “Business Day”: a day other than a Saturday, Sunday or other day on which commercial banks in  New York City are authorized or required by law to remain closed; provided, that with respect to notices  and determinations in connection with, and payments of principal and interest on, Term Benchmark  Loans denominated in Dollars, such day is also a day for trading by and between banks in Dollar deposits  in the London interbank eurodollar market; provided further that (i) when used in connection with a Daily  Simple ESTR Loan or a Foreign Currency Revolving Loan denominated in a currency other than  Canadian Dollars, Sterling and Swiss Francs, the term “Business Day” shall also exclude any day on  which banks are not open for general business for such Foreign Currency, (ii) when used in connection  with Loans denominated in Euro bearing interest at the Adjusted EURIBOR Rate or the Daily Simple  ESTR, the term “Business Day” shall also exclude any day on which TARGET2 is not open for  settlement of payment in Euro, (iii) when used in connection with any Loans denominated in Canadian  Dollars, the term “Business Day” shall also exclude any day on which banks are not open for dealings in  deposits of Canadian Dollars in the Toronto interbank market, (iv) when used in connection with a Loan  to any Borrower organized in a jurisdiction other than the United States of America or England, the term  “Business Day” shall also exclude any day on which commercial banks in the jurisdiction of organization  of such Borrower are authorized or required by law to remain closed and (v) when used in connection  with any RFR Loans, the term “Business Day” shall also exclude any date that is not an RFR Business  Day.  





 






  11  “Calculation Date”: with respect to each Foreign Currency, the last day of each calendar month  (or, if such day is not a Business Day, the next succeeding Business Day) and such other days from time  to time as the Administrative Agent shall designate as a “Calculation Date” during the continuation of a  Default; provided that (i) the second Business Day preceding each Borrowing Date (or in the case of RFR  Loans and CDOR Loans, on the Borrowing Date) with respect to, and each date of any continuation of,  any Foreign Currency Revolving Loan which is a Term Benchmark Loan or CDOR Loan shall also be a  “Calculation Date” with respect to such Foreign Currency, (ii) subject to Section 2.12, the Borrowing  Date with respect to any other Foreign Currency Revolving Loan shall also be a Calculation Date with  respect to such Foreign Currency and (iii) with respect to any RFR Loan, each date that is on the  numerically corresponding day in each calendar month that is one month after the Borrowing of such  Loan (or, if there is no such numerically corresponding day in such month, then the last day of such  month) shall also be a “Calculation Date” with respect to the applicable Foreign Currency of such RFR  Loan.  “Canadian Dollars” or “C$”: the lawful currency of Canada.  “Canadian Prime Rate”: on any day, the rate determined by the Administrative Agent to be the  higher of (i) the rate equal to the PRIMCAN Index rate that appears on the Bloomberg screen at 10:15  a.m. Toronto time on such day (or, in the event that the PRIMCAN Index is not published by Bloomberg,  any other information services that publishes such index from time to time, as selected by the  Administrative Agent in its reasonable discretion) and (ii) the average rate for thirty (30) day Canadian  Dollar bankers’ acceptances that appears on the Reuters Screen CDOR Page (or, in the event such rate  does not appear on such page or screen, on any successor or substitute page or 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) at 10:15 a.m. Toronto time on  such day, plus 1% per annum; provided, that if any the above rates shall be less than 0.00%, such rate  shall be deemed to be 0.00% for purposes of this Agreement. Any change in the Canadian Prime Rate due  to a change in the PRIMCAN Index or the CDO Rate shall be effective from and including the effective  date of such change in the PRIMCAN Index or CDO Rate, respectively.  “Canadian Prime Rate Loan”: Loans the rate of interest applicable to which is based upon the  Canadian Prime Rate.  “Capital Expenditures”: for any period, with respect to any Person, the aggregate of all  expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a capital lease)  of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and  improvements during such period) that should be capitalized under GAAP on a consolidated balance  sheet of such Person and its Subsidiaries.  “Capital Lease Obligations”: as to any Person, the obligations of such Person to pay rent or  other amounts under any lease of (or other arrangement conveying the right to use) real or personal  property, or a combination thereof, which obligations are required to be classified and accounted for as  capital leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the  amount of such obligations at any time shall be the capitalized amount thereof at such time determined in  accordance with GAAP; provided that, notwithstanding any change in accounting for leases pursuant to  GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards  Update No. 2016-02, Leases (Topic 842) that would require treating any lease (or similar arrangement  conveying the right to use) as a capital lease where such lease (or similar arrangement) would not have  been required to be so treated under GAAP as in effect on December 31, 2015, such lease shall not be  considered a capital lease for any purpose under this Agreement.  





 






  12  “Capital Stock”: any and all shares, interests, participations or other equivalents (however  designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other  than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.  “Cash Equivalents”: (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 one year from the date of acquisition; (b) certificates of  deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of one year  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 or any United States branch of a foreign bank, in each case  having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer  rated at least A-2 by Standard & Poor’s Financial Services LLC (together with any successor thereto,  “S&P”), P-2 by Moody’s Investors Service, Inc. (together with any successor thereto, “Moody’s”) or F2  by Fitch, or carrying an equivalent rating by a nationally recognized rating agency, if all of the three  named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing  within one year 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 maturities of one year 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 (i) in the case of any such state, commonwealth, territory, political subdivision  or taxing authority, at least A by S&P, A by Moody’s or A by Fitch or (ii) in the case of a foreign  government, at least BBB- by S&P, Baa3 by Moody’s or BBB- by Fitch; (f) securities with maturities of  one year 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) shares of money  market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses  (a) through (f) of this definition; (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 or Aaa, as  applicable, by any two of S&P, Moody’s and Fitch and (iii) have portfolio assets of at least  $5,000,000,000; (i) debt securities of an issuer rated at least A-1 by S&P, P-1 by Moody’s or F1 by Fitch,  or carrying an equivalent rating by a nationally recognized rating agency; or (j) solely in respect of the  ordinary course cash management activities of the Foreign Subsidiaries, (i) equivalents of the investments  described in clause (a) above to the extent guaranteed by any member state of the European Union or the  country in which the Foreign Subsidiary operates, (ii) equivalents of the investments described in clause  (b) above issued, accepted or offered by any commercial bank organized under the laws of a member state  of the European Union or the jurisdiction of organization of the applicable Foreign Subsidiary having at  the acquisition thereof combined capital and surplus of not less than $250,000,000 and (iii) without  limiting the foregoing sub-clauses (i) and (ii) of this clause (j), investments equivalent to those referenced  in clauses (a) through (f) above denominated in foreign currencies and used by the Company for cash  management purposes in the ordinary course of business consistent with past practice to the extent  guaranteed, issued, accepted or offered by (x) any country in which such Foreign Subsidiary operates or is  organized or (y) any commercial bank organized under the laws of the jurisdiction in which such Foreign  Subsidiary operates or is organized, as applicable, in each case without regard to any minimum rating or  capital requirement specified in clauses (a) through (i) above.  “Cash Management Obligations”: any obligation of the Company or any of its Subsidiaries in  respect of (i) cash netting, overdrafts and related liabilities that arise from treasury, depositary or cash  pooling or management services including in connection with any automated clearing house transfers of  funds or any similar transactions including in connection with deposit accounts and (ii) credit, debit,  





 






  13  travel and expense, corporate purchasing and/or other purchasing cards issued to or for the benefit or  account of the Company or any of its Subsidiaries or their respective employees. For the avoidance of  doubt, the parties agree that any Cash Management Obligation that was permitted to be entered into or  designated as a Cash Management Obligation under this Agreement at the time such obligation was  entered into or so designated shall continue to be secured by the Collateral even though a limitation under  this Agreement may be exceeded solely as a result of a change in the currency exchange rates from the  currency exchange rates applicable at the time such Cash Management Obligation was entered into or  designated.  “Cash Pooling Agreement”: any agreement, substantially in the form of (a) the Cash Pool  Agreement dated February 21, 2019, between LeeWrangler Belgium Services BVBA and Bank Mendes  Gans, N.V. (the “Existing Pooling Agreement”), by and among Company and/or any of its Subsidiaries,  on the one hand, and one or more banks or similar financing institutions, on the other hand, together with  any documents evidencing or governing any obligations relating thereto (including any guarantee  agreements and security documents contemplated by or customary in connection with the Existing  Pooling Agreement) or (b) any other cash pooling arrangement or agreement listed in Schedule 1.1D, in  each case as such agreements may be amended (including any amendment and restatement thereof),  supplemented or otherwise modified from time to time, including any agreement extending the maturity  of, refinancing, replacing or otherwise restructuring, in whole or in part, obligations (or adding  Subsidiaries as additional parties or other Subsidiaries as guarantors thereunder) under any such  agreement or any successor or replacement agreement and whether by the same or any other bank or  similar financing institution or group of banks or similar financing institutions; provided that any such  amendment, restatement, supplement or modification, extension, refinancing, replacement or other  agreement is limited to the provision of a cash management system or systems for the Foreign  Subsidiaries of the Company and will not create any Indebtedness, or Lien on the property, of the  Company or any of its Subsidiaries for any other purpose. The Cash Pooling Agreements provide a cash  management system for Subsidiaries of the Company, and obligations of Subsidiaries thereunder may be  guaranteed by the Company and its Subsidiaries.  “CBR Loan”: a Loan that bears interest at a rate determined by reference to the Central Bank  Rate.  “CBR Spread”: the Applicable Margin applicable to such Loan that is replaced by a CBR Loan.  “CDO Rate”: with respect to any CDOR Loan for any Interest Period, CDOR Screen Rate;  provided, further, that, if the applicable CDOR Screen Rate shall not be available at such time for such  Interest Period (a “CDOR Impacted Interest Period”), then the CDO Rate shall be the CDOR  Interpolated Rate at such time.   “CDOR Interpolated Rate” means, at any time, the rate per annum 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 applicable CDOR Screen  Rate for the longest period (for which that CDOR Screen Rate is available) that is shorter than the CDOR  Impacted Interest Period and (b) the applicable CDOR Screen Rate for the shortest period (for which that  CDOR Screen Rate is available) that exceeds the CDOR Impacted Interest Period, in each case, at such  time; provided that if any CDOR Interpolated Rate shall be less than zero, such rate shall be deemed to be  zero for purposes of this Agreement.  “CDOR Screen Rate”: on any day for the relevant Interest Period, the annual rate of interest  equal to the average rate applicable to Canadian dollar Canadian bankers’ acceptances for the applicable  period that appears on the “Reuters Screen CDOR Page” as defined in the International Swap Dealer  





 






  14  Association, Inc. definitions, as modified and amended from time to time (or, in the event such rate does  not appear on such page or screen, on any successor or substitute page or 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), rounded to the nearest 1/100th of 1%  (with .005% being rounded up), as of 10:15 a.m. Toronto local time on the first day of such Interest  Period and, if such day is not a business day, then on the immediately preceding business day (as adjusted  by Administrative Agent after 10:15 a.m. Toronto local time to reflect any error in the posted rate of  interest or in the posted average annual rate of interest).  If the CDOR Screen Rate shall be less than  0.00%, the CDOR Screen Rate shall be deemed to be 0.00% for purposes of this Agreement.  “CDOR Loans”: Loans denominated in Canadian Dollars the rate of interest applicable to which  is determined by reference to the CDO Rate.  “Central Bank Rate”: (A) the greater of (i) for any Loan denominated in (a) Sterling, the Bank  of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any  successor thereto) from time to time, (b) Euro, one of the following three rates as may be selected by the  Administrative Agent in its reasonable discretion: (1) the fixed rate for the main refinancing operations of  the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid  rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as  published by the European Central Bank (or any successor thereto) from time to time, (2) the rate for the  marginal lending facility of the European Central Bank (or any successor thereto), as published by the  European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility  of the central banking system of the Participating Member States, as published by the European Central  Bank (or any successor thereto) from time to time, (c) Yen, the “short-term prime rate” as publicly  announced by the Bank of Japan (or any successor thereto) from time to time, (d) Swiss Francs, the policy  rate of the Swiss National Bank (or any successor thereto) as published by the Swiss National Bank (or  any successor thereto) from time to time and (e) any other Foreign Currency determined after the  Effective Date, a central bank rate as determined by the Administrative Agent in its reasonable discretion  and (ii) the Floor; plus (B) the applicable Central Bank Rate Adjustment.   “Central Bank Rate Adjustment”: for any day, for any Loan denominated in (a) Euro, a rate  equal to the difference (which may be a positive or negative value or zero) of (i) the average of the  Adjusted EURIBOR Rate for the five most recent Business Days preceding such day for which the  EURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest  Adjusted EURIBOR Rate applicable during such period of five Business Days) minus (ii) the Central  Bank Rate in respect of Euro in effect on the last Business Day in such period, (b) Sterling, a rate equal to  the difference (which may be a positive or negative value or zero) of (i) the average of Adjusted Daily  Simple RFR for Sterling Borrowings for the five most recent RFR Business Days preceding such day for  which SONIA was available (excluding, from such averaging, the highest and the lowest such Adjusted  Daily Simple RFR applicable during such period of five RFR Business Days) minus (ii) the Central Bank  Rate in respect of Sterling in effect on the last RFR Business Day in such period, (c) Swiss Francs, a rate  equal to the difference (which may be a positive or negative value or zero) of (i) the average of Adjusted  Daily Simple RFR for Swiss Franc Borrowings for the five most recent RFR Business Days preceding  such day for which SARON was available (excluding, from such averaging, the highest and the lowest  such Adjusted Daily Simple RFR applicable during such period of five RFR Business Days) minus (ii)  the Central Bank Rate in respect of Swiss Francs in effect on the last RFR Business Day in such period,  (d) Yen, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the  average of the Adjusted TIBOR Rate for the five most recent Business Days preceding such day for  which the TIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest  Adjusted TIBOR Rate applicable during such period of five Business Days) minus (ii) the Central Bank  Rate in respect of Yen in effect on the last Business Day in such period and (e) any other Foreign  





 






  15  Currency determined after the Effective Date, a Central Bank Rate Adjustment as determined by the  Administrative Agent in its reasonable discretion. For purposes of this definition, (x) the term Central  Bank Rate shall be determined disregarding clause (B) of the definition of such term and (y) each of the  EURIBOR Rate and the TIBOR Rate on any day shall be based on the EURIBOR Screen Rate or the  TIBOR Screen Rate, as applicable, on such day at approximately the time referred to in the definition of  such term for deposits in the applicable Agreed Currency for a maturity of one month.   “CFC”: each Person that is a “controlled foreign corporation” as defined in Section 957 of the  Code.  “CFC Holding Company”: a Person, substantially all of the assets of which consist of (i) cash or  Cash Equivalents and/or (ii) Capital Stock or debt that is treated as equity for United States federal  income tax purposes of (a) one or more CFCs or (b) one or more CFC Holding Companies.  “Change of Control”: as defined in Section 8(k).  “Class”: (a) when used with respect to any Lender, refers to whether such Lender has a Loan or  Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to  Commitments, refers to whether such Commitments are Revolving Commitments, Extended Revolving  Commitments of a given Extension Series, Extended Term Loans of a given Extension Series, Tranche A  Term Commitments, Incremental Commitments or Refinancing Term Commitments of a given  Refinancing Series and (c) when used with respect to Loans or a borrowing, refers to whether such Loans,  or the Loans comprising such borrowing, are Revolving Loans, Incremental Revolving Loans, Revolving  Loans under Extended Revolving Commitments of a given Extension Series, Revolving Loans under  Other Revolving Commitments, Tranche A Term Loans, Incremental Term Loans, Refinancing Term  Loans of a given Refinancing Series or Extended Term Loans of a given Extension Series. Revolving  Commitments, Extended Revolving Commitments, Incremental Commitments, Other Revolving  Commitments, Tranche A Term Commitments or Refinancing Term Commitments (and in each case, the  Loans made pursuant to such Commitments) that have different terms and conditions shall be construed  to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such  Commitments) that have the same terms and conditions shall be construed to be in the same Class.   “Closing Date”: the date on which the conditions precedent set forth in Section 5.1 are satisfied  or waived in accordance with Section 10.1.  “CNI Growth Amount”: at any date of determination, an amount (which amount shall not be  less than zero) equal to 50.0% of Consolidated Net Income for the cumulative period from March 31,  2019 to and including the last day of the most recently ended fiscal quarter of the Company for which  financial statements have been delivered pursuant to Section 6.1 (treated as one accounting period).  “Co-Documentation Agents”: BNP Paribas, Citibank, N.A., ING Bank N.V., Dublin Branch,  PNC Bank, National Association, Santander Bank, N.A. and Truist Bank.  “Co-Syndication Agents”: Barclays Bank PLC, Bank of America, N.A., HSBC Bank USA,  National Association and Wells Fargo Bank, National Association.  “Code”: the Internal Revenue Code of 1986, as amended from time to time.  “Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon which a  Lien is or is purported to be created by any Security Document.  





 






  16  “Collateral Agent”: JPMorgan Chase Bank, N.A.   “Collateral Agreement”: the Collateral Agreement dated as of the May 17, 2019, among the  Domestic Borrowers and Subsidiary Guarantors party thereto and the Administrative Agent, as the same  may be amended, supplemented or otherwise modified from time to time.  “Commitment”: as to any Lender, the sum of the Tranche A Term Commitment and the  Revolving Commitment of such Lender.  “Commitment Fee Rate”: 0.25% per annum; provided that on and after the first Adjustment  Date occurring after the completion of the first full fiscal quarter ending after the Closing Date, the  Commitment Fee Rate will be determined pursuant to the Pricing Grid.  “Commonly Controlled Entity”: an entity, whether or not incorporated, that is under common  control with the Company within the meaning of Section 4001 of ERISA or is part of a group that  includes the Company and that is treated as a single employer under Section 414 of the Code.  “Company”: as defined in the preamble hereto.  “Company Stock”: Capital Stock of the Company that constitutes “margin stock” within the  meaning of Regulation U.   “Compliance Certificate”: a certificate duly executed by a Responsible Officer substantially in  the form of Exhibit B.   “Consolidated EBITDA”: for any period, Consolidated Net Income for such period; plus,  without duplication and, to the extent deducted (and not added back) (or, in the case of clauses (g), (l) and  (n), to the extent not included) in calculating Consolidated Net Income for such period, the sum of:  (a) income tax expense,  (b) Consolidated Interest Expense, amortization or writeoff of debt discount and debt  issuance costs and commissions, discounts and other fees, charges and expenses associated with  Indebtedness (including with respect to the Loans and Indebtedness incurred in connection with the  Transactions),  (c) depreciation and amortization expense and impairment charges,  (d) all premiums and interest rate hedge termination costs in connection with any purchase or  redemption of any Indebtedness,  (e) any other non-cash charges (excluding any such charge that constitutes an accrual of or a  reserve for cash charges for any future period),  (f) restructuring charges and related charges,  (g) (i) pro forma adjustments, “run rate” cost savings, operating expense reductions and cost  synergies, in each case, related to any Specified Transaction consummated by the Company or any of its  Subsidiaries and projected by the Company in good faith to result from actions taken or expected to be  taken (in the good faith determination of the Company) within 24 months after the date any such  Specified Transaction is consummated, and (ii) any pro forma adjustments, “run rate” cost savings,  





 






  17  operating expense reductions and cost synergies projected by the Company in good faith to result from  actions either taken or expected to be taken (including in connection with any restructuring initiative, cost  savings initiative, new initiative, business optimization activities, cost rationalization programs and/or  similar initiatives or programs) within 24 months after the date of determination to take such action (any  such pro forma adjustments, “run rate” cost savings, operating expense reductions or synergies set forth in  clauses (i) and (ii), “Expected Cost Savings”) (in each case, calculated on a Pro Forma Basis as though  the full recurring benefit of such Expected Cost Savings had been realized in full on the first day of such  period); provided that (A) such Expected Cost Savings are reasonably identifiable and factually  supportable, (B) no Expected Cost Savings shall be added pursuant to this clause (g) to the extent  duplicative of any expenses or charges relating to such Expected Cost Savings that are included in clause  (a) through (f) above or (h) through (s) below and (C) the aggregate amount of all adjustments pursuant to  this clause (g) (other than to the extent permitted under Regulation S-X, which shall not be subject to the  cap set forth in this proviso) shall not exceed 30.0% of Consolidated EBITDA (such percentage  calculated before any amounts are added to Consolidated EBITDA pursuant to this clause (g)),  (h) cash expenses relating to customary earn outs and similar obligations to the extent  constituting Indebtedness;   (i) fees and the amount of loss or discount on the sale of accounts receivables and related  assets in connection with a Permitted Receivables Financing;  (j) any charge with respect to any liability or casualty event, business interruption or any  product recall, (i) so long as such Person has submitted in good faith, and reasonably expects to receive  payment in connection with, a claim for reimbursement of such amounts under its relevant insurance  policy within the next four fiscal quarters (with a deduction in the applicable future period for any amount  so added back to the extent not so reimbursed within the next four fiscal quarters) or (ii) without  duplication of amounts included in a prior period under the preceding clause (i), to the extent such charge  is covered by insurance, indemnification or otherwise reimbursable by a third party (whether or not then  realized so long as the Company in good faith expects to receive proceeds arising out of such insurance,  indemnification or reimbursement obligation within the next four fiscal quarters) (it being understood that  if the amount received in cash under any such agreement in any period exceeds the amount of expense  paid during such period, any excess amount received may be carried forward and applied against any  expense in any future period);  (k) unrealized net losses in the fair market value of any arrangements under Hedge  Agreements;  (l) the amount of any cash actually received by such Person (or the amount of the benefit of  any netting arrangement resulting in reduced cash expenditures) during such period, and not included in  Consolidated Net Income in any period, to the extent that any non-cash gain relating to such cash receipt  or netting arrangement was deducted in the calculation of Consolidated EBITDA for any previous period  and not added back;  (m) the amount of any non-controlling interest or minority interest charge consisting of  income attributable to minority equity interests of third parties in any non-Wholly Owned Subsidiary;  (n) any other adjustments, exclusions and add-backs reflected in the financial model  delivered to the Arrangers on or about October 26, 2021 (the “Company Model”);  (o) charges, expenses and costs in anticipation of, or preparation for, standalone compliance  with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in  





 






  18  connection therewith and charges, expenses and costs in anticipation of, or preparation for, compliance  with the provisions of the Securities Act of 1933, as amended, and the Exchange Act, as applicable to  companies with equity or debt securities held by the public and the rules of national securities exchange  for companies with listed equity or debt securities, including listing fees;  (p) any costs, expenses, fees, fines, penalties, judgments, legal settlements and other amounts  associated with any restructuring, litigation, claim, proceeding or investigation related to or undertaken by  the Company or any of its subsidiaries, together with any related provision for taxes;  (q) consulting fees, advisory fees, financing fees incurred and taxes incurred or accrued in  connection with the Distribution;  (r) costs and expenses incurred in connection with the preparation, negotiation and delivery  of the Loan Documents; and  (s) any net charge with respect to (i) any disposed, abandoned, divested and/or discontinued  asset, property or operation (other than, at the option of the Company, any asset, property or operation  pending the disposal, abandonment, divestiture and/or termination thereof), (ii) any disposal,  abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the  option of the Company, relating to assets or properties held for sale or pending the divestiture or  discontinuation thereof) and/or (iii) any facility that has been closed during such period;   minus, to the extent taken into account in calculating Consolidated Net Income for such period,  the sum of (a) interest income, (b) any non-cash income and (c) unrealized net gains in the fair market  value of any arrangement under Hedge Agreements, all as determined on a consolidated basis.    “Consolidated First Lien Net Debt”: as to any Person at any date of determination, the  aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a first  priority Lien on the Collateral.  “Consolidated Interest Coverage Ratio”: with respect to any Test Period, the ratio of (a)  Consolidated EBITDA of the Company and its Subsidiaries for such Test Period to (b) Consolidated  Interest Expense of the Company and its Subsidiaries for such Test Period.  “Consolidated Interest Coverage Ratio Financial Covenant”: the covenant set forth in  Section 7.1(b).  “Consolidated Interest Expense”: for any period, total cash interest expense of the Company  and its Subsidiaries for such period determined in accordance with GAAP (excluding, to the extent  otherwise included in such interest expense, (i) all premiums and interest rate hedge termination costs in  connection with any purchase or redemption of any Indebtedness, (ii) any fees, including upfront fees,  and any other fees and expenses associated or paid in connection with this Agreement or the  consummation of the Transactions, (iii) annual agency fee, paid to the Administrative Agent, (iv) fees and  expenses associated with any Investment permitted pursuant to Section 7.8 or any issuance of Capital  Stock or Indebtedness permitted hereunder (whether or not consummated), (v) any interest component  relating to the accretion or accrual of discounted liabilities and (vi) any writeoff of unamortized debt  issuance costs upon any prepayment of any Indebtedness), net of cash interest income. Notwithstanding  the foregoing, in the event that Company or a Subsidiary has entered into an operating lease in connection  with a Permitted Sale/Leaseback, then Consolidated Interest Expense for any period shall be deemed to be  increased by the interest component of lease payments under such operating lease made during such  period.  





 






  19  “Consolidated Net Income”: for any period, the consolidated net income (or loss) of the  Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided  that there shall be excluded, without duplication:  (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of  the Company or is merged into or consolidated with the Company or any of its Subsidiaries;   (b) the income (or deficit) of any Person (other than a Subsidiary of the Company) in which  the Company or any of its Subsidiaries has an ownership interest, except to the extent that any such  income is actually received by the Company or such Subsidiary in the form of dividends or similar  distributions;   (c) the undistributed earnings of any Subsidiary of the Company (other than a Loan Party) to  the extent that the declaration or payment of dividends or similar distributions by such 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 Subsidiary;  (d) any goodwill or other asset impairment charges, write-offs or write-downs or  amortization of intangibles;  (e) any gain or charge attributable to any asset Disposition (including asset retirement costs  or sales or issuances of Capital Stock) or of returned or surplus assets outside the ordinary course of  business (as determined in good faith by such Person);  (f) (i) any unrealized or realized net foreign currency transactional gains or charges  impacting net income (including currency re-measurements of Indebtedness, any net gains or charges  resulting from Hedge Agreements for currency exchange risk associated with the above or any other  currency related risk, any transactional gains or charges relating to assets and liabilities denominated in a  currency other than a functional currency and those resulting from intercompany Indebtedness), (ii) any  realized or unrealized gain or charge in respect of (x) any obligation under any Hedge Agreement as  determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to, in the case  of this clause (y), Financial Accounting Standards Board’s Accounting Standards Codification No. 815- Derivatives and Hedging and (iii) unrealized gains or losses in respect of any Hedge Agreement;  (g) any net income or charge (less all fees and expenses related thereto) attributable to (i) the  early extinguishment or cancellation of Indebtedness or (ii) any derivative transaction under a Hedge  Agreement;  (h) non-cash expenses resulting from any employee benefit or management compensation  plan or grant of stock and stock options or other equity and equity-based interests to employees of the  Company or any Subsidiary pursuant to a written plan or agreement (including expenses arising from the  grant of stock and stock options prior to the Closing Date) or the treatment of such options or other equity  and equity-based interests under variable plan accounting;  (i) any charge that is established, adjusted and/or incurred (i) within 12 months after the  closing of any acquisition that is required to be established, adjusted or incurred, as applicable, as a result  of such acquisition in accordance with GAAP or (ii) as a result of any change in, or the adoption or  modification of, accounting principles or policies;  (j) any (i) write-off or amortization made in such period of deferred financing costs and  premiums paid or other expenses incurred directly in connection with any early extinguishment of  





 






  20  Indebtedness, (ii) amortization of intangible assets and (iii) other amortization (including amortization of  goodwill, software, deferred or capitalized financing fees, debt issuance costs, commissions and expenses  and other intangible assets);  (k) fees, costs and expenses incurred, or amortization thereof, in connection with, to the  extent permitted hereunder, any Investment, any issuance of debt or equity, any Disposition, any casualty  event or any amendments or waivers of the Loan Documents, and refinancing, refunding, renewals or  extensions permitted hereunder in connection therewith, in each case, whether or not consummated;  (l) non-cash compensation charges and/or any other non-cash charges arising from the  granting of any stock, stock option or similar arrangement (including any profits interest) or the granting  of any restricted stock, stock appreciation right and/or similar arrangement (including any repricing,  amendment, modification, substitution or change of any such stock option, restricted stock, stock  appreciation right, profits interest or similar arrangement or the vesting of any warrant);  (m) the effects of adjustments (including the effects of such adjustments pushed down to the  Company and its subsidiaries) in component amounts required or permitted by GAAP (including, without  limitation, in the inventory (including any impact of changes to inventory valuation policy methods,  including changes in capitalization of variances), property and equipment, lease, rights fee arrangements,  software, goodwill, intangible asset (including customer molds), in-process research and development,  deferred revenue, advanced billing and debt line items thereof), resulting from the application of  recapitalization accounting or acquisition or purchase accounting, as the case may be, in relation to the  Transactions or any consummated acquisition or similar Investment or the amortization or write-off of  any amounts thereof (including any write-off of in process research and development); and  (n) any extraordinary, exceptional or nonrecurring gains or losses.  “Consolidated Total Assets”: at any date, all amounts that would, in conformity with GAAP, be  set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of the  Company and its Subsidiaries at such date.  “Consolidated Total Debt”: at any date, the aggregate principal amount of debt of the Company  and its Subsidiaries at such date in an amount that would be reflected on a balance sheet prepared as of  such date on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting  of Indebtedness resulting from the application of purchase accounting in connection with any permitted  Investment), consisting of Indebtedness for borrowed money, obligations evidenced by notes, bonds  (excluding surety bonds), debentures or similar instruments (other than an operating lease, synthetic lease  or similar arrangement), purchase money indebtedness and Capital Lease Obligations.   “Contingent Purchase Price Obligations”: any earnout obligations or similar deferred or  contingent purchase price obligations of the Company or any of its Subsidiaries incurred or created in  connection with any acquisition to the extent such obligations are a liability on the consolidated balance  sheet of the Company in accordance with GAAP.  “Continuing Directors”: the directors of the Company on the Closing Date, the initial directors  of the Company set forth in the Form 10, and each other director, if, in each case, such other director’s  nomination for election to the board of directors of the Company is recommended or approved by at least  a majority of the then Continuing Directors.  





 






  21  “Contractual Obligation”: as to any Person, any provision of any security issued by such Person  or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any  of its property is bound.  “Corresponding Tenor”: with respect to any Available Tenor, as applicable, either a tenor  (including overnight) or an interest payment period having approximately the same length (disregarding  business day adjustment) as such Available Tenor.  “Covered Agreement”: as defined in Section 7.13(c).  “Covered Entity”: any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 252.82(b);  (ii) a “covered bank” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 47.3(b); or  (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 382.2(b).  “Covered Party”: as defined in Section 10.25.  “Credit Agreement Refinancing Indebtedness”: Indebtedness constituting (a) Permitted First  Priority Refinancing Debt, (b) Permitted Junior Lien Refinancing Debt or (c) Permitted Unsecured  Refinancing Debt; provided that (i) such Indebtedness shall not have a greater principal amount than the  principal amount (or accreted value, if applicable) of the Refinanced Debt except by an amount equal to  (x) unpaid accrued interest, penalties and premiums (including tender, prepayment or repayment  premiums) thereon plus underwriting discounts and other customary fees, commissions and expenses  (including upfront fees, original issue discount or initial yield payment) incurred in connection with such  refinancing, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to  be incurred under Section 7.2 and, to the extent secured by a Lien, Section 7.3 (and, in each case, the  applicable clause of Section 7.2 and Section 7.3 shall be deemed to be utilized by the amount so  incurred), (ii) the other terms and conditions of such Indebtedness shall not be materially more restrictive  (taken as a whole) on the Company and its Subsidiaries (as determined by the Company in good faith)  than those applicable to the Refinanced Debt being refinanced or replaced (except for covenants or other  provisions (I) that reflect market terms and conditions (taken as a whole) at the time of incurrence (as  determined by the Company in good faith), (II) that are reasonably satisfactory to the Administrative  Agent, (III) that are applicable only to periods after the Latest Maturity Date at the time of incurrence of  such Indebtedness or (IV) that are also added for the benefit of each Facility remaining outstanding  (provided that, in the case of each of clauses (I), (II) and (IV), if any financial maintenance covenant for  the benefit of any Credit Agreement Refinancing Indebtedness is added or is more restrictive than the  financial maintenance covenants then applicable to any then-existing Tranche A Term Facility or  Revolving Facility, such financial mainenance covenants shall be applied to any then-existing Tranche A  Term Facility and Revolving Facility), and (iii) such Refinanced Debt shall be repaid, repurchased,  retired, defeased or satisfied and discharged, all accrued interest, fees, premiums (if any) and penalties in  connection therewith shall be paid, and all commitments thereunder terminated, on the date such Credit  Agreement Refinancing Indebtedness is issued, incurred or obtained.  “Credit Party”: the Administrative Agent, any Issuing Lender, the Swingline Lender or any  other Lender.  





 






  22  “Daily Simple ESTR”: for any day (an “ESTR Interest Day”), with respect to any Loan  denominated in Euro, an interest rate per annum equal to the greater of (a) ESTR for the day that is one  ESTR Business Day prior to (i) if such ESTR Interest Day is an ESTR Business Day, such ESTR Interest  Day or (ii) if such ESTR Interest Day is not an ESTR Business Day, the ESTR Business Day immediately  preceding such ESTR Interest Day and (b) zero.  “Daily Simple ESTR Loans”: Loans denominated in Euros the rate of interest applicable to  which is based upon the Daily Simple ESTR.  “Daily Simple RFR”: for any day (an “RFR Interest Day”), an interest rate per annum equal to,  for any RFR Loan denominated in (i) Sterling, SONIA for the day that is five RFR Business Days prior to  (A) if such RFR Interest Day is an RFR Business Day, such RFR Interest Day or (B) if such RFR Interest  Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Interest Day,  and (ii) Swiss Francs, SARON for the day that is five RFR Business Days prior to (A) if such RFR  Interest Day is an RFR Business Day, such RFR Interest Day or (B) if such RFR Interest Day is not an  RFR Business Day, the Business Day immediately preceding such RFR Interest Day.  “Daily Simple SOFR”: for any day, SOFR, with the conventions for this rate (which may include  a lookback) being established by the Administrative Agent in accordance with the conventions for this  rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple  SOFR” for business loans; provided, that if the Administrative Agent decides that any such conventions is  not administratively feasible for the Administrative Agent, then the Administrative Agent may establish  another convention in its reasonable discretion.  “Declined Proceeds”: as defined in Section 2.13(e).  “Default”: 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.  “Defaulting Lender”: any Lender that (a) has failed to (i) fund all or any portion of its Loans  within two Business Days of the date such Loans were required to be funded hereunder unless such  Lender notifies the Administrative Agent and the Company in writing that such failure is the result of  such Lender’s determination that one or more conditions precedent to funding (each of which conditions  precedent, together with any applicable default, shall be specifically identified in such writing) has not  been satisfied, or (ii) pay to the Administrative Agent, any Issuing Lender, the Swingline Lender or any  other Lender any other amount required to be paid by it hereunder (including in respect of its participation  in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified  the Company, the Administrative Agent or any Issuing Lender or the Swingline Lender in writing that it  does not intend to comply with its funding obligations hereunder, or has made a public statement to that  effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan  hereunder and states that such position is based on such Lender’s determination that a condition precedent  to funding (which condition precedent, together with any applicable default, shall be specifically  identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business  Days after written request by the Administrative Agent or the Company, to confirm in writing to the  Administrative Agent and the Company that it will comply with its prospective funding obligations  hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)  upon receipt of such written confirmation by the Administrative Agent and the Company), or (d) has, or  has a direct or indirect company that has, (i) become the subject of any bankruptcy or insolvency  proceeding, (ii) become the subject of a Bail-In Action or (iii) had appointed for it a receiver, custodian,  conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with  reorganization or liquidation of its business or assets, including the Federal Deposit Insurance  





 






  23  Corporation or any other state or federal regulatory authority acting in such a capacity (but excluding any  receiver, custodian, conservator, trustee, administrator or similar Person appointed by a regulatory  authority under or based on the applicable law in the country where such Person is subject to home  jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed);  provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of  any equity interest in that Lender or any direct or indirect company thereof by a Governmental Authority  so long as such ownership interest does not result in or provide such Lender with immunity from the  jurisdiction of courts within the United States or from the enforcement of judgments or writs of  attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate,  disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the  Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through  (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a  Defaulting Lender) upon delivery of written notice of such determination to the Company, each Issuing  Lender, the Swingline Lender and each Lender.   “Disposition”: with respect to any property or right, any sale, lease, sale and leaseback,  assignment, conveyance, transfer or other disposition thereof (other than any transaction for purposes of  collateral or security to the extent permitted hereunder). The terms “Dispose” and “Disposed of” shall  have correlative meanings.   “Designated Non-Cash Consideration”: the fair market value (as determined by the Company  in good faith) of non-cash consideration received by the Company or any Subsidiary in connection with  any Disposition pursuant to Section 7.5(h) that is designated as Designated Non-Cash Consideration by a  Responsible Officer of the Company (which amount will be reduced by the amount of cash or Cash  Equivalents received in connection with a subsequent sale or conversion of such Designated Non-Cash  Consideration to cash or Cash Equivalents).  “Disqualified Capital Stock”: any Capital Stock of the Company which is not Qualified Capital  Stock. Notwithstanding the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan  for the benefit of directors, officers, employees, members of management, managers or consultants or by  any such plan to such directors, officers, employees, members of management, managers or consultants,  in each case in the ordinary course of business of Borrowers or any Subsidiary, such Capital Stock shall  not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer  thereof in order to satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by  any Permitted Payee shall be considered Disqualified Capital Stock because such stock is redeemable or  subject to repurchase pursuant to any management equity subscription agreement, stock option, stock  appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder  agreement or similar agreement that may be in effect from time to time.  “Disqualified Lender”: (i) competitors of the Company and its Subsidiaries identified from time  to time to the Administrative Agent, (ii) persons identified to the Arrangers prior to April 30, 2019 and  (iii) in each case of clauses (i) and (ii), any of such person’s Affiliates that are (x) clearly identifiable  solely by similarity of name or (y) identified in writing by the Company from time to time to the  Administrative Agent; provided that, notwithstanding anything herein to the contrary, (A) in no event  shall a supplement apply retroactively to disqualify any parties that have previously acquired an  assignment or participation interest in any Loans or Commitments under the Facilities that is otherwise  permitted hereunder and (B) no supplements shall become effective until three Business Days after  delivery by the Company to the Administrative Agent of such supplement by electronic mail to  JPMDQ_Contact@jpmorgan.com.  





 






  24  “Dollar Equivalent”: at any time as to any amount denominated in a Foreign Currency, the  equivalent amount in U.S. Dollars as determined by the Administrative Agent at such time on the basis of  the Exchange Rate for the purchase of U.S. Dollars with such Foreign Currency on the most recent  Calculation Date for such Foreign Currency.  “Dollar Revolving Loans”: as defined in Section 2.6(a).  “Domestic Borrower”: the Company and any Domestic Subsidiary Borrower.  “Domestic Funding Office”: the Administrative Agent’s office located at 10 S. Dearborn Street,  Chicago, IL 60623, or such other office as may be designated by the Administrative Agent by written  notice to the Company and the Lenders.  “Domestic Loan Party”: each Domestic Borrower and each other Loan Party that is a Domestic  Subsidiary.   “Domestic Obligations”: as defined in Section 10.22.  “Domestic Subsidiary”: any Subsidiary of the Company organized under the laws of the United  States or any state thereof or the District of Columbia.   “Domestic Subsidiary Borrower”: any Subsidiary Borrower that is a Domestic Subsidiary.  “Early Opt-in Election”: if the then current Benchmark with respect to Dollars is the LIBO Rate,  the occurrence of:  (1) a notification by the Administrative Agent to (or the request by the Borrower to  the Administrative Agent to notify) each of the other parties hereto that at least five currently  outstanding Dollar denominated syndicated credit facilities at such time contain (as a result of  amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any  other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are  identified in such notice and are publicly available for review), and  (2) the joint election by the Administrative Agent and the Borrower to trigger a  fallback from LIBO Rate and the provision, as applicable, by the Administrative Agent of written  notice of such election to the Borrower and the Lenders.  “EEA Financial Institution”: (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”: any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority”: 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.  “EMU”: Economic and Monetary Union as contemplated in the Treaty.  





 






  25  “Environmental Laws”: as to any Person, any and all Requirements of Law (including common  law) regulating, relating to or imposing liability or standards of conduct concerning protection of human  health (solely as it relates to exposure to Materials of Environmental Concern) or the environment, as now  or may at any time hereafter be in effect.  “ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.  “ESTR”: with respect to any business day, a rate per annum equal to the Euro Short Term Rate  for such business day published by the ESTR Administrator on the ESTR Administrator Website.  “ESTR Administrator”: the European Central Bank (or any successor administrator of the Euro  Short Term Rate).  “ESTR Administrator Website”: the European Central Bank’s website, currently at  http://www.ecb.europa.eu, or any successor source for the Euro Short Term Rate identified as such by the  ESTR Administrator from time to time.  “ESTR Business Day”: any day on which TARGET2 is open for settlement of payment in Euro.  “EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan  Market Association (or any successor Person), as in effect from time to time.  “Euro” or “€”: the single currency of the Participating Member States.  “EURIBOR Rate”: with respect to any Term Benchmark Borrowing denominated in Euros and  for any Interest Period, the EURIBOR Screen Rate two TARGET Days prior to the commencement of  such Interest Period.  “EURIBOR Screen Rate”: the euro interbank offered rate administered by the European Money  Markets Institute (or any other person which takes over the administration of that rate) for the relevant  period displayed (before any correction, recalculation or republication by the administrator) on page  EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays  that rate) or on the appropriate page of such other information service which publishes that rate from time  to time in place of Thomson Reuters as published at approximately 11:00 a.m. Brussels time two  TARGET Days prior to the commencement of such Interest Period.  If such page or service ceases to be  available, the Administrative Agent may specify another page or service displaying the relevant rate after  consultation with the Company.  “Eurocurrency liabilities”: as defined in Section 2.20(e).  “Event of Default”: 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.  “Exchange Act”: the Securities Exchange Act of 1934, as amended.  “Exchange Act Report”: collectively, the Current Reports on Form 8-K and the Quarterly  Reports on Form 10-Q of the Company filed with or furnished to the SEC subsequent to January 2, 2021  but prior to the Closing Date.  “Exchange Rate”: on any day, with respect to any currency, the rate at which such currency may  be exchanged into any other currency, as set forth at approximately 11:00 a.m., London time, on such date  





 






  26  as provided by ICE Data Services. In the event that such rate is not provided by ICE Data Services, the  Exchange Rate shall be determined by reference to such other publicly available service for displaying  exchange rates as may be reasonably selected by the Administrative Agent in consultation with the  Company, or, in the event no such service is selected, such Exchange Rate shall instead be the arithmetic  average of the spot rates of exchange of the Administrative Agent in the market where its foreign  currency exchange operations in respect of such currency are then being conducted, at or about 10:00  a.m., Local Time, on such date for the purchase of the relevant currency for delivery two Business Days  later; provided that if at the time of any such determination, for any reason, no such spot rate is being  quoted, the Administrative Agent, after consultation with the Company, may use any reasonable method  it deems appropriate to determine such rate, and such determination shall be presumed correct absent  manifest error.  “Excluded Assets”: as defined in the Collateral Agreement.  “Excluded Subsidiary”: (i) any Foreign Subsidiary, (ii) any Subsidiary that is not a Wholly- Owned Subsidiary, (iii) any Immaterial Subsidiary, (iv) any Finance Subsidiary or any Special Purpose  Finance Subsidiary, (v) any CFC Holding Company, (vi) any Domestic Subsidiary that is a Subsidiary of  a CFC or a CFC Holding Company, (vii) any Unrestricted Subsidiary, (viii) any Subsidiary that is  prohibited by applicable law existing on the Closing Date or by applicable law or contractual obligation  existing on the Closing Date or at the time of the formation or acquisition by the Company (or any of its  Subsidiaries) of such Subsidiary (including pursuant to Indebtedness permitted to be incurred hereunder  as assumed Indebtedness if the terms of such Indebtedness prohibit such Subsidiary from guaranteeing the  Obligations) (so long as such contractual obligation is not entered into in contemplation of such formation  or acquisition) from providing a guarantee under the Guarantee Agreement or from having a Lien on its  Capital Stock to secure the Obligations, as the context may require, for so long as such prohibition exists,  or if such guarantee or such Lien, as the context may require, would require governmental (including  regulatory) consent, approval, license or authorization (unless such consent, approval, license or  authorization has been obtained, it being understood that the Company shall have no obligation to obtain  any such consent, approval, license or authorization), (ix) any Subsidiary that is a not-for-profit  organization, broker dealer, captive insurance subsidiaries and other special purpose subsidiaries, (x) any  Subsidiary whose provision of a guarantee would result in materially adverse tax consequences to the  Company and its Subsidiaries as reasonably determined by the Company, (xi) any Subsidiary listed in  Schedule 1.1F hereto on the Closing Date and (xii) any other Subsidiary with respect to which, in the  reasonable judgment of the Company, the burden or cost (including any adverse tax consequence) of  providing a guarantee under the Guarantee Agreement or a Lien on its Capital Stock to secure the  Obligations, as the context may require, will outweigh the benefits to be obtained by the Lenders  therefrom; provided that, notwithstanding anything herein to the contrary, in no event shall any Domestic  Subsidiary Borrower be an Excluded Subsidiary.  “Excluded Swap Obligation”: with respect to any Guarantor (a) any Swap Obligation if, and to  the extent that, and only for so long as, all or a portion of the guarantee of such Guarantor of, or the grant  by such Guarantor of a security interest to secure, as applicable, such Swap Obligation (or any guarantee  thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the  Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by  virtue of such Guarantor’s failure to constitute an “eligible contract participant,” as defined in the  Commodity Exchange Act and the regulations thereunder, at the time the guarantee of (or grant of such  security interest by, as applicable) such Guarantor becomes or would become effective with respect to  such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation”  of such Guarantor as specified in any agreement between the relevant Loan Parties and counterparty  applicable to such Swap Obligations, and agreed by the Administrative Agent. If a Swap Obligation arises  under a master agreement governing more than one Swap, such exclusion shall apply only to the portion  





 






  27  of such Swap Obligation that is attributable to Swaps for which such guarantee or security interest is or  becomes illegal.  “Existing Lender”: a Tranche A Term Lender that was a “Tranche A Term Lender” under and as  defined in the Existing Agreement immediately prior to the Closing Date.  “Existing Letters of Credit”: the letters of credit outstanding on the Closing Date immediately  prior to the effectiveness of this Agreement. Schedule 1.1C contains a list of the Existing Letters of  Credit.  “Existing Receivables Financing”: (a) each receivables financing transaction existing on the  Closing Date and set forth on Schedule 7.3(m) attached hereto in an aggregate amount not exceeding the  amount on the Closing Date and (b) any refinancing, renewal, replacement or extension of any such  receivables financing (or any successive refinancings, renewals, replacements or extensions) (collectively,  a “Replacement” and the financing subject to such Replacement, the “Replaced Receivables  Financing”) so long as the aggregate principal amount of such Replacement does not exceed the  aggregate principal amount of the Replaced Receivables Financing.  “Existing Supply Chain Financing”: each supply chain financing transaction existing on the  Closing Date and set forth on Schedule 7.3(m) attached hereto.  “Existing Revolver Tranche”: as defined in Section 2.26(b).  “Existing Term Loan Tranche”: as defined in Section 2.26(a).  “Expected Cost Savings”: as defined in the definition of “Consolidated EBITDA”.  “Extended Revolving Commitments”: as defined in Section 2.26(b).  “Extended Term Loans”: as defined in Section 2.26(a).  “Extending Revolving Lender”: as defined in Section 2.26(c).  “Extending Term Lender”: as defined in Section 2.26(c).  “Extension Amendment”: as defined in Section 2.26(d).  “Extension Election”: as defined in Section 2.26(c).  “Extension Request”: as defined in Section 2.26(b).  “Extension Series”: as defined in Section 2.26(b).  “Facility”: each of (a) the Tranche A Term Loans (the “Tranche A Term Facility”), (b) the  Revolving Commitments and the extensions of credit made thereunder (the “Revolving Facility”) and (c)  each other credit facility that may be added to this Agreement after the date hereof.  “FATCA”: 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, any intergovernmental agreements entered into in  connection with the implementation of the foregoing and any fiscal or regulatory legislation, rules or  





 






  28  practices adopted pursuant to any of the foregoing, or any treaty or convention among Governmental  Authorities entered into in connection with the implementation of the foregoing.  “FCA”: as defined in Section 1.6.  “Federal Funds Effective Rate”: 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  shall be set  forth on the NYFRB’s 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.  “Finance Subsidiary”: any Subsidiary of the Company formed for the sole purpose of engaging  in a Permitted Receivables Financing or Supply Chain Financing.  “Financial Covenants”: the covenants set forth in Sections 7.1(a) and 7.1(b).  “First Lien Intercreditor Agreement”: an intercreditor agreement in a form reasonably  acceptable to the Administrative Agent and the Company among the Company, the Subsidiary Guarantors  from time to time party thereto, the Collateral Agent and the Other Debt Representative for the holders of  Indebtedness that is permitted under Sections 7.2 and 7.3 to be, and is intended to be, secured by a Lien  on the Collateral that is pari passu (but without regard to the control of remedies) with the Liens securing  the Obligations.  “First Lien Leverage Ratio”: with respect to any date of determination, the ratio of (a)  Consolidated First Lien Net Debt as of such date less Netted Cash as of such date to (b) Consolidated  EBITDA of the Company and its Subsidiaries for the applicable Test Period.  “Fixed Amount”: as defined in Section 1.4(e).   “Fitch”: Fitch Ratings Inc., together with any successor thereto.   “Flood Laws”: collectively, (i) the National Flood Insurance Reform Act of 1994 (which  comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act  of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform  Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters  Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.  “Floor”: the benchmark rate floor, if any, provided in this Agreement initially (as of the  execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise)  with respect to the Adjusted LIBO Rate, Adjusted EURIBOR Rate, Adjusted TIBOR Rate, each Adjusted  Daily Simple RFR or the Central Bank Rate, as applicable. For the avoidance of doubt the initial Floor for  each of Adjusted LIBO Rate, Adjusted EURIBOR Rate, Adjusted TIBOR Rate, each Adjusted Daily  Simple RFR and the Central Bank Rate shall be zero.  “Foreign Currencies”: (i) Canadian Dollars, Euro, Sterling, Swiss Francs and Yen and (ii) such  other currencies that the Company may from time to time request subject to the approval of the  Administrative Agent, each Revolving Lender and each Issuing Lender; provided that each such currency  is a lawful currency that is readily available, freely transferable and not restricted and able to be converted  into Dollars.  





 






  29  “Foreign Currency Revolving Loans”: as defined in Section 2.6(a).   “Foreign Loan Party”: each Foreign Subsidiary Borrower.   “Foreign Obligations”: as defined in Section 10.22.  “Foreign Subsidiary”: any Subsidiary of the Company that is not a Domestic Subsidiary.   “Foreign Subsidiary Borrower”: any Subsidiary Borrower which is a Foreign Subsidiary.  “Funding Office”: 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 Company and the Lenders.  “GAAP”: generally accepted accounting principles in the United States as in effect from time to  time, except that for purposes of the definition of “Applicable Prepayment Percentage” or any Financial  Covenant, GAAP shall be determined on the basis of such principles in effect on the date hereof and  consistent with those used in the preparation of the most recent audited financial statements delivered  pursuant to Section 4.1; provided that, if the Company notifies the Administrative Agent following the  effectiveness of any applicable Accounting Change (as defined below) that the Company requests an  amendment to any provision hereof to eliminate the effect of such Accounting Change or in the  application thereof on the operation of such provision (or if the Required Lenders notify the Company  following the effectiveness of any such Accounting Change that the Required Lenders request an  amendment to any provision hereof for such purpose), regardless of whether any such notice is given  before or after such Accounting Change or in the application thereof, then such provision shall be  interpreted on the basis of GAAP as in effect and applied immediately before such Accounting Change  shall have become effective until such notice shall have been withdrawn or such provision amended in  accordance herewith. “Accounting Change” refers to a change after the date hereof in accounting  principles required by the promulgation of any rule, regulation, pronouncement or opinion by the  Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if  applicable, the SEC.  “Governmental Authority”: any nation or government, any state or other political subdivision  thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity  exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to  government, any securities exchange, any self-regulatory organization (including the National  Association of Insurance Commissioners) and any applicable supranational bodies (such as the European  Union or the European Central Bank).  “Guarantee Agreement”: the Guarantee Agreement dated as of May 17, 2019, among the  Domestic Borrowers and the Subsidiary Guarantors party thereto and the Administrative Agent, as the  same may be amended, supplemented or otherwise modified from time to time.  “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any obligation of (a)  the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the  creation of which obligation the guaranteeing person has issued a reimbursement, counter indemnity or  similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness 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  





 






  30  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. The amount of any Guarantee Obligation of any guaranteeing person shall be  deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary  obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which  such guaranteeing person may be liable pursuant to the terms of the instrument embodying such  Guarantee Obligation, unless such primary obligation and the maximum amount for which such  guaranteeing person may be liable are not stated or determinable, in which case the amount of such  Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in  respect thereof as determined by the Company in good faith.  “Guarantors”: the collective reference to the Subsidiary Guarantors and any other Person that  guarantees payment of all or a portion of the Obligations (including, for the avoidance of doubt, the  Company).  “Hedge Agreements”: all interest rate swaps, caps, collar, forward, future or option agreements  or similar arrangements dealing with interest rates, currency exchange rates, the exchange of nominal  interest obligations or commodities, in each case either generally or under specific contingencies, or any  other arrangement constituting a Swap Agreement (including, for the avoidance of doubt, any Lender  Hedge Agreements).  “Immaterial Subsidiaries”: at any time, Subsidiaries of the Company (i) having aggregate total  assets (as determined in accordance with GAAP) in an amount of less than 7.5% of Consolidated Total  Assets of the Company and its Subsidiaries as of the last day of the immediately preceding Test Period  and (ii) contributing in the aggregate less than 7.5% to Consolidated EBITDA for the most recently ended  Test Period. In the event that total assets of all Immaterial Subsidiaries exceed 7.5% of Consolidated  Total Assets as of the last day of the immediately preceding Test Period or the total contribution to  Consolidated EBITDA of all Immaterial Subsidiaries exceeds 7.5% of Consolidated EBITDA for the  relevant period, as the case may be, the Company will designate Subsidiaries which would otherwise  constitute Immaterial Subsidiaries to be excluded as Immaterial Subsidiaries until such 7.5% thresholds  are met.  “Incremental Cap”:  (a) the Shared Incremental Amount, plus  (b) (i) the amount of any optional prepayment of any Loan (including any Incremental Loan)  in accordance with Section 2.12 and/or the amount of any permanent reduction of any undrawn Revolving  Commitment (including any undrawn Incremental Revolving Commitment), (ii) the amount of any  optional prepayment, redemption, repurchase or retirement of Incremental Equivalent Debt that is secured  by a Lien on the Collateral that is pari passu (but without regard to the control of remedies) with the Liens  securing the Obligations, (iii) the amount of any optional prepayment, redemption, repurchase or  retirement of any Refinancing Term Loans or Other Revolving Loans or any Credit Agreement  Refinancing Indebtedness previously applied to the permanent prepayment of any Loan, Revolving  Commitment or of any Incremental Equivalent Debt referred to in clauses (i) and (ii) above (with respect  to any such Credit Agreement Refinancing Indebtedness, in an aggregate amount not to exceed the  aggregate amount of Loans, Revolving Commitments or Incremental Equivalent Debt, as applicable,  





 






  31  refinanced by such Credit Agreement Refinancing Indebtedness), and (iv) the aggregate amount of any  Indebtedness referred to in clauses (i) through (iii) above that is (x) repaid or retired resulting from any  assignment to or purchase by such Indebtedness (and/or assignment and/or purchase of such Indebtedness  by) the Company and/or any Subsidiary or (y) terminated pursuant to Section 2.24, which shall be  credited to the extent of the principal amount of the Indebtedness repaid, retired or terminated; provided  that for each of clauses (i) through (iv), (x) the relevant prepayment, redemption, repurchase, retirement  or assignment and/or purchase was not funded with the proceeds of any Long-Term Indebtedness and  (y) in the case of any prepayment of Loans under any revolving facility, such prepayment shall be  accompanied by a permanent reduction in the commitments in respect thereof, plus  (c) an unlimited amount so long as, in the case of this clause (c), on the date of incurrence  thereof on a Pro Forma Basis after giving effect to the incurrence of the Incremental Facility or the  Incremental Equivalent Debt, as applicable, and the application of the proceeds thereof (without netting  the cash proceeds thereof) and to any relevant Specified Transaction (and, in the case of any Incremental  Revolving Facility then being established, assuming a full drawing thereunder), (i) if such Indebtedness is  secured by a Lien on the Collateral that is pari passu (but without regard to the control of remedies) with  the Liens securing the Obligations, the First Lien Leverage Ratio does not exceed either (A) 2.75 to 1.00  or (B) if such Incremental Facility or Incremental Equivalent Debt, as applicable, is incurred in  connection with an acquisition or other Investment permitted under this Agreement, the greater of (I) 2.75  to 1.00 and (II) the First Lien Leverage Ratio immediately prior to the incurrence of such Incremental  Facility or Incremental Equivalent Debt, as applicable, and the consummation of such acquisition or other  permitted Investment, (ii) if such Indebtedness is secured by a Lien on the Collateral that is junior to the  Liens securing the Obligations, the Senior Secured Leverage Ratio does not exceed either (A) 3.25 to 1.00  or (B) if such Incremental Facility or Incremental Equivalent Debt, as applicable, is incurred in  connection with an acquisition or other Investment permitted under this Agreement, the greater of (I) 3.25  to 1.00 and (II) the Senior Secured Leverage Ratio immediately prior to the incurrence of such  Incremental Facility or Incremental Equivalent Debt, as applicable, and the consummation of such  acquisition or other permitted Invesment, and (iii) if such Indebtedness is unsecured, the Company is in  compliance with the Financial Covenants (in the case of any Incremental Facility incurred in reliance on  this clause (iii) in connection with any Material Acquisition, after giving effect to any step-up applicable  to Section 7.1(a) to the extent that the first Test Period ending after the date of the consummation of such  Material Acquisition would be an Increased Test Period in accordance with the terms of Section 7.1(a));   provided that: (1) any Incremental Facility or Incremental Equivalent Debt may be incurred under one or  more of clauses (a) through (c) of this definition as selected by the Company in its sole discretion  (provided that, in the case of clause (c), an Incremental Facility may be incurred only under clause (i)  thereof), and (2) upon delivery of any financial statements pursuant to Section 6.1 following the initial  incurrence or implementation of any Incremental Facility or Incremental Equivalent Debt, to the extent  such Incremental Facility or Incremental Equivalent Debt or any portion thereof could, based on such  financial statements, have been incurred or made in reliance on clause (c), unless otherwise elected by the  Company, such Incremental Facility or Incremental Equivalent Debt or portion thereof shall  automatically be reclassified (subject to clause (1) of this proviso and to any other applicable provision of  clause (c)) as having been incurred under clause (c).  “Incremental Equivalent Debt”: Indebtedness in an amount not to exceed the Incremental Cap  incurred by any Loan Party consisting of the incurrence or issuance of one or more series of senior  secured notes or loans, junior lien loans or notes, subordinated loans or notes or senior unsecured loans or  notes (in each case in respect of the issuance of notes, whether issued in a public offering, Rule 144A or  other private placement or purchase or otherwise) or any bridge financing in lieu of the foregoing, or  secured or unsecured “mezzanine” debt, in each case, to the extent secured, subject to (x) with respect to  Incremental Equivalent Debt secured by a Lien on the Collateral that is junior to the Lien securing the  





 






  32  Obligations, a Junior Lien Intercreditor Agreement and (y) with respect to Incremental Equivalent Debt  secured by a Lien on the Collateral that is pari passu (but without regard to the control of remedies) with  the Liens securing the Obligations, a First Lien Intercreditor Agreement; provided that such Incremental  Equivalent Debt shall be subject to the requirements set forth in Sections 2.27(a) mutatis mutandis, except  that (a) the requirements set forth in Section 2.27(a)(x)(A) and Section 2.27(a)(xiii) shall not apply to  such Indebtedness and (b) the requirements set forth in Section 2.27(a)(vi) and (vii) shall not apply to a  customary bridge facility which, subject to customary conditions, automatically convert into long-term  debt satisfying the requirements of such clauses.  “Incremental Commitment”: as defined in Section 2.27(a)(i).  “Incremental Facility”: as defined in Section 2.27(a).  “Incremental Facility Amendment”: an amendment to this Agreement executed by each of (a)  the applicable Borrowers, (b) the Administrative Agent and (c) each Lender that agrees to provide all or  any portion of the Incremental Facility being incurred pursuant thereto and in accordance with Section  2.27.  “Incremental Loans”: as defined in Section 2.27(a).  “Incremental Revolving Commitments”: as defined in Section 2.26(b).   “Incremental Revolving Facility”: as defined in Section 2.27(a).   “Incremental Revolving Loans”: as defined in Section 2.27(a).  “Incremental Term Facility”: as defined in Section 2.27(a).   “Incremental Term Loans”: as defined in Section 2.27(a).  “Incurred Acquisition Debt”: as defined in Section 7.2(p)(i).  “Incurrence-Based Amount”: as defined in Section 1.4(e).  “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness of such  Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property  or services (other than any such obligations incurred in the ordinary course of such Person’s business  maturing less than one year from the creation thereof), including Contingent Purchase Price Obligations  solely to the extent satisfying the definition thereof, (c) all obligations of such Person evidenced by notes,  bonds (excluding surety bonds), debentures or other similar instruments (other than an operating lease,  synthetic lease or similar arrangement), (d) for the purposes of Sections 7.2 and 8(e) only, all  indebtedness created or arising under any conditional sale or other title retention agreement (other than an  operating lease) 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) for the purposes of Sections 7.2 and 8(e) only, all Capital Lease Obligations of such Person;  (f) for the purposes of Sections 7.2 and 8(e) only, all obligations of such Person, contingent or otherwise,  as an account party under acceptances, surety bonds or similar arrangements (other than obligations  arising out of endorsements of instruments for deposit or collection in the ordinary course of business),  (g) all unpaid reimbursement obligations of such Person in respect of drawings under letters of credit and  surety bonds and, for purposes of Sections 7.2 and 8(e) only, the face amount of all letters of credit issued  for the account of such Person, (h) for the purposes of Sections 7.2 and 8(e) only, all Guarantee  





 






  33  Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g)  above, (i) without limitation of the foregoing, 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;  provided that the amount of any such obligation shall be deemed to be the lesser of the face principal  amount thereof and the fair market value of the property subject to such Lien and (j) for the purposes of  Sections 7.2 and 8(e) only, all obligations of such Person in respect of Hedge Agreements; provided that,  for purposes of Sections 7.2 and 8(e), the amount of “Indebtedness” included with respect to any such  Hedge Agreement shall be based on the net termination value thereof. Notwithstanding the foregoing,  overdrafts by the Company and its Subsidiaries in the ordinary course of business in connection with cash  management (and not working capital) and trade letter of credit with a maturity of less than 180 days  issued in the ordinary course of business shall not constitute Indebtedness.   “Indemnitee”: as defined in Section 10.5.   “Ineligible Institution”: as defined in Section 10.6(b).  “Information”: as defined in Section 4.19(a)(i).  “Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent  within the meaning of Section 4245 of ERISA.  “Insolvent”: pertaining to a condition of Insolvency.  “Intellectual Property”: all rights, priorities and privileges, whether arising under United States,  multinational or foreign laws or otherwise, relating to copyrights, patents, trademarks, technology, know- how and processes and other intellectual property, 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.  “Interest Election Request”: a request by the borrower to convert or continue a Borrowing in  accordance with Section 2.14.  “Interest Payment Date”: (a) with respect to any ABR Loan (other than a Swingline Loan) or  Canadian Prime Rate Loan, (1) the date that is 15 Business Days after the last day of each March, June,  September and December and (2) the Maturity Date, (b) with respect to any RFR Loan, (1) each date that  is on the numerically corresponding day in each calendar month that is one month after the Borrowing of  such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such  month) and (2) the Maturity Date, (c) with respect to any Term Benchmark Loan or CDOR Loan, the last  day of each Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a  Term Benchmark Borrowing with an Interest Period of more than three months’ duration, each day prior  to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day  of such Interest Period, and the Maturity Date and (d) with respect to any Swingline Loan, the day that  such Loan is required to be repaid and the Maturity Date.  “Interest Period”: with respect to any Term Benchmark Borrowing or CDOR Borrowing, the  period commencing on the date of such Borrowing and ending on the numerically corresponding day in  the calendar month that is one, three or six months thereafter (in each case, subject to the availability for  the Benchmark applicable to the relevant Loan or Commitment for any Agreed Currency), as the  Borrower may elect; provided, that (i) if any Interest Period would end on a day other than a Business  





 






  34  Day, such Interest Period shall be extended to the next succeeding Business Day unless such next  succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall  end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day  of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar  month of such Interest Period) shall end on the last Business Day of the last calendar month of such  Interest Period and (iii) no tenor that has been removed from this definition pursuant to Section 2.18(e)  shall be available for specification in such borrowing request or Interest Election Request.  For purposes  hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the  case of a Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or  continuation of such Borrowing.  “Investments”: as defined in Section 7.8.  “IRS”: shall mean the Internal Revenue Service of the United States Department of Treasury.  “ISDA Definitions”: the 2006 ISDA Definitions published by the International Swaps and  Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or  any successor definitional booklet for interest rate derivatives published from time to time by the  International Swaps and Derivatives Association, Inc. or such successor thereto.  “ISP”: with respect to any Letter of Credit, the “International Standby Practices 1998”  published by the International Chamber of Commerce under Publication No. 590 (or such later version  thereof as may be in effect at the time of issuance).  “Issuing Lender”: (i) JPMCB, Barclays Bank PLC, Bank of America, N.A., Wells Fargo Bank,  National Association and HSBC Bank USA (in each case, which may act through its Affiliates) or (ii) any  other Lender (which may act through its Affiliates) requested by the Company and reasonably acceptable  to the Administrative Agent which agrees to act as an Issuing Lender hereunder, in each case its capacity  as issuer of any Letter of Credit. Each reference herein to “Issuing Lender” shall be deemed to be a  reference to the relevant Issuing Lender.  “Joinder Agreement”: as defined in Section 2.29(a)(i).  “Joint Venture”: any Person in which the Company and/or its Subsidiaries hold less than a  majority of the Capital Stock, and which does not constitute a Subsidiary of the Company, whether direct  or indirect.  “JPMCB”: JPMorgan Chase Bank, N.A.   “Junior Lien Intercreditor Agreement”:  an intercreditor agreement in a form reasonably  acceptable to the Administrative Agent and the Company among the Company, the Subsidiary Guarantors  from time to time party thereto, the Administrative Agent and an Other Debt Representative for the  holders of Indebtedness that is permitted under Sections 7.2 and 7.3 to be, and is intended to be, secured  by a Lien on the Collateral that is junior to the Liens securing the Obligations.  “Judgment Currency”: as defined in Section 10.21(b).  “Knowledge” or to the “Knowledge”: of any Loan Party or any Subsidiaries of any Loan Party,  the actual knowledge, after reasonable good faith investigation, of a Responsible Officer of such Loan  Party or such Subsidiary.  





 






  35  “L/C Commitment”: as to any Revolving Lender, the obligation of such Revolving Lender to  issue Letters of Credit pursuant to Section 3 in an aggregate undrawn, unexpired face amount plus the  aggregate unreimbursed drawn amount thereof at any time not to exceed the amount set forth under the  heading “L/C Commitment” opposite such Revolving Lender’s name on Schedule 1.1A or in the  Assignment and Assumption pursuant to which such Revolving Lender becomes a party hereto, in each  case, as the same may be changed from time to time pursuant to the terms hereof.  “L/C Exposure”: at any time, the sum of (a) the aggregate undrawn amount of all outstanding  Letters of Credit at such time (with respect to any Existing Letters of Credit in a Foreign Currency, based  on the Dollar Equivalent thereof) plus (b) the aggregate amount of all payments, made by an Issuing  Lender pursuant to a Letter of Credit, that have not yet been reimbursed by or on behalf of the applicable  Borrower at such time (with respect to any Existing Letters of Credit in a Foreign Currency, based on the  Dollar Equivalent thereof). The L/C Exposure of any Revolving Lender at any time shall be, with respect  to such Lender, such Lender’s applicable percentage of the total L/C Exposure at such time.  “L/C Fee Payment Date”: the second Business Day of each January, April, July or October and  the last day of the Revolving Commitment Period.  “L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then undrawn  and unexpired amount of the then outstanding Letters of Credit (with respect to any Existing Letters of  Credit in a Foreign Currency, based on the Dollar Equivalent thereof) and (b) the aggregate amount of  drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5 (with respect  to any Existing Letters of Credit in a Foreign Currency, based on the Dollar Equivalent thereof). For all  purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but  any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, or a Letter  of Credit subject to UCP600 allows extension of the expiration date of such Letter of Credit for reasons of  Force Majeure stated in Article 36 of UCP600, such Letter of Credit shall be deemed to be “outstanding”  in the amount so remaining available to be drawn.  “L/C Participants”: with respect to any Letter of Credit issued by an Issuing Lender, the  collective reference to all the Revolving Lenders other than the Issuing Lender with respect to such Letter  of Credit.  “Latest Maturity Date”: at any date of determination, the latest maturity or expiration date  applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration  date of any Term Loan.  “Lender Affiliate”: (a) with respect to any Lender (i) an Affiliate of such Lender or (ii) any  entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing,  holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its  business and is administered or managed by such Lender or an Affiliate of such Lender and (b) with  respect to any Lender that is a fund which invests in bank loans and similar extensions of credit, any other  fund that invests in bank loans and similar extensions of credit and is managed by the same investment  advisor as such Lender or by an Affiliate of such investment advisor.  “Lender Cash Management Obligations”: Cash Management Obligations owed to any Person  who is, or was, the Administrative Agent or a Lender (or any Affiliate of the Administrative Agent or any  Lender) (x) at the time the agreement governing such Cash Management Obligations was entered into,  with respect to any Cash Management Obligations arising from agreement entered into after the Closing  Date or (y) as of the Closing Date, with respect to any Cash Management Obligations arising from  agreement existing on the Closing Date, in each case of clauses (x) and (y), regardless of whether such  





 






  36  Person subsequently ceases to be the Administrative Agent or a Lender or an Affiliate of the  Administrative Agent or a Lender (each such Person, a “Lender Cash Management Counterparty”).  “Lender Hedge Agreements”: as defined in the Guarantee Agreement.    “Lenders”: as defined in the preamble hereto.   “Letters of Credit”: as defined in Section 3.1(a).  “Letter of Credit Expiration Date”: the day that is five (5) Business Days prior to the scheduled  maturity date then in effect for the applicable Class, series or tranche of Revolving Commitments (or, if  day is not a Business Day, the next succeeding Business Day).   “LIBO Interpolated Rate”: at any time, with respect to any Term Benchmark Borrowing  denominated in Dollars and 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 for the applicable Agreed Currency) that is shorter than the Impacted  LIBO Rate Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which the LIBO  Screen Rate is available for the applicable Agreed Currency) that exceeds the Impacted LIBO Rate  Interest Period, in each case, at such time; provided that if any LIBO Interpolated Rate shall be less than  zero, such rate shall be deemed to be zero for the purposes of this Agreement.  “LIBO Rate”: with respect to any Term Benchmark Borrowing denominated in Dollars and 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 LIBO Rate Interest Period”) with respect  to Dollars then the LIBO Rate shall be the LIBO Interpolated Rate.  “LIBO Screen Rate” : for any day and time, with respect to any Term Benchmark Borrowing  denominated in Dollars and 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  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 0.00%, such rate shall be deemed to be 0.00% for the  purposes of this Agreement.  “LIBOR”: as defined in Section 1.6.  “Lien”: 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 (including any conditional sale or other title retention agreement and any capital lease having  substantially the same economic effect as any of the foregoing).  “Limited Condition Transaction”: as defined in Section 1.4(d).   “Loan”: any loan made by any Lender pursuant to this Agreement.  





 






  37  “Loan Documents”: this Agreement, the Guarantee Agreement, the Security Documents and the  Notes, as the same may be amended, modified or supplemented from time to time.  “Loan Parties”: each Borrower and each Subsidiary of the Company that is a party to a Loan  Document. For the avoidance of doubt, the Loan Parties as of the Closing Date are set forth on Schedule  1.1E hereto.  “Local Time”: (i) New York City time in the case of a Loan or borrowing disbursement  denominated in U.S. Dollars, (ii) Toronto time in the case of a Loan or borrowing disbursement  denominated in Canadian Dollars and (iii) London time in the case of a Loan or borrowing disbursement  denominated in any other Foreign Currency (or any such other local time as otherwise notified to or  communicated by the Administrative Agent).  “Long-Term Indebtedness”: any Indebtedness that, in accordance with GAAP, constitutes (or,  when incurred, constituted) a long-term liability; provided that revolving indebtedness shall not constitute  Long-Term Indebtedness.  “Majority Facility Lenders”: with respect to any Facility, the holders of more than 50.0% of the  aggregate unpaid principal amount of the Total Revolving Extensions of Credit (excluding Revolving  Extensions of Credit held by Defaulting Lenders) under the Revolving Facility, the aggregate unpaid  principal amount of the Tranche A Term Loans outstanding under such Facility or in the case of the  Revolving Facility, prior to any termination of the Revolving Commitments, the holders (other than  Defaulting Lenders) of more than 50.0% of the Total Revolving Commitments (excluding Revolving  Commitments of Defaulting Lenders).  “Material Acquisition”: any acquisition, or a series of related acquisitions by the Company or  any Subsidiary, of (a) Capital Stock in any Person if, after giving effect thereto, such Person will become  a Subsidiary or (b) assets comprising all or substantially all the assets of (or all or substantially all the  assets constituting a business unit, division, product line or line of business of) any Person; provided that  the aggregate consideration therefor (including Indebtedness assumed in connection therewith, all  obligations in respect of deferred purchase price (including obligations under any purchase price  adjustment, as estimated in good faith by the Company, but excluding earnout, contingent payment or  similar payments) and all other consideration payable in connection therewith (including payment  obligations in respect of noncompetition agreements or other arrangements representing acquisition  consideration)) exceeds $100,000,000.  “Material Adverse Effect”: a material adverse effect on (a) the business, property, operations or  financial condition of the Company and its 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 or (c) the  rights of or benefits available to the Lenders, taken as a whole, under this Agreement or any other Loan  Document.  “Materials of Environmental Concern”: any gasoline or petroleum (including crude oil or any  fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, in each  case that are defined or regulated as such in or under any Requirement of Law relating to the  environment, including asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.  “Maximum Rate”: as defined in Section 10.19.    “Moody’s”: as defined in the definition of “Cash Equivalents”.  





 






  38  “Mortgaged Properties”: the real properties subject to the Mortgages designated in part (a) of  Schedule 1.1B and any other real properties required to be mortgaged pursuant to Section 6.9; provided  that Mortgaged Properties shall not include any leased real property.  “Mortgages”: each mortgage, deed of trust, deed to secure debt, trust deed or any other security  document entered into by the owner of a Mortgaged Property in favor of the Administrative Agent for the  benefit of the Administrative Agent and the Lenders creating a lien on such Mortgaged Property in such  form as reasonably agreed between the Company and the Administrative Agent, as the same may be  amended, supplemented or otherwise modified from time to time; provided, however, in the event any  Mortgaged Property is located in a jurisdiction which imposes mortgage recording taxes or similar fees,  the applicable Mortgage shall not secure an amount in excess of 100.0% of the fair market value of such  Mortgaged Property.  “Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of  ERISA.  “Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the  proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way  of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment  receivable or otherwise, but only as and when received), net of attorneys’ fees, accountants’ fees,  investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a  Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event,  as applicable (other than any Lien pursuant to a Security Document and other than (i) any Incremental  Equivalent Debt, (ii) Credit Agreement Refinancing Indebtedness, (iii) Ratio Debt, (iv) Incurred  Acquisition Debt or (v) any other Indebtedness outstanding at such time that, in each case, is secured by a  Lien on the Collateral that is pari passu (but without regard to the control of remedies) with the Liens  securing the Obligations) and other fees and expenses actually incurred in connection therewith and net of  taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any  available tax credits or deductions and any tax sharing arrangements) 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, accountants’ fees, underwriting  discounts and commissions and other fees and expenses actually incurred in connection therewith.  “Netted Cash”: at any date of determination, the aggregate amount of all unrestricted cash and  Cash Equivalents of the Company and its Restricted Subsidiaries as of such date.  “New York Process Agent”: as defined in Section 10.12(b).  “Non-Consenting Lender”: as defined in Section 2.24.  “Non-Excluded Taxes”: Taxes imposed on or with respect to any payment made by or on  account of any obligation of the Company under any Loan Document, other than Taxes that are (i) Taxes  imposed on or measured by net income (however denominated), franchise taxes, and branch profits taxes  (A) imposed as a result of the Administrative Agent or any Lender 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 (B) imposed on the  Administrative Agent or any Lender as a result of a present or former connection between the  Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such  Tax or any political subdivision or taxing authority thereof or therein (other than any such connection  arising solely from the Administrative Agent or such Lender having executed, delivered, become a party  to, performed its obligations under, received payments under, received or perfected a security interest  





 






  39  under, engaged in any other transaction pursuant to, or enforced this Agreement or any Loan Document),  (ii) attributable to a Lender’s failure to comply with the requirements of paragraph (e) or (f) of Section  2.21, (iii) 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 such  Lender becomes a party to this Agreement or changes its lending office, except to the extent that,  pursuant to Section 2.21, amounts with respect to such Taxes were payable either to such Lender’s  assignor (if any) immediately before such Lender acquired such interest or to such Lender immediately  before it changed its lending office or (iv) any withholding Taxes imposed pursuant to FATCA.  “Non-Expiring Credit Commitment”: as defined in Section 2.9(e).  “Non-U.S. Lender”: as defined in Section 2.21(f)(ii).  “Notes”: the collective reference to any promissory note evidencing Loans.   “Notice of Designation”: as defined in Section 2.29(a)(i).   “NYFRB”: the Federal Reserve Bank of New York.  “NYFRB’s Website”: the website of the NYFRB at http://www.newyorkfed.org, or any  successor source.  “NYFRB Rate”: 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”: 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  0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement.  “Objecting Lender”: as defined in Section 2.29(b).  “Obligations”: the unpaid principal of and interest on (including interest accruing after the  maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition  in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the  Borrowers, 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 Borrowers to the Administrative Agent or to any  Lender (or, in the case of Lender Hedge Agreements or Lender Cash Management Obligations, any  Affiliate of the Administrative Agent or any Lender), whether direct or indirect, absolute or contingent,  due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in  connection with, this Agreement, any other Loan Document (including, for the avoidance of doubt, any  guarantee of Lender Cash Management Obligations and Lender Hedge Agreements in each case arising  under the Guarantee Agreement), the Letters of Credit, Lender Cash Management Obligations, Lender  Hedge Agreements 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 Borrowers pursuant hereto) or otherwise.  “Other Applicable Asset Sale Indebtedness”: as defined in Section 2.13(b).  





 






  40  “Other Benchmark Rate Election”: with respect to any Loan denominated in Dollars, if the  then-current Benchmark is the LIBO Rate, the occurrence of:   (a) a request by the Borrower to the Administrative Agent to notify each of the other parties  hereto that, at the determination of the Borrower, Dollar-denominated syndicated credit facilities at such  time contain (as a result of amendment or as originally executed), in lieu of a LIBOR-based rate, a term  benchmark rate as a benchmark rate, and   (b) the Administrative Agent, in its sole discretion, and the Borrower jointly elect to trigger a  fallback from the LIBO Rate and the provision, as applicable, by the Administrative Agent of written  notice of such election to the Borrower and the Lenders.  “Other Debt Representative”: with respect to any series of Indebtedness permitted to be  incurred and secured by a Lien on the Collateral that is pari passu (but without regard to the control of  remedies) with or junior to the Lien securing the Obligations, the trustee, administrative agent, collateral  agent, security agent or similar agent under the indenture or agreement pursuant to which such  Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in  such capacities.  “Other Revolving Commitments”: one or more Classes of revolving credit commitments  hereunder that result from a Refinancing Amendment.  “Other Revolving Loans”: one or more Classes of Revolving Credit Loans that result from a  Refinancing Amendment.  “Other Taxes”: all present or future stamp, court or documentary, intangible, recording, filing or  any other similar Taxes imposed by the United States or any political subdivision thereof, that arise from  any payment made under, from the execution, delivery or enforcement of, from the receipt or perfection  of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document,  except any such Taxes imposed with respect to an assignment.  “Overnight Bank Funding Rate”: for any day, the rate comprised of both overnight federal  funds and overnight Term Benchmark borrowings denominated in Dollars by U.S.-managed banking  offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth  on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the  NYFRB as an overnight bank funding rate.   “Participant”: as defined in Section 10.6(b).   “Participant Register”: as defined in Section 10.6(b).   “Participating Member State”: each state so described in any EMU legislation.  “Patriot Act”: the USA PATRIOT Act, Title III of Pub. L. 107-56, signed into law on October  26, 2001 or any subsequent legislation that amends, supplements or supersedes such Act.  “Payment”: as defined in Section 9.6(c)(i).  “Payment Notice” : as defined in Section 9.6(c)(ii).  





 






  41  “PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title  IV of ERISA (or any successor).   “Permitted First Priority Refinancing Debt”: any Permitted First Priority Refinancing Notes  and any Permitted First Priority Refinancing Loans.   “Permitted First Priority Refinancing Loans”: any Credit Agreement Refinancing  Indebtedness in the form of secured loans incurred by the Company and/or the Subsidiary Guarantors in  the form of one or more tranches of loans under this Agreement; provided that (i) such Indebtedness is  secured by a Lien on the Collateral that is pari passu (but without regard to the control of remedies) with  the Liens securing the Obligations and (ii) such Indebtedness meets the Permitted Other Debt Conditions.   “Permitted First Priority Refinancing Notes”: any Credit Agreement Refinancing Indebtedness  in the form of secured Indebtedness (including any Registered Equivalent Notes) incurred by the  Company and/or the Subsidiary Guarantors in the form of one or more series of senior secured notes  (whether issued in a public offering, Rule 144A, private placement or otherwise) or loans not under this  Agreement; provided that (i) such Indebtedness is secured by a Lien on the Collateral that is pari passu  (but without regard to the control of remedies) with the Liens securing the Obligations, (ii) such  Indebtedness meets the Permitted Other Debt Conditions and (iii) an Other Debt Representative acting on  behalf of the holders of such Indebtedness shall have become party to a First Lien Intercreditor  Agreement and, if required thereby, any other Applicable Intercreditor Agreement then in effect.  Permitted First Priority Refinancing Notes will include any Registered Equivalent Notes issued in  exchange therefor.  “Permitted Junior Lien Refinancing Debt”: Credit Agreement Refinancing Indebtedness  constituting secured Indebtedness (including any Registered Equivalent Notes) incurred by the Company  and/or the Subsidiary Guarantors in the form of one or more series of junior lien secured notes or junior  lien secured loans; provided that (i) such Indebtedness is secured by a Lien on the Collateral that is junior  to the Liens securing the Obligations, (ii) such Indebtedness meets the Permitted Other Debt Conditions  and (iii) an Other Debt Representative acting on behalf of the holders of such Indebtedness shall have  become party to the Junior Lien Intercreditor Agreement as a “Junior Priority Representative” (or similar  term, in each case, to be defined in the Junior Lien Intercreditor Agreement). Permitted Junior Lien  Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.  “Permitted Other Debt Conditions”: with respect to any Indebtedness, that such applicable  Indebtedness (i) is issued, incurred or otherwise obtained (including by means of the extension or renewal  of existing Indebtedness) in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in  whole or part, existing Term Loans and Revolving Loans (or Commitments in respect to Revolving  Loans), or any then-existing Credit Agreement Refinancing Indebtedness (“Refinanced Debt”), (ii) has a  maturity no earlier than, and a Weighted Average Life to Maturity equal to or greater than the applicable  Refinanced Debt, (iii) is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are  Guarantors, and (iv) is not secured by any property or assets of the Company or any Subsidiaries other  than the Collateral.  “Permitted Payee”: any future, current or former director, officer, member of management,  manager, employee, independent contractor or consultant (or any Affiliate, immediate family member or  transferee of any of the foregoing) of the Company (or any Subsidiary).  “Permitted Receivables Financing”: (a) any sale by the Company or a Subsidiary of accounts  receivable and related assets to a Finance Subsidiary intended to be (and which shall be treated for the  purposes hereof as) a true sale transaction with customary limited recourse based upon the collectability  





 






  42  of the receivables sold and the corresponding sale or pledge of such accounts receivable and related assets  (or an interest therein) by the Finance Subsidiary, in each case without any guarantee of the collectability  of such accounts receivable by the Company or any other Subsidiary thereof (other than by such Finance  Subsidiary); (b) (i) any sale by the Company or a Subsidiary of accounts receivable and related assets  under a factoring agreement that is intended to be (and which shall be treated for the purposes hereof as) a  true sale transaction with customary limited recourse based upon collectability of the receivables sold,  without any guarantee by the Company and any other Subsidiary thereof of the collectability of such  accounts receivable and (ii) any sale or financing by any Foreign Subsidiary to or with local buyers or  lenders of accounts receivable and related assets in the ordinary course of business, in each case without  any guarantee by the Company or any Domestic Subsidiary; and (c) any Existing Receivables Financing.  The aggregate principal amount of the proceeds received from parties outside the Company’s  consolidated group and which remain outstanding in all transactions described in the preceding clauses  (a), (b) and (c) shall not exceed the sum of (i) the aggregate principal amount of the Existing Receivables  Financing on the Closing Date (provided that any amounts outstanding or permitted to be incurred under  Existing Receivables Financing on the Closing Date shall be treated as being incurred as of the Closing  Date, whether or not incurred and outstanding as of such date, and so long as the total amount outstanding  under Existing Receivables Financing does not exceed the total amount permitted to be incurred under  Existing Receivables Financing as of the Closing Date, any subsequent incurrence of Indebtedness under  Existing Receivables Financing shall not be deemed, for purposes of this definition, to be an incurrence of  additional Indebtedness at such subsequent time), plus (ii) $250,000,000.  In addition to accounts  receivables and their proceeds, the related assets transferred in a Permitted Receivables Financing may  include (A) any collateral for transferred receivables (other than any interest in goods the sale of which  gave rise to such receivables) and any agreements supporting or securing payment of transferred  receivables, (B) any service contracts or other agreements associated with such receivables and records  relating to such receivables, (C) any bank account or lock box maintained primarily for the purpose of  receiving collections of transferred receivables and (D) proceeds of all of the foregoing.  “Permitted Refinancing”: with respect to any Person, any modification, refinancing, refunding,  renewal, replacement or extension (collectively, a “Refinancing” and the Indebtedness being so  Refinanced, the “Refinanced Indebtedness”) of any Indebtedness of such Person; provided that (a) the  principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or  accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed, replaced or  extended except by an amount equal to (x) unpaid accrued interest, penalties and premiums (including  tender, prepayment or repayment premiums) thereon plus underwriting discounts and other customary  fees, commissions and expenses (including upfront fees, original issue discount or initial yield payment)  incurred in connection with such modification, refinancing, refunding, renewal, replacement or extension,  (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred  under Section 7.2 and, to the extent secured by a Lien, Section 7.3 (and, in each case, the applicable  clause of Section 7.2 and Section 7.3 shall be deemed to be utilized by the amount so incurred), (b) other  than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section  7.2(e), such modification, refinancing, refunding, renewal, replacement or extension has a maturity no  earlier than, and a Weighted Average Life to Maturity equal to or greater than the Indebtedness being  modified, refinanced, refunded, renewed, replaced or extended, (c) if such Refinanced Indebtedness is  subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal,  replacement or extension is subordinated in right of payment to the Obligations on terms at least as  favorable to the Lenders as those contained in the documentation governing the Refinanced Indebtedness,  (d) such modification, refinancing, refunding, renewal, replacement or extension has no different  obligors, or greater guarantees or security than the Refinanced Indebtedness (provided that (i)  Indebtedness of any Loan Party may be Refinanced to add or substitute as an obligor another Loan Party  and (ii) any Indebtedness of any Subsidiary that is not a Loan Party may be Refinanced to add or  substitute as an obligor another Subsidiary that is not a Loan Party, in each case to the extent then  





 






  43  permitted under Section 7.2) and (d) if the Indebtedness being modified, refinanced, refunded, renewed,  replaced or extended was subject to an Applicable Intercreditor Agreement, the holders of such modified,  refinanced, refunded, renewed, replaced or extended Indebtedness (if such Indebtedness is secured) or  their representative on their behalf shall become party to the Applicable Intercreditor Agreement(s).  “Permitted Reorganization”: any transaction or undertaking, including Investments, in  connection with internal reorganizations and or restructurings (including in connection with tax planning  and corporate reorganizations), so long as, after giving effect thereto, (a) the Loan Parties shall comply  with the requirements set forth in Section 6.9, (b) neither the guarantee of the Obligations provided to the  Credit Parties pursuant to the Guarantee Agreement, taken as a whole, nor the security interest of the  Credit Parties (as defined in the Collateral Agreement) in the Collateral, taken as a whole, is materially  impaired (including by a material portion of the assets that constitute Collateral immediately prior to such  Permitted Reorganization no longer constituting Collateral) as a result of such Permitted Reorganization  and (c) the Company shall not change its jurisdiction of organization or formation in connection therewith  to a jurisdiction outside of the United States.  “Permitted Sale/Leasebacks”: as defined in Section 7.11.  “Permitted Unsecured Refinancing Debt”: Credit Agreement Refinancing Indebtedness in the  form of unsecured Indebtedness (including any Registered Equivalent Notes) incurred by the Company  and/or the Subsidiary Guarantors in the form of one or more series of unsecured notes or loans; provided  that such Indebtedness meets the Permitted Other Debt Conditions (to the extent applicable thereto).  Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange  therefor.  “Person”: an individual, partnership, corporation, limited liability company, business trust, joint  stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of  whatever nature.  “Plan”: at a particular time, any “employee benefit plan” (as defined by Section 3(3) of ERISA)  that is subject to Title IV of ERISA and in respect of which the Company or a Commonly Controlled  Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed  to be) an “employer” as defined in Section 3(5) of ERISA.  “Plan Asset Regulations”: 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA, as  amended from time to time.  “Pricing Grid”: the pricing grid attached hereto as Annex A.  “Pricing Level”: as defined in the Pricing Grid.  “Prime Rate”: the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in  the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate  published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected  Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate  quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve  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” or “pro forma effect”: with respect to any determination of the Total  Leverage Ratio, the First Lien Leverage Ratio, the Senior Secured Leverage Ratio, the Consolidated  





 






  44  Interest Coverage Ratio, Consolidated EBITDA or Consolidated Net Income (including component  definitions thereof), that each Specified Transaction shall be deemed to have occurred as of the first day  of the applicable Test Period with respect to any test or covenant for which such calculation is being made  and that:  (a) (i) in the case of (A) any Disposition of all or substantially all of the Capital Stock of any  Subsidiary or any division and/or product line of the Company or any Subsidiary or (B) any designation  of a Subsidiary as an Unrestricted Subsidiary, income statement items (whether positive or negative)  attributable to the property or Person subject to such Specified Transaction, shall be excluded as of the  first day of the applicable Test Period with respect to any test or covenant for which the relevant  determination is being made and (ii) in the case of any permitted acquisition, Investment and/or  designation of an Unrestricted Subsidiary as a Subsidiary described in the definition of the term  “Specified Transaction”, income statement items (whether positive or negative) attributable to the  property or Person subject to such Specified Transaction shall be included as of the first day of the  applicable Test Period with respect to any test or covenant for which the relevant determination is being  made; provided that any pro forma adjustment may be applied to any such test or covenant solely to the  extent that such adjustment is consistent with, subject to the limitations set forth in and without  duplication with respect to the application of, the definition of “Consolidated EBITDA”,  (b) any Expected Cost Savings shall be calculated on a Pro Forma Basis as though such  Expected Cost Savings had been realized on the first day of the applicable Test Period and as if such  Expected Cost Savings were realized in full during the entirety of such period; provided that any pro  forma adjustment may be applied to any such test or covenant solely to the extent that such adjustment is  consistent with, subject to the limitations set forth in and without duplication with respect to the  application of, the definition of “Consolidated EBITDA”,  (c) any retirement or repayment of Indebtedness (other than normal fluctuations in revolving  Indebtedness incurred for working capital purposes) shall be deemed to have occurred as of the first day  of the applicable Test Period with respect to any test or covenant for which the relevant determination is  being made, and  (d) any Indebtedness incurred by the Company or any of its Subsidiaries in connection  therewith shall be deemed to have occurred as of the first day of the applicable Test Period with respect to  any test or covenant for which the relevant determination is being made; provided that (x) if such  Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for  the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would  be in effect with respect to such Indebtedness at the relevant date of determination (taking into account  any interest hedging arrangements applicable to such Indebtedness), (y) interest on any obligation with  respect to any capital lease shall be deemed to accrue at an interest rate determined by a Responsible  Officer of the Company in good faith to be the rate of interest implicit in such obligation in accordance  with GAAP and (z) interest on any Indebtedness that may optionally be determined at an interest rate  based upon a factor of a prime or similar rate, a Term Benchmark Loan interbank offered rate or other  rate shall be determined to have been based upon the rate actually chosen, or if none, then based upon  such optional rate chosen by the Company.  Notwithstanding anything to the contrary set forth in the immediately preceding paragraph, for  the avoidance of doubt, when calculating the Total Leverage Ratio and the Senior Secured Leverage Ratio  for purposes of the definitions of “Applicable Margin”, “Commitment Fee Rate”, “Applicable  Prepayment Percentage” and “Pricing Level” and for purposes of the Financial Covenants (other than for  the purpose of determining pro forma compliance with the Financial Covenants as a condition to taking  





 






  45  any action under this Agreement), the events described in the immediately preceding paragraph that  occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.   “Proceeding”: as defined in Section 10.5.  “Projections”: the financial projections for the Company and its Subsidiaries through December  31, 2026 delivered to the Arrangers on October 26, 2021.   “Properties”: as defined in Section 4.18(a).   “Proposed Foreign Subsidiary Borrower”: as defined in Section 2.29(b).  “PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as any  such exemption may be amended from time to time.  “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”: as defined in Section 10.25.  “Qualified Capital Stock”: Capital Stock of the Company in respect of which no scheduled,  mandatory or required payments are due (other than payments in kind) prior to the Latest Maturity Date.  “Ratio Debt”: as defined in Section 7.2(l)(i).  “Reclassifiable Item”: as defined in Section 1.4(a).  “Recovery Event”: any settlement of or payment in respect of any property or casualty insurance  claim or any condemnation proceeding relating to any asset of the Company or any of its Subsidiaries.  “Reference Time”: with respect to any setting of the then-current Benchmark (1) if such  Benchmark is the LIBO Rate, 11:00 a.m. (London time) on the day that is two London banking days  preceding the date of such setting, (2) if such Benchmark is EURIBOR Rate, 11:00 a.m. Brussels time  two TARGET Days preceding the date of such setting, (3) if such Benchmark is TIBOR Rate, 11:00 a.m.  Japan time two Business Days preceding the date of such setting, (4) if the RFR for such Benchmark is  SONIA, then four Business Days prior to such setting, (5) if the RFR for such Benchmark is SARON,  then five Business Days prior to such setting or (6) if such Benchmark is none of the LIBO Rate, the  EURIBOR Rate, the TIBOR Rate, SONIA or SARON, the time determined by the Administrative Agent  in its reasonable discretion.  “Refinanced Debt”: as defined in the definition of “Permitted Other Debt Conditions”.  “Refinanced Indebtedness”: as defined in the definition of “Permitted Refinancing”.  “Refinancing Amendment”: an amendment to this Agreement executed by each of (a) the  Company, (b) the Administrative Agent, (c) each Additional Refinancing Lender and (d) each Lender that  agrees to provide any portion of Refinancing Term Loans or Other Revolving Commitments in  accordance with Section 2.30.  “Refinancing Series”: Refinancing Term Loans or Refinancing Term Commitments that are  established pursuant to the same Refinancing Amendment (or any subsequent Refinancing Amendment to  the extent such Refinancing Amendment expressly provides that the Refinancing Term Loans or  





 






  46  Refinancing Term Commitments provided for therein are intended to be a part of any previously  established Refinancing Series) and that provide for the same All-in Yield and, in the case of Refinancing  Term Loans or Refinancing Term Commitments, amortization schedule.  “Refinancing Term Commitments”: one or more Classes of Term Commitments hereunder that  are established to fund Refinancing Term Loans of the applicable Refinancing Series hereunder pursuant  to a Refinancing Amendment.  “Refinancing Term Loans”: one or more Classes of Term Loans hereunder that result from a  Refinancing Amendment.  “Register”: as defined in Section 10.6(d).  “Registered Equivalent Notes”: with respect to any notes originally issued in an offering  pursuant to Rule 144A under the Securities Act or other private placement transaction under the  Securities Act of 1933, substantially identical notes (having the same guarantees) issued in a dollar-for- dollar exchange therefor pursuant to an exchange offer registered with the SEC.  “Regulation U”: Regulation U of the Board as in effect from time to time.  “Reimbursement Obligation”: the obligation of the applicable Borrower to reimburse an Issuing  Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.  “Related Parties”: as defined in Section 10.5.  “Relevant Governmental Body”: (a) with respect to a Benchmark Replacement in respect of  Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially  endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor  thereto, (b) with respect to a Benchmark Replacement in respect of Loans denominated in Sterling, the  Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each  case, any successor thereto, (c) with respect to a Benchmark Replacement in respect of Loans  denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the  European Central Bank or, in each case, any successor thereto, (d) with respect to a Benchmark  Replacement in respect of Loans denominated in Swiss Francs, the Swiss National Bank, or a committee  officially endorsed or convened by the Swiss National Bank or, in each case, any successor thereto, (e)  with respect to a Benchmark Replacement in respect of Loans denominated in Yen, the Bank of Japan, or  a committee officially endorsed or convened by the Bank of Japan or, in each case, any successor thereto,  and (f) with respect to a Benchmark Replacement in respect of Loans denominated in any other currency,  (i) the central bank for the currency in which such Benchmark Replacement is denominated or any central  bank or other supervisor which is responsible for supervising either (A) such Benchmark Replacement or  (B) the administrator of such Benchmark Replacement or (ii) any working group or committee officially  endorsed or convened by (A) the central bank for the currency in which such Benchmark Replacement is  denominated, (B) any central bank or other supervisor that is responsible for supervising either (1) such  Benchmark Replacement or (2) the administrator of such Benchmark Replacement, (C) a group of those  central banks or other supervisors or (D) the Financial Stability Board or any part thereof.  “Relevant Rate”: (a) with respect to any Term Benchmark Borrowing denominated in Dollars,  the LIBO Rate, (b) with respect to any Term Benchmark Borrowing denominated in Euros, the Adjusted  EURIBOR Rate, (c) with respect to any Term Benchmark Borrowing denominated in Yen, the Adjusted  TIBOR Rate, as applicable, (d) with respect to any Borrowing denominated in Sterling or Swiss Francs,  





 






  47  the applicable Adjusted Daily Simple RFR, as applicable or (e) with respect to any Borrowing  denominated in Canadian Dollars, the CDO Rate.  “Relevant Screen Rate”: (a) with respect to any Term Benchmark Borrowing denominated in  Dollars, the LIBO Screen Rate, (b) with respect to any Term Benchmark Borrowing denominated in  Euros, the EURIBOR Screen Rate or (c) with respect to any Term Benchmark Borrowing denominated in  Yen, the TIBOR Screen Rate.  “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other than those  events as to which the thirty day notice period is waived.  “Required Lenders”: at any time, the holders (other than Defaulting Lenders) of more than  50.0% of the sum of (i) the aggregate unpaid principal amount of the Term Loans (excluding Term Loans  held by Defaulting Lenders) then outstanding and (ii) the Total Revolving Commitments (excluding  Revolving Commitments of Defaulting Lenders) then in effect or, if the Revolving Commitments have  been terminated, the Total Revolving Extensions of Credit (excluding Revolving Extensions of Credit  held by Defaulting Lenders) then outstanding.  “Required Revolving Lenders”: at any time, the holders (other than Defaulting Lenders) of  more than 50.0% of the Total Revolving Commitments (excluding Revolving Commitments of  Defaulting Lenders) then in effect or, if the Revolving Commitments have been terminated, the Total  Revolving Extensions of Credit (excluding Revolving Extensions of Credit held by Defaulting Lenders)  then outstanding.  “Requirement of Law”: as to any Person, 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.  “Reset Date”: as defined in Section 2.25(a).  “Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer”: the chief executive officer, president or chief financial officer of the  Company or any other applicable Loan Party, but in any event, with respect to financial matters, the chief  financial officer, Treasurer and Controller of the Company or such Loan Party, as the case may be.  “Restricted Debt Payments”: as defined in Section 7.15.  “Restricted Payments”: as defined in Section 7.6.   “Retained Asset Sale Proceeds”: at any date of determination, an amount determined on a  cumulative basis, that is equal to all Net Cash Proceeds from any Asset Sale or Recover Event received  by the Company or any of its Subsidiaries that, pursuant to application of the Applicable Prepayment  Percentage, are or were not required to be applied to prepay Term Loans pursuant to Section 2.13(b).  “Revolver Extension Request”: as defined in Section 2.26(b).  “Revolver Extension Series”: as defined in Section 2.26(b).  





 






  48  “Revolving Commitment”: as to any Revolving Lender, the obligation of such Revolving  Lender, if any, to make Revolving Loans and participate in Swingline Loans and Letters of Credit in an  aggregate principal and/or face amount (based on, in the case of Foreign Currency Revolving Loans, the  Dollar Equivalent of such Foreign Currency Revolving Loans) not to exceed the amount set forth under  the heading “Revolving Commitment” opposite such Lender’s name on Schedule 1.1A 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 initial amount of the Total Revolving  Commitments is $500,000,000.  “Revolving Commitment Period”: the period from and including the Closing Date to the  Revolving Termination Date.   “Revolving Extensions of Credit”: as to any Revolving Lender at any time, an amount equal to  the sum of (a) the aggregate principal amount (based on, in the case of Foreign Currency Revolving  Loans, the Dollar Equivalent of such Foreign Currency Revolving Loans) of all Revolving Loans held by  such Lender then outstanding, (b) such Lender’s L/C Exposure and (c) such Lender’s Swingline  Exposure.   “Revolving Facility”: the Revolving Commitments and the extensions of credit made thereunder.  “Revolving Lender”: each Lender that has a Revolving Commitment or that holds Revolving  Loans, including each Lender that became a party hereto as of the Closing Date.  “Revolving Loans”: as defined in Section 2.6(a).  “Revolving Percentage”: as to any Revolving Lender at any time, the percentage which such  Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments (or, at any time  after the Revolving Commitments shall have expired or terminated, the percentage which the aggregate  principal amount of such Lender’s Revolving Extensions of Credit then outstanding constitutes of the  aggregate principal amount of the Revolving Extensions of Credit then outstanding).  “Revolving Termination Date”: the date which is the earlier to occur of (a) the fifth anniversary  of the Closing Date and (b) the date on which the Revolving Commitments are terminated.  “RFR”: for any RFR Loan denominated in (a) Sterling, SONIA and (b) Swiss Francs, SARON.  “RFR Administrator”: the SONIA Administrator or the SARON Administrator.  “RFR Borrowing”: as to any Borrowing, the RFR Loans comprising such Borrowing.  “RFR Business Day”: for any Loan denominated in (a) Sterling, any day except for (i) a  Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London and  (b) Swiss Francs, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed  for the settlement of payments and foreign exchange transactions in Zurich.  “RFR Interest Day”: as defined in the definition of “Daily Simple RFR”.  “RFR Loan”: a Loan that bears interest at a rate based on Daily Simple RFR.  “Rolled Tranche A Term Loans”: as defined in Section 2.3.  





 






  49  “Sanctioned Country”: at any time, a country, region or territory which is itself the subject or  target of any Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Syria and Crimea).  “Sanctioned Person”: 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 or the U.S. Department of State or by the United National Security Council, the European  Union, Her Majesty’s Treasury of the United Kingdom or any sanctions authority of Switzerland or any  other jurisdiction in which any Foreign Subsidiary Borrower is organized, (b) any Person located,  organized or resident in a Sanctioned Country or (c) any Person that is deemed to be a target of Sanctions  based on the direct or indirect ownership or control of such entity by any other Sanctioned Person.  “Sanctions”: 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, Her Majesty’s Treasury of the United Kingdom or  or any sanctions authority of Switzerland or any other jurisdiction in which any Foreign Subsidiary  Borrower is organized.  “SARON”: with respect to any Business Day, a rate per annum equal to the Swiss Average Rate  Overnight for such Business Day published by the SARON Administrator on the SARON  Administrator’s Website.  “SARON Administrator”: the SIX Swiss Exchange AG (or any successor administrator of the  Swiss Average Rate Overnight).  “SARON Administrator’s Website”: SIX Swiss Exchange AG’s website, currently at  https://www.six-group.com, or any successor source for the Swiss Average Rate Overnight identified as  such by the SARON Administrator from time to time.  “S&P”: as defined in the definition of “Cash Equivalents”.  “SEC”: the Securities and Exchange Commission, any successor thereto and any analogous  Governmental Authority.  “Security Documents”: the collective reference to the Collateral Agreement, any Applicable  Intercreditor Agreement, the Mortgages 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.  “Seller”: as defined in the recitals hereto.  “Senior Secured Leverage Ratio”: with respect to any date of determination, the ratio of (x)  Consolidated Total Debt that is secured by a Lien on the Collateral as of such date less Netted Cash as of  such date to (y) Consolidated EBITDA of the Company and its Subsidiaries for the applicable Test  Period.  “Senior Unsecured Notes”: the 4.125% Senior Unsecured Notes due 2029 issued in an amount  of $400,000,000 pursuant to the Indenture dated as of the Closing Date, among the Company, the  subsidiaries of the Company party thereto as guarantors and U.S. Bank National Association, as trustee.  





 






  50  “Shared Incremental Amount”: as of any date of determination, (a) the greater of (x)  $425,000,000 and (y) 100.0% of Consolidated EBITDA for the most recently ended Test Period  calculated on a Pro Forma Basis minus (b) the aggregate principal amount of all Incremental Facilities,  Incremental Equivalent Debt, Ratio Debt and/or Incurred Acquisition Debt incurred or issued in reliance  on the Shared Incremental Amount outstanding on such date, in each case after giving effect to any  reclassification of any such Indebtedness as having been incurred under clause (c) of the definition of  “Incremental Cap” hereunder or clauses (l)(i)(B) or (p)(i)(B) of Section 7.2, as applicable.  “Significant Subsidiary”: at any time any Subsidiary, which at such time would meet the  definition of “significant subsidiary” in Regulation S-X promulgated by the SEC.   “Single Employer Plan”: any Plan that is not a Multiemployer Plan.  “SOFR”: a rate equal to the secured overnight financing rate as administered by the SOFR  Administrator.  “SOFR Administrator”: the NYFRB (or a successor administrator of the secured overnight  financing rate).  “SOFR Administrator’s Website”: the NYFRB’s website, currently at  http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as  such by the SOFR Administrator from time to time.  “Solvent”: when used with respect to any Person, as of any date of determination, (a) the amount  of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of  all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are  determined in accordance with applicable federal and state laws governing determinations of the  insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date,  be greater than the amount that will be required to pay the liability of such Person on its debts as such  debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small  amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as  they mature in the ordinary course of business.  “SONIA”: with respect to any Business Day, a rate per annum equal to the Sterling Overnight  Index Average for such Business Day published by the SONIA Administrator on the SONIA  Administrator’s Website on the immediately succeeding Business Day.  “SONIA Administrator”: the Bank of England (or any successor administrator of the Sterling  Overnight Index Average).  “SONIA Administrator’s Website”: the Bank of England’s website, currently at  http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average  identified as such by the SONIA Administrator from time to time.  “Special Purpose Finance Subsidiary”: a special purpose entity organized under the laws of any  state of the United States of America that is formed by the Company or any of its Subsidiaries for the  purpose of incurring Indebtedness the proceeds of which will be placed in escrow, pending the use of  such proceeds, to effect transactions that at the time such proceeds are released from escrow are permitted  hereunder.  





 






  51  “Specified Transaction”: with respect to any period, any merger, Investment, Disposition,  incurrence, assumption or repayment of Indebtedness (including the incurrence of Incremental Facilities),  Restricted Payment or designation of a Subsidiary as an Unrestricted Subsidiary or of an Unrestricted  Subsidiary as a Subsidiary or other event that by the terms of this Agreement requires “Pro Forma  Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a  “Pro Forma Basis”.   “Statutory Reserve Rate”: 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, the Adjusted EURIBOR Rate or Adjusted TIBOR Rate, as applicable,  for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D) or any other  reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in  respect of the maintenance of the Commitments or the funding of the Loans.  Such reserve percentage  shall include those imposed pursuant to Regulation D.  Term Benchmark 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.  “Sterling” or “£”: the lawful currency of the United Kingdom of Great Britain and Northern  Ireland.   “Subordinated Indebtedness”: of any Person, any Indebtedness of such Person that is  contractually subordinated in right of payment to any other Indebtedness of such Person.  “Subsidiary”: as to any Person, a corporation, partnership, limited liability company or other  entity of which shares of stock or other ownership interests having ordinary voting power (other than  stock or such other ownership interests having such power only by reason of the happening of a  contingency) to elect a majority of the board of directors or other managers of such corporation,  partnership or other entity are at the time owned, or the management of which is otherwise controlled,  directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise  qualified (i) all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a  Subsidiary or Subsidiaries of the Company and (ii) Unrestricted Subsidiaries shall be deemed not to be  Subsidiaries of the Company for any and all purposes of this Agreement and the other Loan Documents.  The term “Subsidiary” shall not include any Special Purpose Finance Subsidiary for purposes of Section  7.1 only for so long as the proceeds of the Indebtedness incurred by such Special Purpose Finance  Subsidiary are held in escrow.  “Subsidiary Borrower”: (i) Kontoor International and (ii) any Subsidiary of the Company that  becomes a party hereto pursuant to Section 2.29 until such time as such Subsidiary Borrower is removed  as a party hereto pursuant to Section 2.29.  “Subsidiary Guarantor”: each Subsidiary of the Company other than any Excluded Subsidiary.   “Subsidiary Holding Company”: as defined in Section 7.4(b).  “Supply Chain Financing”: any agreement under which any bank, financial institution or other  person may from time to time provide any financial accommodation to any of the Borrowers or any  Subsidiary in connection with trade payables of the Borrower or any Subsidiary, in each case issued for  





 






  52  the benefit of any such bank, financial institution or such other person that has acquired such trade  payables pursuant to “supply chain” or other similar financing for vendors and suppliers of the Borrower  or any Subsidiaries.  “Supported QFC”: as defined in Section 10.25.  “Suspension Period”: the period commencing with the occurrence of a Suspension Period Event  and ending on the first date on which the requirements of a Suspension Period Event are no longer  satisfied.  “Suspension Period Event”: collectively, (a) no Indebtedness guaranteed by any of the  Subsidiary Guarantors and secured by a Lien on the Collateral is then outstanding (other than the Tranche  A Term Facility or the Revolving Facility) and (b) the corporate credit and/or corporate family ratings of  the Company are higher than or equal to BBB- from S&P and Baa3 from Moody’s (in each case, with a  stable or positive outlook).  “Swap”: any agreement, contract, or transaction that constitutes a “swap” within the meaning of  section 1a(47) of the Commodity Exchange Act.  “Swap Agreement”: 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 Company or any of its Subsidiaries shall be a “Swap Agreement”.  “Swap Obligation”: with respect to any person, any obligation to pay or perform under any  Swap.  “Swingline Commitment”: the obligation of the Swingline Lender to make Swingline Loans  pursuant to Section 2.8 in an aggregate principal amount at any one time outstanding not to exceed  $50,000,000.  “Swingline Exposure”: at any time, the aggregate principal amount of all Swingline Loans  outstanding at such time. The Swingline Exposure of any Revolving Lender at any time shall be equal to  its applicable Percentage of the total Swingline Exposure at such time.  “Swingline Lender”: as the context may require, either (i) JPMCB, in its capacity as the lender  of Swingline Loans denominated in U.S. Dollars, or (ii) JPMorgan Chase Bank, N.A., London Branch, an  Affiliate of JPMCB, in its capacity as the lender of Swingline Loans denominated in Euros.  “Swingline Loans”: as defined in Section 2.8(a).   “Swingline Participation Amount”: as defined in Section 2.9(b).   “Swiss Borrower”: a Borrower which is incorporated in Switzerland or, if different, is otherwise  deemed to be resident in Switzerland for purpose of Swiss Withholding Tax.  “Swiss Francs” or “CHF”: the lawful currency of Switzerland.  





 






  53  “Swiss Guidelines”: all relevant guidelines or explanatory notes issued by the Swiss Federal Tax  Administration as amended, replaced or newly issued from time to time, including the established practice  of the Swiss Federal Tax Administration and any court decision relating thereto.  “Swiss Loan Parties”: each Foreign Loan Party which is incorporated in Switzerland (each a  “Swiss Loan Party”).  “Swiss Non-Bank Rules”: the Swiss Ten Non-Qualifying Bank Rule and the Swiss Twenty Non- Qualifying Bank Rule  “Swiss Permitted Non-Qualifying Bank”: in aggregate up to 10 (ten) Lenders which are not, in  each case, Swiss Qualifying Banks in accordance and as defined in the Swiss Guidelines but have been  accepted by the Borrower as such.  “Swiss Qualifying Bank”: a person or entity (including any commercial bank or financial  institution (irrespective of its jurisdiction of organization)) acting on its own account which has a banking  licence in force and effect issued in accordance with the banking laws in its jurisdiction of incorporation,  or if acting through a branch, issued in accordance with the banking laws in the jurisdiction of such  branch, and which, in both cases, effectively exercises as its main purpose a true banking activity, having  bank personnel, premises, communication devices of its own and authority of decision making all in  accordance and as defined in the Swiss Guidelines.  “Swiss Ten Non-Qualifying Bank Rule”: the rule that the aggregate number of creditors (or  deemed creditors) (including the Lenders), other than Swiss Qualifying Banks , of a Swiss Borrower  under the Agreement must not at any time exceed 10 (ten), all in accordance with the meaning of the  Swiss Guidelines.  “Swiss Twenty Non-Qualifying Bank Rule”: the rule that the aggregate number of creditors (or  deemed creditors) (including the Lender), other than Swiss Qualifying Banks, of a Swiss Borrower under  all outstanding debts relevant for classification as debenture (Kassenobligation) (within the meaning of  the Guidelines), such as loans, facilities and/or private placements (including under this Agreement) made  or deemed to be made by a Swiss Borrower must not at any time exceed 20 (twenty), all in accordance  with the meaning of the Swiss Guidelines.  “Swiss Withholding Tax”: any taxes levied pursuant to the Swiss Federal Act on Withholding  Tax (Bundesgesetz über die Verrechnungssteuer vom 13. Oktober 1965, SR 642.21), as amended from  time to time.  “TARGET2”: the Trans-European Automated Real-time Gross Settlement Express Transfer  payment system which utilizes a single shared platform and which was launched on November 19, 2007.  “TARGET Day”: any day on which TARGET2 (or, if such payment system ceases to be  operative, such other payment system, if any, determined by the Administrative Agent to be a suitable  replacement) is open for the settlement of payments in Euro.  “Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including  backup withholding), assessments, or other similar charges imposed by any Governmental Authority,  including any interest, additions to tax or penalties applicable thereto.  





 






  54  “Term Benchmark”: 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, the Adjusted EURIBOR Rate or the Adjusted TIBOR Rate.  “Term Lenders”: the Tranche A Term Lenders and any other Lender which holds a Term Loan.   “Term Loan Extension Request”: as defined in Section 2.26(a).  “Term Loan Extension Series”: as defined in Section 2.26(a).  “Term Loans”: the Tranche A Term Loans and any term loans made under an Incremental  Facility.  “Term SOFR Notice”: a notification by the Administrative Agent to the Lenders and the  Borrower of the occurrence of a Term SOFR Transition Event.  “Term SOFR Transition Event”: the determination by the Administrative Agent that (a) Term  SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of  Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition  Event or an Early Opt-in Election, as applicable (and, for the avoidance of doubt, not in the case of an  Other Benchmark Rate Election), has previously occurred resulting in a Benchmark Replacement in  accordance with Section 2.18 that is not Term SOFR.  “Term SOFR”: for the applicable Corresponding Tenor as of the applicable Reference Time, the  forward-looking term rate based on SOFR that has been selected or recommended by the Relevant  Governmental Body.  “Test Period”: for any date of determination, the most recent period of four consecutive fiscal  quarters of the Company ended prior to such date of determination in respect of which financial  statements have been delivered to the Administrative Agent pursuant to Section 6.1 (or, prior to the  delivery of any financial statements pursuant to Section 6.1, the period of four consecutive fiscal quarters  ended October 2, 2021).  “TIBOR Rate”: with respect to any Term Benchmark Borrowing denominated in Yen and for  any Interest Period, the TIBOR Screen Rate two Business Days prior to the commencement of such  Interest Period.  “TIBOR Screen Rate”: the Tokyo interbank offered rate administered by the Ippan Shadan  Hojin JBA TIBOR Administration (or any other person which takes over the administration of that rate)  for the relevant currency and period displayed on page DTIBOR01 of the Reuters screen (or, in the event  such rate does not appear on such 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 as selected by the Administrative Agent from time to time in its reasonable discretion) as  published at approximately 1:00 p.m. Japan time two Business Days prior to the commencement of such  Interest Period.  “Title Company”: as defined in Section 6.11(b)(a).   “Title Policy”: as defined in Section 6.11(b)(a).  





 






  55  “Total Leverage Ratio”: with respect to any date of determination, the ratio of (x) Consolidated  Total Debt as of such date less Netted Cash as of such date to (y) Consolidated EBITDA of the Company  and its Subsidiaries for the applicable Test Period.   “Total Revolving Commitments”: at any time, the aggregate amount of the Revolving  Commitments then in effect. The Total Revolving Commitments may be increased or reduced from time  to time pursuant to Sections 2.27 and 2.11, respectively.  “Total Revolving Extensions of Credit”: at any time, the aggregate amount of the Revolving  Extensions of Credit of the Revolving Lenders outstanding at such time.  “Tranche A Final Maturity Date”: the date which is the fifth anniversary of the Closing Date;  provided, however, if such date is not a Business Day, the Tranche A Final Maturity Date shall be the  next preceding Business Day.  “Tranche A Term Commitment”: as to any Tranche A Term Lender, the obligation of such  Tranche A Term Lender to make a Tranche A Term Loan to the Company pursuant to Section 2.3.  “Tranche A Term Lender”: each Lender that holds a Tranche A Term Loan or a Tranche A  Term Commitment.   “Tranche A Term Loan”: as defined in Section 2.3. The initial aggregate amount of the Tranche  A Term Loans is $400,000,000, and on the Closing Date, each Tranche A Term Lender will hold a  Tranche A Term Loan in an amount equal to the amount set forth opposite its name on Schedule 1.1A, or  as may subsequently be set forth in the Register from time to time, as the same may be adjusted from time  to time pursuant to this Agreement.  “Tranche A Term Percentage”: as to any Tranche A Term Lender at any time, the percentage  which the aggregate principal amount of such Lender’s Tranche A Term Loan then outstanding  constitutes of the aggregate principal amount of all of the Tranche A Term Loans then outstanding.  “Transactions”: collectively, (i) the entering into, and creating security interests in Collateral  under, the Loan Documents and the use of the proceeds of the Loans pursuant thereto, (ii) the issuance of  the Senior Unsecured Notes and the use of the proceeds thereof, (iii) the Refinancing and (iv) the payment  of fees and expenses incurred in connection with the foregoing clauses (i) through (iii).  “Transferee”: any Assignee or Participant.  “Treaty”: the Treaty establishing the European Economic Community, being the Treaty of Rome  of March 25, 1957 as amended by the Single European Act 1986 and the Maastricht Treaty (which was  signed on February 7, 1992 and came into force on November 1, 1993) and as may from time to time be  further amended, supplemented or otherwise modified.  “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest  on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted  LIBO Rate, the Adjusted EURIBOR Rate, the Adjusted TIBOR Rate, the Alternate Base Rate, the  Canadian Prime Rate, the CDO Rate or the Adjusted Daily Simple RFR.  “U.S. Dollars” or “$”: dollars in lawful currency of the United States.   “U.S. Person”: as defined in Section 2.21(f)(i).  





 






  56  “UCP”: with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary  Credits, International Chamber of Commerce Publication No. 600 (or such later version thereof as may be  in effect at the time of issuance).  “UK Financial Institutions”: any BRRD Undertaking (as such term is defined under the PRA  Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation  Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to  time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit  institutions and investment firms, and certain affiliates of such credit institutions or investment firms.  “UK Resolution Authority”: the Bank of England or any other public administrative authority  having responsibility for the resolution of any UK Financial Institution.  “United States” or “U.S.”: the United States of America.  “Unrestricted Subsidiary”: (a) any Subsidiary of the Company that is designated as an  Unrestricted Subsidiary by the Company pursuant to Section 6.10 subsequent to the Closing Date and (b)  any subsidiary of an Unrestricted Subsidiary.  “U.S. Special Resolution Regime”: as defined in Section 10.25.  “U.S. Tax Compliance Certificate”: as defined in 2.21(f)(ii)(C).  “Weighted Average Life to Maturity”: when applied to any Indebtedness at any date, the  number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount  of each then remaining installment, sinking fund, serial maturity or other required payments of principal,  including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the  nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then  outstanding principal amount of such Indebtedness; provided that, for purposes of determining the  Weighted Average Life to Maturity of any Indebtedness that is being extended, replaced, refunded,  refinanced, renewed or defeased, the effect of any amortization or prepayment prior to the date of the  applicable extension, replacement, refunding, refinancing, renewal or defeasance shall be disregarded.  “Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital Stock of  which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or  through other Wholly Owned Subsidiaries.  “Withholding Agent”: the Company and the Administrative Agent.  “Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the  write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In  Legislation for the applicable EEA Member Country, which write-down and conversion powers are  described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,  any  powers of the applicable Resolution Authority  under the Bail-In Legislation to cancel, reduce, modify or  change the form of a liability of any UK Financial Institution  or any contract or instrument under which  that liability arises, to convert all or part of that liability into shares, securities or obligations of that  person or any other person, to provide that any such contract or instrument is to have effect as if a right  had been exercised under it or to suspend any obligation in respect of that liability or any of the powers  under that Bail-In Legislation that are related to or ancillary to any of those powers.  “Yen” or “¥”: the lawful currency of Japan.  





 






  57  1.2. Other Definitional Provisions.  (a) Unless otherwise specified therein, all terms defined in  this Agreement shall have the defined meanings when used in the other Loan Documents or any  certificate or other document made or delivered pursuant hereto or thereto.  (b) As used herein and in the other Loan Documents, and any certificate or other document  made or delivered pursuant hereto or thereto, (i) accounting terms relating to the Company and its  Subsidiaries 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, (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), and (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.  (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) Notwithstanding any other provision contained herein, all terms of an accounting or  financial nature used herein shall be construed, and all computations of amounts and ratios referred to  herein shall be made, without giving effect to (i) any election under Accounting Standards Codification  825-10-25 (previously referred to as Statement of Financial Accounting Standards 159) (or any other  Accounting Standards Codification, International Accounting Standard or Financial Accounting Standard  having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any  subsidiary at “fair value,” as defined therein, (ii) any treatment of Indebtedness in respect of convertible  debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards  Codification, International Accounting Standard 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 and (iii) the application  of Accounting Standards Codification 480, 815, 805 and 718 (to the extent these pronouncements under  Accounting Standards Codification 718 result in recording an equity award as a liability on the  consolidated balance sheet of the Company and its Subsidiaries in the circumstance where, but for the  application of the pronouncements, such award would have been classified as equity).  (f) Notwithstanding anything to the contrary herein, no Default shall arise as a result of any  limitation set forth in U.S. Dollars in Section 7 (or in any defined term used therein) being exceeded  solely as a result of changes in currency exchange rates from the currency exchange rates applicable at the  time or times the related transaction was entered into or designated as a Cash Management Obligation  provided that, for purposes of determining whether a new transaction or designation complies with any  such limitation set forth in U.S. Dollars in Section 7 (or in any defined term used therein), the then current  currency exchange rates shall be applied to all previous transactions or designations made in reliance on  such limitation.  (g) The headings, subheadings and table of contents used herein or in any other Loan  Document are solely for convenience of reference and shall not constitute a part of any such document or  affect the meaning, construction or effect of any provision thereof.  





 






  58  1.3. Currency Conversion. (a) If more than one currency or currency unit are at the same time  recognized by the central bank of any country as the lawful currency of that country, then (i) any  reference in the Loan Documents to, and any obligations arising under the Loan Documents in, the  currency of that country shall be translated into or paid in the currency or currency unit of that country  designated by the Administrative Agent and (ii) any translation from one currency or currency unit to  another shall be at the official rate of exchange recognized by the central bank for conversion of that  currency or currency unit into the other, rounded up or down by the Administrative Agent as it deems  appropriate in its reasonable discretion.  (b) If a change in any currency of a country occurs, this Agreement shall be amended (and  each party hereto agrees to enter into any supplemental agreement necessary to effect any such  amendment) to the extent that the Administrative Agent determines such amendment to be necessary to  reflect the change in currency and to put the Lenders and the Loan Parties in the same position, so far as  possible, that they would have been in if no change in currency had occurred.  1.4. Terms Generally; Pro Forma Calculations. (a) For purposes of determining compliance at  any time with Sections 7.2, 7.3, 7.4, 7.5, 7.6, 7.8, 7.10 and 7.15, in the event that any Indebtedness, Lien,  Restricted Payment, Restricted Debt Payment, Investment, Disposition and/or Affiliate transactions or  portion thereof, as applicable, at any time meets the criteria of more than one of the categories of  transactions or items permitted pursuant to any clause of such Sections 7.2 (other than Section 7.2(a),  7.2(c) and 7.2((q)), 7.3 (other than Section 7.3(j)), 7.4, 7.5, 7.6 7.8 and 7.15 (each of the foregoing, a  “Reclassifiable Item”), the Company, in its sole discretion, may, from time to time, divide, classify or  reclassify such Reclassifiable Item (or portion thereof) under one or more clauses of each such Section  and will only be required to include such Reclassifiable Item (or portion thereof) in any one category;  provided that, upon delivery of any financial statements pursuant to Section 6.1 following the initial  incurrence or making of any such Reclassifiable Item, if such Reclassifiable Item could, based on such  financial statements, have been incurred or made in reliance on any “ratio-based” basket or exception,  such Reclassifiable Item shall automatically be reclassified as having been incurred or made under the  applicable provisions of such “ratio-based” basket or exception, as applicable (in each case, subject to any  other applicable provision of such “ratio-based” basket or exception, as applicable). It is understood and  agreed that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment,  Disposition and/or Affiliate transaction need not be permitted solely by reference to one category of  permitted Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition  and/or Affiliate transaction under Sections 7.2, 7.3, 7.4, 7.5, 7.6, 7.8, 7.10 and 7.15, respectively, but may  instead be permitted in part under any combination thereof or under any other available exception.  (b) Notwithstanding anything to the contrary herein, but subject to Sections 1.4(c), (d) and  (e) and the last paragraph of the definition of “Pro Forma Basis”, all financial ratios and tests (including  the First Lien Leverage Ratio, the Senior Secured Leverage Ratio, the Total Leverage Ratio, the  Consolidated Interest Coverage Ratio and the amount of Consolidated Net Income and Consolidated  EBITDA contained in this Agreement that are calculated with respect to any applicable Test Period  during which any Specified Transaction occurs) shall be calculated with respect to such applicable Test  Period and such Specified Transaction on a Pro Forma Basis. Further, if since the beginning of any such  applicable Test Period and on or prior to the date of any required calculation of any financial ratio or test  (x) any Specified Transaction has occurred or (y) any Person that subsequently became a Subsidiary or  was merged, amalgamated or consolidated with or into the Company or any of its Subsidiaries since the  beginning of such applicable Test Period has consummated any Specified Transaction, then, in each case,  any applicable financial ratio or test shall be calculated on a Pro Forma Basis for such applicable Test  Period as if such Specified Transaction had occurred at the beginning of the applicable Test Period.  





 






  59  (c) For purposes of determining the permissibility of any action, change, transaction or event  that requires a calculation of any financial ratio or financial test (including any First Lien Leverage Ratio  test, any Senior Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Consolidated  Interest Coverage Ratio test) and/or the amount of Consolidated EBITDA or Consolidated Net Income,  such financial ratio, financial test or amount shall, subject to clause (d) below, be calculated at the time  such action is taken, such change is made, such transaction is consummated or such event occurs, as the  case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a  change in such financial ratio, financial test or amount occurring after the time such action is taken, such  change is made, such transaction is consummated or such event occurs, as the case may be.  (d) Notwithstanding anything to the contrary herein (including in connection with any  calculation made on a Pro Forma Basis), to the extent that the terms of this Agreement require  (i) compliance with any financial ratio or financial test (including any First Lien Leverage Ratio test, any  Senior Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Consolidated Interest  Coverage Ratio test) and/or any cap expressed as a percentage of Consolidated Net Income or  Consolidated EBITDA, (ii) accuracy of any representation or warranty and/or the absence of a Default or  Event of Default (or any type of default or event of default), in each case other than for purposes of the  making of any Revolving Extension of Credit (other than under an Incremental Revolving Facility and to  the extent not prohibited by the terms of the applicable Incremental Facility Amendment) or (iii)  compliance with any basket or other condition, as a condition to (A) the consummation of any acquisition,  consolidation, business combination or similar Investment, the consummation of which by the Company  is not conditioned on the availability of, or obtaining, third party financing, and/or (B) the redemption,  repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable  notice in advance of such redemption, repurchase, satisfaction and discharge or repayment (clauses (A)  and (B), collectively, a “Limited Condition Transaction”), the determination of whether the relevant  condition is satisfied may be made, at the election of the Company, (A) in the case of any such  acquisition, consolidation, business combination or similar Investment, at the time of (or on the basis of  the most recent financial statements delivered pursuant to Section 6.1) either (x) the execution of a letter  of intent or the definitive agreement with respect to such acquisition, consolidation, business  combination, similar Investment (or, solely in connection with an acquisition, consolidation or business  combination to which the United Kingdom City Code on Takeovers and Mergers applies, the date on  which a “Rule 2.7 Announcement” of a firm intention to make an offer) or the establishment of a  commitment with respect to such Indebtedness or (y) the consummation of such acquisition,  consolidation, business combination or Investment and (B) in the case of any redemption, repurchase,  defeasance, satisfaction and discharge or repayment of Indebtedness, at the time of (or on the basis of the  most recent financial statements delivered pursuant to Section 6.1 at the time of) (x) delivery of  irrevocable notice with respect to such redemption, repurchase, defeasance, satisfaction and discharge or  repayment of Indebtedness or (y) the redemption, repurchase, defeasance, satisfaction and discharge or  repayment of such Indebtedness, in each case, after giving effect on a Pro Forma Basis to the relevant  acquisition, consolidation, business combination or similar Investment and/or Restricted Debt Payment,  incurrence of Indebtedness or other transaction (including the intended use of proceeds of any  Indebtedness to be incurred in connection therewith) and any other acquisition, consolidation, business  combination or similar Investment, redemption, repurchase, defeasance, satisfaction and discharge or  repayment of Indebtedness, incurrence of Indebtedness or other transaction that has not been  consummated but with respect to which the Company has elected to test any applicable condition prior to  the date of consummation in accordance with this Section 1.4(d), and no Default or Event of Default shall  be deemed to have occurred solely as a result of an adverse change in such test or condition occurring  after the time such election is made (but any subsequent improvement in the applicable ratio, test or  amount may be utilized by the Company or any Subsidiary). For the avoidance of doubt, if the Company  shall have elected the option set forth in clause (x) of any of the preceding clauses (1) or (2) in respect of  any transaction, then (i) the Company shall be permitted to consummate such transaction even if any  





 






  60  applicable test or condition shall cease to be satisfied subsequent to the Company’s election of such  option and (ii) any further determination with respect to incurrence tests prior to the earlier of the  consummation of such Limited Condition Transaction and the termination of such Limited Condition  Transaction will require the Company to comply with such tests on a Pro Forma Basis assuming the  applicable Limited Condition Transaction has been consummated and the applicable acquisition debt has  been incurred. The provisions of this paragraph (d) shall also apply in respect of the incurrence of any  Incremental Facility.  (e) Notwithstanding anything to the contrary herein, unless the Company otherwise notifies  the Administrative Agent, with respect to any amount incurred (including under Section 2.27 (including  the definition of Incremental Cap used therein)) or transaction entered into (or consummated) in reliance  on a provision of this Agreement that does not require compliance with a financial ratio or financial test  (including any First Lien Leverage Ratio test, any Senior Secured Leverage Ratio test, any Total  Leverage Ratio test and/or any Consolidated Interest Coverage Ratio test) (any such amount, including  any amount drawn under the Revolving Facility, any or any other permitted revolving facility and any cap  expressed as a percentage of Consolidated EBITDA, a “Fixed Amount”) substantially concurrently with  any amount incurred or transaction entered into (or consummated) in reliance on a provision of this  Agreement that requires compliance with a financial ratio or financial test (including any First Lien  Leverage Ratio test, any Senior Secured Leverage Ratio test, any Total Leverage Ratio test and/or any  Consolidated Interest Coverage Ratio test) (any such amount, an “Incurrence-Based Amount”), it is  understood and agreed that (i) the incurrence of the Incurrence-Based Amount shall be calculated first  without giving effect to any Fixed Amount but giving full pro forma effect to the use of proceeds of such  Fixed Amount and the related transactions and (ii) the incurrence of the Fixed Amount shall be calculated  thereafter. Unless the Company elects otherwise, the Company shall be deemed to have used amounts  under an Incurrence-Based Amount then available to the Company prior to utilization of any amount  under a Fixed Amount then available to the Company.  (f) The principal amount of any non-interest bearing Indebtedness or other discount security  constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a  balance sheet of the Company dated such date prepared in accordance with GAAP.  (g) The increase in any amount of Indebtedness or any increase in any amount secured by  any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of interest or a  dividend in the form of additional Indebtedness, amortization of original issue discount and/or any  increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange  rate of any applicable currency shall be deemed to be permitted Indebtedness for purposes of Section 7.2  and will be deemed not to be the granting of a Lien for purposes of Section 7.3.  (h) For purposes of determining compliance with Section 7.2 or Section 7.3, if any  Indebtedness or Lien is incurred in reliance on a basket measured by reference to a percentage of  Consolidated EBITDA, and any refinancing or replacement thereof would cause the percentage of  Consolidated EBITDA to be exceeded if calculated based on the Consolidated EBITDA on the date of  such refinancing or replacement, such percentage of Consolidated EBITDA will be deemed not to be  exceeded so long as the principal amount of such refinancing or replacement Indebtedness or other  obligation does not exceed an amount sufficient to repay the principal amount of such Indebtedness or  other obligation being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest,  penalties and premiums (including tender, prepayment or repayment premiums) thereon plus underwriting  discounts and other customary fees, commissions and expenses (including upfront fees, original issue  discount or initial yield payment) incurred in connection with such refinancing or replacement, (y) any  existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under  





 






  61  Section 7.2 and, to the extent secured by a Lien, Section 7.3 (and, in each case, the applicable clause of  Section 7.2 and Section 7.3 shall be deemed to be utilized by the amount so incurred).  (i) For the avoidance of doubt, for purposes of determining compliance with Section 7.2(h),  (j), (l), (n) and (p) and any other comparable provision of Section 7.2, a Permitted Refinancing in respect  of Indebtedness incurred pursuant to a U.S. Dollar-denominated or Consolidated EBITDA-governed  basket shall not increase capacity to incur Indebtedness under such U.S. Dollar-denominated or EBITDA- governed basket, and such U.S. Dollar-denominated or 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.  (j) Any financial ratios required to be maintained by the Company pursuant to this  Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement)  shall be calculated by dividing the appropriate component by the other component, carrying the result to  one place more than the number of places by which such ratio is expressed herein and rounding the result  up or down to the nearest number (with a rounding-up if there is no nearest number).  (k) For all purposes under the Loan Documents, in connection with any division or plan of  division under Delaware law: (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 (or, if such subsequent Person ceases to  be a Subsidiary of the original Person, disposed of) on the first date of its existence by the holders of its  Capital Stock at such time.  1.5. Swiss terms.  In this Agreement, where it relates to a Swiss entity, such as a Swiss  Borrower, a reference to a winding-up or dissolution includes:  (a) a filing for the declaration of bankruptcy (Antrag auf Konkurseröffnung) or a formal  declaration of bankruptcy (Konkurseröffnung) within the meaning of the Swiss Federal Debt Enforcement  and Bankruptcy Act;  (b) the filing for a request for a moratorium (Gesuch um Nachlasstundung) or a grant of a  moratorium (Nachlassstundung) within the meaning of the Swiss Federal Debt Enforcement and  Bankruptcy Act;  (c) a moratorium on any of its indebtedness, its dissolution or liquidation; and  (d) a postponement of a bankruptcy (Konkursaufschub) within the meaning of Art. 725a of  the Swiss Code of Obligations.  1.6. Interest Rates; LIBOR Notification.  The interest rate on a Loan denominated in dollars  or a Foreign Currency may be derived from an interest rate benchmark that is, or may in the future  become, the subject of regulatory reform.  Regulators have signaled the need to use alternative benchmark  reference rates for some of these interest rate benchmarks and, as a result, such interest rate benchmarks  may cease to comply with applicable laws and regulations, may be permanently discontinued, and/or the  basis on which they are calculated may change.  The London interbank offered rate (“LIBOR”) is  intended to represent the rate at which contributing banks may obtain short-term borrowings from each  other in the London interbank market.  On March 5, 2021, the U.K. Financial Conduct Authority  (“FCA”) publicly announced that: (a) immediately after December 31, 2021, publication of all seven euro  LIBOR settings, all seven Swiss Franc LIBOR settings, the spot next, 1-week, 2-month and 12-month  





 






  62  Japanese Yen LIBOR settings, the overnight, 1-week, 2-month and 12-month British Pound Sterling  LIBOR settings, and the 1-week and 2-month U.S. Dollar LIBOR settings will permanently cease;  immediately after June 30, 2023, publication of the overnight and 12-month U.S. Dollar LIBOR settings  will permanently cease; immediately after December 31, 2021, the 1-month, 3-month and 6-month  Japanese Yen LIBOR settings and the 1-month, 3-month and 6-month British Pound Sterling LIBOR  settings will cease to be provided or, subject to consultation by the FCA, be provided on a changed  methodology (or “synthetic”) basis and no longer be representative of the underlying market and  economic reality they are intended to measure and that representativeness will not be restored; and  immediately after June 30, 2023, the 1-month, 3-month and 6-month U.S. Dollar LIBOR settings will  cease to be provided or, subject to the FCA’s consideration of the case, be provided on a synthetic basis  and no longer be representative of the underlying market and economic reality they are intended to  measure and that representativeness will not be restored.  There is no assurance that dates announced by  the FCA will not change or that the administrator of LIBOR and/or regulators will not take further action  that could impact the availability, composition, or characteristics of LIBOR or the currencies and/or  tenors for which LIBOR is published.  Each party to this agreement should consult its own advisors to  stay informed of any such developments.  Public and private sector industry initiatives are currently  underway to identify new or alternative reference rates to be used in place of LIBOR.  Upon the  occurrence of a Benchmark Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or  an Other Benchmark Rate Election, Sections 2.18(b) and (c) provide a mechanism for determining an  alternative rate of interest.  The Administrative Agent will promptly notify the Borrower, pursuant to  Section 2.18(e), of any change to the reference rate upon which the interest rate on Term Benchmark  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, performance or any other  matter related to the Daily Simple RFR, LIBOR or other rates in the definition of “LIBO Rate” (or  “EURIBOR Rate”, or “TIBOR Rate”, as applicable) or with respect to any alternative or successor rate  thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or  replacement rate implemented pursuant to Section 2.18(b) or (c), whether upon the occurrence of a  Benchmark Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other  Benchmark Rate Election, and (ii) the implementation of any Benchmark Replacement Conforming  Changes pursuant to Section 2.18(d)), including without limitation, whether the composition or  characteristics of any such alternative, successor or replacement reference rate will be similar to, or  produce the same value or economic equivalence of, the Daily Simple RFR, the LIBO Rate (or the  EURIBOR Rate, or the TIBOR Rate, as applicable) or have the same volume or liquidity as did the  London interbank offered rate (or the euro interbank offered rate or the Tokyo interbank offered rate, as  applicable) prior to its discontinuance or unavailability.  The Administrative Agent and its affiliates  and/or other related entities may engage in transactions that affect the calculation of any Daily Simple  RFR, any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any  relevant adjustments thereto, in each case, in a manner adverse to the Borrower.  The Administrative  Agent may select information sources or services in its reasonable discretion to ascertain any RFR, Daily  Simple RFR or the Term Benchmark Rate, any component thereof, or rates referenced in the definition  thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower,  any Lender or any other person or entity for damages of any kind, including direct or indirect, special,  punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or  otherwise and whether at law or in equity), for any error or calculation of any such rate (or component  thereof) provided by any such information source or service.  SECTION 2. AMOUNT AND TERMS OF LOANS AND COMMITMENTS  2.1. [Reserved].  2.2. [Reserved].   





 






  63  2.3. Tranche A Term Commitments. Subject to the terms and conditions hereof, each Tranche  A Term Lender severally agrees to make a term loan denominated in U.S. Dollars (a “Tranche A Term  Loan”) to the Company on the Closing Date in an amount not to exceed the amount set forth under the  heading “Tranche A Term Loan” opposite such Tranche A Term Lender’s name on Schedule 1.1A;  provided that to the extent such Tranche A Term Lender is an Existing Lender, such Tranche A Term  Lender shall be deemed to have made Tranche A Term Loans (such Tranche A Term Loans, the “Rolled  Tranche A Term Loans”) to the Company on the Closing Date in an amount equal to the amount set  forth under the heading “Tranche A Term Loan” opposite such Tranche A Term Lender’s name on  Schedule 1.1A and such Tranche A Term Lender shall have no obligation hereunder to fund any amounts  in respect of any Rolled Tranche A Term Loans. The Tranche A Term Loans may from time to time be  Adjusted LIBO Rate Loans or ABR Loans, as determined by the Company and notified to the  Administrative Agent in accordance with Sections 2.4 and 2.14.  2.4. Procedure for Tranche A Term Loan Borrowing. The Company shall give the  Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent  prior to 12:00 Noon, New York City time, on the anticipated Closing Date in the case of ABR Loans or  one Business Day prior to the anticipated Closing Date in the case of Adjusted LIBO Rate Loans)  requesting that the Tranche A Term Lenders make the Tranche A Term Loans on the Closing Date and  specifying (i) the amount and the Type of Loans to be borrowed, (ii) the anticipated Closing Date and (iii)  in the case of Adjusted LIBO Rate Loans, the length of the initial Interest Period therefor. Each such  borrowing 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 Adjusted LIBO Rate Loans, $5,000,000 or a whole multiple of $1,000,000  in excess thereof. Upon receipt of such notice of borrowing the Administrative Agent shall promptly  notify each Tranche A Term Lender thereof. Each Tranche A Term Lender will make the amount of its  Tranche A Term Loan available to the Administrative Agent for the account of the Company at the  Funding Office prior to 2:00 p.m., New York City time, on the Closing Date. Such borrowing will then be  made available to the Company by the Administrative Agent crediting the account of the Company on the  books of such office with the aggregate of the amounts made available to the Administrative Agent by the  Tranche A Term Lenders and in like funds as received by the Administrative Agent.  Notwithtanding  anything to the contrary in this Section 2.4, no Tranche A Term Lender shall have obligation hereunder to  fund any amounts in respect of any Rolled Tranche A Term Loans.  2.5. Repayment of Term Loans. The Tranche A Term Loan of each Tranche A Term Lender  shall be repaid (i) in 19 consecutive quarterly installments, commencing with the first full fiscal quarter  ending after the Closing Date, each of which shall be in an amount equal to such Lender’s Tranche A  Term Percentage multiplied by the amount set forth below opposite each installment (as such payments  may be adjusted from time to time as a result of the application of prepayments in accordance with  Section 2.12 or 2.13, an extension pursuant to Section 2.26 or an increase pursuant to Section 2.27, in  each case subject solely to the applicable conditions set forth therein (and without, for the avoidance of  doubt, the consent of any Lenders or other parties)) and (ii) on the Tranche A Final Maturity Date, the  remainder of the principal amount of the Tranche A Term Loans outstanding on such date, together in  each case with accrued but unpaid interest on the principal amount to be paid to but excluding the date of  such payment:  Installment Amount  First full fiscal quarter after Closing Date ................................ $0  Second fiscal quarter after Closing Date .................................. $0  Third fiscal quarter after Closing Date ..................................... $0  Fourth fiscal quarter after Closing Date ................................... $0  Fifth fiscal quarter after Closing Date ...................................... $2,500,000  Sixth fiscal quarter after Closing Date ..................................... $2,500,000  





 






  64  Seventh fiscal quarter after Closing Date ................................. $2,500,000  Eighth fiscal quarter after Closing Date ................................... $2,500,000  Ninth fiscal quarter after Closing Date ..................................... $5,000,000  Tenth fiscal quarter after Closing Date ..................................... $5,000,000  Eleventh fiscal quarter after Closing Date ................................ $5,000,000  Twelfth fiscal quarter after Closing Date ................................. $5,000,000  Thirteenth fiscal quarter after Closing Date ............................. $5,000,000  Fourteenth fiscal quarter after Closing Date ............................. $5,000,000  Fifteenth fiscal quarter after Closing Date................................ $5,000,000  Sixteenth fiscal quarter after Closing Date ............................... $5,000,000  Seventeenth fiscal quarter after Closing Date .......................... $5,000,000  Eighteenth fiscal quarter after Closing Date ............................. $5,000,000  Nineteenth fiscal quarter after Closing Date ............................ $5,000,000    2.6. Revolving Commitments. (a) Subject to the terms and conditions hereof, each Revolving  Lender severally agrees (i) to make revolving credit loans denominated in U.S. Dollars (“Dollar  Revolving Loans”) to the Borrowers and (ii) to make revolving credit loans denominated in one or more  Foreign Currencies (“Foreign Currency Revolving Loans”; together with the Dollar Revolving Loans,  the “Revolving Loans”) to the Borrowers, in each case from time to time at such Borrower’s request  during the Revolving Commitment Period in an aggregate principal amount (based on, in the case of  Foreign Currency Revolving Loans, the Dollar Equivalent of such Foreign Currency Revolving Loans) at  any one time outstanding which, when added to the sum of (i) such Lender’s Revolving Percentage of the  sum of (x) the L/C Obligations then outstanding and (y) the aggregate principal amount of the Revolving  Loans then outstanding and (ii) such Lender’s Swingline Exposure then outstanding (which, in the case of  the Swingline Lender, shall be the aggregate principal amount of all Swingline Loans outstanding at such  time less the participation amounts otherwise funded by the Revolving Lenders other than a Swingline  Lender) does not exceed the amount of such Lender’s Revolving Commitment, after giving effect to the  use of proceeds of any Revolving Loans to repay any Swingline Loans. During the Revolving  Commitment Period each Borrower may use the Revolving Commitments by borrowing, prepaying the  Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions  hereof. The Dollar Revolving Loans may from time to time be Adjusted LIBO Rate Loans or ABR Loans,  as determined by the applicable Borrower and notified to the Administrative Agent in accordance with  Sections 2.7 and/or 2.14. The Foreign Currency Revolving Loans denominated in any Foreign Currency  other than Canadian Dollars, Sterling or Swiss Francs shall be Term Benchmark Loans. The Foreign  Currency Revolving Loans denominated in Sterling or Swiss Francs shall be RFR Loans. The Foreign  Currency Revolving Loans denominated in Canadian Dollars shall be CDOR Loans or Canadian Prime  Rate Loans, as determined by the applicable Borrower and notified to the Administrative Agent in  accordance with Sections 2.7 and/or 2.14.  (b) Each Borrower shall repay all outstanding Revolving Loans made to such Borrower on  the Revolving Termination Date; provided, for the avoidance of doubt, that nothing in this Section 2.6(b)  creates any obligation for (i) any Foreign Subsidiary Borrower to repay any Obligation of any Domestic  Borrower or (ii) any Domestic Borrower to repay any Obligation of any Foreign Subsidiary Borrower.  (c) The Borrower may, subject to the conditions to borrowing set forth herein, request that  any such repayment of a Swingline Loan be financed with the proceeds of a borrowing under the  Revolving Facility, upon which the Borrower’s obligation to make such repayment of such Swingline  Loan shall be satisfied by the resulting borrowing under the Revolving Facility.  





 






  65  2.7. Procedure for Revolving Loan Borrowing. (a) Each Borrower may borrow Dollar  Revolving Loans under the Revolving Commitments during the Revolving Commitment Period on any  Business Day prior to the Revolving Termination Date; provided that such Borrower shall give the  Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent (a)  prior to 12:00 Noon, New York City time, three Business Days prior to the requested Borrowing Date, in  the case of Term Benchmark Loans, or (b) prior to 12:00 Noon, New York City time, on the requested  Borrowing Date, in the case of ABR Loans), specifying (i) the amount and the Type of Loans to be  borrowed, (ii) the requested Borrowing Date and (iii) in the case of Term Benchmark Loans, the initial  Interest Period therefor. Each such borrowing of Dollar Revolving Loans shall be in an amount equal to  (x) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available  Revolving Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Term  Benchmark Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof, respectively;  provided further that not greater than $100,000,000 (exclusive of any usage of the Revolving Facility to  backstop or rollover Existing Letters of Credit or for working capital) of the Revolving Facility shall be  available on the Closing Date to fund the Transactions (including payment of related fees and expenses).  Upon receipt of any such notice of borrowing under the Revolving Facility from a Borrower, the  Administrative Agent shall promptly notify each Lender under the Revolving Facility thereof. In the case  of a borrowing under the Revolving Facility, each Revolving Lender will make the amount of its  Revolving Percentage of such borrowing of Dollar Revolving Loans available to the Administrative  Agent for the account of such Borrower at the Domestic Funding Office prior to 2:00 p.m., New York  City time, on the Borrowing Date requested by such Borrower in funds immediately available to the  Administrative Agent. Such borrowing will then be made available to such Borrower by the  Administrative Agent crediting the account of such Borrower on the books of such office with the  aggregate of the amounts made available to the Administrative Agent by the Revolving Lenders and in  like funds as received by the Administrative Agent.  (b) Each Borrower may borrow Foreign Currency Revolving Loans under the Revolving  Commitments during the Revolving Commitment Period on any Business Day prior to the Revolving  Termination Date; provided that such Borrower shall give the Administrative Agent irrevocable notice  (which notice must be received by the Administrative Agent prior to (i) 11:00 a.m., New York City time,  three Business Days prior to the requested Borrowing Date, in the case of Term Benchmark Borrowings  denominated in Euros or Yen, (ii) 11:00 a.m., New York City time, five RFR Business Days prior to the  requested Borrowing Date, in the case of RFR Borrowings denominated in Sterling, (iii) 11:00 a.m., New  York City time, five RFR Business Days prior to the requested Borrowing Date, in the case of an RFR  Borrowing denominated in Swiss Francs, (iv) 11:00 a.m., Toronto time, three Business Days prior to the  requested Borrowing Date, in the case of CDOR Loans or (v) 11:00 a.m., Toronto time, one Business Day  prior to the Borrowing Date, in the case of Canadian Prime Rate Loans) specifying (i) the amount and the  Type of Foreign Currency Revolving Loans to be borrowed and the Foreign Currency with respect  thereto, (ii) the requested Borrowing Date and (iii) the initial Interest Periods with respect thereto, to the  extent applicable. Upon receipt of any such notice of borrowing under the Revolving Facility from a  Borrower, the Administrative Agent shall promptly notify each Lender under the Revolving Facility  thereof. Each borrowing of Foreign Currency Revolving Loans shall be in a minimum amount equal to  the Applicable Minimum Amount for the relevant Foreign Currency; provided that a Foreign Currency  Revolving Loan denominated in Euros may be in an aggregate amount that is required to finance the  repayment of a Swingline Loan as contemplated by Section 2.6(c). Each Lender shall make the amount of  its Revolving Percentage of such borrowing of Foreign Currency Revolving Loans available to the  Administrative Agent for the account of the relevant Borrower by wire transfer of immediately available  funds in the relevant Foreign Currency by 12:00 Noon, London time (or 12:00 Noon, Toronto time in the  case of loans denominated in Canadian Dollars), on the Borrowing Date requested by such Borrower to  the account of the Administrative Agent most recently designated by it for such purposes by notice to the  Lenders. The Administrative Agent will make such Foreign Currency Revolving Loans available to the  





 






  66  relevant Borrower promptly crediting the amounts so received, in like funds, to the account of the relevant  Borrower specified in such notice of borrowing from such Borrower.  (c) Each Lender may, at its option, make any Loan available to any Borrower by causing any  foreign or domestic branch or Affiliate of such Lender to make such Loan; provided that any exercise of  such option shall not affect the obligation of such Borrower to repay such Loan in accordance with the  terms of this Agreement.  2.8. Swingline Commitments. (a) Subject to the terms and conditions hereof, the Swingline  Lender agrees to make a portion of the credit otherwise available to a Borrower under the Revolving  Commitments by making swing line loans to such Borrower denominated in U.S. Dollars or Euros (the  “Swingline Loans”) in the United States or in the United Kingdom; provided that no Borrower shall  request, and the Swingline Lender shall not make, any Swingline Loan if, after giving effect to the  making of such Swingline Loan (i) the aggregate amount of the Available Revolving Commitments  would be less than zero, (ii) the aggregate amount of all Swingline Loans would exceed the Swingline  Commitment or (iii) the sum of (x) the Swingline Exposure of such Swingline Lender (which shall be the  aggregate principal amount of all Swingline Loans outstanding at such time less the participation amounts  otherwise funded by the Revolving Lenders other than a Swingline Lender), (y) the aggregate principal  amount of outstanding Revolving Loans made by such Swingline Lender (in its capacity as a Revolving  Lender) and (z) the L/C Exposure of such Swingline Lender (in its capacity as a Revolving Lender) shall  not exceed its Revolving Commitment then in effect. During the Revolving Commitment Period, each  Borrower may use the Swingline Commitment by borrowing, repaying and reborrowing, all in accordance  with the terms and conditions hereof. Swingline Loans denominated in U.S. Dollars shall be ABR Loans  only and Swingline Loans denominated in Euros shall be Daily Simple ESTR Loans only.   (b) The applicable Borrower shall repay to the Swingline Lender the then unpaid principal  amount of each Swingline Loan no later than the earlier of (a) the tenth Business Day after the making of  such Swingline Loan and (b) the Revolving Termination Date; provided, for the avoidance of doubt, that  nothing in this Section 2.8(b) creates any obligation for (i) any Foreign Subsidiary Borrower to repay any  Obligation of any Domestic Borrower or (ii) any Domestic Borrower to repay any Obligation of any  Foreign Subsidiary Borrower.  2.9. Procedure for Swingline Borrowing; Refunding of Swingline Loans. (a) Whenever a  Borrower desires that the Swingline Lender make Swingline Loans, it shall give the Swingline Lender  irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by  the Swingline Lender not later than 2:00 p.m. New York City time (in the case of a Swingline Loan  denominated in U.S. Dollars) or 2:00 p.m. London time (in the case of a Swingline Loan denominated in  Euros) on the proposed Borrowing Date), specifying (i) the amount to be borrowed and the currency and  (ii) the requested Borrowing Date (which shall be a Business Day during the Revolving Commitment  Period). Each borrowing under the Swingline Commitment denominated in U.S. Dollars shall be in an  amount equal to $100,000 or a whole multiple of $100,000 in excess thereof, and each borrowing under  the Swingline Commitment denominated in Euros shall be in an amount equal to €100,000 or a whole  multiple of €100,000 in excess thereof. Not later than 3:00 p.m. New York City time (in the case of a  Swingline Loan denominated in U.S. Dollars) or 3:00 p.m. London time, (in the case of a Swingline Loan  denominated in Euros), on the Borrowing Date specified in a notice in respect of Swingline Loans, the  Swingline Lender shall make available to the Administrative Agent at the Funding Office an amount in  immediately available funds equal to the amount of the Swingline Loan to be made by the Swingline  Lender. The Administrative Agent shall make the proceeds of such Swingline Loan available to the  applicable Borrower on such Borrowing Date by depositing such proceeds in the account of the  applicable Borrower with the Administrative Agent on such Borrowing Date in immediately available  funds.  





 






  67  (b) The Swingline Lender, at any time and from time to time in its sole and absolute  discretion may, require each Revolving Lender to purchase for cash an undivided participating interest in  the then outstanding Swingline Loans made by the Swingline Lender  by paying to the Swingline Lender   an amount (the “Swingline Participation Amount”) equal to (i) such Revolving Lender’s Revolving  Percentage times (ii) the sum of the aggregate principal amount of Swingline Loans made by the  Swingline Lender then outstanding.  (c) Whenever, at any time after the Swingline Lender has received from any Revolving  Lender such Lender’s Swingline Participation Amount, the Swingline Lender  receives any payment on  account of the applicable Swingline Loans, the Swingline Lender will distribute to such Lender its  Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the  period of time during which such Lender’s participating interest was outstanding and funded and, in the  case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such  payment is not sufficient to pay the principal of and interest on all Swingline Loans made by the  Swingline Lender then due); provided, however, that in the event that such payment received by the  Swingline Lender is required to be returned, such Revolving Lender will return to the Swingline Lender  any portion thereof previously distributed to it by the Swingline Lender.  (d) Each Revolving Lender’s obligation to purchase participating interests pursuant to  Section 2.9(b) shall be absolute and unconditional and shall not be affected by any circumstance,  including (i) any setoff, counterclaim, recoupment, defense or other right that such Revolving Lender or  any Borrower may have against the Swingline Lender, any Borrower or any other Person for any reason  whatsoever; (ii) the occurrence or continuance of a Default or the failure to satisfy any of the other  conditions specified in Section 5; (iii) any adverse change in the condition (financial or otherwise) of any  Borrower; (iv) any breach of this Agreement or any other Loan Document by any Borrower, any other  Loan Party or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether  or not similar to any of the foregoing.  (e) If the maturity date shall have occurred in respect of any tranche of Revolving  Commitments at a time when another Class(es), tranche(s) or series of Revolving Commitments is or are  in effect with a longer maturity date (each, a “Non-Expiring Credit Commitment” and collectively, the  “Non-Expiring Credit Commitments”), then with respect to each outstanding Swingline Loan, if  consented to by the Swingline Lender, on the earliest occurring maturity date, such Swingline Loan shall  be deemed reallocated to the Class(es), tranche(s) or series of the Non-Expiring Credit Commitments on a  pro rata basis; provided that to the extent that the amount of such reallocation would cause the aggregate  credit exposure to exceed the aggregate amount of such Non-Expiring Credit Commitments, immediately  prior to such reallocation the amount of Swingline Loans to be reallocated equal to such excess shall be  repaid.  Upon the maturity date of any tranche of Revolving Commitments, the sublimit for Swingline  Loans may be reduced as agreed between the Swingline Lender and the Company, without the consent of  any other Person.  2.10. Commitment Fees, etc. (a) The Borrowers agree to pay to the Administrative Agent for  the account of each Revolving Lender a commitment fee for the period from and including the Closing  Date to the last day of the Revolving Commitment Period, computed at the Commitment Fee Rate on the  average daily Available Revolving Commitment of such Lender during the period for which payment is  made, payable quarterly in arrears on the fifteenth Business Day of each January, April, July and October  and on the Revolving Termination Date, commencing on the first of such dates to occur after the Closing  Date.  (b) The Borrowers agree to pay to the Administrative Agent the fees in the amounts and on  the dates previously agreed to in writing by the Company and the Administrative Agent.  





 






  68  2.11. Termination or Reduction of Revolving Commitments.  The Company shall have the  right, upon not less than three Business Days’ notice (or shorter notice period approved by the  Administrative Agent) to the Administrative Agent, to terminate the Revolving Commitments or, from  time to time, to reduce the amount of the Revolving Commitments; provided that no such termination or  reduction of Revolving Commitments shall be permitted if, after giving effect thereto and to any  prepayments of the Revolving Loans and Swingline Loans made on the effective date thereof, the Total  Revolving Extensions of Credit would exceed the Total Revolving Commitments. Any such partial  reduction shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce  permanently the Revolving Commitments then in effect. Each reduction of the Revolving Commitments  shall be made ratably among the Revolving Lenders in accordance with their respective Revolving  Commitments. Notwithstanding the foregoing, the Company may rescind or postpone any notice of  termination of the Revolving Commitments if such termination would have resulted from a refinancing of  all or any portion of any Facility or Facilities, which refinancing shall not be consummated or otherwise  shall be delayed.  2.12. Optional Prepayments. The Borrowers may at any time and from time to time prepay the  Loans (other than Foreign Currency Revolving Loans), in whole or in part, without premium or penalty  (except as set forth below), upon notice delivered to the Administrative Agent (a) in the case of a  prepayment of Term Benchmark Borrowing denominated in Dollars, not later than 11:00 a.m., New York  City time, three Business Days before the date of prepayment, and (b) on the same Business Day in the  case of ABR Loans, which notice shall specify the date and amount of prepayment and the Type of Loans  to be prepaid; provided, that if a Term Benchmark Loan is prepaid on any day other than the last day of  the Interest Period applicable thereto, such Borrower shall also pay any amounts owing pursuant to  Section 2.22. The Borrowers may at any time and from time to time prepay Foreign Currency Revolving  Loans of one or more Classes, series or tranches, in whole or in part, without premium or penalty, upon  notice delivered to the Administrative Agent, (a) in the case of prepayment of a Term Benchmark  Borrowing denominated in Euros or Yen, not later than 12:00 p.m., New York City time, three Business  Days before the date of prepayment, (b) in the case of prepayment of an RFR Borrowing denominated in  Sterling, not later than 11:00 a.m., New York City time, five Business Days before the date of  prepayment, (c) in the case of prepayment of an RFR Borrowing denominated Swiss Francs, not later than  11:00 a.m., New York City time, five Business Days before the date of prepayment, (d) in the case of  prepayment of CDOR Loans, not later than 11:00 a.m., New York City time, three Business Days before  the date of prepayment, and (e) on the same Business Day in the case of Canadian Prime Rate Loans or  Swing Line Loans denominated in Euros; provided, that if a Term Benchmark Loan, CDOR Loan or RFR  Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Company  shall also pay any amounts owing pursuant to Section 2.22. Upon receipt of any such notice the  Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the  amount specified in such notice shall be due and payable on the date specified therein, together with  (except in the case of Revolving Loans that are ABR Loans or Canadian Prime Rate Loans and Swingline  Loans that are ABR Loans) accrued interest to such date on the amount prepaid; provided that  notwithstanding anything to the contrary contained in this Agreement, the Company may rescind, or  extend the date for prepayment specified in, any notice of prepayment under this Section 2.12, if such  prepayment would have resulted from a refinancing of all or any portion of any Facility or Facilities  which refinancing shall not be consummated or shall otherwise be delayed. Partial prepayments of  Tranche A Term Loans and Dollar Revolving Loans shall be in an aggregate principal amount of  $1,000,000 or a whole multiple thereof. Partial prepayments of Swingline Loans shall be in an aggregate  principal amount of $100,000 or a whole multiple thereof. Partial prepayments of Foreign Currency  Revolving Loans shall be in a minimum principal amount equal to the Applicable Minimum Amount for  the relevant Foreign Currency. Any optional prepayments of the Term Loans shall be applied to the  remaining installments thereof as selected by the Company (or absent any such selection in the direct  order of maturity).   





 






  69  2.13. Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Company or  any of its Subsidiaries after the Closing Date (other than any permitted Indebtedness incurred in  accordance with Section 7.2 (except for Credit Agreement Refinancing Indebtedness which shall be  applied in accordance with clause (iii) of the definition thereof)), an amount equal to 100.0% of the Net  Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment  of the Term Loans as set forth in Section 2.13(d).  (b) If on any date the Company or any of its Subsidiaries shall receive Net Cash Proceeds  from any Asset Sale or Recovery Event then, the Applicable Prepayment Percentage of such Net Cash  Proceeds shall be applied on the fifth Business Day following the receipt thereof toward the prepayment  of the Term Loans as set forth in Section 2.13(d); provided, that, notwithstanding the foregoing, at the  option of the Company, the Company may reinvest the Net Cash Proceeds in the business of the  Company or any of its Subsidiaries within (x) 18 months following the receipt of such Net Cash Proceeds  or (y) 24 months following the receipt of such Net Cash Proceeds, in the event that the Company or any  of its Subsidiaries shall have entered into a binding commitment within 18 months following the receipt  of such Net Cash Proceeds to reinvest such Net Cash Proceeds in the business of the Company or any of  its Subsidiaries (it being understood that if any portion of such Net Cash Proceeds are no longer intended  to be reinvested or are not reinvested within such 24-month period, the Applicable Prepayment  Percentage of such Net Cash Proceeds shall be applied on the fifth Business Day after the Company  reasonably determines that such Net Cash Proceeds are no longer intended to be or are not reinvested  within such 24-month period toward prepayment of the Term Loans as set forth in Section 2.13(d));  provided that if at the time that any such prepayment would be required, the Company or any of its  Subsidiaries is required to prepay or offer to repurchase with the Net Cash Proceeds of such Asset Sale or  Recovery Event any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Ratio  Debt, Incurred Acquisition Debt or any other Indebtedness outstanding at such time, in each case that is  secured by a Lien on the Collateral that is pari passu (but without regard to the control of remedies) with  the Liens securing the Obligations pursuant to the terms of the documentation governing such  Indebtedness (such Indebtedness required to be offered to be so repurchased, “Other Applicable Asset  Sale Indebtedness”), then the Company may apply the Net Cash Proceeds on a pro rata basis  (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other  Applicable Asset Sale Indebtedness at such time) to the prepayment of such Other Applicable Asset Sale  Indebtedness; it being understood that the portion of the Net Cash Proceeds allocated to the Other  Applicable Asset Sale Indebtedness shall not exceed the amount of the Net Cash Proceeds required to be  allocated to the Other Applicable Asset Sale Indebtedness pursuant to the terms thereof (and the  remaining amount, if any, of the Net Cash Proceeds shall be allocated to the Term Loans in accordance  with the terms hereof), and the amount of the prepayment of the Term Loans that would have otherwise  been required pursuant to this Section 2.13(b) shall be reduced accordingly.   (c) [Reserved].  (d) The application of any prepayment pursuant to Section 2.13(a) or (b) shall be made  ratably to the Term Loans based on the outstanding respective principal amounts thereof. Partial  prepayments of the Term Loans pursuant to this Section 2.13 shall be applied to the remaining  installments thereof in the direct order of maturity. The application of any prepayment of Term Loans  pursuant to this Section 2.13 shall be made, first, to ABR Loans and second, to Term Benchmark Loans.  Each prepayment of the Loans under this Section 2.13 shall be accompanied by accrued interest to the  date of such prepayment on the amount prepaid.  (e) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and  in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to  be made by a Borrower pursuant to Section 2.13(b), to decline all (but not a portion) of its prepayment  





 






  70  (such declined amounts, the “Declined Proceeds”), which Declined Proceeds may be retained by the  Company and used for any purpose permitted (or not prohibited) hereunder, including to increase the  Available Amount; provided that, for the avoidance of doubt, no Lender may reject any prepayment made  under Section 2.13(a) above to the extent that such prepayment is made with the proceeds of any Credit  Agreement Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans. If any  Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its ratable  percentage of any mandatory prepayment within the time frame specified by the Administrative Agent,  such failure will be deemed to constitute an acceptance of such Lender’s ratable percentage of the total  amount of such mandatory prepayment of the Term Loans.  (f) [Reserved].  (g) If at any time the Total Revolving Extensions of Credit exceed 105% of the Total  Revolving Commitments (including as a result of a change in the Exchange Rate for the purchase of U.S.  Dollars with a Foreign Currency), the Borrowers shall, within one Business Day of notice thereof from  the Administrative Agent, prepay the Revolving Loans in an amount equal to the amount of such excess  or, to the extent the principal amount of Revolving Loans outstanding is less than the amount of such  excess, cash collateralize L/C Obligations in respect of any Letters of Credit (in an amount equal to 101%  of the face amount thereof) (or backstop or provide credit support reasonably acceptable to the applicable  Issuing Lender), in each case to the extent necessary to eliminate any such excess.  (h) Notwithstanding any other provisions of Section 2.13, to the extent any or all of the Net  Cash Proceeds from any Asset Sale or Recovery Event received by a Foreign Subsidiary 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 Company or any  applicable Domestic Subsidiary (the Company hereby agreeing to cause the applicable Foreign Subsidiary  to promptly take all actions reasonably required by the applicable local law to permit such repatriation as  long as such repatriation does not create a material adverse tax consequence) or if the Company has  determined in good faith that repatriation of any such amount to the Company or any applicable Domestic  Subsidiary would have material adverse tax consequences with respect to such amount, the portion of  such Net Cash Proceeds so affected will not be required to be applied to prepay Term Loans at the times  provided in this Section 2.13 but may be retained by the applicable Foreign Subsidiary for 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 Company or the applicable Domestic Subsidiary, or the Company believes in  good faith that such material adverse tax consequence would result, and once such repatriation of any of  such affected Net Cash Proceeds is permitted under the applicable local law or the Company determines  in good faith that such repatriation would no longer would have such material adverse tax consequences,  such repatriation will be promptly effected and such repatriated Net Cash Proceeds will be promptly (and  in any event not later than five Business Days after such repatriation) applied (net of additional taxes  payable or reasonably estimated to be payable as a result thereof) to the prepayment of the applicable  Term Loans as otherwise required pursuant to this Section 2.13; provided that, notwithstanding the  foregoing, the Company and the applicable Foreign Subsidiary shall have no obligation to repatriate any  Net Cash Proceeds (or take any further action with respect thereto) from and after the date that is twelve  months after the receipt of such Net Cash Proceeds.  2.14. Conversion and Continuation Options. (a) Any Borrower may elect from time to time to  convert Term Benchmark Loans denominated in U.S. Dollars to ABR Loans by giving the Administrative  Agent at least two Business Days’ prior irrevocable notice of such election, provided that any such  conversion of Term Benchmark Loans may only be made on the last day of an Interest Period with  respect thereto. Any Borrower may elect from time to time to convert ABR Loans to Term Benchmark  





 






  71  Loans denominated in U.S. Dollars by giving the Administrative Agent at least three Business Days’ prior  irrevocable notice of such election (which notice shall specify the length of the initial Interest Period  therefor); provided that no ABR Loan under a particular Facility may be converted into a Term  Benchmark Loan denominated in U.S. Dollars when any Event of Default has occurred and is continuing  and the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion  not to permit such conversions. Upon receipt of any such notice the Administrative Agent shall promptly  notify each relevant Lender thereof.  (b) Any Borrower may elect from time to time to convert CDOR Loans to Canadian Prime  Rate Loans by giving the Administrative Agent at least two Business Days’ prior irrevocable notice of  such election, provided that any such conversion of CDOR Loans may only be made on the last day of an  Interest Period with respect thereto. Any Borrower may elect from time to time to convert Canadian  Prime Rate Loans to CDOR Loans by giving the Administrative Agent at least three Business Days’ prior  irrevocable notice of such election (which notice shall specify the length of the initial Interest Period  therefor); provided that no Canadian Prime Rate Loan under a particular Facility may be converted into a  CDOR Loan when any Event of Default has occurred and is continuing and the Majority Facility Lenders  in respect of such Facility have determined in its or their sole discretion not to permit such conversions.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender  thereof.  (c) Any Term Benchmark Loan or CDOR Loan shall be continued as such upon the  expiration of the then current Interest Period with respect thereto unless the applicable Borrower gives  notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest  Period” set forth in Section 1.1, of a different length of the next Interest Period to be applicable to such  Loans or, in the case of Loans denominated in Dollars or Canadian Dollars, elects to convert such Loan to  an ABR Loan or Canadian Prime Rate Loan, respectively; provided that no Term Benchmark Loan  denominated in Dollars under a particular Facility or CDOR Loan under a particular Facility may be  continued as such when any Event of Default has occurred and is continuing and the Majority Facility  Lenders in respect of such Facility have determined in its or their sole discretion not to permit such  continuations; and provided, further, that if such continuation is not permitted pursuant to the preceding  proviso such Term Benchmark Loans denominated in U.S. Dollars or Canadian Dollars, respectively,  shall be automatically converted to ABR Loans or Canadian Prime Rate Loans, respectively, on the last  day of such then expiring Interest Period and any Term Benchmark Loans denominated in any other  currency shall be continued as such, with an Interest Period of one month’s duration. Upon receipt of any  such notice the Administrative Agent shall promptly notify each relevant Lender thereof.  (d) It is understood and agreed that (i) only a Borrowing denominated in U.S. Dollars may be  made as, or converted to, an ABR Loan, (ii) only a Borrowing denominated in Canadian Dollars may be  made as, or converted to, a Canadian Prime Rate Loan or a CDOR Loan (iii) only a Borrowing  denominated in Dollars, Euros or Yen may be made as, or in the case of Dollars converted to, or  continued as, a Loan bearing interest at the Term Benchmark Rate, (iv) only a Borrowing denominated in  Sterling or Swiss Francs may be made as, or continued as, a Loan bearing interest at the RFR, and (v)  only a Borrowing denominated in Euros may be converted to a Loan bearing interest at the Daily Simple  ESTR in the circumstances described in Section 2.20.  2.15. Limitations on Term Benchmark Borrowings. Notwithstanding anything to the contrary  in this Agreement, all borrowings, conversions and continuations of Term Benchmark Loans hereunder  and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such  elections so that, after giving effect thereto, the aggregate principal amount of the Term Benchmark  Loans comprising each Term Benchmark Tranche shall be equal to the Applicable Minimum Amount.  





 






  72  2.16. Interest Rates and Payment Dates. (a) Each Term Benchmark Loan denominated in  Dollars 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 Term Benchmark Loan denominated in Euros shall bear interest for each day during  each Interest Period with respect thereto at a rate per annum equal to the Adjusted EURIBOR Rate  determined for such day plus the Applicable Margin.  (c) Each Term Benchmark Loan denominated in Yen shall bear interest for each day during  each Interest Period with respect thereto at a rate per annum equal to the Adjusted TIBOR Rate  determined for such day plus the Applicable Margin.  (d) Each RFR Loan shall bear interest at a rate per annum equal to the applicable Adjusted  Daily Simple RFR for the applicable currency plus the Applicable Margin.  (e) Each ABR Loan shall bear interest at a rate per annum equal to the Alternate Base Rate  plus the Applicable Margin.  (f) Each Canadian Prime Rate Loan shall bear interest at a rate per annum equal to the  Canadian Prime Rate plus the Applicable Margin.  (g) Each Daily Simple ESTR Loan shall bear interest at a rate per annum equal to the Daily  Simple ESTR plus the Applicable Margin.  (h) Each CDOR Loan shall bear interest for each day during each Interest Period with respect  thereto at a rate per annum equal to the CDO Rate determined for such day plus the Applicable Margin.  (i) (i) If all or a portion of the principal amount of or interest on any Loan or Reimbursement  Obligation shall not be paid when due and payable (whether at the stated maturity, by acceleration or  otherwise and after giving effect to any grace or cure periods applicable thereto), such overdue amounts  shall bear interest at a rate per annum equal to (x) in the case of overdue amounts in respect of any Loan,  the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section  plus 2% or (y) in the case of overdue amounts in respect of any Reimbursement Obligation, the rate  applicable to ABR Loans under the Revolving Facility plus 2%, and (ii) if all or a portion of any interest,  commitment fee or other amount payable hereunder shall not be paid when due and payable (whether at  the stated maturity, by acceleration or otherwise and after giving effect to any grace or cure periods  applicable thereto), 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 Revolving  Facility plus 2%) (unless such overdue amount is denominated in a Foreign Currency, in which case such  overdue amount shall bear interest of a rate per annum equal to the highest rate then applicable under this  Agreement to Foreign Currency Revolving Loans in such currency 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).  (j) Interest shall be payable in arrears on each Interest Payment Date; provided that interest  accruing pursuant to paragraph (g) of this Section shall be payable from time to time on demand.  (k) By entering into this Agreement, the parties hereto have assumed that the interest payable  at the rates specified in this Agreement is not and will not be subject to any deduction of Swiss  Withholding Tax. Nevertheless, if a deduction of Swiss Withholding Tax is required by law to be made  





 






  73  by a Swiss Borrower in respect of any interest payable under this Agreement and should it be unlawful for  a Swiss Borrower to comply with Section 2.21(a) for any reason (where this would otherwise be required  by the terms of Section 2.21 and taking into account the exclusions in Section 2.21), and if the gross-up in  accordance with Section 2.21 is effectively not paid,  (i) the applicable interest rate in relation to that interest payment shall be (A) the  interest rate which would have applied to that interest payment as provided for otherwise in this  Section 2.16 in the absence of this Section 2.16(k)), divided by (B) 1 minus the rate at which the  relevant deduction of Swiss Withholding Tax  is required to be made (where the rate at which the  relevant deduction of Swiss Withholding Tax is required to be made is for this purpose expressed  as a fraction of 1);  (ii) (A) the Swiss Borrower shall be obliged to pay the relevant interest at the  adjusted rate in accordance with this Section 2.16(k), and (B) the Swiss Borrower shall make the  deduction of Swiss Withholding Tax (within the time allowed and in the minimum amount  required by law) on the interest so recalculated; and  (iii) all references to a rate of interest under this Agreement shall be construed  accordingly.   To the extent that interest payable by a Swiss Borrower under this Agreement becomes subject to a  deduction of Swiss Withholding Tax, the Lenders and such Swiss Borrower shall promptly cooperate in  completing any procedural formalities (including submitting forms and documents required by the  appropriate tax authority) to the extent possible and necessary for such Swiss Borrower to obtain  authorization to make interest payments without them being subject to such deduction of Swiss  Withholding Tax or to reduce the applicable withholding tax rate. If a Swiss Borrower pays the interest  recalculated under this Section 2.16(k), that Swiss Borrower shall cooperate with each relevant Lender to  enable that Lender to receive a full or partial refund of the Swiss Withholding Tax under an applicable  double taxation treaty. If and to the extent a Lender receives a refund of Swiss Withholding Tax, it shall  forward such amount, after deduction of costs, to the corresponding Swiss Borrower.  This Section 2.16(k) shall not apply and no interest shall be recalculated pursuant to this Section  2.16(k) if a deduction of Swiss Withholding Tax is due as a result of any non-compliance by a Lender  with the provisions of clause (iv) of Section 10.6(c)) or the Lender (i) making a misrepresentation as to its  status according to Section 2.21(k) as a Swiss Qualifying Bank or as (only) one Swiss Permitted Non- Qualifying Bank or (ii) ceasing to be a  Swiss Qualifying Bank Creditor or as (only) one Swiss Permitted  Non-Qualifying Bank after the time it acceded to this Agreement.  2.17. 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 ABR  Loans or Canadian Prime Rate Loans the rate of interest on which is calculated on the basis of the Prime  Rate or the Canadian 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 and that interest on any Foreign Currency  Revolving Loan denominated in Pounds Sterling or Canadian Dollars shall be calculated on the basis of a  365-day year for actual days elapsed. The Administrative Agent shall as soon as practicable notify the  Company and the relevant Lenders of each determination of a Term Benchmark Rate or CDO Rate. Any  change in the interest rate on a Loan resulting from a change in the Alternate Base Rate or the Canadian  Prime Rate shall become effective as of the opening of business on the day on which such change  becomes effective. The Administrative Agent shall as soon as practicable notify the Company and the  relevant Lenders of the effective date and the amount of each such change in interest rate.  





 






  74  (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 Borrowers and the Lenders absent  manifest error. The Administrative Agent shall, at the request of the Company, deliver to the Company a  statement showing the quotations used by the Administrative Agent in determining any interest rate  pursuant to Section 2.17(a).  2.18. Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this  Section 2.18.  (i) the Administrative Agent determines (which determination shall be conclusive  absent manifest error) (A) prior to the commencement of any Interest Period for a Term  Benchmark Borrowing or CDOR Rate Borrowing, that adequate and reasonable means do not  exist for ascertaining the Adjusted LIBO Rate, the LIBO Rate, the Adjusted EURIBOR Rate, the  EURIBOR Rate, the Adjusted TIBOR Rate, the TIBOR Rate or the CDO Rate (including because  the Relevant Screen Rate is not available or published on a current basis), for the applicable  Agreed Currency and such Interest Period or (B) at any time, that adequate and reasonable means  do not exist for ascertaining the applicable Adjusted Daily Simple RFR, the Daily Simple RFR or  the RFR for the applicable Agreed Currency; or  (ii) the Administrative Agent is advised by the Required Lenders that (A) prior to the  commencement of any Interest Period for a Term Benchmark Borrowing or CDO Rate  Borrowing, the Adjusted LIBO Rate, the LIBO Rate, the Adjusted EURIBOR Rate, the  EURIBOR Rate, the Adjusted TIBOR Rate, the TIBOR Rate or the CDO Rate for the applicable  Agreed Currency and such Interest Period will not adequately and fairly reflect the cost to such  Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such  Borrowing for the applicable Agreed Currency and such Interest Period or (B) at any time, the  applicable Adjusted Daily Simple RFR or RFR for the applicable Agreed Currency will not  adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their  Loans (or its Loan) included in such Borrowing for the applicable Agreed Currency;  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,  (A) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any  Borrowing as, a Term Benchmark Borrowing or CDO Rate Borrowing shall be ineffective, (B) if any  Borrowing Request requests a Term Benchmark Borrowing in Dollars, such Borrowing shall be made as  an ABR Borrowing and (C) if any borrowing request requests a Term Benchmark Borrowing or an RFR  Borrowing for the relevant rate above in an Foreign Currency, then such request shall be ineffective;  provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all  other Types of Borrowings shall be permitted.  Furthermore, if any Term Benchmark Loan, RFR Loan or  CDOR Loan in any Agreed Currency is outstanding on the date of the Borrower’s receipt of the notice  from the Administrative Agent referred to in this Section 2.18 with respect to a Relevant Rate applicable  to such Term Benchmark Loan, RFR Loan or CDOR Loan, then until the Administrative Agent notifies  the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) if such  Term Benchmark Loan is denominated in Dollars, then on the last day of the Interest Period applicable to  such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be  converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on  such day, (ii) if such Term Benchmark Loan is denominated in any Agreed Currency other than Dollars,  then such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding  Business Day if such day is not a Business Day) bear interest at the Central Bank Rate for the applicable  Agreed Currency plus the Applicable Rate; provided that, if the Administrative Agent determines (which  





 






  75  determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the  applicable Agreed Currency cannot be determined, any outstanding affected Term Benchmark Loans  denominated in any Agreed Currency other than Dollars shall, at the Borrower’s election prior to such  day: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating the interest  rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Agreed  Currency other than Dollars shall be deemed to be a Term Benchmark Loan denominated in Dollars and  shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in  Dollars at such time, (iii) if such RFR Loan is denominated in any Agreed Currency other than Dollars,  then such Loan shall bear interest at the Central Bank Rate for the applicable Agreed Currency plus the  Applicable Rate; provided that, if the Administrative Agent determines (which determination shall be  conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Agreed  Currency cannot be determined, any outstanding affected RFR Loans denominated in any Agreed  Currency other than Dollars, at the Borrower’s election, shall either (A) be converted into ABR Loans  denominated in Dollars (in an amount equal to the Dollar Equivalent of such Foreign Currency)  immediately or (B) be prepaid in full immediately or (iv) if such Term Benchmark Loan is denominated  in Canadian Dollars, then on the last day of the Interest Period applicable to such Loan (or the next  succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the  Administrative Agent to, and shall constitute, a Canadian Prime Rate Loan denominated in Canadian  Dollars on such day.  (b) Notwithstanding anything to the contrary herein or in any other Loan Document (and any  Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this 2.18), if a  Benchmark Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as  applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in  respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined  in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” with respect to Dollars  for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for  all purposes hereunder and under any Loan Document in respect of such Benchmark setting and  subsequent Benchmark settings without any amendment to, or further action or consent of any other party  to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in  accordance with clause (3) of the definition of “Benchmark Replacement” with respect to any Agreed  Currency for such Benchmark Replacement Date, such Benchmark Replacement will replace such  Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark  setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of  such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or  consent of any other party to, this Agreement or any other Loan Document so long as the Administrative  Agent has not received, by such time, written notice of objection to such Benchmark Replacement from  Lenders comprising the Required Lenders.  (c) Notwithstanding anything to the contrary herein or in any other Loan Document and  subject to the proviso below in this paragraph, with respect to a Loan denominated in Dollars, if a Term  SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the  Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark  Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan  Document in respect of such Benchmark setting and subsequent Benchmark settings, without any  amendment to, or further action or consent of any other party to, this Agreement or any other Loan  Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has  delivered to the Lenders and the Borrower a Term SOFR Notice.  For the avoidance of doubt, the  Administrative Agent shall not be required to deliver a Term SOFR Notice after the occurrence of a Term  SOFR Transition Event and may do so in its sole discretion.  





 






  76  (d) Notwithstanding anything to the contrary herein or in any other Loan Document, in  connection with the implementation of a Benchmark Replacement, the Administrative Agent will have  the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding  anything to the contrary herein or in any other Loan Document, any amendments implementing such  Benchmark Replacement Conforming Changes will become effective without any further action or  consent of any other party to this Agreement or any other Loan Document.  (e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any  occurrence of a Benchmark Transition Event, an Early Opt-in Election or an Other Benchmark Rate  Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of  any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a  Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark  Unavailability Period.  Any determination, decision or election that may be made by the Administrative  Agent or, if applicable, any Lender (or group of Lenders) pursuant to this 2.18, including any  determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an  event, circumstance or date and any decision to take or refrain from taking any action or any selection,  will be conclusive and binding absent manifest error and may be made in its or their sole discretion and  without consent from any other party to this Agreement or any other Loan Document, except, in each  case, as expressly required pursuant to this 2.18.  (f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any  time (including in connection with the implementation of a Benchmark Replacement), (i) if the then- current Benchmark is a term rate (including Term SOFR, LIBO Rate, EURIBOR Rate, TIBOR Rate or  CDO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information  service that publishes such rate from time to time as selected by the Administrative Agent in its  reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has  provided a public statement or publication of information announcing that any tenor for such Benchmark  is or will be no longer representative, then the Administrative Agent may modify the definition of  “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non- representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is  subsequently displayed on a screen or information service for a Benchmark (including a Benchmark  Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be  representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent  may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate  such previously removed tenor.  (g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark  Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing, RFR  Borrowing or CDO Rate Borrowing of, conversion to or continuation of Term Benchmark Loans or  CDOR Loans to be made, converted or continued during any Benchmark Unavailability Period and,  failing that, either (x) the Borrower will be deemed to have converted any request for a Term Benchmark  Borrowing denominated in Dollars into a request for a Borrowing of or conversion to ABR Loans, (y) the  Borrower will be deemed to have converted any request for a CDO Rate Borrowing into a request for a  Borrowing of or conversion to Canadian Prime Rate Loans or (z) any Term Benchmark Borrowing or  RFR Borrowing denominated in an Foreign Currency other than Canadian Dollars shall be ineffective.   During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is  not an Available Tenor, the component of the Alternate Base Rate based upon the then-current  Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the  Alternate Base Rate.  Furthermore, if any Term Benchmark Loan, RFR Loan in any Agreed Currency or  CDOR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a  Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark  





 






  77  Loan, RFR Loan or CDOR Loan, then until such time as a Benchmark Replacement for such Agreed  Currency is implemented pursuant to this Section 2.18, (i) if such Term Benchmark Loan is denominated  in Dollars, then on the last day of the Interest Period applicable to such Loan (or the next succeeding  Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative  Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day, (ii) if such CDOR Loan  is denominated in Canadian Dollars, then on the last day of the Interest Period applicable to such Loan (or  the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the  Administrative Agent to, and shall constitute, a CDOR Loan denominated in Canadian Dollars on such  day, (iii) if such Term Benchmark Loan is denominated in any Agreed Currency other than Dollars, then  such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding  Business Day if such day is not a Business Day) bear interest at the Central Bank Rate for the applicable  Agreed Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which  determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the  applicable Agreed Currency cannot be determined, any outstanding affected Term Benchmark Loans  denominated in any Agreed Currency other than Dollars shall, at the Borrower’s election prior to such  day: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating the interest  rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Agreed  Currency other than Dollars shall be deemed to be a Term Benchmark Loan denominated in Dollars and  shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in  Dollars at such time or (iv) if such RFR Loan is denominated in any Agreed Currency other than Dollars,  then such Loan shall bear interest at the Central Bank Rate for the applicable Agreed Currency plus the  CBR Spread; provided that, if the Administrative Agent determines (which determination shall be  conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Agreed  Currency cannot be determined, any outstanding affected RFR Loans denominated in any Agreed  Currency, at the Borrower’s election, shall either (A) be converted into ABR Loans denominated in  Dollars (in an amount equal to the Dollar Equivalent of such Foreign Currency) immediately or (B) be  prepaid in full immediately.  2.19. Pro Rata Treatment and Payments. (a) Each borrowing by a Borrower from the  Revolving Lenders hereunder, each payment by a Borrower on account of any commitment fee and any  reduction of the Revolving Commitments shall be made pro rata according to the respective Revolving  Percentages of the Revolving Lenders.  (b) Each payment (including each prepayment) by a Borrower on account of principal of and  interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal  amounts of the Revolving Loans then held by the Revolving Lenders, except as otherwise provided in  Section 2.28.  (c) Each payment (including each prepayment) by the Company on account of principal of  and interest and premium, if any, on the Tranche A Term Loans shall be made pro rata according to the  respective outstanding principal amounts of the Tranche A Term Loans then held by the Tranche A Term  Lenders. The amount of each principal prepayment of the Tranche A Term Loans shall be applied to  reduce the then remaining installments of the Tranche A Term Loans in the direct order of maturity.  Amounts prepaid on account of the Tranche A Term Loans may not be reborrowed.  (d) [Reserved].  (e) All payments (including prepayments) to be made by a 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 its Domestic Funding Office, in U.S. Dollars and in immediately available  





 






  78  funds (or, in the case of principal or interest relating to Foreign Currency Revolving Loans, prior to 2:00  p.m. Local Time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at  its Funding Office, in the relevant Foreign Currency and in immediately available funds). The  Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as  received. If any payment hereunder (other than payments on the Term Benchmark Loans or CDOR  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 Term Benchmark Loan or CDOR Loans 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.  (f) 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 applicable 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, (i) in the case of amounts  denominated in U.S. Dollars, such amount with interest thereon at a rate equal to the daily average  NYFRB Rate or (ii) in the case of amounts denominated in Foreign Currencies, such amount with interest  thereon at a rate determined by the Administrative Agent to be the cost to it of funding such amount, in  each case 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 absent 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 of such Borrowing Date, the Administrative Agent shall also be entitled to recover (i) in  the case of amounts denominated in U.S. Dollars, such amount with interest thereon at the rate per annum  equal to the daily average Federal Funds Effective Rate, on demand, from the applicable Borrower or (ii)  in the case of amounts denominated in Foreign Currencies, such amount with interest thereon at a rate  determined by the Administrative Agent to be the cost to it of funding such amount, on demand, from the  applicable Borrower.  (g) Unless the Administrative Agent shall have been notified in writing by the applicable  Borrower prior to the date of any payment being made hereunder that the applicable Borrower will not  make such payment to the Administrative Agent, the Administrative Agent may assume that the  applicable 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  applicable Borrower within three Business Days of such required 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, (i) in the case of amounts denominated in U.S. Dollars, such amount  with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate and (ii)  in the case of amounts denominated in Foreign Currencies, such amount with interest thereon at a rate per  annum determined by the Administrative Agent to be the cost to it of funding such amount. Nothing  herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any  Borrower.  





 






  79  (h) Nothing in this Section 2.19 creates any obligation for (i) any Foreign Subsidiary  Borrower to repay any Obligation of any Domestic Borrower or (ii) any Domestic Borrower to repay any  Obligation of any Foreign Subsidiary Borrower.  2.20. Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or  in the interpretation or application thereof or compliance by any Credit Party 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 date hereof:  (i) shall subject such Credit Party to any Tax (except for Non-Excluded Taxes and  Taxes described in clauses (i) through (iv) of the definition of Non-Excluded 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 or similar requirement (including any insurance charge or other assessment, but other than  any reserve requirement contemplated by Section 2.20(e)) against assets held by, deposits or  other liabilities in or for the account of, advances, loans or other extensions of credit by, or any  other acquisition of funds by, any office of such Credit Party or any Letter of Credit or  participation therein; or  (iii) shall impose on such Credit Party or the London interbank or other relevant  market any other condition, cost or expense affecting this Agreement or the Loans made by such  Credit Party or any Letter of Credit or participation therein (other than Taxes);  and the result of any of the foregoing is to increase the cost to such Credit Party, by an amount that such  Credit Party deems to be material, of making, converting into, continuing or maintaining Loans or issuing  or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then,  in any such case, the Borrowers shall pay such Credit Party, following thirty (30) days’ prior written  demand and delivery of the calculation of such amount, any additional amounts necessary to compensate  such Credit Party for such increased cost or reduced amount receivable. If any Credit Party becomes  entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Company  (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled  together with a calculation of such amount claimed; provided that failure or delay on the part of any  Credit Party to demand compensation pursuant to this Section 2.20(a) shall not constitute a waiver of such  Credit Party’s right to demand such compensation; provided further that the Borrowers shall not be  required to compensate a Lender pursuant to this paragraph for any amounts incurred more than 90 days  prior to the date that such Lender notifies the Company of such Lender’s intention to claim compensation  therefor; and provided further that, if the circumstances giving rise to such claim have a retroactive effect,  then such 90-day period shall be extended to include the period of such retroactive effect; provided  further that in respect of clause (a)(i), the Company shall be required to make such payment only if the  respective Lender certifies that it generally requires similarly situated borrowers in comparable syndicated  credit facilities to which it is a lender to make similar payments.  (b) If any Credit Party shall have determined that the adoption of or any change in any  Requirement of Law regarding capital or liquidity requirements or in the interpretation or application  thereof or compliance by such Credit Party, or any corporation controlling such Credit Party 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 Credit Party’s or such corporation’s capital as a consequence of its obligations  hereunder or under or in respect of any Letter of Credit to a level below that which such Lender or such  





 






  80  corporation could have achieved but for such adoption, change or compliance (taking into consideration  such Credit Party’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 Credit  Party to the Company (with a copy to the Administrative Agent) of a written request therefor, the  Borrowers shall pay to such Credit Party such additional amount or amounts as will compensate such  Credit Party for such reduction; provided that the Borrowers shall not be required to compensate a Lender  pursuant to this paragraph for any amounts incurred more than 90 days prior to the date that such Lender  notifies the Company of such Lender’s intention to claim compensation therefor; provided further that, if  the circumstances giving rise to such claim have a retroactive effect, then such 90-day period shall be  extended to include the period of such retroactive effect; and provided further that the Company shall be  required to make such payment only if the respective Lender certifies that it generally requires similarly  situated borrowers in comparable syndicated credit facilities to which it is a lender to make similar  payments.  (c) Notwithstanding anything herein to the contrary (x) the Dodd-Frank Wall Street Reform  and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in  connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for  International Settlements, the Basel Committee on Banking Supervision (or any successor or similar  authority), or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall  be deemed to be a change in a Requirement of Law, regardless of the date enacted, adopted or issued.  (d) A certificate as to any additional amounts payable pursuant to this Section submitted by  any Credit Party to the Company (with a copy to the Administrative Agent) shall be conclusive absent  manifest error. The obligations of the Borrowers pursuant to this Section shall survive the termination of  this Agreement and the payment of the Loans and all other amounts payable hereunder.  (e) Eurocurrency Liabilities. Each Borrower shall pay to each Lender, without duplication,  (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets  consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency  liabilities”), additional interest on the unpaid principal amount of each Term Benchmark Loan, RFR Loan  or CDO Rate equal to the actual costs of such reserves allocated to such Loan by such Lender (as  determined by such Lender in good faith, which determination shall be conclusive absent manifest error),  and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or  analogous requirement of any other central banking or financing regulatory authority imposed in respect  of the maintenance of the Commitments or the funding of any Term Benchmark Loan, RFR Loan or CDO  Rate of such Borrower, such additional costs (expressed as a percentage per annum and rounded upwards,  if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or  Loan by such Lender (as determined by such Lender in good faith, which determination shall be  conclusive absent manifest error), which in each case shall be due and payable on each date on which  interest is payable on such Loan; provided the Company shall have received at least 30 days’ prior written  notice (with a copy to the Administrative Agent) of such additional interest or cost from such Lender;  provided further that the Company shall be required to make such payment only if the respective Lender  certifies that it generally requires similarly situated borrowers in comparable syndicated credit facilities to  which it is a lender to make similar payments.  (f) Notwithstanding any other provision of this Agreement, if, after the date hereof, (i)(A)  the adoption of any law, rule or regulation after the date of this Agreement, (B) any change in any law,  rule or regulation or in the interpretation or application thereof by any Governmental Authority after the  date of this Agreement or (C) compliance by any Lender with any request, guideline or directive (whether  or not having the force of law) of any Governmental Authority made or issued after the date of this  Agreement, shall make it unlawful for any such Lender to make or maintain any Foreign Currency  





 






  81  Revolving Loan or to give effect to its obligations as contemplated hereby with respect to any Foreign  Currency Revolving Loan, or (ii) there shall have occurred any change in national or international  financial, political or economic conditions (including the imposition of or any change in exchange  controls, but excluding conditions otherwise covered by this Section 2.20) or currency exchange rates  which would make it impracticable for the Lenders to make or maintain Foreign Currency Revolving  Loans denominated in the relevant currency to, or for the account of, any Borrower, then, by written  notice to the Company and to the Administrative Agent:  (i) such Lender or Lenders may declare that Foreign Currency Revolving Loans (in  the affected currency or currencies) will not thereafter (for the duration of such unlawfulness or  impracticality) be made by such Lender or Lenders hereunder (or be continued for additional  Interest Periods), whereupon any request for a Foreign Currency Revolving Loan (in the affected  currency or currencies) or to continue a Foreign Currency Revolving Loan (in the affected  currency or currencies), as the case may be, for an additional Interest Period shall, as to such  Lender or Lenders only, be of no force and effect, unless such declaration shall be subsequently  withdrawn; and  (ii) such Lender may require that all outstanding Foreign Currency Revolving Loans  (in the affected currency or currencies) whose interest is determined by reference to the  applicable Term Benchmark Rate, RFR or CDO Rate made by it be converted to, in the case of  CDOR Loans, as Canadian Prime Rate Loans, in the case of Term Benchmark Loans  denominated in Euros, as Daily Simple ESTR Loans, or in the case of Term Benchmark Loans or  RFR Loans denominated in Pounds Sterling, Yen, Swiss Francs or any additional Foreign  Currency, either another mutually acceptable alternative rate (which in no event shall be less than  zero) or at the Company’s option converted to ABR Loans denominated in U.S. Dollars, as the  case may be (unless repaid by the relevant Borrower as described below), in which event all such  Foreign Currency Revolving Loans (in the affected currency or currencies) shall be so converted  as of the effective date of such notice as provided in this Section 2.20(f) and at the Exchange Rate  on the date of such conversion or, at the option of the relevant Borrower, repaid on the last day of  the then current Interest Period with respect thereto or, if earlier, the date on which the applicable  notice becomes effective.  In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and  prepayments of principal that would otherwise have been applied to repay the converted Foreign  Currency Revolving Loans of such Lender shall instead be applied to repay the Loans made by such  Lender resulting from such conversion. For purposes of this Section 2.20(f), a notice to the Company by  any Lender shall be effective as to each Foreign Currency Revolving Loan made by such Lender, if  lawful, on the last day of the Interest Period, if any, currently applicable to such Foreign Currency  Revolving Loan; in all other cases such notice shall be effective on the date of receipt thereof by the  Company.  2.21. Taxes. (a) Any and all payments by or on account of any obligation of the Company  under any Loan Document shall be made free and clear of, and without deduction or withholding for or  on account of, 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 a Non- Excluded Tax or Other Taxes, then the amount payable by the Company to the Credit Party shall be  increased as necessary so that after such deduction or withholding has been made (including such  deductions and withholdings applicable to additional sums payable under this Section) the Credit Party  





 






  82  receives an amount that  would have received had no such deduction or withholding been made.  Whenever any Non-Excluded Taxes or Other Taxes are payable by the Company to a Governmental  Authority pursuant to this Section 2.21, as soon as practicable thereafter the Company shall send to the  Administrative Agent the original or certified copy of a receipt issued by such Governmental Authority  evidencing such payment.  (b) In addition, the Company shall timely pay to the relevant Governmental Authority in  accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the  payment of any Other Taxes.  (c) The Company shall indemnify each Credit Party, within 10 days after demand therefor,  for the full amount of any Non-Excluded Taxes or Other Taxes (including Non-Excluded Taxes or Other  Taxes imposed or asserted on or attributable to amounts payable under this Section) 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 Non-Excluded Taxes  or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority;  provided, however, that the Company shall not be obligated to indemnify such Credit Party pursuant to  this Section 2.21 in respect of penalties, interest and other liabilities are attributable to the bad faith, gross  negligence or willful misconduct of such Credit Party. After a Credit Party learns of the imposition of  Non-Excluded Taxes or Other Taxes, such Credit Party will act in good faith to promptly notify the  Company of its obligations thereunder. A certificate as to the amount of such payment or liability  delivered to the applicable 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.  (d) Each Lender shall severally indemnify the Administrative Agent, within 10 days after  demand therefor, for any Taxes (i) attributable to such Lender (but only to the extent that the Company  has not already indemnified the Administrative Agent for such Non-Excluded Taxes or Other Taxes and  without limiting the obligation of such Borrower to do so) or (ii) attributable to such Lender’s failure to  comply with the provisions of Section 10.6(b) 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 set off and  apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise  payable by the Administrative Agent to the Lender from any other source against any amount due to the  Administrative Agent under this paragraph (d).  (e) If the Administrative Agent or any Lender is entitled to an exemption from or reduction  of withholding Tax with respect to payments made under any Loan Document, such Administrative  Agent or Lender shall deliver to the Company and the Administrative Agent at the time or times  prescribed by applicable law or reasonably requested by the Company or the Administrative Agent, such  properly completed and executed documentation prescribed by applicable law or reasonably requested by  the Company 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 Company or  the Administrative Agent, shall deliver such other documentation prescribed by applicable law or  reasonably requested by the Company or the Administrative Agent as will enable the Company 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  





 






  83  documentation set forth in Section 2.21(f)) 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.  (f) Without limiting the generality of the foregoing,  (i) Each Lender (or Transferee) that is a “United States person” as defined in  Section 7701(a)(30) of the Code (a “U.S. Person”) shall deliver to the Company 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 Company or the  Administrative Agent), a properly completed and duly signed copy of U.S. Internal Revenue  Service  Form W-9 (or any successor form) certifying that such Lender is exempt from U.S.  federal backup withholding tax.   (ii) Each Lender (or Transferee) that is not a U.S. Person (a “Non-U.S. Lender”)  shall, to the extent it is legally entitled to do so, deliver to the Company 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 Company or the Administrative  Agent.):  (A) 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, a properly completed and duly signed copy 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, two completed and duly  signed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption  from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or  “other income” article of such tax treaty;  (B) in case of a Non-U.S. Lender claiming that its extension of credit will  generate U.S. effectively connected income, a properly completed and duly signed copy  of IRS Form W-8ECI;  (C) 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 F-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 Company  within the meaning of Section 871(h)(3)(B) of the Code, or a CFC related to the  Company as described in Section 881(c)(3)(C) of the Code and that the income is not  effectively connected income (a “U.S. Tax Compliance Certificate”) and (y) a properly  completed and executed copy of IRS Form W-8BEN or IRS Form W-8BEN-E; or  (D) to the extent a Non-U.S. Lender is not the beneficial owner, a properly  completed and executed copy of IRS Form W-8IMY, accompanied by a properly  completed and executed copy of 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 F-2 or F- 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  





 






  84  exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate  substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner.  (iii) Any Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to  the Company and the Administrative Agent on or about 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 Company or the Administrative Agent), a completed and duly signed copy 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 Company or the Administrative Agent to  determine the withholding or deduction required to be made;   (iv) 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 Company and the  Administrative Agent, at the time or times prescribed by law and at such time or times reasonably  requested by the Company 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 Company or the Administrative Agent as  may be necessary for the Company and the Administrative Agent to comply with their obligations  under FATCA, 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; and  (v) The Administrative Agent shall deliver to the Company an executed copy of  whichever of the following is applicable:  (A) if the Administrative Agent is a U.S. Person, IRS Form W-9 certifying to  such Administrative Agent's exemption from U.S. federal backup withholding; or  (B) if the Administrative Agent is not a U.S. Person, (x) IRS Form W-8ECI  with respect to payments received for its own account; and (y) IRS Form W-8IMY with  respect to any amounts payable to the Administrative Agent for the accounts of others,  clarifying that it is a U.S. branch of a foreign bank or insurance company described in  Regulations section 1.1441-1(b)(2)(iv)(A) that is a “participating foreign financial  institution” or PFFI (including a reporting Model 2 FFI), registered deemed-compliant  FFI (including a reporting Model 1 FFI), or “non-financial foreign entity” that is using  this form as evidence of its agreement with the withholding agent to be treated as a U.S.  Person with respect to any payments associated with this withholding certificate.  (g) The Administrative Agent and each Lender agree 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 Company and the Administrative Agent in writing of its legal inability  to do so.  (h) 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 2.21 (including by the  payment of additional amounts pursuant to this Section 2.21), it shall pay to the indemnifying party an  amount equal to such refund (but only to the extent of indemnity payments made under this Section with  respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of  such indemnified party and without interest (other than any interest paid by the relevant Governmental  





 






  85  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 Section 2.21(h) (plus  any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that  such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this Section 2.21(h), in no event will the indemnified party be  required to pay any amount to an indemnifying party pursuant to this Section 2.21(h) the payment of  which would place the indemnified party in a less favorable net after-Tax position than the indemnified  party would have been in if the Tax subject to indemnification and giving rise to such refund had not been  deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with  respect to such Tax had never been paid. This Section 2.21(h) shall not be construed to require any  indemnified party to make available its Tax returns (or any other information relating to its Taxes that it  deems confidential) to the indemnifying party or any other Person.  (i) For purposes of this Section 2.21, the term “Lender” includes any Issuing Lender and the  term “applicable law” includes FATCA.  (j) Each party’s obligations under this Section shall survive the resignation or replacement of  the Administrative Agent or any assignment or rights by, or the replacement of, a Lender, the termination  of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan  Document.  (k) Each Lender confirms on the date of this Agreement or on the date it accedes to this  Agreement that it is a Swiss Qualifying Bank or counts as (only) one Swiss Permitted Non-Qualifying  Bank, respectively.  2.22. Indemnity.   (a) With respect to Loans that are not RFR Loans, each Borrower agrees to indemnify each  Lender and to hold each Lender harmless from any loss or expense that such Lender may sustain or incur  as a consequence of (a) default by such Borrower in making a borrowing of, conversion into or  continuation of Term Benchmark Loans or CDOR Loans after such Borrower has given a notice  requesting the same in accordance with the provisions of this Agreement, (b) default by such Borrower in  making any prepayment of or conversion from Term Benchmark Loans or CDOR Loans after such  Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the  making of a payment of Term Benchmark Loans or CDOR Loans (including pursuant to Sections 2.24 or  10.1(c)) on a day that is not the last day of an Interest Period with respect thereto. Such indemnification,  which shall be payable within 30 days of written demand therefor, 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 returned,  or not so borrowed, converted or continued, for the period from the date of such prepayment or return 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 or other  applicable interbank market. A certificate as to any amounts payable pursuant to this Section submitted to  the Company by any Lender shall be conclusive absent manifest error. This covenant shall survive the  termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.   (b) With respect to RFR Loans, each Borrower agrees to indemnify each Lender and to hold  each Lender harmless from any loss or expense that such Lender may sustain or incur as a consequence of  





 






  86  (a) the payment of any principal of any RFR Loan other than on the Interest Payment Date applicable  thereto (including as a result of an Event of Default or an optional or mandatory prepayment of Loans),  (b) default by such Borrower in making a borrowing of RFR Loans after such Borrower has given a  notice requesting the same in accordance with the provisions of this Agreement or (c) default by such  Borrower in making any prepayment RFR Loans after such Borrower has given a notice thereof in  accordance with the provisions of this Agreement. Such indemnification, which shall be payable within  30 days of written demand therefor.  A certificate as to any amounts payable pursuant to this Section  submitted to the Company by any Lender shall be conclusive absent manifest error. This covenant shall  survive the termination of this Agreement and the payment of the Loans and all other amounts payable  hereunder.  2.23. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event  giving rise to the operation of Sections 2.20 or 2.21 with respect to such Lender, it will, if requested by  the Company, use reasonable efforts (subject to overall policy considerations of such Lender) to designate  another lending office for any Loans affected by such event with the object of avoiding the consequences  of such event; provided, that such designation is made on terms that, in the good faith judgment of such  Lender, (i) would eliminate or reduce the amounts payable pursuant to Section 2.20 or Section 2.21, as  the case may be, in the future, (ii) would not subject such Lender to (A) any unreimbursed cost or expense  or (B) significant investment of time or effort and (iii) would not otherwise be materially disadvantageous  to such Lender, and provided, further, that nothing in this Section shall affect or postpone any of the  obligations of any Borrower or the rights of any Lender pursuant to Section 2.20 or 2.21. The Company  hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any  such designation.  2.24. Replacement of Lenders. The Company shall be permitted, at its sole expense and effort,  with respect to any Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.20 or  Section 2.21, (b) has become a Defaulting Lender or an Objecting Lender hereunder or, pursuant to  Section 2.20(f), is unable to make any particular type of Loans or (c) in connection with any proposed  amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected  thereby” (or any other Class or group of Lenders other than the Required Lenders or Required Revolving  Lenders) with respect to which Required Lender or Required Revolving Lender consent, as applicable (or  the consent of Lenders holding loans or commitments of such Class or lesser group representing more  than 50.0% of the sum of the total loans and unused commitments of such Class or lesser group at such  time) has been obtained, as applicable, is a non-consenting Lender (each such Lender, a “Non- Consenting Lender”) (1) to replace such Lender, with a replacement financial institution; provided that  (i) 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, (ii) the applicable Borrower shall be liable to such  replaced Lender under Section 2.22 for any losses suffered or expenses incurred by such Lender if any  Term Benchmark Loan or CDOR Loan owing to such replaced Lender shall be purchased other than on  the last day of the Interest Period relating thereto, (iii) the replacement financial institution, if not already  a Lender, shall be reasonably satisfactory to the Administrative Agent to the extent such consent is  required pursuant to Section 10.6, (iv) the replaced Lender shall be obligated to make such replacement in  accordance with the provisions of Section 10.6 (provided that the applicable Borrower shall be obligated  to pay the registration and processing fee referred to therein) or pursuant to other procedures agreed upon  by the Company and the Administrative Agent including deemed assignments upon payment to the  replaced Lender of amounts required to be paid to it pursuant to this Section 2.24, (v) until such time as  such replacement shall be consummated, the applicable Borrower shall pay all additional amounts (if any)  required pursuant to Section 2.20 or 2.21, as the case may be, and (vi) any such replacement shall not be  deemed to be a waiver of any rights that any Borrower, the Administrative Agent or any other Lender  shall have against the replaced Lender or (2) terminate the Commitment of such Lender and (a) in the  case of a Lender (other than an Issuing Lender), repay all Obligations of the Borrowers owing to such  





 






  87  Lender relating to the applicable Loans, Commitments and participations held by such Lender as of such  termination date, and (b) in the case of an Issuing Lender, repay all Obligations of the Borrowers owing to  such Issuing Lender relating to the applicable Loans and participations held by the Issuing Lender as of  such termination date and cancel or backstop on terms satisfactory to such L/C Issuer any Letters of  Credit issued by it.  No action by or consent of any Lender referred to in this Section 2.24, including any  Objecting Lender, Defaulting Lender or  Non-Consenting Lender shall be necessary in connection with  such assignment, which shall be immediately and automatically effective upon payment of the amounts  described in the immediately preceding sentence.  2.25. Foreign Currency Exchange Rate. (a) No later than 12:00 Noon, London time, on each  Calculation Date with respect to a Foreign Currency, the Administrative Agent shall determine the  Exchange Rate as of such Calculation Date with respect to such Foreign Currency; provided that, upon  receipt of a borrowing request for Foreign Currency Revolving Loans, the Administrative Agent shall  determine the Exchange Rate with respect to the relevant Foreign Currency on the related Calculation  Date (it being acknowledged and agreed that the Administrative Agent shall use such Exchange Rate  solely for the purposes of determining compliance with Section 2.6 with respect to such borrowing  request). The Exchange Rates so determined shall become effective on the relevant Calculation Date (a  “Reset Date”), shall remain effective until the next succeeding Reset Date and shall for all purposes of  this Agreement (other than Section 2.20(f), 10.21 and any other provision expressly requiring the use of a  current Exchange Rate) be the Exchange Rates employed in converting any amounts between U.S.  Dollars and Foreign Currencies.  (b) No later than 5:00 p.m., London time, on each Reset Date, the Administrative Agent shall  determine the aggregate amount of the Dollar Equivalents of the principal amounts of the relevant  Foreign Currency Revolving Loans then outstanding (after giving effect to any Foreign Currency  Revolving Loans to be made or repaid on such date).  (c) The Administrative Agent shall promptly notify the Company and the Lenders of each  determination of an Exchange Rate hereunder.  2.26. Extension of the Facilities. (a) The Company may at any time and from time to time,  request that all or a portion of the Term Loans of a given Class (or series or tranche thereof) (each, an  “Existing Term Loan Tranche”) be amended to extend the scheduled maturity date(s) with respect to all  or a portion of any principal amount of such Term Loans (any such Term Loans which have been so  amended, “Extended Term Loans”) and to provide for other terms applicable thereto consistent with this  Section 2.26. In order to establish any Extended Term Loans, the Company shall provide a notice to the  Administrative Agent (who shall provide a copy of such notice to each of the Lenders under the  applicable Existing Term Loan Tranche) (each, a “Term Loan Extension Request”) setting forth the  proposed terms of the Extended Term Loans to be established, which shall (x) be identical as offered to  each Lender under such Existing Term Loan Tranche (including as to the proposed interest rates and fees  payable) and offered pro rata to each Lender under such Existing Term Loan Tranche and (y) be identical  to the Term Loans under the Existing Term Loan Tranche from which such Extended Term Loans are to  be amended, except that: (i) all or any of the scheduled amortization payments of principal of the  Extended Term Loans may be delayed to later dates than the scheduled amortization payments of  principal of the Term Loans of such Existing Term Loan Tranche, to the extent provided in the applicable  Extension Amendment; (ii) the All-in Yield with respect to the Extended Term Loans may be different  than the All-in Yield for the Term Loans of such Existing Term Loan Tranche, in each case, to the extent  provided in the applicable Extension Amendment; (iii) the Extension Amendment may provide for other  covenants and terms that apply solely to any period after the Latest Maturity Date that is in effect on the  effective date of the Extension Amendment; and (iv) the Extended Term Loans may have prepayment  premiums or call protection as may be agreed by the Company and the Lenders thereof; provided that that  





 






  88  (A) in no event shall the final maturity date of any Extended Term Loans of a given Term Loan Extension  Series at the time of establishment thereof be earlier than the maturity date of the applicable Existing  Term Loan Tranche, (B) the Weighted Average Life to Maturity of any Extended Term Loans of a given  Term Loan Extension Series at the time of establishment thereof shall be no shorter than the remaining  Weighted Average Life to Maturity of the applicable Existing Term Loan Tranche, (C) all documentation  in respect of such Extension Amendment shall be consistent with the foregoing and (D) any Extended  Term Loans may participate on a pro rata basis or less than a pro rata basis (but not greater than a pro rata  basis) in any mandatory repayments or prepayments hereunder, in each case as specified in the respective  Term Loan Extension Request. Any Class of Extended Term Loans amended pursuant to any Term Loan  Extension Request shall be designated a series (each, a “Term Loan Extension Series”) of Extended  Term Loans for all purposes of this Agreement; provided that any Extended Term Loans amended from  an Existing Term Loan Tranche may, to the extent provided in the applicable Extension Amendment, be  designated as an increase in any previously established Term Loan Extension Series with respect to such  Existing Term Loan Tranche. Each Term Loan Extension Series of Extended Term Loans incurred under  this Section 2.26 shall be in an aggregate principal amount that is not less than $20,000,000 (or such  lesser amount as to which the Administrative Agent may agree).  (b) The Company may at any time and from time to time, in its sole discretion, request that  all or a portion of the Revolving Commitments or commitments in respect of an Incremental Revolving  Facility (“Incremental Revolving Commitments”) of a given Class (or series or tranche thereof) (each,  an “Existing Revolver Tranche”) be amended to extend the maturity date with respect to all or a portion  of any principal amount of such Revolving Commitments or Incremental Revolving Commitments (any  such Revolving Commitments or Incremental Revolving Commitments which have been so amended,  “Extended Revolving Commitments”) and to provide for other terms consistent with this Section 2.26.  In order to establish any Extended Revolving Commitments, the Company shall provide a notice to the  Administrative Agent (who shall provide a copy of such notice to each of the Lenders under the  applicable Existing Revolver Tranche) (each, a “Revolver Extension Request” and together with a Term  Loan Extension Request, an “Extension Request”) setting forth the proposed terms of the Extended  Revolving Commitments to be established, which shall (x) be identical as offered to each Lender under  such Existing Revolver Tranche (including as to the proposed interest rates and fees payable) and offered  pro rata to each Lender under such Existing Revolver Tranche and (y) be identical to the Revolving  Commitments under the Existing Revolver Tranche from which such Extended Revolving Commitments  are to be amended, except that: (i) the maturity date of the Extended Revolving Commitments may be  delayed to a later date than the maturity date of the Revolving Commitments of such Existing Revolver  Tranche, to the extent provided in the applicable Extension Amendment; (ii) the All-in Yield with respect  to extensions of credit under the Extended Revolving Commitments (whether in the form of interest rate  margin, upfront fees, commitment fees, OID or otherwise) may be different than the All-in Yield for  extensions of credit under the Revolving Commitments of such Existing Revolver Tranche, in each case,  to the extent provided in the applicable Extension Amendment; (iii) the Extension Amendment may  provide for other covenants and terms that apply solely to any period after the Latest Maturity Date that is  in effect on the effective date of the Extension Amendment; and (iv) all borrowings under the applicable  Revolving Commitments (i.e., the Existing Revolver Tranche and the Extended Revolving Commitments  of the applicable Revolver Extension Series) and repayments thereunder shall be made on a pro rata basis  (except for (I) payments of interest and fees at different rates on Extended Revolving Commitments (and  related outstandings) and (II) repayments required upon the maturity date of the non-extending Revolving  Commitments); provided, further, that all documentation in respect of such Extension Amendment shall  be consistent with the foregoing. Any Extended Revolving Commitments amended pursuant to any  Revolver Extension Request shall be designated a series (each, a “Revolver Extension Series” (and  together with a Term Loan Extension Series, any “Extension Series”)) of Extended Revolving  Commitments for all purposes of this Agreement; provided that any Extended Revolving Commitments  amended from an Existing Revolver Tranche may, to the extent provided in the applicable Extension  





 






  89  Amendment, be designated as an increase in any previously established Revolver Extension Series with  respect to such Existing Revolver Tranche. Each Revolver Extension Series of Extended Revolving  Commitments incurred under this Section 2.26 shall be in an aggregate principal amount that is not less  than $10,000,000 (or such lesser amount as to which the Administrative Agent may agree).  (c) The Company shall provide the applicable Extension Request at least three (3) Business  Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which  Lenders under the Existing Term Loan Tranche or Existing Revolver Tranche, as applicable, are  requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable  to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this  Section 2.26. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing  Term Loan Tranche amended into Extended Term Loans or any of its Revolving Commitments amended  into Extended Revolving Commitments, as applicable, pursuant to any Extension Request. Any Lender  holding a Loan under an Existing Term Loan Tranche (each, an “Extending Term Lender”) wishing to  have all or a portion of its Term Loans under the Existing Term Loan Tranche subject to such Extension  Request amended into Extended Term Loans and any Revolving Lender (each, an “Extending Revolving  Lender”) wishing to have all or a portion of its Revolving Commitments under the Existing Revolver  Tranche subject to such Extension Request amended into Extended Revolving Commitments, as  applicable, shall notify the Administrative Agent (each, an “Extension Election”) on or prior to the date  specified in such Extension Request of the amount of its Term Loans under the Existing Term Loan  Tranche or Revolving Commitments under the Existing Revolver Tranche, as applicable, which it has  elected to request be amended into Extended Term Loans or Extended Revolving Commitments, as  applicable (subject to any minimum denomination requirements imposed by the Administrative Agent).  In the event that the aggregate principal amount of Term Loans under the Existing Term Loan Tranche or  Revolving Commitments under the Existing Revolver Tranche, as applicable, in respect of which  applicable Term Lenders or Revolving Lenders, as the case may be, shall have accepted the relevant  Extension Request exceeds the amount of Extended Term Loans or Extended Revolving Commitments,  as applicable, requested to be extended pursuant to the Extension Request, Term Loans or Revolving  Commitments, as applicable, subject to Extension Elections shall be amended to Extended Term Loans or  Revolving Commitments, as applicable, on a pro rata basis (subject to rounding by the Administrative  Agent, which shall be conclusive absent manifest error) based on the aggregate principal amount of Term  Loans or Revolving Commitments, as applicable, included in each such Extension Election.   (d) Extended Term Loans and Extended Revolving Commitments shall be established  pursuant to an amendment (each, an “Extension Amendment”) to this Agreement among the Company,  the Administrative Agent and each Extending Term Lender or Extending Revolving Lender, as  applicable, providing an Extended Term Loan or Extended Revolving Commitment, as applicable,  thereunder, which shall be consistent with the provisions set forth in Sections 2.26(a) or )b(above,  respectively (but which shall not require the consent of any other Lender). The effectiveness of any  Extension Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set  forth in Section 5.2 and, to the extent reasonably requested by the Administrative Agent, receipt by the  Administrative Agent of reaffirmation agreements and/or such amendments to the Collateral Documents  as may be reasonably requested by the Administrative Agent in order to ensure that the Extended Term  Loans or Extended Revolving Commitments, as applicable, are provided with the benefit of the applicable  Loan Documents. The Company may, at its election, specify as a condition to consummating any  Extension Amendment that a minimum amount (to be determined and specified in the relevant Extension  Request in the Company’s sole discretion and as may be waived by the Company) of Term Loans,  Revolving Commitments or Incremental Revolving Commitments (as applicable) of any or all applicable  Classes be tendered. The Administrative Agent shall promptly notify each Lender as to the effectiveness  of each Extension Amendment. Each of the parties hereto hereby agrees that this Agreement and the other  Loan Documents may be amended pursuant to an Extension Amendment, without the consent of any  





 






  90  other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the  Extended Term Loans or Extended Revolving Commitments, as applicable, incurred pursuant thereto, (ii)  modify the scheduled repayments set forth in Section 2.5 with respect to any Existing Term Loan Tranche  subject to an Extension Election to reflect a reduction in the principal amount of the Term Loans  thereunder in an amount equal to the aggregate principal amount of the Extended Term Loans amended  pursuant to the applicable Extension Election (with such amount to be applied ratably to reduce scheduled  repayments of such Term Loans required pursuant to Section 2.5), (iii) modify the prepayments set forth  in Section 2.5 to reflect the existence of the Extended Term Loans and the application of prepayments  with respect thereto, (iv) make such other changes to this Agreement and the other Loan Documents  consistent with the provisions and intent of Section 10.1 (without the consent of the Required Lenders  called for therein) and (v) effect such other amendments to this Agreement and the other Loan Documents  as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the  Company, to effect the provisions of this Section 2.26, and the Required Lenders hereby expressly  authorize the Administrative Agent to enter into any such Extension Amendment.  (e) No extension of Loans pursuant to any Extension Election in accordance with this  Section 2.26 shall constitute a voluntary or mandatory payment or prepayment for purposes of this  Agreement.  (f) This Section 2.26 shall supersede any provisions in Section 2.19 or 10.1 to the contrary.  2.27. Incremental Loan Extensions. (a) The Company may, at any time, on one or more  occasions pursuant to an Incremental Facility Amendment (i) add one or more new Classes of term  facilities (which may be additional Tranche A Term Loans or term “b” loans) and/or increase the  principal amount of any Term Loans of any existing Class by requesting new term loan commitments to  be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans  made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more  new Classes of revolving commitments and/or increase the aggregate amount of the Revolving  Commitments of any existing Class (any such new Class or increase, an “Incremental Revolving  Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any  thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and,  together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal  amount not to exceed the Incremental Cap; provided that:  (i) no commitments in respect of Incremental Loans (“Incremental Commitment”)  in respect of any Incremental Term Facility may be in an amount that is less than $10,000,000 (or  such lesser amount to which the Administrative Agent may reasonably agree),  (ii) except as separately agreed from time to time between the Company and any  Lender, no Lender shall be obligated to provide any Incremental Commitment, and the  determination to provide such commitments shall be within the sole and absolute discretion of  such Lender (it being agreed that the Company shall not be obligated to offer the opportunity to  any Lender to participate in any Incremental Facility),  (iii) no Incremental Facility or Incremental Loan (nor the creation, provision or  implementation thereof) shall require the approval of any existing Lender other than in its  capacity, if any, as a lender providing all or part of such Incremental Facility or Incremental  Loan,  (iv) [reserved];  





 






  91  (v) the All-in-Yield applicable to any Incremental Facility shall be determined by the  Company and the lender or lenders providing such Incremental Facility,  (vi) the final maturity date of any Incremental Term Facility shall be no earlier than  the Latest Maturity Date in respect of the Tranche A Term Facility and any other Incremental  Term Facility then outstanding, and Incremental Term Facilities consisting of a tranche A term  facility (i.e., a term loan facility having amortization, tenor and other terms customary for the  term loan A market) may have different mandatory prepayments from the Tranche A Facility so  long as such prepayments are added for the benefit of the Tranche A Facility and the Tranche A  Facility participates on a ratable basis in such prepayments; provided, that the foregoing  limitation shall not apply to a customary bridge facility which, subject to customary conditions,  automatically convert into long-term debt satisfying the requirements of this clause (vi),  (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be  no shorter than the remaining Weighted Average Life to Maturity of the Tranche A Term  Facility; provided, that the foregoing limitation shall not apply to a customary bridge facility  which, subject to customary conditions, automatically convert into long-term debt satisfying the  requirements of this clause (vii); provided, further, that the foregoing shall not apply to the extent  the Weighted Average Life to Maturity of any Incremental Term Facility is shorter than the  Weighted Average Life to Maturity of the Tranche A Facility solely to the extent necessary to  make such Incremental Term Facility fungible with the Tranche A Term Facility,  (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may  otherwise have an amortization schedule as determined by the Company and the lenders  providing such Incremental Term Facility,  (ix) subject to clause (v) above, to the extent applicable, the fees payable in  connection with any Incremental Facility shall be determined by the Company and the arrangers  and/or lenders providing such Incremental Facility,  (x) (A) each Incremental Facility shall rank pari passu (but without regard to the  control of remedies) with the initial Term Loans (in the case of any Incremental Term Facility)  and pari passu (but without regard to the control of remedies) with the initial Revolving Loans (in  the case of Incremental Revolving Loans), in each case in right of payment and security and (B)  no Incremental Facility may be (x) guaranteed by any Subsidiaries other than Subsidiaries that are  Guarantors or (y) secured by Liens on any assets other than the Collateral,  (xi) any Incremental Term Facility may provide for the ability to participate (A) a pro  rata basis or non-pro rata basis in any voluntary prepayment of  Term Loans, in each case, made  pursuant to Section 2.12 and (B) on a pro rata or less than pro rata basis (but not on a greater than  pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing  such Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to  Section 2.13(b),  (xii) no Event of Default shall exist immediately prior to or after giving effect to the  effectiveness of such Incremental Facility (except in connection with any Limited Condition  Transaction, where solely to the extent required by the Lenders providing such Incremental  Facility, no such Event of Default shall exist at the time as elected by the Company pursuant to  Section 1.4(d)),  





 






  92  (xiii) after giving effect to such Incremental Facility, the condition set forth in Section  5.2(a) shall be satisfied (except in connection with any Limited Condition Transaction, where  solely to the extent required by the Lenders providing such Incremental Facility, the condition set  forth in Section 5.2(a) shall be satisfied at the time as elected by the Company pursuant to Section  1.4(d)),  (xiv) except as otherwise required or permitted in clauses (i) through (xi) above, all  other terms of any Incremental Facility shall be as agreed between the Company and the Lenders  providing such Incremental Facility; provided to the extent such terms are not consistent with the  terms in respect of the applicable Facility, they shall be not materially more restrictive (as  determined by the Company in good faith), when taken as a whole, than those under such  applicable Facility (except for covenants or other provisions (w) that reflect market terms and  conditions (taken as a whole) at the time of incurrence (as determined by the Company in good  faith), (x) applicable only to periods after the maturity date of such applicable Facility, (y) that are  also added for the benefit of each applicable Facility or (z) that are reasonably satisfactory to the  Administrative Agent (provided that, in the case of each of clauses (w), (y) and (z), if any  financial maintenance covenant for the benefit of any Incremental Facility is added or is more  restrictive than the financial maintenance covenants then applicable to any then-existing  Tranche A Term Facility or Revolving Facility, such financial mainenance covenants shall be  applied to any then-existing Tranche A Term Facility and Revolving Facility)),  (xv) the proceeds of any Incremental Facility may be used for working capital, Capital  Expenditures and other general corporate purposes of the applicable Borrowers and their  subsidiaries (including permitted Restricted Payments, Investments, permitted acquisitions,  Restricted Debt Payments) and any other purpose not prohibited by the terms of the Loan  Documents, and  (xvi) on the date of the making of any Incremental Term Loans that will be added to  any Class of then existing Term Loans, and notwithstanding anything to the contrary set forth in  Sections 2.16, such Incremental Term Loans shall be added to (and constitute a part of, be of the  same Type as and, at the election of the Company, have the same Interest Period as) each  borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative  sizes of such borrowings), so that each Term Lender providing such Incremental Term Loans will  participate proportionately in each then-outstanding borrowing of Term Loans of such Class; it  being acknowledged that the application of this clause may result in new Incremental Term Loans  having Interest Periods (the duration of which may be less than one month) that begin during an  Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and  which end on the last day of such Interest Period.  (b) Incremental Commitments may be provided by any existing Lender or by any other  Assignee (any such other Assignee being called an “Additional Lender”); provided that the  Administrative Agent (and, in the case of any Incremental Revolving Facility, the Swingline Lender and  any Issuing Lender) shall have consented (such consent not to be unreasonably withheld, conditioned or  delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent  would be required under Section 10.6(c) for an assignment of Loans to such Additional Lender.  (c) Each Lender or Additional Lender providing a portion of any Incremental Commitment  shall execute and deliver to the Administrative Agent and the Company all such documentation (including  the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative  Agent to evidence and effectuate such Incremental Commitment. On the effective date of such  





 






  93  Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection  with this Agreement.  (d) As a condition precedent to the effectiveness of any Incremental Facility or the making of  any Incremental Loans, (i) upon its request, the Administrative Agent shall have received reaffirmation  agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent  shall have received, from each Additional Lender, an administrative questionnaire in the form provided to  such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such  other documents as it shall reasonably require from such Additional Lender and (iii) the Administrative  Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of  such Incremental Facility or Incremental Loans.  (e) Upon the implementation of any Incremental Revolving Facility pursuant to this  Section 2.27:  (i) if such Incremental Revolving Facility establishes Revolving Commitments of  the same Class as any then-existing Class of Revolving Commitments, (i) each Revolving Lender  immediately prior to such increase will automatically and without further act be deemed to have  assigned to each relevant Lender under such Incremental Revolving Facility, and each relevant  Lender under such Incremental Revolving Facility will automatically and without further act be  deemed to have assumed a portion of such Revolving Lender’s participations hereunder in  outstanding Letters of Credit and Swingline Loans such that, after giving effect to each deemed  assignment and assumption of participations, all of the Revolving Lenders’ (including each  Lender’s under such Incremental Revolving Facility) (A) participations hereunder in Letters of  Credit and (B) participations hereunder in Swingline Loans shall be held on a pro rata basis on  the basis of their respective Revolving Commitments (after giving effect to any increase in the  Revolving Commitment pursuant to this Section 2.27) and (ii) the existing Revolving Lenders of  the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such  Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility),  and such other Revolving Lenders (including the Revolving Lenders providing the relevant  Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent  necessary so that all of the Revolving Lenders of such Class participate in each outstanding  borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments  of such Class (after giving effect to any increase in the Revolving Commitment pursuant to this  Section 2.27); it being understood and agreed that the minimum borrowing, pro rata borrowing  and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the  transactions effected pursuant to this clause (i); and  (ii) if such Incremental Revolving Facility establishes Revolving Commitments of a  new Class, (1) the borrowing and repayment (except for (A) payments of interest and fees at  different rates on any Revolving Facility, (B) repayments required upon the maturity date of any  Revolving Facility and (C) repayments made in connection with any permanent repayment and  termination of any Revolving Commitments (subject to clause (3) below)) of Incremental  Revolving Loans after the effective date of such Incremental Revolving Facility shall be made on  a pro rata basis with any then-existing Revolving Facility, (2) all Swingline Loans and/or Letters  of Credit made or issued, as applicable, under such Incremental Revolving Facility shall be  participated on a pro rata basis by all Revolving Lenders and (3) any permanent repayment of  Revolving Loans with respect to, and reduction or termination of Revolving Commitments under,  any Revolving Facility after the effective date of any Incremental Revolving Facility shall be  made on a pro rata basis or less than pro rata basis with all other Revolving Facilities, except that  the applicable Borrowers shall be permitted to permanently repay Revolving Loans and terminate  





 






  94  Revolving Commitments of any Revolving Facility on a greater than pro rata basis (I) as  compared to any other Revolving Facilities with a later maturity date than such Revolving  Facility or (II) with the proceeds of Indebtedness refinancing such Revolving Facility.   (f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount  of L/C Exposure and/or Swingline Loans, as applicable, permitted hereunder shall increase by an amount,  if any, agreed upon by the Administrative Agent, the Company and the relevant Issuing Lender and/or the  Swingline Lender, as applicable.  (g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any  Incremental Facility Amendment and/or any amendment to any other Loan Document with the Company  and/or the applicable Borrowers as may be necessary in order to establish new or any increase in any  Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.27 and such  technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative  Agent and the Company in connection with the establishment or increase, as applicable, of such Classes  or sub-Classes, in each case on terms consistent with this Section 2.27 (including with respect to the  appointment of a Subsidiary Guarantor as a Borrower in respect of such Incremental Facility).  (h) Notwithstanding anything to the contrary in this Section 2.27 (including Section 2.27) d ()  or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended  to be applied to finance an acquisition or other Investment and the lenders providing such Incremental  Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds”  conditionality (including the making and accuracy of customary specified representations in connection  with such acquisition or other Investment).  (i) This Section 2.27 shall supersede any provision in Section 2.19 or 10.1 to the contrary.  2.28. Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the  contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply  for so long as such Revolving Lender is a Defaulting Lender:  (a) commitment fees shall cease to accrue on the Available Revolving Commitment (if any)  of such Defaulting Lender pursuant to Section 2.10(a);  (b) if there are any Swingline Loans outstanding or Letters of Credit outstanding at the time  such Revolving Lender becomes a Defaulting Lender then:  (i) all or any part of such outstanding Swingline Loans or outstanding Letters of  Credit shall be reallocated among the Revolving Lenders that are not Defaulting Lenders in  accordance with their respective Revolving Percentages but only to the extent the sum of all  outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting  Lenders does not exceed the total of all Revolving Commitments of the Revolving Lenders that  are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make  Revolving Extensions of Credit in excess of its Revolving Commitment);  (ii) if the reallocation described in clause (i) above cannot, or can only partially, be  effected, each applicable Borrower shall within one Business Day following notice by the  Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the  outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i)  above) and (y) second, (1) if a drawing is made under any Letter of Credit, such Borrower shall  reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of  





 






  95  Credit is requested by such Borrower in accordance with Section 3.2 during any period where  there is a Defaulting Lender that is a Revolving Lender, such Borrower shall enter into an  arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part  (which such arrangement may include cash collateralization) the exposure of the applicable  Issuing Lender related to the participating interests of such Defaulting Lender in such newly  issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above)  for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to  Section 2.24;  (iii) if and so long as a Borrower cash collateralizes any portion of such Defaulting  Lender’s Revolving Percentage of outstanding Letters of Credit pursuant to clause (ii) above, then  such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to  Section 3.3 with respect thereto;  (iv) upon any reallocation described in clause (i) above, the fees payable to the  Revolving Lenders pursuant to Sections 2.10(a) and 3.3 shall be adjusted accordingly to re- allocate such fees among the Revolving Lenders which are not Defaulting Lenders; and  (v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters of  Credit is neither cash collateralized nor reallocated pursuant to clause (i) above, then, without  prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all  letter of credit fees payable under Section 3.3 with respect to such Defaulting Lender’s Revolving  Percentage of outstanding Letters of Credit shall be payable to the relevant Issuing Lender until  such cash collateralization and/or reallocation occurs;  (c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender  shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the  related exposure will be covered in whole or in part by the Revolving Commitments of the Revolving  Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by  each applicable Borrower in accordance with clause (b)(ii) above, and participating interests in any such  newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the  Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each  applicable Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (ii)  (and any such Defaulting Lenders shall not participate therein);  (d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting  Lender shall not be included in determining whether the Required Lenders or the Majority Facility  Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent  to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d)  shall not apply in the case of an amendment, waiver or other modification requiring the consent of all  Lenders or each Lender affected thereby; and  (e) any amount payable to such Defaulting Lender hereunder (whether on account of  principal, interest, fees or otherwise and including any amount that would otherwise be payable to such  Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed  to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a  segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the  applicable Borrower(s) and, subject to any applicable requirements of law, be applied at such time or  times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing  by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of  any amounts owing by such Defaulting Lender to any Issuing Lender or the Swingline Lender hereunder,  





 






  96  (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or the  Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender  has no remaining unutilized Revolving Commitment) future funding obligations of such Defaulting  Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized  Revolving Commitment) future participation in any Swingline Loan or Letter of Credit, (iv) fourth, to the  funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion  thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so  determined by the Administrative Agent and the applicable Borrower(s), unless such Defaulting Lender  has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future  funding obligations of the Defaulting Lender in respect of any Revolving Loans under this Agreement,  (vi) sixth, to the payment of any amounts owing to any Issuing Lender or the Swingline Lender as a result  of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or the Swingline  Lender  against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations  under this Agreement, (vii) seventh, to the payment of any amounts owing to the applicable Borrower(s)  as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) against such  Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement,  and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction,  provided, that, with respect to this clause (viii), if such payment is (A) a prepayment of the principal  amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Lender has  funded its participation and (B) made at a time when the conditions set forth in Section 5.2 are satisfied,  such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations  owed to, all Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata  prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed  to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously  applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable  Defaulting Lender.  In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and  the Swingline Lender each reasonably determines that any such Defaulting Lender has adequately  remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding  Swingline Loans and outstanding Letters of Credit of the Revolving Lenders shall be readjusted to reflect  the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at  par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative  Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with  its Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to  clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such  Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as  applicable.  The provisions of this Agreement relating to funding, payment and other matters with respect to  the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers  (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of  this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified  without, in addition to consents required by Section 10.1, the prior written consent of the Administrative  Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lenders.  Subject to Section 10.20, no reallocation hereunder shall constitute a waiver or release of any  claim of any party hereunder against a Defaulting Lender arising from such Lender becoming a  Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting  Lender’s increased exposure following such reallocation  





 






  97  2.29. Designation of Subsidiary Borrowers. (a) The Company shall be permitted, so long as no  Event of Default shall have occurred and be continuing:  (i) to designate any Subsidiary (including any Foreign Subsidiary) of the Company  as a Subsidiary Borrower under the Revolving Facility upon (A) 10 Business Days prior written  notice to the Lenders (such notice to contain the name, primary business address and taxpayer  identification number of such Subsidiary) (a “Notice of Designation”), (B) the execution and  delivery by the Company, such Subsidiary and the Administrative Agent of a Joinder Agreement,  substantially in the form of Exhibit D (a “Joinder Agreement”), providing for such Subsidiary to  become a Subsidiary Borrower, (C) compliance by the Company and such Subsidiary Borrower  with Section 6.9(c), (D) delivery by the Company or such Subsidiary of all documentation and  information as is reasonably requested in writing by the Lenders at least three days prior to the  anticipated effective date of such designation required by U.S. regulatory authorities under  applicable “know your customer” and anti- money laundering rules and regulations, including the  Patriot Act and the Beneficial Ownership Regulation with respect to such Subsidiary, and (E)  upon its reasonable request, the delivery to the Administrative Agent of (1) corporate or other  applicable resolutions, incorporation or other applicable constituent documents, officer’s  certificates and legal opinions in respect of such Subsidiary in each case reasonably necessary and  equivalent to comparable documents delivered on the Closing Date and (2) such other documents  with respect thereto as the Administrative Agent shall reasonably request; and   (ii) to remove any Subsidiary as a Subsidiary Borrower upon execution and delivery  by the Company to the Administrative Agent of a written notification to such effect and  repayment in full of all Loans made to such Subsidiary Borrower, cash collateralization of all L/C  Obligations in respect of any Letters of Credit issued for the account of such Subsidiary Borrower  and repayment in full of all other amounts owing by such Subsidiary Borrower under this  Agreement and the other Loan Documents (it being agreed that any such repayment shall be in  accordance with the other terms of this Agreement).  (b) Notwithstanding anything to the contrary in this Agreement, a Lender shall not be  required to make a Loan as part of any borrowing by or to issue or acquire a participation in any Letter of  Credit issued for the account of, a Foreign Subsidiary  with respect to which the Company has delivered a  Notice of Designation (a “Proposed Foreign Subsidiary Borrower”) if the making of such Loan or the  issuance by such Lender or the acquisition by such Lender (or, if such Lender is the Issuing Lender, the  acquisition by any other Lender) of a participation in, such Letter of Credit would violate any law or  regulation (including any violation of any law or regulation due to an absence of licensing) or a pre- existing generally applicable internal policy to which such Lender is subject; provided that the Revolving  Lenders as of the Closing Date hereby acknowledge that as of the Closing Date, they are permitted to  make Loans to, and issue or acquire a participation in Letters of Credit issued to, any Subsidiary  Borrower located in England and Wales, Luxembourg, the Netherlands and the United States that  complies with the requirements set forth in Section 2.29(a)(i)(D). As soon as practicable after receiving a  Notice of Designation from the Company in respect of a Proposed Foreign Subsidiary Borrower, and in  any event no later than seven Business Days after the date of such Notice of Designation, any Lender that  is restricted by any law or regulation (including due to an absence of licensing) to which such Lender is  subject from extending credit (including, for the avoidance of doubt, making Loans, issuing Letters of  Credit or acquiring participations in Letters of Credit) under this Agreement to such Proposed Foreign  Subsidiary Borrower directly or through a Lender Affiliate as set forth in Section 2.29(c) (an “Objecting  Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each  Objecting Lender that has not withdrawn such notice, the Company shall, effective on or before the date  that such Proposed Foreign Subsidiary Borrower shall have the right to borrow hereunder, either (A)  





 






  98  exercise its rights with respect to such Objecting Lender pursuant to Section 2.24 or (B) cancel its request  to designate such Proposed Foreign Subsidiary Borrower as a Subsidiary Borrower hereunder.  (c) In addition to the foregoing requirements, if the Company shall deliver a Notice of  Designation with respect to a Proposed Foreign Subsidiary Borrower, any Lender may, with notice to the  Administrative Agent and the Company, fulfill its Commitment by causing a Lender Affiliate to act as the  Lender in respect of such Proposed Foreign Subsidiary Borrower. Additionally, (x) such Lender’s  obligations under this Agreement shall remain unchanged, (y) such Lender shall remain solely responsible  to the other parties hereto for the performance of those obligations, and (z) the Company, any other  Borrower, the Administrative Agent, the Lenders, the Issuing Lenders and the Swingline Lenders shall  continue to deal solely and directly with such Lender in connection with such Lender’s rights and  obligations under this Agreement.  2.30. Refinancing Facilities. (a) On one or more occasions after the Closing Date, the  applicable Borrower may obtain, from any Lender or any other bank, financial institution or other  institutional lender or investor (other than an Ineligible Institution) that agrees to provide any portion of  Refinancing Term Loans or Other Revolving Commitments pursuant to a Refinancing Amendment in  accordance with this Section 2.30 (each, an “Additional Refinancing Lender”) (provided that the  Administrative Agent, the Swingline Lender and each Issuing Lender, if applicable, shall have consented  (not to be unreasonably withheld or delayed) to such Lender’s or Additional Refinancing Lender’s  providing such Refinancing Term Loans or Other Revolving Commitments to the extent such consent, if  any, would be required under Section 10.6(c) for an assignment of Revolving Commitments or Loans to  such Lender or Additional Refinancing Lender), Credit Agreement Refinancing Indebtedness in respect  of all or any portion of any Class, as selected by the applicable Borrower in its sole discretion, of Term  Loans or Revolving Loans (or unused Commitments in respect thereof) then outstanding under this  Agreement, in the form of Refinancing Term Loans, Refinancing Term Commitments, Other Revolving  Commitments, or Other Revolving Loans; provided that notwithstanding anything to the contrary in this  Section 2.30 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees  at different rates on Other Revolving Commitments (and related outstandings), (B) repayments required  upon the maturity date of the Other Revolving Commitments and (C) repayment made in connection with  a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with  respect to Other Revolving Commitments after the date of obtaining any Other Revolving Commitments  shall be made on a pro rata basis with all other Revolving Commitments, (2) subject to the provisions of  Section 2.9(e) and Section 3.9 to the extent dealing with Swingline Loans and Letters of Credit which  mature or expire after a maturity date when there exist Other Revolving Commitments with a longer  maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all  Lenders with Commitments in accordance with their percentage of the Commitments in respect of  Revolving Loans (and except as provided in Section 2.9(e) and Section 3.9, without giving effect to  changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit  theretofore incurred or issued), (3) the permanent repayment of Revolving Loans with respect to, and  termination of, Other Revolving Commitments after the date of obtaining any Other Revolving  Commitments shall be made on a pro rata basis with all other Revolving Commitments in respect of  Revolving Loans, except that the Company shall be permitted to permanently repay and terminate  commitments of any such Class on a better than a pro rata basis as compared to any other Class with a  later maturity date than such Class and (4) assignments and participations of Other Revolving  Commitments and Other Revolving Loans shall be governed by the same assignment and participation  provisions applicable to Revolving Commitments and Revolving Loans.  (b) The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on  the date thereof of each of the conditions set forth in Section 5.2 and, to the extent reasonably requested  by the Administrative Agent, receipt by the Administrative Agent of reaffirmation agreements and/or  





 






  99  such amendments to the Collateral Documents as may be reasonably requested by the Administrative  Agent in order to ensure that such Credit Agreement Refinancing Indebtedness is provided with the  benefit of the applicable Loan Documents.  (c) Each issuance of Credit Agreement Refinancing Indebtedness under Section 2.30(a) shall  be in an aggregate principal amount that is (x) not less than $10,000,000 and (y) an integral multiple of  $1,000,000 in excess thereof.  (d) Each of the parties hereto hereby agrees that this Agreement and the other Loan  Documents may be amended pursuant to a Refinancing Amendment, without the consent of any other  Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit  Agreement Refinancing Indebtedness incurred pursuant thereto and (ii) make such other changes to this  Agreement and the other Loan Documents consistent with the provisions and intent of the third paragraph  of Section 10.1 (without the consent of the Required Lenders called for therein) and (iii) effect such other  amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the  reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this Section  2.30, and the Required Lenders hereby expressly authorize the Administrative Agent to enter into any  such Refinancing Amendment.  (e) This Section 2.30 shall supersede any provisions in Section 2.19 or 10.1 to the contrary.  SECTION 3. LETTERS OF CREDIT  3.1. L/C Commitments. (a) Subject to the terms and conditions hereof, each Issuing Lender,  in reliance on the agreements of the Revolving Lenders set forth in this Section 3, agrees to issue standby  letters of credit (“Letters of Credit”) for the account of any Borrower (or for the joint and several  account of any Borrower and any Subsidiary) on any Business Day in such form as may be approved  from time to time by such Issuing Lender; provided that such Issuing Lender shall have no obligation to  issue any Letter of Credit if, after giving effect to such issuance, the then outstanding L/C Obligations of  such Issuing Lender would exceed such Issuing Lender’s L/C Commitment then in effect; provided  further that no Issuing Lender shall issue any Letter of Credit if, after giving effect to such issuance, (i)  the aggregate amount of the Available Revolving Commitments would be less than zero or (ii) the  aggregate undrawn amount of outstanding Letters of Credit and unpaid Reimbursement Obligations under  the Revolving Facility would exceed $75,000,000. Each Letter of Credit shall (i) be denominated in U.S.  Dollars or any Foreign Currency and (ii) expire (or be subject to termination by notice from the relevant  Issuing Lender to the beneficiary thereof) no later than the earlier of (x) the first anniversary of its date of  issuance and (y) the Letter of Credit Expiration Date; provided that any Letter of Credit with a one-year  term may provide for the automatic extension thereof for additional one-year periods (each, an “Auto- Extension Letter of Credit”) (which shall in no event extend beyond the Letter of Credit Expiration Date  except to the extent cash collateralized or backstopped pursuant to arrangements reasonably acceptable to  the relevant Issuing Lender and the applicable Borrower); provided that any such Auto-Extension Letter  of Credit must, if requested by the Issuing Lender, permit the Issuing Lender to prevent any such  extension at least once in each twelve-month period (commencing with the date of issuance of such Letter  of Credit) by giving prior notice to the beneficiary thereof not later than a day in each such twelve-month  period to be agreed upon at the time such Letter of Credit is issued.  (b) No Issuing Lender shall at any time be obligated to issue any Letter of Credit hereunder if  such issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed any  limits imposed by, any applicable Requirement of Law or any pre-existing generally applicable internal  policies of such Issuing Lender applicable to Letters of Credit issued by such Issuing Lender.  





 






  100  (c) On the Closing Date, the Existing Letters of Credit will automatically, without any action  on the part of any Person, be deemed to be Letters of Credit issued hereunder on the Closing Date for the  account of the Company for all purposes of this Agreement and the other Loan Documents.  3.2. Procedure for Issuance of Letter of Credit. Any Borrower may from time to time request  that any Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender at its address for  notices specified herein an Application therefor, completed to the satisfaction of such Issuing Lender, and  such other certificates, documents and other papers and information as such Issuing Lender may request.  Upon receipt of any Application, the relevant Issuing Lender shall promptly issue the Letter of Credit  requested thereby (but in no event shall any Issuing Lender be required to issue any Letter of Credit  earlier than three Business Days after its receipt of the Application therefor and all such other certificates,  documents and other papers and information relating thereto) by issuing the original of such Letter of  Credit to the beneficiary thereof or as otherwise may be agreed to by the relevant Issuing Lender and the  applicable Borrower. The relevant Issuing Lender shall furnish a copy of such Letter of Credit to the  applicable Borrower promptly following the issuance thereof. The relevant Issuing Lender shall promptly  furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the  issuance of each Letter of Credit (including the amount thereof).  3.3. Fees and Other Charges. (a) Each applicable Borrower will pay a fee on all outstanding  Letters of Credit (with respect to any Letters of Credit denominated in a Foreign Currency, based on the  Dollar Equivalent thereof) issued for the account of such Borrower (or for the joint and several account of  such Borrower and any Subsidiary) at a per annum rate equal to the Applicable Margin then in effect with  respect to Term Benchmark Loans, RFR Loans or CDOR Loans, as the case may be, at such time under  the Revolving Facility, shared ratably among the Revolving Lenders. Such fees shall be payable quarterly  in arrears on each L/C Fee Payment Date after the issuance date. In addition, each applicable Borrower  shall pay to the relevant Issuing Lender for its own account a fronting fee equal to 0.125% per annum (or  such lesser amount separately agreed in writing between the relevant Issuing Lender and the Company) of  the undrawn and unexpired amount of each Letter of Credit issued by such Issuing Lender for the account  of such Borrower (or for the joint and several account of such Borrower and any Subsidiary), payable  quarterly in arrears on each L/C Fee Payment Date after the issuance date.  (b) In addition to the foregoing fees, each applicable Borrower shall pay or reimburse each  Issuing Lender for such normal and customary costs and expenses as are incurred or charged by such  Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any  Letter of Credit issued for the account of such Borrower (or for the joint and several account of such  Borrower and any Subsidiary).  3.4. L/C Participations. (a) Each Issuing Lender irrevocably agrees to grant and hereby grants  to each L/C Participant, and, to induce such Issuing Lender to issue Letters of Credit hereunder, each L/C  Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from such Issuing  Lender, on the terms and conditions hereinafter stated, for such L/C Participant’s own account and risk an  undivided interest equal to such L/C Participant’s Revolving Percentage in such Issuing Lender’s  obligations and rights under each Letter of Credit issued hereunder and the amount of each draft paid by  such Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees with each  Issuing Lender that, if a draft is paid under any Letter of Credit issued for such Issuing Lender is not  reimbursed in full by the applicable Borrower in accordance with the terms of this Agreement such L/C  Participant shall pay to such Issuing Lender upon demand at such Issuing Lender’s address for notices  specified herein an amount in U.S. Dollars equal to such L/C Participant’s Revolving Percentage  (determined, in the case of any Letter of Credit denominated in a Foreign Currency, on the date such draft  is drawn) of the amount of such draft, or any part thereof, that is not so reimbursed (whether or not the  conditions to borrowing set forth in Section 5.2 are satisfied) (based on, in the case of any Letter of Credit  





 






  101  denominated in a Foreign Currency, the Dollar Equivalent of the amount of such draft, or any part  thereof, that is not so reimbursed). Each L/C Participant’s obligation to purchase participating interests  pursuant to this Section 3.4(a) shall be absolute and unconditional and shall not be affected by any  circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such L/C  Participant or any Borrower may have against any Issuing Lender, any Borrower or any other Person for  any reason whatsoever; (ii) the occurrence or continuance of a Default or the failure to satisfy any of the  other conditions specified in Section 5; (iii) any adverse change in the condition (financial or otherwise)  of any Borrower; (iv) any breach of this Agreement or any other Loan Document by any Borrower, any  other Loan Party or any other Lender; or (v) any other circumstance, happening or event whatsoever,  whether or not similar to any of the foregoing.  (b) If any amount required to be paid by any L/C Participant to any Issuing Lender pursuant  to Section 3.4(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender  under any Letter of Credit is paid to such Issuing Lender within three Business Days after the date such  payment is due, such L/C Participant shall pay to such Issuing Lender on demand an amount equal to the  product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period  from and including the date such payment is required to the date on which such payment is immediately  available to the relevant Issuing Lender, times (iii) a fraction the numerator of which is the number of  days that elapse during such period and the denominator of which is 360. If any such amount required to  be paid by any L/C Participant pursuant to Section 3.4(a) is not made available to the relevant Issuing  Lender by such L/C Participant within three Business Days after the date such payment is due, such  Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with  interest thereon calculated from such due date at the rate per annum applicable to ABR Loans under the  Revolving Facility. A certificate of the relevant Issuing Lender submitted to any L/C Participant with  respect to any amounts owing under this Section shall be conclusive absent manifest error.   (c) Whenever, at any time after any Issuing Lender has made payment under any Letter of  Credit and has received from any L/C Participant its pro rata share of such payment in accordance with  Section 3.4(a), such Issuing Lender receives any payment related to such Letter of Credit (whether  directly from the applicable Borrower or otherwise, including proceeds of collateral applied thereto by  such Issuing Lender), or any payment of interest on account thereof, such Issuing Lender will distribute to  such L/C Participant its pro rata share thereof; provided, however, that in the event that any such payment  received by such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C  Participant shall return to such Issuing Lender the portion thereof previously distributed by such Issuing  Lender to it.  3.5. Reimbursement Obligation of the Borrowers. Each applicable Borrower agrees to  reimburse the relevant Issuing Lender in U.S. Dollars (in the case of any Letter of Credit denominated in  a Foreign Currency, in an amount equal to the Dollar Equivalent of such draft) no later than the first  Business Day following each date on which such Issuing Lender notifies such Borrower of the date and  amount of a draft presented under any Letter of Credit issued for the account of such Borrower (or for the  joint and several account of such Borrower and any Subsidiary) and paid by such Issuing Lender for the  amount of (a) such draft so paid and (b) any fees, charges or other costs or expenses incurred by such  Issuing Lender in connection with such payment. Each such payment shall be made to the relevant  Issuing Lender at its address for notices specified herein in lawful money of the United States and in  immediately available funds. Interest shall be payable on any and all amounts remaining unpaid by the  applicable Borrower under this Section from the date such amounts become payable (whether at stated  maturity, by acceleration or otherwise) until payment in full at the rate set forth in (i) until the second  Business Day following the date of the applicable drawing, Section 2.16(b) and (ii) thereafter,  Section 2.16(i).  





 






  102  3.6. Obligations Absolute. Each applicable Borrower’s obligations under this Section 3 shall  be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of  this Agreement under any and all circumstances and irrespective of (i) any lack of validity or  enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or  other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any  respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by any Issuing  Lender under a Letter of Credit against presentation of a draft or other document that does not comply  with the terms of such Letter of Credit, (iv) any other event or circumstance whatsoever, whether or not  similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or  equitable discharge of, or provide a right of any setoff, counterclaim or defense to payment that any  Borrower may have or may have had against any Issuing Lender, any beneficiary of a Letter of Credit or  any other Person, (v) any waiver by the Issuing Lender of any requirement that exists for the Issuing  Lender’s protection and not the protection of any Borrower or any waiver by the Issuing Lender which  does not in fact materially prejudice the applicable Borrower, (vi) honor of a demand for payment  presented electronically even if such Letter of Credit requires that demand be in the form of a draft, or  (vii) any payment made by the Issuing Lender in respect of an otherwise complying item presented after  the date specified as the expiration date of, or the date by which documents must be received under, such  Letter of Credit if presentation after such date is authorized by the Uniform Commercial Code, the ISP or  the UCP, as applicable. Each applicable Borrower shall promptly examine a copy of each Letter of Credit  and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with  such Borrower’s instructions or other irregularity, such Borrower will promptly notify the Issuing Lender.  Each Borrower shall be conclusively deemed to have waived any such claim against the Issuing Lender  and its correspondents unless such notice is given as aforesaid.  Each Borrower also agrees with each Issuing Lender that such Issuing Lender shall not be  responsible for, and such Borrower’s Reimbursement Obligations under Section 3.5 shall not be affected  by, among other things, the validity or genuineness of documents or of any endorsements thereon, even  though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or  among any Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter  of Credit may be transferred or any claims whatsoever of any Borrower against any beneficiary of such  Letter of Credit or any such transferee. No Issuing Lender shall be liable for any error, omission,  interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted,  in connection with any Letter of Credit, except for errors or omissions found by a final and nonappealable  decision of a court of competent jurisdiction to have resulted from the bad faith, gross negligence or  willful misconduct of such Issuing Lender. Each Borrower agrees that any action taken or omitted by any  Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, unless  taken or omitted with bad faith, gross negligence or willful misconduct as found by a final and  nonappealable decision of a court of competent jurisdiction, shall be binding on such Borrower and shall  not result in any liability of such Issuing Lender to such Borrower. The foregoing shall not be construed  to excuse any Issuing Lender from liability to the applicable Borrower to the extent of any direct damages  (as opposed to consequential, special, indirect or punitive damages, claims in respect of which are hereby  waived by each Borrower to the extent permitted by applicable law) suffered by such Borrower that are  caused by such Issuing Lender’s failure to exercise the agreed standard of care as found by a final and  nonappealable decision of a court of competent jurisdiction in determining whether drafts and other  documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly  agree that each Issuing Lender shall have exercised the agreed standard of care in the absence of bad  faith, gross negligence or willful misconduct on the part of such Issuing Lender as found by a final and  nonappealable decision of a court of competent jurisdiction.  3.7. Letter of Credit Payments. If any draft shall be presented for payment under any Letter of  Credit, the relevant Issuing Lender shall, within a period stipulated by the terms and conditions of such  





 






  103  Letter of Credit following its receipt of such draft, examine such draft. The Issuing Lender shall, promptly  after such examination, notify the applicable Borrower of the date and amount of such draft. The  responsibility of the relevant Issuing Lender to any Borrower in connection with any draft presented for  payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for in  such Letter of Credit, be limited to determining that the documents (including each draft) delivered under  such Letter of Credit in connection with such presentment are in substantial compliance with the terms of  such Letter of Credit. The relevant Issuing Lender may, in its sole discretion, either accept and make  payment upon such documents without responsibility for further investigation, regardless of any notice or  information to the contrary, or refuse to accept and make payment upon such documents if such  documents are not in strict compliance with the terms of such Letter of Credit.  3.8. Applications. To the extent that any provision of any Application related to any Letter of  Credit is inconsistent with the provisions of this Section 3, the provisions of this Section 3 shall apply.  3.9. Provisions Related to Letters of Credit in Respect of Extended Revolving Commitments.   If the Letter of Credit Expiration Date in respect of any Class, tranche or series of Revolving  Commitments occurs prior to the expiry date of any Letter of Credit, then (i) if consented to by the  Issuing Lender which issued such Letter of Credit, if one or more other Classes, tranches or series of  Revolving Commitments in respect of which the Letter of Credit Expiration Date shall not have so  occurred are then in effect, such Letters of Credit for which consent has been obtained shall automatically  be deemed to have been issued (including for purposes of the obligations of the Revolving Lenders to  purchase participations therein and to make Revolving Loans and payments in respect thereof pursuant to  Sections 3.4 and 3.5 under (and ratably participated in by Lenders pursuant to) the Revolving  Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the  aggregate amount of the unutilized Revolving Commitments thereunder at such time (it being understood  that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not  reallocated pursuant to immediately preceding clause (i), the Company shall cash collateralize any such  Letter of Credit.  Upon the maturity date of any tranche of Revolving Commitments, the sublimit for  Letters of Credit may be reduced as agreed between the Issuing Lender and the Company, without the  consent of any other Person.  SECTION 4. REPRESENTATIONS AND WARRANTIES  To induce the Administrative Agent and the Lenders to enter into this Agreement and to make the  Loans and issue or participate in the Letters of Credit, the Company and, as to itself, each other Borrower,  hereby represent and warrant to the Administrative Agent and each Lender that:  4.1. Financial Condition. The audited consolidated balance sheets of the Borrower as at  January 2, 2021 and December 28, 2019 and the related consolidated statements of operations,  comprehensive income (loss), cash flows and equity of the Borrower for the fiscal years ended January 2,  2021 and December 28, 2019, and the unaudited consolidated balance sheet of the Borrower as at July 3,  2021 and the related consolidated statements of operations, comprehensive income (loss), cash flows and  equity (deficit) of the Company for the three- and six-month periods ended July 3, 2021, in each case,  present fairly in all material respects the financial condition of the Company as at such dates, and the  combined results of its operations and its combined cash flows for the applicable annual or three- and six- month periods then ended. 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 PricewaterhouseCoopers LLP and disclosed therein).  





 






  104  4.2. No Change. Except as set forth in any Exchange Act Reports, since January 2, 2021, there  has not occurred any change, development or event that, individually or in the aggregate, has had or would  reasonably be expected to have a Material Adverse Effect.  4.3. Existence; Compliance with Law. Each of the Company and its Subsidiaries (a) is (except  in the case of any Immaterial Subsidiary) duly organized, validly existing and in good standing (to the  extent such concept is relevant in the applicable jurisdiction) under the laws of the jurisdiction of its  organization, (b) has the corporate or other 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 entity and in good standing  under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of  its business requires such qualification and (d) is in compliance with all Requirements of Law except, in  the case of clauses (a) (except with respect to the Company), (b), (c) and (d), to the extent that the failure  to be qualified or comply would not, in the aggregate, reasonably be expected to have a Material Adverse  Effect.  4.4. Power; Authorization; Enforceable Obligations. Each Loan Party has the corporate or  other 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 each Borrower, to borrow hereunder. Each Loan Party  has taken all necessary corporate or other organizational action to authorize the execution, delivery and  performance of the Loan Documents to which it is a party and, in the case of each Borrower, to authorize  the borrowings on the terms and conditions of this Agreement. No consent or authorization of, filing with,  notice to or other act by or in respect of, any Governmental Authority or any other Person is required in  connection with the Transaction and the borrowings hereunder or with the execution, delivery,  performance, validity or enforceability of this Agreement or any of the other Loan Documents, except (i)  consents, authorizations, filings and notices described in Schedules 4.4, 4.20(a) and 4.20(b), which  consents, authorizations, filings and notices have been obtained or made and are in full force and effect or  will have been obtained or made and be in full force and effect on the Closing Date or (ii) where the  failure to obtain such consent or authorization, or failure to file or provide notice would not, in the  aggregate, reasonably be expected to have a Material Adverse Effect. Each Loan Document has been duly  executed and delivered on behalf of each Loan Party that is a party thereto. This Agreement constitutes,  and each other Loan Document upon execution will constitute, a legal, valid and binding obligation of  each Loan Party that is a 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).  4.5. No Legal Bar. The execution, delivery and performance of this Agreement and the other  Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and the use of the proceeds  thereof will not violate (a) the Certificate of Incorporation and By-Laws or other organizational or  governing documents of the Company or any of its Subsidiaries and (b) any other Requirement of Law or  any Contractual Obligation of the Company or any of its Subsidiaries 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), except to the extent, in this clause (b), such violation would not reasonably be expected to  have a Material Adverse Effect.  4.6. Litigation. Except as disclosed in any Exchange Act Report, no litigation, investigation or  proceeding of or before any arbitrator or Governmental Authority is pending or, to the Knowledge of any  Borrower, threatened by or against the Company or any of its Subsidiaries or against any of their  respective properties or revenues (a) with respect to any of the Loan Documents or any of the transactions  





 






  105  contemplated hereby or thereby, or (b) that would reasonably be expected to have a Material Adverse  Effect.  4.7. No Default. (a) Neither the Company nor any of its Subsidiaries 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.  (b) No Default has occurred and is continuing.  4.8. Ownership of Property. Each of the Company and its Subsidiaries (other than Foreign  Subsidiaries, as to which no representation is made) has title in fee simple to, or a valid leasehold interest  in, all its material real property, including the Mortgaged Properties, and good title to, or a valid leasehold  interest in, all its other property and rights, except where such failure would not, in the aggregate,  reasonably be expected to have a Material Adverse Effect.  4.9. Intellectual Property. The Company and each of its Subsidiaries owns, or is licensed to  use, all material Intellectual Property, other than patents, necessary for the conduct of its business as  currently conducted, and to the Knowledge of the Company, the Company and each of its Subsidiaries  owns, or is licensed to use, all material patents necessary for the conduct of its business as currently  conducted, and no claim has been asserted and is pending by any Person challenging or questioning the  use of any such material Intellectual Property (including such patents) or the validity of any such material  Intellectual Property (including such patents), nor does any Borrower know of any valid basis for any  such claim, except, in each of the foregoing cases, as would not, in the aggregate, reasonably be expected  to result in a Material Adverse Effect. No use of Intellectual Property by the Company and its  Subsidiaries infringes on the rights of any Person, except where such use would not, individually or in the  aggregate, reasonably be expected to result in a Material Adverse Effect.  4.10. Taxes. Except as would not be expected to result in a Material Adverse Effect, each of  the Company and each of its Subsidiaries has filed or caused to be filed all Federal, state and other tax  returns that are required to be filed and has paid all Taxes (whether or not 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 imposed on  it or any of its property by any Governmental Authority (other than any 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 Company or such Subsidiary, as the case  may be).   4.11. Compliance with Swiss Non-Bank Rules. Each Swiss Borrower is at all times in  compliance with the Swiss Non-Bank Rules. For the purpose of its compliance with the Swiss Non-Bank  Rules under this Section 4.11, the aggregate number of Lenders under this Agreement which are not  Swiss Qualifying Banks shall be deemed to be five (irrespective of whether or not there is, at any time,  such a Lender). This representation shall not be deemed to be breached in case the Swiss Non-Bank Rules  are violated solely as a result of any non-compliance by a Lender with the provisions of Section 10.6(j) or  a Lender making a misrepresentation as (i) to its status according to Section 2.21(k) as a Swiss Qualifying  Bank or as (only) one Permitted Non-Qualifying Bank or (ii) ceasing to be a  Swiss Qualifying Bank  Creditor or as (only) one Permitted Non-Qualifying Bank after the time it acceded to this Agreement.  4.12. Federal Regulations. No part of the proceeds of any Loans 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 or for any purpose that violates the  provisions of the Regulations of the Board.   





 






  106  4.13. 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 the Company or any of its  Subsidiaries pending or, to the Knowledge of the Company, threatened and (b) hours worked by and  payment made to employees of the Company and its Subsidiaries have not been in violation of the Fair  Labor Standards Act or any other applicable Requirement of Law dealing with such matters.  4.14. ERISA. During the five-year period prior to the date on which this representation is  made, except as would not reasonably be expected to have a Material Adverse Effect, (a) neither a  Reportable Event nor an “accumulated funding deficiency” or “failure to meet the minimum funding  standards” (within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred with  respect to any Single Employer Plan, and (b) each Single Employer Plan has complied with the applicable  provisions of ERISA and the Code. To the Knowledge of the Company, no termination of a Single  Employer Plan under Section 4041(c) of ERISA has occurred, and no Lien in favor of the PBGC or a  Plan has arisen, during such five-year period. The present value of all accrued benefits under each Single  Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last annual  valuation date prior to the date on which this representation is made or deemed made, exceed the value of  the assets of such Single Employer Plan allocable to such accrued benefits by an amount which would  reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Commonly  Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan that has resulted  or would reasonably be expected to result in a Material Adverse Effect under ERISA. Except as would  not reasonably be expected to result in material liability to the Loan Parties, no such Multiemployer Plan  is Insolvent.  4.15. Investment Company Act; Other Regulations. No Loan Party is required to register as an  “investment company” within the meaning of the Investment Company Act of 1940, as amended.  4.16. Subsidiaries. Schedule 4.16 sets forth the name and jurisdiction of formation of each  Subsidiary and, as to each such Subsidiary, the percentage of each class of Capital Stock owned by any  Loan Party, in each case, on the Closing Date.  4.17. Use of Proceeds. (a) The proceeds of the Term Loans made on the Closing Date will be  used to finance the Refinancing and to pay fees and expenses relating to the Transactions.  (b) The proceeds of the Revolving Loans shall be used to finance the working capital needs  and general corporate purposes of the Company and its Subsidiaries or for any other purpose not  prohibited under this Agreement.  (c) The proceeds of the Swingline Loans and the Letters of Credit shall be used for general  corporate purposes or for any other purpose not prohibited under this Agreement.  4.18. Environmental Matters. Except as, in the aggregate, would not reasonably be expected to  have a Material Adverse Effect:  (a) the facilities and real properties owned, leased or operated by the Company or any of its  Subsidiaries (the “Properties”) do not contain any Materials of Environmental Concern under  circumstances that constitute a violation of, or would reasonably be expected to give rise to liability  under, any Environmental Law;  (b) neither the Company nor any of its Subsidiaries has received any written notice of  violation, alleged violation, non-compliance, liability or potential liability regarding Environmental Laws  





 






  107  with regard to any of the Properties or the business operated by the Company or any of its Subsidiaries  (the “Business”) nor does any Borrower have Knowledge of any such threatened notice;  (c) Materials of Environmental Concern have not been transported or disposed of from the  Properties in violation of, or in a manner or to a location that would be reasonably expected to give rise to  liability under, any Environmental Law, nor have any Materials of Environmental Concern been  generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a  manner that would reasonably be expected to give rise to liability under, any Environmental Law;  (d) no judicial proceeding or governmental or administrative action is pending or, to the  Knowledge of any Borrower, threatened, under any Environmental Law to which the Company or any  Subsidiary is or, to the knowledge of any Borrower, will be named as a party with respect to the  Properties or the Business, nor are there any consent decrees or other decrees, consent orders or  administrative orders or other orders in effect under any Environmental Law with respect to the Properties  or the Business;   (e) there has been no release or threatened release of Materials of Environmental Concern at  or from the Properties, or arising from or related to the operations of the Company or any Subsidiary in  connection with the Properties or otherwise in connection with the Business, in violation of or in amounts  or in a manner that could give rise to liability under Environmental Laws; and  (f) the Company and the Subsidiaries are, and have in the last five years been in compliance,  with all applicable Environmental Laws.  4.19. Accuracy of Information, etc. (a) (i)  Written factual information, other than the  Projections, forward-looking statements, estimates and information of a general economic or industry  specific nature (the “Information”), that has been made available to the Administrative Agent or the  Arrangers in connection with the transactions contemplated by this Agreement, concerning the Borrower,  its Subsidiaries, the Transactions and the other transactions contemplated by this Agreement, when taken  as a whole, does not contain any untrue statement of a material fact or omit to state a material fact  necessary in order to make the statements contained therein not materially misleading in light of the  circumstances under which such statements are made (after giving effect to all supplements and updates  thereto and to any information contained in any public filing made by the Company with the SEC) and  (ii) the Projections have been prepared in good faith based upon assumptions believed by the Company to  be reasonable at the time furnished (it being recognized by us that such Projections are not to be viewed  as facts and are subject to significant uncertainties and contingencies many of which are beyond your  control and that actual results during the period or periods covered by any such Projections may differ  from the projected results, and such differences may be material).  (b) As of the Closing Date, to the best Knowledge of the Borrower, the information included  in the Beneficial Ownership Certification provided on or prior to the Closing Date to any Lender in  connection with this Agreement is true and correct in all material respects.   4.20. Security Documents. (a) Other than during a Suspension Period, the Collateral  Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Administrative  Agent and the Lenders, a legal, valid and enforceable (except as enforceability may be limited by  applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement  of creditors’ rights generally) security interest in the Collateral described therein and proceeds thereof. In  the case of the Pledged Stock described in the Collateral Agreement, when the Administrative Agent (or  its designee or agent) obtains control of stock certificates representing such Pledged Stock (as defined in  the Collateral Agreement), in the case of the other Collateral described in the Collateral Agreement (other  





 






  108  than any Intellectual Property constituting Collateral), when financing statements and other filings  specified on Schedule 4.20(a) in appropriate form are or have been filed in the offices specified on  Schedule 4.20(a), and, in the case of Intellectual Property constituting Collateral, when financing  statements and other filings specified on Schedule 4.20(a) in appropriate form are or have been filed in  the appropriate offices and appropriate filings have been filed with the United States Patent and  Trademark Office or United States Copyright Office, as applicable, the Collateral Agreement shall  constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties  in such Collateral and the proceeds thereof to the extent a security interest can be perfected by filings or  other action required thereunder as security for the Obligations (as defined in the Collateral Agreement),  in each case prior and superior in right to any other Person (except, Liens permitted by Section 7.3).  (b) Other than during a Suspension Period, each of the Mortgages is effective to create in  favor of the Collateral Agent, for the benefit of the Administrative Agent and the Lenders, a legal, valid  and enforceable Lien on the Mortgaged Properties described therein and proceeds thereof, and when the  Mortgages are or have been filed or recorded in the offices specified on Schedule 4.20(b), each such  Mortgage shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of  the Loan Parties in the Mortgaged Properties and the proceeds thereof, as security for the Obligations (as  defined in the relevant Mortgage), in each case prior and superior in right to any other Person subject only  to permitted Liens described in Section 7.3 hereof. As of the Closing Date, Schedule 1.1B lists each of the  real properties in the United States owned in fee simple by the Company or any of its Subsidiaries having  a value, in the reasonable opinion of the Company, in excess of $30,000,000.  4.21. Solvency. As of the Closing Date, each Loan Party is, and after giving effect to the  Transactions and the incurrence of all Indebtedness and obligations being incurred in connection herewith  and therewith will be, Solvent.  4.22. Anti-Corruption Laws and Sanctions. The Company has implemented and maintains in  effect policies and procedures reasonably designed to promote compliance by the Company, its  Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and  applicable Sanctions, and the Company, its Subsidiaries and, to the Knowledge of the Company, its  directors, officers, employees and agents, acting in their capacity as such, are in compliance with Anti- Corruption Laws and applicable Sanctions in all material respects. None of (a) the Company, any  Subsidiary or, to the Knowledge of the Company, any of the Company’s directors, officers or employees,  or (b) to the Knowledge of the Company, any agent of the Company or any Subsidiary that will act in any  capacity in connection with or benefit from the credit facilities established hereby, is a Sanctioned Person.   No Loan or Letter of Credit, direct or, to any Borrower’s Knowledge, indirect use of proceeds, or other  transaction by any Borrower contemplated by this Agreement will violate Anti-Corruption Laws or  applicable Sanctions.  The foregoing representations in this Section 4.22 will not apply to any party hereto  to which the Council Regulation (EC) 2271/96 (the “Blocking Regulation”) applies, if and to the extent  that such representations are or would be unenforceable by or in respect of that party pursuant to, or  would otherwise result in a breach and/or violation of, (i) any provision of the Blocking Regulation (or  any law or regulation implementing the Blocking Regulation in any member state of the European Union)  or (ii) any similar blocking or anti-boycott law in the United Kingdom.  4.23. Affected Financial Institutions. No Loan Party is an Affected Financial Institution.  SECTION 5. CONDITIONS PRECEDENT  5.1. Conditions to the Closing Date. The agreement of each Lender to make extensions of  credit hereunder is subject to the prior or concurrent satisfaction of the following conditions precedent  (except as set forth in Section 6.9, Section 6.11 and Section 6.12):  





 






  109  (a) Loan Documents. The Administrative Agent shall have received (i) this Agreement,  executed and delivered by each Borrower and the Lenders and (ii) reaffirmation agreements, executed and  delivered by each Loan Party, the Administrative Agent and the Collateral Agent, in respect of the  Guarantee Agreement and the Collateral Agreement, in form and substance reasonably satisfactory to the  Administrative Agent.  (b) Fees. The Administrative Agent shall have received (including by deducting such  amounts from the proceeds of the initial fundings under the Facilities) all fees required to be paid on the  Closing Date and reasonable out-of-pocket expenses required to be reimbursed on the Closing Date, to the  extent, in the case of expenses, invoiced at least three business days prior to the Closing Date.  (c) Closing Certificates. The Administrative Agent (or its counsel) shall have received (i) a  certificate of a Responsible Officer of the Company certifying satisfaction of the conditions set forth in  clauses (a) and (b) of  Section 5.2 and (ii) a certificate of each Loan Party, dated as of the Closing Date  executed by a secretary, assistant secretary or other senior officer (as the case may be) thereof, which  shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of  its shareholders, board of directors, board of managers, members or other governing body authorizing the  entry into the Loan Documents to which it is a party and, in the case of the Borrower, the borrowings, and  that such resolutions or written consents have not been modified, rescinded or amended and are in full  force and effect, (B) identify by name and title and bear the signatures of the officers, managers, directors  or authorized signatories of such Loan Party authorized to sign the Loan Documents to which it is a party  on the Closing Date and (C) certify (x) that attached thereto is a true and complete copy of the certificate  or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of  such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party  and a true and correct copy of its by-laws or operating, management, partnership or similar agreement (in  case of Kontoor International a certified copy of its articles of association (Statuten) and a certified  excerpt from the commercial register of the canton of Ticino (Handelsregisterauszug)) and (y) that such  documents or agreements have not been amended (except as otherwise attached to such certificate and  certified therein as being the only amendments thereto as of such date).  (d) Legal Opinion. The Administrative Agent shall have received the executed legal opinions  in the form of Exhibit C hereto of (i) Davis Polk & Wardwell LLP, special New York counsel to the  Borrowers and the other Loan Parties, (ii) Womble Bond Dickinson LLP, special North Carolina legal  counsel to the Company and the other Loan Parties, (iii) Morris, Nichols, Arsht & Tunnell LLP, special  Delaware legal counsel to the Company and the other Loan Parties and (iv) Homburger AG, special Swiss  counsel to the Administrative Agent and the Lenders.  (e) Collateral. With respect to the Facilities, all documents and instruments necessary to  create and perfect a first priority security interest (subject to liens permitted under the Loan Documents)  in the Collateral under the Facilities shall have been delivered by the Loan Parties.  (f) Historical Financial Statements. The Administrative Agent shall have received (i) the  audited consolidated balance sheets of the Borrower as at January 2, 2021 and December 28, 2019 and the  related consolidated statements of operations, comprehensive income (loss), cash flows and equity of the  Borrower for the fiscal years ended January 2, 2021 and December 28, 2019 and (ii) the unaudited  consolidated balance sheet of the Borrower as at October 2, 2021 and the related consolidated statements  of operations, comprehensive income (loss), cash flows and equity (deficit) of the Borrower for the three-  and nine-month periods ended October 2, 2021.  (g) Projections. The Arrangers shall have received the Projections.   





 






  110  (h) Material Adverse Effect. Except as set forth in any Exchange Act Reports, since  January 2, 2021, there has not occurred any change, development or event that, individually or in the  aggregate, has had or would reasonably be expected to have a Material Adverse Effect.  (i) KYC. The Administrative Agent shall have received, at least three business days prior to  the Closing Date, all documentation and other information about the Loan Parties as has been reasonably  requested in writing at least ten business days prior to the Closing Date by the Administrative Agent or  the Arrangers that they reasonably determine is required by regulatory authorities under applicable “know  your customer” and anti-money laundering rules and regulations, including the Patriot Act and the  Beneficial Ownership Regulation.   (j) Solvency Certificate. The Administrative Agent shall have received a solvency certificate  dated as of the Closing Date in substantially the form of Exhibit G from a Responsible Officer of the  Company.  (k) No Indebtedness; Payments under Existing Credit Agreement.    (i) On the Closing Date, after giving effect to the Transactions, neither the Borrower  nor any of its Subsidiaries shall have any Indebtedness for borrowed money the aggregate  outstanding principal amount of which exceeds in the aggregate $75,000,000, other than the  Facilities, the Senior Unsecured Notes or other Indebtedness set forth on Schedule 7.2(d).  (ii) All fees, accrued interest and other amounts due under the Existing Credit  Agreement as of the Closing Date shall have been paid, and all outstanding loans under the  Existing Credit Agreement that are not deemed borrowed under this Agreement shall have been  repaid.  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 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 (and in  all respects if any such representation and warranty is qualified by materiality) on and as of such date as if  made on and as of such date (except to the extent any such representation and warranty expressly relates  to an earlier date, in which case it was true and correct in all material respects (and in all respects if any  such representation and warranty is qualified by materiality) as of such earlier date).  (b) No Default. No 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.  Each borrowing by and issuance of a Letter of Credit on behalf of any Borrower hereunder shall  constitute a representation and warranty by such 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  From and after the Closing Date, the Company hereby agrees that, so long as the Commitments  remain in effect, any Letter of Credit remains outstanding or any Loan or other amount is due and owing  to any Lender or the Administrative Agent hereunder, the Company shall and shall cause each of its  Subsidiaries to:  





 






  111  6.1. Financial Statements. Furnish to the Administrative Agent and each Lender:  (a) as soon as available, but in any event within 90 days after the end of each fiscal year of  the Company ending after the Closing Date, a copy of the audited consolidated balance sheet of the  Company and its consolidated Subsidiaries as at the end of such year and the related audited consolidated  statements of income and of cash flows (or such other similar or additional statement then required by the  SEC for annual reports filed pursuant to the Exchange Act) for such year, setting forth in each case in  comparative form the figures for the previous year, reported on without a “going concern” or like  qualification or exception, or qualification arising out of the scope of the audit (other than any such  exception or explanatory paragraph, but not a qualification, that is expressly solely with respect to, or  expressly resulting solely from, (i) an upcoming maturity date under Indebtedness permitted to be  incurred under Section 7.2 that is scheduled to occur within one year from the time such audit report is  delivered, (ii) any actual or potential inability to satisfy any Financial Covenant or (iii) the activities,  operations, financial results, assets or liabilities of any Unrestricted Subsidiary), by  PricewaterhouseCoopers LLP or other independent certified public accountants of nationally recognized  standing; and  (b) as soon as available, but in any event not later than 45 days after the end of each fiscal  quarter of the Company ending after the Closing Date, the unaudited consolidated or combined, as  applicable, balance sheet of the Company and its consolidated or combined, as applicable, Subsidiaries as  at the end of such quarter and the related unaudited consolidated or combined, as applicable, statements of  income and of cash flows (or such other or similar or additional statement then required by the SEC for  quarterly reports filed pursuant to the Exchange Act) for such quarter and the portion of the fiscal year  through the end of such quarter, setting forth in each case in comparative form the figures for the previous  year, certified by a Responsible Officer as fairly presenting in all material respects the financial condition  of the Company and its subsidiaries (subject to normal year-end audit adjustments).  All such financial statements shall be prepared in reasonable detail and in accordance in all  material respects with GAAP applied consistently throughout the periods reflected therein and with prior  periods (except as approved by such accountants or officer, as the case may be, and disclosed therein).  Financial statements and reports required to be delivered pursuant to this Section 6.1 and Section  6.2(d) shall be deemed to have been delivered on the date on which (a) such financial statements or  reports have been included in the Company’s annual report on Form 10-K or Form 10-Q, as the case may  be, as filed with the SEC, and such report has been posted on the SEC website on the Internet at  sec.gov/edaux/searches.htm (or any successor website), on the Company’s IntraLinks site at  intralinks.com or on the Company’s website or (b) the Company provides notice to the Administrative  Agent (which notice the Administrative Agent shall promptly provide to the Lenders) that such financial  statement or report has been posted at another relevant website identified in such notice and accessible by  the Lenders without charge.  6.2. Certificates; Other Information. Furnish to the Administrative Agent and each Lender:  (a) simultaneously with the delivery of each set of consolidated financial statements referred  to in Section 6.1(a) and Section 6.1(b) above, the related consolidating financial information (which may  be unaudited) reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if  any) from such consolidated financial statements;  (b) within 10 Business Days after the delivery of any financial statements pursuant to Section  6.1, (i) a certificate of a Responsible Officer stating that such Responsible Officer has obtained no  knowledge of any Default or Event of Default except as specified in such certificate and (ii) in the case of  





 






  112  quarterly or annual financial statements, a Compliance Certificate as of the last day of the fiscal quarter or  fiscal year of the Company, as the case may be;  (c) [reserved];   (d) promptly upon the mailing thereof, copies of all financial statements and reports (except  to the extent previously delivered pursuant to Section 6.1) that the Company sends to the holders of any  class of its debt securities or public equity securities and, within five days after the same are filed, copies  of all financial statements and reports that the Company may make to, or file with, the SEC;  (e) promptly following any reasonable request therefor, information and documentation  reasonably requested by the Administrative Agent or any Lender for purposes of compliance with  applicable “know your customer” regulations and anti-money laundering rules and regulations, including  the Patriot Act and the Beneficial Ownership Regulation;  (f) promptly, such additional financial information as any Lender (through the  Administrative Agent) may from time to time reasonably request.  6.3. Payment of Taxes. Pay, discharge or otherwise satisfy at or before maturity or before they  become delinquent, as the case may be, all Tax obligations, except where the amount or validity thereof is  currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP  with respect thereto have been provided on the books of the Company or its Subsidiaries, as the case may  be, or except where such failure would not, in the aggregate, reasonably be expected to result in a  Material Adverse Effect.  6.4. Maintenance of Existence; Compliance. (a) (i) Preserve, renew and keep in full force and  effect its corporate or other organizational existence and (ii) take all reasonable action to maintain all  rights, privileges and franchises necessary or desirable in the normal conduct of the Business, except, in  each case, as otherwise permitted by Section 7.4 and except, in the case of each of clause (i) (other than  with respect to the existence of the Borrowers) and (ii) above, to the extent that failure to do so would not,  in the aggregate, reasonably be expected to have a Material Adverse Effect; (b) comply with all  Contractual Obligations and 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 apply policies and procedures reasonably designed to ensure compliance in all material respects  by the Company, its Subsidiaries and their respective directors, officers, employees and agents with Anti- Corruption Laws and applicable Sanctions.  6.5. Maintenance of Property; Insurance. (a) Keep all property useful and necessary in its  business in good working order and condition, ordinary wear and tear excepted, except where such failure  would not, in the aggregate, reasonably be expected to result in a Material Adverse Effect and (b)  maintain with financially sound and reputable insurance companies insurance on all its property in at least  such amounts and against at least such risks (but including in any event public liability, product liability  and business interruption) as are customarily insured against in the same general area by companies  engaged in the same or a similar business.  6.6. Inspection of Property; Books and Records; Discussions. (a) Keep proper books of  records and accounts in conformity in all material respects with GAAP and (b) permit representatives of  the Administrative Agent (which, following the occurrence and during the continuance of an Event of  Default, may be accompanied by representatives of any Lender), upon reasonable prior written notice, to  make reasonable visits to and inspections of 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  





 






  113  discuss the business, operations, properties and financial condition of the Company and its Subsidiaries  with officers of the Company and its Subsidiaries; provided that with respect to clause (b), prior to the  occurrence and continuation of an Event of Default, no more than one such visit shall be made per year.  6.7. Notices. Promptly give notice to the Administrative Agent and each Lender of:  (a) the occurrence of any Default or Event of Default upon obtaining Knowledge thereof;  (b) any (i) default or event of default under any Contractual Obligation of the Company or  any of its Subsidiaries that, would reasonably be expected to have a Material Adverse Effect or (ii)  litigation, investigation or proceeding affecting the Company or any of its Subsidiaries that would  reasonably be expected to have a Material Adverse Effect;  (c) the following events, as soon as possible and in any event within 30 days after the  Company has Knowledge: (i) the occurrence of any Reportable Event with respect to any Plan, a failure  to make any required contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan or  any withdrawal from, or the termination or Insolvency of, any Multiemployer Plan or (ii) the institution of  proceedings or the taking of any other action by the PBGC or the Company or any Commonly Controlled  or any Multiemployer Plan with respect to the withdrawal from, or the termination or Insolvency of, any  Plan; provided, that in each case of clauses (i) and (ii), except as would not reasonably be expected to  have a Material Adverse Effect; and   (d) any 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 (i) in writing, (ii) shall contain a heading or  reference line that reads “Notice under Section 6.7 of the Kontoor Brands, Inc. Amended and Restated  Credit Agreement dated November 18, 2021” and (iii) accompanied by a statement of a Responsible  Officer setting forth details of the occurrence referred to therein and stating what action the Company or  the relevant Subsidiary proposes to take with respect thereto.  6.8. Environmental Laws.  Comply with, and take commercially reasonable steps to ensure  compliance in all material respects by all tenants and subtenants, if any, with, all applicable  Environmental Laws, and obtain and comply with and maintain, and take commercially reasonable steps  to ensure that all tenants and subtenants obtain and comply in all material respects with and maintain, any  and all licenses, approvals, notifications, registrations or permits required by applicable Environmental  Laws, except, in each case with respect to this Section 6.8, to the extent the failure to do so would not  reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  6.9. Additional Collateral, etc. Other than during any Suspension Period,  (a) With respect to any property or rights acquired after the Closing Date by the Company or  any of its Subsidiaries that is a Loan Party (or is required to be a Loan Party pursuant to the terms of this  Agreement and the other Loan Documents) (other than any property described in paragraph (b), (c) or (d)  below) as to which the Collateral Agent, for the benefit of the Administrative Agent and the Lenders,  does not have a perfected Lien, promptly (and, in any event within 60 days following such acquisition) (i)  execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the  Collateral Agreement or such other documents as the Administrative Agent or the Collateral Agent  reasonably request to grant to the Collateral Agent, for the benefit of the Administrative Agent and the  Lenders, a security interest in such property and (ii) take all actions as the Administrative Agent or  Collateral Agent reasonably request to grant to the Collateral Agent, for the benefit of the Administrative  





 






  114  Agent and the Lenders, a perfected first priority security interest in such property, including the filing of  Uniform Commercial Code financing statements in such jurisdictions as may be required by the Collateral  Agreement or by law or as may be reasonably requested by the Administrative Agent or the Collateral  Agent.  (b) With respect to (i) any fee interest in any real property having a value (together with  improvements thereof) of at least $30,000,000 acquired after the Closing Date by the Company or any of  its Subsidiaries that is a Loan Party (or is required to be a Loan Party pursuant to the terms of this  Agreement and the other Loan Documents) and (ii) any real property listed in part (b) of Schedule 1.1B  that becomes a Mortgaged Property pursuant to the definition thereof, promptly (and in any event within  90 days following such acquisition or such real property becoming a Mortgaged Property) deliver the  documents required for Mortgaged Properties pursuant to Section 6.11. Notwithstanding the foregoing,  the Collateral Agent shall not enter into any Mortgage in respect of any real property acquired by any  Loan Party after the Closing Date until the date that is (a) if such real property is not located in a “special  flood hazard area”, ten (10) Business Days or (b) if such real property is located in a “special flood hazard  area”, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following  documents in respect of such real property: (i) a completed flood hazard determination from a third party  vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the  applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that  flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of  such notice; and (iii) if required by Flood Laws, evidence of required flood insurance.  (c) With respect to any new Subsidiary (other than any Excluded Subsidiary) (which, for the  purposes of this paragraph (c), shall include any existing Subsidiary that ceases to be an Excluded  Subsidiary and any Domestic Subsidiary that becomes a Subsidiary Borrower (to the extent not a Loan  Party)), promptly (and, in any event (x) within 60 days after the acquisition or formation thereof or the  cessation to be an Excluded Subsidiary or (y) upon effectiveness of such Domestic Subsidiary becoming a  Subsidiary Borrower (to the extent not a Loan Party), as the case may be) (i) execute and deliver to the  Administrative Agent and the Collateral Agent such amendments to the Collateral Agreement as the  Administrative Agent or the Collateral Agent reasonably request to grant to the Collateral Agent, for the  benefit of the Administrative Agent and the Lenders, a perfected first priority security interest in the  Capital Stock of such new Subsidiary that is owned by the Company or any of its Subsidiaries that is a  Loan Party (or is required to be a Loan Party pursuant to the terms of this Agreement and the other Loan  Documents), (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together  with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company  or such Subsidiary, as the case may be, and take such other action as may be required or the  Administrative Agent reasonably requests to perfect the Collateral Agent’s security interest therein, (iii)  cause such new Subsidiary to become a party to the Guarantee Agreement and the Collateral Agreement  and (iv) if reasonably requested by the Administrative Agent or the Collateral Agent, deliver to the  Administrative Agent and the Collateral Agent legal opinions relating to the matters described above,  which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the  Administrative Agent and the Collateral Agent.  (d) With respect to any new first-tier Foreign Subsidiary or CFC Holding Company (other  than any Excluded Foreign Subsidiary (as defined in the Collateral Agreement)) of a Loan Party created  or acquired after the Closing Date by the Company or any other Loan Party, promptly (and, in any event  within 60 days after the creation or acquisition thereof) (i) execute and deliver to the Administrative  Agent and the Collateral Agent such amendments to the Collateral Agreement as the Administrative  Agent or the Collateral Agent reasonably request to grant to the Collateral Agent, for the benefit of the  Administrative Agent and the Lenders, a perfected first priority security interest in the Capital Stock of  such new Subsidiary (provided that in no event shall more than 65.0% of the total outstanding Capital  





 






  115  Stock of any such new Subsidiary that is a CFC or a CFC Holding Company be required to be so  pledged); provided, further, that no Loan Party shall be obligated to pledge the Capital Stock of a Foreign  Subsidiary to the extent such pledge would violate the laws of the jurisdiction of such Foreign  Subsidiary’s organization, (ii) deliver to the Collateral Agent the certificates representing such Capital  Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer  of such Loan Party, as the case may be, and take such other action as may be necessary or, in the opinion  of the Administrative Agent or the Collateral Agent, desirable to perfect the Collateral Agent’s security  interest therein and (iii) if reasonably requested by the Administrative Agent or the Collateral Agent,  deliver to the Administrative Agent and the Collateral Agent legal opinions relating to the matters  described above, which opinions shall be in form and substance, and from counsel, reasonably  satisfactory to the Administrative Agent and the Collateral Agent.  (e) In addition, within 60 days of the Closing Date, the Company shall deliver to the  Administrative Agent and the Collateral Agent insurance certificates and endorsements naming the  Collateral Agent as additional insured or mortgagee and loss payee under the insurance policies of the  Company and its Subsidiaries in accordance with the Collateral Agreement.  (f) For the avoidance of doubt, references in this Section 6.9 to any asset, property, right or  Capital Stock of any Subsidiary created or acquired after the Closing Date do not include Excluded Assets  (as defined in the Collateral Agreement).  (g) The Administrative Agent shall have the right to extend any of the time periods set forth  in this Section 6.9 in its reasonable discretion.  (h) Notwithstanding anything to the contrary in any Loan Document, no Loan Party shall be  required, nor shall the Administrative Agent be authorized, (A) to perfect any pledge, security interest or  mortgage by any means other than through (x) any filing pursuant to the UCC in the office of the  secretary of state (or similar central filing office) of the relevant State(s) and any filing in any applicable  real estate records in the United States with respect to any mortgaged property or any fixture relating to  any mortgaged property, (y) any filing in the United States Copyright Office or the United States Patent  and Trademark Office with respect to Intellectual Property or (z) delivery to the Administrative Agent to  be held in its possession of all Collateral consisting of stock certificates of the Company and its wholly- owned pledged subsidiaries and certain instruments with a fair market value in excess of $5,000,000, (B)  to enter into any account control agreement or lockbox or similar arrangement with respect to any deposit  account, securities account or commodities account or (C) to take any action in or required by a  jurisdiction other than the United States or with respect to any asset located or titled outside of the United  States (and there shall be no guarantee, security agreement or pledge agreement governed by the laws of  any such non-U.S. jurisdiction).  6.10. Designation of Subsidiaries. The Company may at any time designate any Subsidiary as  an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Subsidiary by delivering to the  Administrative Agent a certificate of a Responsible Officer of the Company specifying such designation  and certifying that the conditions to such designation set forth in this Section 6.10 are satisfied; provided  that:  (a) both immediately before and immediately after any such designation, no Event of Default  shall have occurred and be continuing or would result therefrom;  (b) the Company shall be in Pro Forma Compliance with the Financial Covenants,  recomputed as of the last day of the applicable Test Period;  





 






  116  (c) in the case of a designation of a 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 6.10; and  (d) in no event shall any Subsidiary be designated an Unrestricted Subsidiary if such  Subsidiary or any subsidiary of such Subsidiary owns material Intellectual Property.  The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by  the Company in such Subsidiary on the date of designation in an amount equal to the fair market value of  the Company’s or its Subsidiary’s (as applicable) Investment therein (as determined reasonably and in  good faith by a Responsible Officer of the Company). The designation of any Unrestricted Subsidiary as a  Subsidiary shall constitute the incurrence at the time of designation of any Investment, Indebtedness or  Liens of such Subsidiary existing at such time.   6.11. Post-Closing Real Estate Deliverables. No later than 120 days after the Closing Date (or  such later date selected by the Administrative Agent in its reasonable discretion) the Company shall cause  to be delivered to the Administrative Agent and the Collateral Agent:  (a) Mortgages. A Mortgage encumbering each Mortgaged Property listed on Schedule 1.1B  in favor of the Collateral Agent, for the benefit of the Administrative Agent and the Lenders, duly  executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such  Mortgaged Property, and otherwise in form for recording in the recording office of each applicable  political subdivision where each such Mortgaged Property is situated, together with such certificates,  affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof  to create a lien under applicable Requirements of Law, and such financing statements and any other  instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which  shall be in form and substance reasonably satisfactory to Collateral Agent;  (b) Title Insurance Policies. With respect to each Mortgage, (a) a policy of title insurance (or  marked up unconditional title insurance commitment having the effect of a policy of title insurance)  issued by a nationally recognized and financially stable title insurance company reasonably acceptable to  the Administrative Agent (the “Title Company”) insuring the Lien of such Mortgage as a valid first  mortgage Lien on the Mortgaged Property in an amount not less than the value of such Mortgaged  Property determined in the reasonable opinion of the Company, which policy (or such marked up  unconditional title insurance commitment) (each, a “Title Policy”) shall (x) to the extent necessary,  include such co-insurance and reinsurance arrangements (with provisions for direct access, if necessary)  as shall be reasonably acceptable to the Administrative Agent, (y) have been supplemented by such  endorsements as shall be reasonably requested by the Administrative Agent, and (z) contain no exceptions  to title other than Liens permitted pursuant to Section 7.3; (b) evidence reasonably acceptable to the  Collateral Agent of payment by Borrower of all Title Policy premiums, search and examination charges,  escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required  for the recording of the Mortgages and issuance of the Title Policies; and (c) such affidavits, certificates,  information (including financial data) and instruments of indemnification (including a so-called “gap”  indemnification) as shall be required to induce the Title Company to issue the Title Policies and  endorsements;  (c) Surveys. A survey of the applicable Mortgaged Property for which all necessary fees  (where applicable) have been paid (a) prepared by a surveyor reasonably acceptable to the Collateral  Agent, (b) dated or re-certificated not earlier than three months prior to the date of such delivery or such  other date as may be reasonably satisfactory to the Administrative Agent in its sole discretion, (c) for  Mortgaged Property situated in the United States, certified to the Collateral Agent, and the Title  





 






  117  Company, which certification shall be reasonably acceptable to the Collateral Agent and (d) in such form  as shall be required by the title company to issue the so-called comprehensive and other survey-related  endorsements and to remove the standard survey exceptions from the Title Policies and endorsements  provided, however, that a survey shall not be required to the extent that (x) an existing survey together  with an “affidavit of no change” is delivered to the Collateral Agent and the Title Company and (y) the  Title Policy for such Mortgaged Property does not contain the standard survey exception and includes  customary survey related endorsements and other coverages in the applicable Title Policy (including, but  not limited to public road access, survey, contiguity and so-called comprehensive coverage);  (d) Opinions. Favorable written opinions, addressed to the Administrative Agent, the  Collateral Agent and the Lenders, of local counsel to the Loan Parties in each jurisdiction (i) where a  Mortgaged Property is located and (ii) where the applicable Loan Party granting the Mortgage on said  Mortgaged Property is organized, regarding the due authority, execution, delivery, perfection and  enforceability of each such Mortgage, the corporate formation, existence and good standing of the  applicable Loan Party, and such other matters as may be reasonably requested by the Administrative  Agent, each in form and substance reasonably satisfactory to the Collateral Agent;  (e) Flood Insurance. (a) “Life-of-Loan” Federal Emergency Management Agency Standard  Flood Hazard Determination with respect to each Mortgaged Property; and (b) in the event any such  property is located in an area identified by the Federal Emergency Management Agency (or any successor  agency) as a “special flood hazard area,” (x) a notice about special flood hazard area status and flood  disaster assistance, duly executed by the Company, (y) evidence of flood insurance with a financially  sounds and reputable insurer, naming the Collateral Agent, as mortgagee, in an amount and otherwise in  form and substance reasonably satisfactory to the Collateral Agent, and (z) evidence of the payment of  premiums in respect thereof in form and substance reasonably satisfactory to the Collateral Agent  (provided that, notwithstanding the foregoing, the Collateral Agent shall not enter into any Mortgage in  respect of any Mortgaged Property listed on Schedule 1.1B until the date that is (a) if such real property is  not located in a “special flood hazard area”, ten (10) Business Days or (b) if such real property is located  in a “special flood hazard area”, one hundred twenty (120 days, after the Collateral Agent has delivered to  the Lenders the following documents in respect of such real property: (i) a completed flood hazard  determination from a third party vendor; (ii) if such real property is located in a “special flood hazard  area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the  applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by  the applicable Loan Parties of such notice; and (iii) if required by Flood Laws, evidence of required flood  insurance); and  6.12. Post-Closing Obligations. The Company and each applicable Loan Party shall comply  with each requirement set forth on Schedule 6.12 on or before the date specified for such requirement (or  such later date as the Administrative Agent may agree in its reasonable discretion).  6.13. Maintenance of Ratings. The Company will use commercially reasonable efforts to  maintain in effect a corporate rating (but not any specific rating) from S&P and a corporate family rating  from Moody’s, in each case in respect of the Company, and a rating of the credit facilities hereunder by  each of S&P and Moody’s.  SECTION 7. NEGATIVE COVENANTS  From and after the Closing Date, the Company hereby agrees that, so long as the Commitments  remain in effect, any Letter of Credit remains outstanding or any Loan or other amount is due and owing  to any Lender or the Administrative Agent hereunder, the Company shall not, and shall not permit any of  its Subsidiaries to, directly or indirectly:  





 






  118  7.1. Financial Condition Covenants.   (a) Total Leverage Ratio. Permit the Total Leverage Ratio as at the last day of any Test  Period to exceed 4.50 to 1.00, commencing with the Test Period for which the last fiscal quarter is the  first full fiscal quarter ending after the Closing Date. Notwithstanding the foregoing, at the written  election of the Company not later than the date on which financial statements are required to be delivered  pursuant to Section 6.1 in respect of the fiscal period in which a Material Acquisition is consummated, for  each of the four succeeding four-fiscal quarter periods ending immediately following the consummation  of such Material Acquisition (including the first Test Period ending after the consummation of such  Material Acquisition) (the “Increased Test Periods”), the applicable Total Leverage Ratio level for  purposes of this Section 7.1(a) shall not exceed 5.00 to 1.00; provided, however, that, (1) the Total  Leverage Ratio as at the last day of each of the two four-fiscal quarter periods immediately succeeding  the last Increased Test Period shall be equal to or less than 4.50 to 1.00 (irrespective of whether any other  Material Acquisition has been consummated during such period) and (2) the Company may make only  two such elections during the term of this Agreement.  (b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio  as of the last day of any Test Period to be less than 3.00 to 1.00, commencing with the Test Period for  which the last fiscal quarter is the first full fiscal quarter ending after the Closing Date.  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 pursuant to any Loan Document;  (b) Indebtedness of the Company to any of its Subsidiaries and of any Subsidiary to the  Company or any other Subsidiary of the Company; provided that any Indebtedness of any Subsidiary that  is not a Domestic Loan Party to the Company or to any of its Subsidiaries that are Domestic Loan Parties  is permitted pursuant to Section 7.8 (other than Sections 7.8(c)(i) and 7.8(ff));  (c) Indebtedness in respect of the Senior Unsecured Notes and any Permitted Refinancing in  respect thereof;  (d) Indebtedness existing on the Closing Date (or which may have been incurred pursuant to  commitments existing on the Closing Date) listed, to the extent in excess of $5,000,000 on Schedule  7.2(d) and any Permitted Refinancing in respect thereof;  (e) Indebtedness (including Capital Lease Obligations) secured by Liens permitted by  Section 7.3(i) in an aggregate principal amount not to exceed the greater of (x) $105,000,000 and (y)  25.0% of Consolidated EBITDA for the most recently ended Test Period;  (f) (i) Indebtedness of any Subsidiary located in China in an aggregate principal amount not  to exceed $50,000,000 and (ii) Indebtedness of any Subsidiary located in India in an aggregate principal  amount not to exceed $25,000,000;  (g) Hedge Agreements as long as such agreements are not entered into for speculative  purposes;  (h) Incremental Equivalent Debt and any Permitted Refinancing in respect thereof;  (i) [reserved];  





 






  119  (j) (i) additional Indebtedness of the Company or any of its Subsidiaries in an aggregate  principal amount (for all incurrences by the Company and all Subsidiaries pursuant to this clause (j))  which when incurred does not exceed the greater of (x) $160,000,000 and (y) 37.5% of Consolidated  EBITDA for the most recently ended Test Period and (ii) any Permitted Refinancing in respect thereof;  (k) Capital Lease Obligations arising from Permitted Sale/Leasebacks;  (l) (i) Indebtedness of the Company or any Subsidiary (“Ratio Debt”) in an aggregate  principal amount not to exceed (A) the Shared Incremental Amount plus (B) an unlimited amount so long  as, in the case of this clause (i)(B), on the date of incurrence thereof on a Pro Forma Basis after giving  effect to the incurrence of such Ratio Debt and the application of the proceeds thereof (without netting the  cash proceeds thereof) and to any relevant Specified Transaction, (i) if such Indebtedness is secured by a  Lien on the Collateral that is pari passu (but without regard to the control of remedies) with the Liens  securing the Obligations, the First Lien Leverage Ratio does not exceed either (A) 2.75 to 1.00 or (B) if  such Ratio Debt is incurred in connection with an acquisition or other Investment permitted under this  Agreement, the greater of (I) 2.75 to 1.00 and (II) the First Lien Leverage Ratio immediately prior to the  incurrence of such Ratio Debt and the consummation of such acquisition or other permitted Investment,  (ii) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Liens securing the  Obligations, the Senior Secured Leverage Ratio does not exceed either (A) 3.25 to 1.00 or (B) if such  Ratio Debt is incurred in connection with an acquisition or other Investment permitted under this  Agreement, the greater of (I) 3.25 to 1.00 and (II) the Senior Secured Leverage Ratio immediately prior to  the incurrence of such Ratio Debt and the consummation of such acquisition or other permitted  Investment, and (iii) if such Indebtedness is unsecured or, in the case of Ratio Debt incurred by any  Foreign Subsidiary, is secured by a Lien on assets or property of Foreign Subsidiaries, the Company is in  compliance with the Financial Covenants (in the case of any Ratio Debt incurred in reliance on this  clause (iii) in connection with any Material Acquisition, after giving effect to any step-up applicable to  Section 7.1(a) to the extent that the first Test Period ending after the date of the consummation of such  Material Acquisition would be an Increased Test Period in accordance with the terms of Section 7.1(a));  provided that (i) the requirement set forth in Sections 2.27(a)(vi) and (vii) (except with respect to any  Ratio Debt consisting of a customary bridge facility so long as, subject to customary conditions, such  bridge facility automatically converts into long-term debt satisfying the requirements set forth in Sections  2.27(a)(vi) and (vii)), as applicable, shall apply mutatis mutandis as if such Ratio Debt were Incremental  Facilities and (ii) the aggregate amount of Indebtedness incurred by Subsidiaries that are not Domestic  Loan Parties under this clause (l), together with the aggregate amount of Incurred Acquisition Debt  incurred by Subsidiaries that are not Domestic Loan Parties, shall not exceed the greater of (x)  $130,000,000 and (y) 30.0% of Consolidated EBITDA for the most recently ended Test Period and (ii)  any Permitted Refinancing thereof;  (m) Indebtedness in respect of Cash Management Obligations, including Cash Pooling  Agreements, or guarantees thereof, including the guarantee set forth in the Guarantee Agreement;  (n) (i) additional Indebtedness of Subsidiaries that are not Domestic Loan Parties in an  aggregate principal amount not to exceed the greater of (x) $130,000,000 and (y) 30.0% of Consolidated  EBITDA for the most recently ended Test Period and (ii) any Permitted Refinancing thereof;  (o) Guarantee Obligations by the Company of Indebtedness otherwise permitted hereunder of  any Subsidiary and by any Subsidiary of Indebtedness otherwise permitted hereunder of the Company or  any other Subsidiary; provided that any guarantee by any Domestic Loan Party of any Indebtedness of  any Subsidiary that is not a Domestic Loan Party is permitted pursuant to Section 7.8 (other than  Sections 7.8(c)(i) and 7.8(ff));  





 






  120  (p) (i) Indebtedness incurred in connection with any acquisition or other Investment  permitted hereunder (“Incurred Acquisition Debt”) in an amount not to exceed (A) the Shared  Incremental Amount plus (B) an unlimited amount so long as, in the case of this clause (i)(B), on the date  of incurrence thereof on a Pro Forma Basis after giving effect to the incurrence of such Incurred  Acquisition Debt and the application of the proceeds thereof (without netting the cash proceeds thereof)  and to any relevant Specified Transaction, (i) if such Indebtedness is secured by a Lien on the Collateral  that is pari passu (but without regard to the control of remedies) with the Liens securing the Obligations,  the First Lien Leverage Ratio does not exceed the greater of (x) 2.75 to 1.00 and (y) the First Lien  Leverage Ratio immediately prior to the incurrence of such Incurred Acquisition Debt and the  consummation of such acquisition or other permitted Investment, (ii) if such Indebtedness is secured by a  Lien on the Collateral that is junior to the Liens securing the Obligations, the Senior Secured Leverage  Ratio does not exceed the greater of (x) 3.25 to 1.00 and (y) the Senior Secured Leverage Ratio  immediately prior to the incurrence of such Incurred Acquisition Debt and the consummation of such  acquisition or other permitted Investment and (iii) if such Indebtedness is unsecured or, in the case of  Incurred Acquisition Debt incurred by any Foreign Subsidiary, is secured by a Lien on assets or property  of Foreign Subsidiaries, either (x) the Company is in compliance with the Financial Covenants (in the  case of any Incurred Acquisition Debt incurred in reliance on this clause (iii) in connection with any  Material Acquisition, after giving effect to any step-up applicable to Section 7.1(a) to the extent that the  first Test Period ending after the date of the consummation of such Material Acquisition would be an  Increased Test Period in accordance with the terms of Section 7.1(a)) or (y) the Total Leverage Ratio does  not exceed the Total Leverage Ratio as of the last day of the most recently ended Test Period and the  Consolidated Interest Coverage Ratio is no less than the Consolidated Interest Coverage Ratio as of the  last day of the most recently ended Test Period; provided that (i) the requirement set forth in Sections  2.27(a)(vi) and (vii) (except with respect to any Incurred Acquisition Debt consisting of a customary  bridge facility so long as, subject to customary conditions, such bridge facility automatically converts into  long-term debt satisfying the requirements set forth in Sections 2.27(a)(vi) and (vii)), as applicable shall  apply mutatis mutandis as if such Incurred Acquisition Debt were Incremental Facilities and (ii) the  aggregate amount of Indebtedness incurred by Subsidiaries that are not Domestic Loan Parties under this  clause (p), together with the aggregate amount of Ratio Debt incurred by Subsidiaries that are not  Domestic Loan Parties, shall not exceed the greater of (x) $130,000,000 and (y) 30.0% of Consolidated  EBITDA for the most recently ended Test Period and (ii) any Permitted Refinancing thereof;  (q) Indebtedness under a Permitted Receivables Financing or Supply Chain Financing;  (r) to the extent constituting Indebtedness, obligations (including reimbursement obligations  with respect to guaranties, letters of credit or other similar obligations) in respect of tenders, statutory  obligations, leases, governmental contracts, stay, performance bid, customs, appeal and surety bonds and  performance and/or return of money bonds and completion guarantees or other obligations of a like nature  issued for the account of, or provided by, the Company and its Subsidiaries in the ordinary course of  business;  (s) Indebtedness incurred by a Special Purpose Finance Subsidiary;  (t) Credit Agreement Refinancing Indebtedness (including successive Permitted  Refinancings thereof) and Guarantee Obligations by the Guarantors in respect thereof;  (u) Indebtedness arising from agreements providing for indemnification, purchase price  adjustments or similar obligations incurred by the Company or its Subsidiaries in connection with any  acquisition or Disposition in each case permitted by this Agreement;  





 






  121  (v) Indebtedness consisting of obligations of the Company or any Subsidiary under deferred  compensation (e.g., earn-outs, indemnifications, incentive non-competes and other contingent or deferred  obligations) or other similar arrangements incurred by such Person in connection with the Transactions,  or any acquisition or other Investment in each case permitted under Section 7.8 (other than  Section 7.8(ff));  (w) Indebtedness of a Person which becomes a Subsidiary or is merged into any Subsidiary  after the Closing Date in each case to the extent such acquisition or merger is permitted under this  Agreement; provided that (i) such Indebtedness was in existence on the date such Person became a  Subsidiary of, or merged into, such Subsidiary, (ii) such Indebtedness was not created in contemplation of  such Person becoming a Subsidiary, (iii) such Indebtedness is not guaranteed in any respect by or secured  by the assets of the Company or any of its Subsidiaries (other than by any such person that so becomes a  Subsidiary) and (iv) immediately after giving effect to the acquisition of or merger with such Person by  such Subsidiary, no Event of Default shall have occurred and be continuing;  (x) Indebtedness incurred by the Company or its Subsidiaries in respect of banker’s  acceptances, bank guarantees, letters of credit, warehouse receipts or similar instruments entered into in  the ordinary course of business, including in respect of workers compensation claims, health, disability or  other employee benefits or property, casualty or liability insurance or self-insurance, or other  Indebtedness with respect to reimbursement type obligations regarding workers compensation claims, in  each case in the ordinary course of business or consistent with past practice;  (y) Indebtedness consisting of (i) the financing of insurance premiums, (ii) take-or-pay  obligations contained in supply arrangements, (iii) obligations to reacquire assets or inventory in  connection with customer financing arrangements or (iv) obligations owing under supply, customer,  distribution, license, lease or similar agreements, in each case with respect to clauses (i) through (iv),  entered into in the ordinary course of business;  (z) Indebtedness supported by a letter of credit issued by any Person (other than the  Company or any of its Affiliates) for the account of the Company or any of its Subsidiaries pursuant to  another clause of this Section 7.2, the availability of which is subject to a stated quantum in a principal  amount not in excess of the stated amount of such letter of credit;  (aa) Indebtedness related to any letter of credit issued in the ordinary course of business or  created by or for the account of the Company or any of its Subsidiaries other than pursuant to this  Agreement, in an aggregate principal amount not in excess of $35,000,000;  (bb) Indebtedness incurred in the ordinary course of business or consistent with past practice  under travel and expense cards, corporate purchasing cards and car leasing programs, and Guarantee  Obligations of the Company and its Subsidiaries with respect to any such Indebtedness;  (cc) Indebtedness of the Company or any Subsidiary as an account party in respect of trade  letters of credit issued in the ordinary course of business;  (dd) Indebtedness (other than debt for borrowed money) of any Borrower and/or any  Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered  into in the ordinary course of business or consistent with past practice;  (ee) endorsement of instruments or other payment items for collection or deposit in the  ordinary course of business or consistent with past practice;  





 






  122  (ff) [reserved];  (gg) unfunded pension fund and other employee benefit plan obligations and liabilities  incurred by any Borrower and/or any Subsidiary in the ordinary course of business or consistent with past  practice to the extent that the unfunded amounts would not otherwise cause an Event of Default under  Section 8(g);  (hh) customer deposits and advance payments received in the ordinary course of business or  consistent with past practice from customers for goods and services purchased in the ordinary course of  business;   (ii) obligations in respect of letters of support, guarantees or similar obligations issued, made  or incurred for the benefit of any subsidiary of any Borrower to the extent required by law or in  connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than  within the United States; and  (jj) all premiums, interest (including post-petition interest), fees, expenses, charges and  additional or contingent interest on obligations described in this Section 7.2.  7.3. Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, whether  now owned or hereafter acquired, except for:  (a) Liens for taxes 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 any  Loan Party or any Excluded Subsidiary, as the case may be, in conformity with GAAP or in the case of a  Subsidiary located outside of the United States, general accounting principles in effect from time to time  in its jurisdiction of incorporation;  (b) statutory liens of landlords and carriers, warehousemen, mechanics, materialmen,  repairmen 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;  (d) deposits to secure the performance of bids, trade contracts (other than for borrowed  money), leases, statutory obligations, governmental contracts, customs, stay, surety and appeal bonds,  performance and/or return of money bonds and completion guarantees or other obligations of a like nature  (including those to secure health, safety and environmental obligations) incurred in the ordinary course of  business;  (e) easements, rights-of-way, restrictions and other similar encumbrances that are or would  be reflected on a survey or by inspection of any real property or that, in the aggregate, are not substantial  in amount and that do not in the aggregate materially detract from the value of the property subject thereto  or materially interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries  taken as a whole;  (f) (i) Liens in existence on the Closing Date, to the extent the obligations secured by such  Liens are in excess of $5,000,000, listed on Schedule 7.3(f) securing Indebtedness permitted by Section  7.2(d) or other obligations not prohibited hereunder and (ii) Liens replacing the Liens set forth on  Schedule 7.3(f) securing a refinancing, refunding, renewal or extension of Indebtedness that is permitted  





 






  123  pursuant to Section 7.2(d) or such other obligations; provided that no such Lien is spread to cover any  additional property after the Closing Date unless otherwise permitted by another provision of this Section  7.3 (in which case, for the avoidance of doubt, such Lien covering any additional property shall be  incurred in reliance on such other provision of this Section 7.3) and that the amount of Indebtedness or  such other obligation secured thereby is not increased;  (g) Liens on the Collateral to secure Indebtedness permitted under Sections 7.2(l) or 7.2(p);  provided that an Other Debt Representative acting on behalf of the holders of such Indebtedness shall  have become party to (i) if such Indebtedness is secured by a Lien on the Collateral that is pari passu (but  without regard to the control of remedies) with the Liens securing the Obligations, a First Lien  Intercreditor Agreement as a “Senior Representative” (or similar term, in each case, to be defined in the  First Lien Intercreditor Agreement) or (ii) if such Indebtedness is secured by the Collateral that is junior  to the Liens securing the Obligations, a Junior Lien Intercreditor Agreement as a “Junior Priority  Representative” (or similar term, in each case, to be defined in the Junior Lien Intercreditor Agreement);  (h) Liens arising solely by virtue of any contractual, statutory or common law provisions  related to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts and  securities accounts;  (i) Liens securing Indebtedness of the Company or any Subsidiary incurred pursuant to  Section 7.2(e) to finance the acquisition of fixed or capital assets; provided that (i) such Liens do not at  any time encumber any property other than the property financed by such Indebtedness (other than after- acquired property that is affixed or incorporated into the property covered by such Lien or financed by  Indebtedness permitted under Section 7.2(e)) and (ii) the amount of Indebtedness secured thereby is not  increased;  (j) Liens created pursuant to the Security Documents;  (k) Liens consisting of judgment or judicial attachment Liens and Liens securing contingent  obligations on appeal and other bonds in connection with court proceedings, settlements or judgments;  provided that (i) such Liens would not result in the occurrence of an Event of Default hereunder and (ii)  such Liens are being contested in good faith by appropriate proceedings;  (l) Liens consisting of any (i) interest or title of a lessor, sub-lessor, licensor or sub-licensor  under any lease, license or similar arrangement of real estate or other property (including intellectual  property) permitted hereunder, (ii) landlord lien arising by law or permitted by the terms of any lease,  sub-lease, license, sub-license or similar arrangement, (iii) restriction or encumbrance to which the  interest or title of such lessor, sub-lessor, licensor or sub-licensor may be subject, (iv) subordination of the  interest of the lessee, sub-lessee, licensee or sub-licensee under such lease, sub-lease, license, sub-license  or similar arrangement to any restriction or encumbrance referred to in the preceding clause (iii) or  (v) deposit of cash with the owner or lessor of premises leased and operated by any Borrower or any  Subsidiary in the ordinary course of business or consistent with past practice to secure the performance of  obligations under the terms of the lease for such premises;  (m) Liens on assets subject to a Permitted Receivables Financing securing such Permitted  Receivables Financing;  (n) additional Liens so long as the aggregate outstanding principal amount of the obligations  secured thereby at the time such Lien is incurred does not exceed the greater of (x) $160,000,000 and (y)  37.5% of Consolidated EBITDA for the most recently ended Test Period;  





 






  124  (o) Liens on the Collateral securing Incremental Equivalent Debt; provided that an Other  Debt Representative acting on behalf of the holders of such Indebtedness shall have become party to (i) if  such Indebtedness by secured by a Lien on the Collateral that is pari passu (but without regard to the  control of remedies) with the Liens securing the Obligations, a First Lien Intercreditor Agreement as a  “Senior Representative” (or similar term, in each case, to be defined in the First Lien Intercreditor  Agreement) or (ii) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Liens  securing the Obligations, a Junior Lien Intercreditor Agreement as a “Junior Priority Representative” (or  similar term, in each case, to be defined in the Junior Lien Intercreditor Agreement);  (p) Liens on cash, Cash Equivalents, deposit accounts and similar items of (i) Foreign  Subsidiaries securing Cash Management Obligations of Foreign Subsidiaries, including obligations of  Foreign Subsidiaries in respect of any Cash Pooling Agreement, and guarantees by any Foreign  Subsidiary of such Cash Management Obligations of other Foreign Subsidiaries or such similar  obligations of other Foreign Subsidiaries or (ii) Subsidiaries securing obligations in respect of the  Existing Pooling Agreement;  (q) Liens on assets and Capital Stock of Subsidiaries that are not Loan Parties (including  Capital Stock owned by such Persons) securing Indebtedness or other obligations of Subsidiaries that are  not Loan Parties permitted pursuant to Section 7.2 (or not prohibited under this Agreement);  (r) Liens on Company Stock;  (s) Liens on assets of a Special Purpose Finance Subsidiary to secure Indebtedness incurred  by such Special Purpose Finance Subsidiary;  (t) matters expressly listed as exceptions to title or subordinate matters in the Administrative  Agent’s title insurance policies for such Mortgaged Properties;  (u) Liens on the Collateral securing obligations in respect of Credit Agreement Refinancing  Indebtedness and any Permitted Refinancing in respect thereof, and any Guarantee Obligations by the  Guarantors in respect thereof; provided that an Other Debt Representative acting on behalf of the holders  of such Indebtedness shall have become party to (i) if such Indebtedness is secured by a Lien on the  Collateral that is pari passu (but without regard to the control of remedies) with the Liens securing the  Obligations, a First Lien Intercreditor Agreement as a “Senior Representative” (or similar term, in each  case, to be defined in the First Lien Intercreditor Agreement) or (ii) if such Indebtedness is secured by a  Lien on the Collateral that is junior to the Liens securing the Obligations, a Junior Lien Intercreditor  Agreement as a “Junior Priority Representative” (or similar term, in each case, to be defined in the Junior  Lien Intercreditor Agreement);  (v) Liens (i) 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  or consistent with past practice or (ii) on specific items of inventory or other goods and proceeds of any  Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or  created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or  other goods in the ordinary course of business;  (w) Liens (i) on cash or Cash Equivalents advanced in favor of the seller of any property to  be acquired in an Investment permitted pursuant to Section 7.8 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  under Section 7.5 (or, to dispose of any property in a transaction not constituting a Disposition hereunder  to the extent such transaction is otherwise permitted under this Agreement);  





 






  125  (x) Liens on property or assets acquired by a Loan Party or on property or assets of any  Person which becomes a Subsidiary of a Loan Party, in any such case existing at the time of the  acquisition thereof (including acquisition through merger or consolidation) and not incurred in  contemplation of such acquisition;  (y) Liens arising on any real property as a result of any eminent domain, condemnation or  similar proceeding being commenced with respect to such real property;  (z) (i) Liens on the Capital Stock of a Joint Venture securing obligations of such Joint  Venture that are otherwise permitted under this Agreement and (ii) customary options, put and call  arrangements, rights of first refusal and similar rights relating to such Joint Venture under its joint venture  agreement;  (aa) (i) deposits made or other security provided to secure liabilities to insurance brokers,  insurance carriers under insurance or self- insurance arrangements in the ordinary course of business or  consistent with past practice and (ii) Liens on insurance policies and the proceeds thereof securing the  financing of insurance premiums with respect thereto to the extent permitted hereunder;  (bb) [reserved];  (cc) (i) Liens that are contractual rights of set-off or netting or pledge relating to (A) the  establishment of depositary relations with banks or other financial institutions not granted in connection  with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of any Borrower and/or any  Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of  business or consistent with past practice of any Borrower and/or any Subsidiary, (C) purchase orders and  other agreements entered into with customers of any Borrower and/or any Subsidiary in the ordinary  course of business or consistent with past practice and (D) commodity trading or other brokerage  accounts incurred in the ordinary course of business, (ii) Liens encumbering reasonable customary initial  deposits and margin deposits, (iii) bankers Liens and rights and remedies as to deposit accounts or similar  accounts, (iv) Liens of a collection bank arising under Section 4-208 or Section 4-210 of the UCC (or any  similar Requirement of Law of any jurisdiction) on items in the ordinary course of business, (v) Liens  (including rights of set-off) in favor of banking or other financial institutions arising as a matter of law or  under customary general terms and conditions encumbering deposits or other funds maintained with a  financial institution and that are within the general parameters customary in the banking industry or  arising pursuant to such banking institution’s general terms and conditions and (vi) Liens on the proceeds  of any Indebtedness permitted hereunder incurred in connection with any transaction permitted hereunder,  which proceeds have been deposited into an escrow account on customary terms to secure such  Indebtedness pending the application of such proceeds to finance such transaction or on cash or Cash  Equivalents set aside at the time of the incurrence of such Indebtedness to the extent such cash or Cash  Equivalents prefund the payment of interest or fees on such Indebtedness and are held in escrow pending  application for such purpose;  (dd) Liens in favor of any Governmental Authority to secure progress, advance or other  payments pursuant to any contract or provision of any statute;  (ee) Liens in connection with a Permitted Sale/Leaseback; provided that any such Lien shall  encumber only the property interest subject to such Permitted Sale/Leaseback; and  (ff) Liens securing obligations (other than obligations representing Indebtedness for  borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary  course of business or consistent with past practice of any Borrower and/or their Subsidiaries;  





 






  126  (gg) Liens on securities or other assets that are the subject of repurchase agreements  constituting Investments permitted under Section 7.8 arising out of such repurchase transaction;  (hh) Liens securing obligations in respect of letters of credit, bank guaranties, surety bonds,  performance bonds or similar instruments permitted under Sections 7.2(r) and (x);  (ii) Liens arising (i) out of conditional sale, title retention, consignment or similar  arrangements for the sale of any assets or property and bailee arrangements in the ordinary course of  business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or any  similar Requirement of Law of any jurisdiction);  (jj) Liens (i) in favor of any Domestic Loan Party and/or (ii) granted by any Subsidiary that is  not a Domestic Loan Party in favor of any Subsidiary that is not a Domestic Loan Party, in the case of  each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.2 or  Section 7.8 or securing other intercompany obligations not prohibited hereunder;  (kk) Liens on cash or Cash Equivalents arising in connection with the defeasance, discharge or  redemption of Indebtedness;  (ll) undetermined or inchoate Liens, rights of distress and charges incidental to current  operations that have not at such time been filed or exercised, or which relate to obligations not due or  payable or, if due, the validity of such Liens are being contested in good faith by appropriate actions  diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person  in accordance with GAAP;  (mm) [reserved];  (nn) security given to a public or private utility or any Governmental Authority as required in  the ordinary course of business;  (oo) receipt of progress payments and advances from customers in the ordinary course of  business or consistent with past practice to the extent the same creates a Lien on the related inventory and  proceeds;  (pp) Liens on property or assets of Subsidiaries that are not Domestic Loan Parties securing  Indebtedness of Subsidiaries that are not Domestic Loan Parties incurred pursuant to Section 7.2(n);  (qq) Liens in the nature of the right of setoff in favor of counterparties to contractual  agreements with any Borrower or any Subsidiary in the ordinary course of business; and   (rr) Liens arising solely in connection with rights of dissenting equity holders pursuant to any  Requirement of Law in respect of any acquisition or other similar Investment permitted hereunder.  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) (i) any Subsidiary of the Company may be merged or consolidated with or into the  Company (provided that the Company shall be the continuing or surviving corporation) or with or into  any Guarantor or any Subsidiary Borrower (provided that (x) if any such transaction is between a  Guarantor and a Subsidiary that is not a Guarantor or, such Guarantor shall be the continuing or surviving  





 






  127  entity and (y) if any such transaction is between a Subsidiary Borrower and any Subsidiary that is not a  Subsidiary Borrower, such Subsidiary Borrower shall be the continuing or surviving entity) and (ii) any  Subsidiary that is not a Guarantor may be merged with or into any other Subsidiary (provided that, (w) if  any such transaction is between a Domestic Subsidiary and a Foreign Subsidiary that is not a Foreign  Subsidiary Borrower, such Domestic Subsidiary shall be the continuing or surviving entity except to the  extent permitted under Section 7.8, (x) if any such transaction is between a Foreign Subsidiary Borrower  and a Foreign Subsidiary that is not a Foreign Subsidiary Borrower, such Foreign Subsidiary Borrower  shall be the continuing or surviving entity and (y) if such transaction is between a Foreign Subsidiary  Borrower and a Domestic Subsidiary Borrower, such Domestic Subsidiary Borrower shall be the  continuing or surviving entity ;   (b) (i) any Subsidiary of the Company may Dispose of all or substantially all of its assets  (upon voluntary liquidation or otherwise) to the Company or any Guarantor, (ii) any Foreign Subsidiary  (other than any Foreign Subsidiary Borrower) may Dispose of all or substantially all of its assets upon  voluntary liquidation or otherwise to any other Subsidiary and (iii) any Subsidiary of the Company may  Dispose of all or substantially all of its assets pursuant to a Disposition permitted by Section 7.5 (other  than pursuant to Section 7.5(c)); provided that, for the avoidance of doubt, any Subsidiary of the  Company that only holds Capital Stock of other Subsidiaries of the Company (a “Subsidiary Holding  Company”) may consummate any sale of all or substantially all of its assets that would be permitted  under this Section 7.4(b) with respect each such Subsidiary or Subsidiaries held by such Subsidiary  Holding Company; and  (c) any Subsidiary (other than a Subsidiary Borrower) may be liquidated as long as the  proceeds of such liquidation (after satisfying all Contractual Obligations of such Subsidiary) are  distributed to the holders of the Capital Stock of such Subsidiary on an approximately ratable basis (based  on their respective equity ownership interests in such Subsidiary).  7.5. Disposition of Property. Dispose of any of its property or rights, whether now owned or  hereafter acquired, except:  (a) the Disposition of unnecessary, obsolete or worn out property ;  (b) the sale of inventory or goods held for sale in the ordinary course of business;  (c) Dispositions permitted by Section 7.4(b), and Dispositions to effect Restricted Payments  and Investments permitted pursuant to Section 7.6 (other than Section 7.6(k)) or 7.8 (other than  Section 7.8(z) and (ff)), respectively; provided that no Subsidiary may make a Disposition of any material  Intellectual Property to any Unrestricted Subsidiary pursuant to this Section 7.5(c) unless such  Disposition is to effect an Investment permitted pursuant to Section 7.8(ee);  (d) non-exclusive licensing or sublicensing of Intellectual Property in the ordinary course of  business;  (e) any Permitted Receivables Financing or Supply Chain Financing;  (f) Dispositions listed and described, to the extent in excess of $5,000,000, on Schedule 7.5  as in effect on the Closing Date;  (g) any Disposition of assets (i) from one Domestic Loan Party to another Domestic Loan  Party, (ii) from a Subsidiary to a Domestic Loan Party or (iii) from one Subsidiary that is not a Domestic  Loan Party to another Subsidiary that is not a Domestic Loan Party;  





 






  128  (h) the Disposition of other property not described in clauses (a)-(g) above or (i)-(hh) below  for not less than fair market value as long as at least 75.0% of the consideration consists of cash and cash  equivalents (provided that such minimum cash/cash equivalent requirement shall not apply to any  Disposition or series of related Dispositions of property having a fair market value less than or equal to  the greater of (x) $42,000,000 and (y) 10.0% of Consolidated EBITDA for the most recently ended Test  Period) (provided that for purposes of such minimum cash/cash equivalent requirement, (v) the amount of  any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to  the Obligations or that are owed to the Company or any Subsidiary) of the Company or any Subsidiary  (as shown on such Person’s most recent balance sheet (or in the notes thereto), or if the incurrence of such  Indebtedness or other liability took place after the date of such balance sheet, that would have been shown  on such balance sheet or in the notes thereto, as determined in good faith by the Company) that are (i)  assumed by the transferee of any such assets and for which the Company and/or its applicable Subsidiary  have been validly released by all relevant creditors in writing or (ii) otherwise cancelled or terminated in  connection with such Disposition, (w) the amount of any trade-in value applied to the purchase price of  any replacement assets acquired in connection with such Disposition, (x) any securities or other  obligations or assets received by the Company or any Subsidiary from such transferee (including earn- outs or similar obligations) that are converted by such Person into cash or Cash Equivalents, or by their  terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or cash  equivalents received) within 180 days following the closing of the applicable Disposition and (y) any  Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair  market value, taken together with all other Designated Non-Cash Consideration received pursuant to this  clause (h) that is at that time outstanding, not in excess of the greater of $55,000,000 and 12.5% of  Consolidated EBITDA as of the last day of the most recently ended Test Period);  (i) the Company or any of its Subsidiaries may transfer or contribute ownership of the  Capital Stock of any Foreign Subsidiary or Joint Venture or the assets of any Foreign Subsidiary or Joint  Venture to the Company or a Subsidiary of the Company;  (j) Dispositions of cash and/or Cash Equivalents or other assets that were cash and/or Cash  Equivalents when the relevant original Investment was made;  (k) the Company and its Subsidiaries may sell property pursuant to Permitted  Sale/Leasebacks;  (l) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant  to, buy/sell arrangement between joint venture or similar parties set forth in the relevant joint venture  arrangements or similar binding agreements;  (m) the Disposition of the Capital Stock or assets of any Immaterial Subsidiary;  (n) the sale by the Company and its Subsidiaries of bills of exchange of the Company and its  Subsidiaries;  (o) [reserved];  (p) Dispositions of non-core assets, in each case acquired in any acquisition or other  Investment permitted hereunder, including such Dispositions (x) made in order to obtain the approval of  any anti-trust authority or otherwise necessary or advisable in the good faith determination of the  Company to consummate any acquisition or other Investment permitted hereunder or (y) which are being  held for sale and not for the continued operation of any Borrower or any of their Subsidiaries or any of  their respective businesses;  





 






  129  (q) any other Disposition; provided that the aggregate fair market value of all Dispositions  pursuant to this Section 7.8(q) does not exceed the greater of (x) $75,000,000 and (y) 17.5% of  Consolidated EBITDA for the most recently ended Test Period;  (r) the Company or any of its Subsidiaries may transfer or contribute ownership of the  Capital Stock of any Foreign Subsidiary formed or organized under the laws of (a) any European country  or (b) any state, province, district or other subdivision of any such country, in each case to a Foreign  Subsidiary that is a European holding company;  (s) Dispositions of Company Stock;  (t) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any  comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or  swap is made for fair value (as determined by the Company in good faith) for like property or assets or  property, assets or services of greater value or usefulness to the business of the Borrowers and their  Subsidiaries as a whole, as determined in good faith by the Company; provided that upon the  consummation of any such exchange or swap by any Loan Party, to the extent the property received does  not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as  the Lien held on the property or assets so exchanged or swapped;  (u) Dispositions of accounts receivable in connection with the collection or compromise  thereof in the ordinary course of business or consistent with past practice (which, for the avoidance of  doubt, shall exclude receivable financing);  (v) Transfers of property subject to a casualty event and Dispositions constituting  expropriations or takings by a Governmental Authority;  (w) the unwinding of Hedge Agreements permitted hereunder pursuant to their terms;  (x) Dispositions of assets that do not constitute Collateral; provided that the aggregate fair  market value of all Dispositions pursuant to this Section 7.8(x) does not exceed the greater of (x)  $75,000,000 and (y) 17.5% of Consolidated EBITDA for the most recently ended Test Period;  (y) Dispositions of in-plant maintenance, repair and operating and perishable tooling  operations to third parties in connection with the outsourcing of such operations;  (z) Dispositions, abandonments, cancellations or lapses of intellectual property or other  intellectual property rights, including issuances or registrations thereof, or applications for issuances or  registrations thereof, in the ordinary course of business or consistent with past practice or which, in the  good faith determination of the Company, are not necessary to the conduct of the business of any  Borrower or their Subsidiaries or are obsolete or no longer economical to maintain in light of their use;  (aa) the expiration of any Intellectual Property in accordance with any statutory term that is  not subject to renewal;  (bb) Dispositions of Capital Stock of, or sales of Indebtedness or other securities of,  Unrestricted Subsidiaries;  (cc) Dispositions made to comply with any order or other directive of any Governmental  Authority or any applicable Requirement of Law;  





 






  130  (dd) [reserved];  (ee) Dispositions constituting any part of a Permitted Reorganization;  (ff) any sale of motor vehicles and information technology equipment purchased at the end of  an operating lease and resold thereafter;  (gg) any issuance, sale or Disposition of Capital Stock to directors, officers, managers or  employees for purposes of satisfying requirements with respect to directors’ qualifying shares and shares  issued to foreign nationals, in each case as required by applicable Requirements of Law; and  (hh) any netting arrangement of accounts receivable between or among the any Borrower and  their Subsidiaries or among Subsidiaries of any Borrower made in the ordinary course of business.  Simultaneously with any transfer described in Section 7.5 (to the extent such transfer is to a Person that is  not a Loan Party) of this Agreement, the Lien on and security interest created by the Loan Documents in  the Capital Stock of the Subsidiaries so transferred or contributed will be automatically released and the  Administrative Agent and the Collateral Agent shall take any action reasonably requested in writing by  the Company to evidence such release.  7.6. Restricted Payments. Declare or pay any dividend (other than dividends payable solely in  common stock or other applicable common equity interests of the Person making such dividend) on, or  make any payment on account of, or set apart assets for a sinking or other analogous fund for, the  purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock (but excluding  any of the foregoing with respect to any debt security that is convertible into, or exchangeable for, Capital  Stock) of the Company or any Subsidiary, 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  the Company or any Subsidiary (collectively, “Restricted Payments”), except that:  (a) any Subsidiary may make Restricted Payments to the Company, any Subsidiary or to any  other Person (ratably based on such other Person’s equity ownership in such Subsidiary) which owns  Capital Stock of such Subsidiary;  (b) so long as no Event of Default shall have occurred and be continuing, the Company may  purchase the Company’s common stock held by any Permitted Payee upon the death, disability or  termination of employment of such officer or employee; provided that the aggregate amount of Restricted  Payments under this paragraph (b) in any fiscal year shall not exceed in the aggregate the greater of (x)  $21,000,000 and (y) 5.0% of Consolidated EBITDA for the most recently ended Test Period; provided,  further, that any amount not so made as a Restricted Payment in the fiscal year for which it is permitted  may be carried over to be made as a Restricted Payment in subsequent fiscal years so long as the  aggregate amount of all Restricted Payments made in reliance on this paragraph (b) in any fiscal year  does not exceed the greater of (x) $42,000,000 and (y) 10.0% of Consolidated EBITDA for the most  recently ended Test Period;  (c) the Company may make Restricted Payments if, after giving effect thereto, the Total  Leverage Ratio calculated on the date of incurrence thereof on a Pro Forma Basis would be less than 3.00  to 1.00 (it being understood that any Restricted Payment permitted at the time it was made shall be  deemed to be permitted notwithstanding that the conditions specified in this paragraph (c) for such  Restricted Payment may no longer be satisfied thereafter); provided that no Event of Default shall have  occurred and be continuing or would result therefrom);  





 






  131  (d) [reserved];  (e) the Company may withhold shares of Capital Stock of the Company from, and pay  personal payroll taxes of employees in respect of vested restricted shares of, options to purchase and other  equity incentive awards in respect of, the Capital Stock of the Company;   (f) [reserved];  (g) the Company may make additional Restricted Payments in an amount not to exceed the  portion, if any, of the Available Amount on such date that the Company elects to apply to this clause (g);  provided that no Event of Default shall have occurred and be continuing or would result therefrom;  (h) the Company may make additional Restricted Payments in an aggregate amount pursuant  to this paragraph (h), taken together with all other Restricted Payments previously made pursuant to this  clause (h), not to exceed $350,000,000;  (i) the Company may repurchase, redeem, acquire or retire Capital Stock upon (or make  provisions for withholdings in connection with) (or make provisions for withholdings in connection with),  the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock if  such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to,  such warrants, options or other securities convertible into or exchangeable for Capital Stock as part of a  “cashless” exercise;  (j) [reserved];  (k) to the extent constituting a Restricted Payment, the Company may consummate any  transaction permitted by Section 7.5 (other than Sections 7.5(c)) and Section 7.8 (other than Section  7.8(z) and 7.8(ff));  (l) the Company may pay any dividend or other distribution or consummate any redemption  within 60 days after the date of the declaration thereof or the provision of a redemption notice with  respect thereto, as the case may be, if at the date of such declaration or notice, the dividend, distribution  or redemption contemplated by such declaration or redemption notice would have complied with the  provisions of this Section 7.6;  (m) the Company may make additional Restricted Payments constituting any part of a  Permitted Reorganization;  (n) the Company may make a distribution, by dividend or otherwise, of the Capital Stock of  any Unrestricted Subsidiary (or a Subsidiary that owns one or more Unrestricted Subsidiaries; provided  that such Subsidiary owns no assets other than Capital Stock of one or more Unrestricted Subsidiaries and  immaterial assets incidental to the ownership thereof);  (o) the Company may make payments and distributions to satisfy dissenters’ rights  (including in connection with, or as a result of, the exercise of appraisal rights and the settlement of any  claims or actions (whether actual, contingent or potential)), pursuant to or in connection with any  acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 7.5 or any  other transaction permitted hereunder;  (p) [reserved]; and   





 






  132  (q) the Company may make a Restricted Payment in respect of required withholding or  similar non-U.S. Taxes with respect to any Permitted Payee and any repurchases of Capital Stock in  consideration of such payments, including deemed repurchases in connection with the exercise of stock  options or the issuance of restricted stock units or similar stock based awards.  7.7. [Reserved].   7.8. 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  Person (all of the foregoing, “Investments”), except:  (a) extensions of trade credit in the ordinary course of business or consistent with past  practice;  (b) investments in Cash Equivalents;  (c) (i) Guarantee Obligations permitted by Section 7.2 and (ii) Guarantee Obligations arising  in the ordinary course of business or consistent with past practice with respect to other obligations that do  not constitute Indebtedness;  (d) loans and advances to employees of the Company or any Subsidiary of the Company in  the ordinary course of business or consistent with past practice (including for travel, entertainment and  relocation expenses) in an aggregate amount for the Company or any Subsidiary of the Company not to  exceed the greater of (x) $21,000,000 and (y) 5.0% of Consolidated EBITDA for the most recently ended  Test Period at any one time outstanding;  (e) Guarantee Obligations by any Domestic Loan Party of Indebtedness of any Subsidiary  that is not a Domestic Loan Party; provided that the aggregate amount of such Guarantee Obligations,  together with the aggregate amount of Investments by Domestic Loan Parties made pursuant to the  proviso to Section 7.8(f) or 7.8(j), shall not exceed the greater of (x) $160,000,000 and (y) 37.5% of  Consolidated EBITDA for the most recently ended Test Period at any one time outstanding;  (f) intercompany Investments by the Company or any of its Subsidiaries in the Company or  any Person that, prior to such investment, is a Subsidiary; provided that the aggregate amount of  Investments by Domestic Loan Parties in Subsidiaries that are not Domestic Loan Parties under this  clause (f), together with the aggregate amount of Investments by Domestic Loan Parties made pursuant to  the proviso to Section 7.8(j) and Guarantee Obligations pursuant to Section 7.8(e), shall not exceed the  greater of (x) $160,000,000 and (y) 37.5% of Consolidated EBITDA for the most recently ended Test  Period at any one time outstanding;  (g) Investments in Joint Ventures or in any Person who, prior to the Investment, is not a  Subsidiary and who becomes, as a result of the Investment, a Subsidiary that is not a Wholly Owned  Subsidiary or in any other Subsidiary that is not a Domestic Loan Party in an aggregate amount pursuant  to this Section 7.8(g) not to exceed the greater of (x) $65,000,000 and (y) 15.0% of Consolidated  EBITDA for the most recently ended Test Period at any one time outstanding plus, in each case, all  dividends, distributions, interest, payments, returns of capital, repayments of other amounts received in  cash, by the Domestic Loan Parties from Joint Ventures and Persons who become a Subsidiary as a result  of such Investment or from such other Subsidiaries that are not Loan Parties;  





 






  133  (h) Investments in existence on the Closing Date listed, to the extent in excess of $5,000,000,  on Schedule 7.8(h); provided that no such Investment is increased except as permitted by the other  provisions of this Section 7.8;  (i) each Finance Subsidiary may execute and deliver one or more promissory notes (having  terms customary for similar notes issued in transactions similar to a Permitted Receivables Financing) to  the Company and its Subsidiaries representing the purchase price of receivables sold to such Finance  Subsidiary in a Permitted Receivables Financing, and the Company and its Subsidiaries may contribute  receivables and other assets of the type referred to in the definition of “Permitted Receivables  Financing” to the capital of any Finance Subsidiary in connection with a Permitted Receivables  Financing;  (j) acquisitions as long as, after giving effect thereto, the Company would be in Pro Forma  Compliance with the covenants in Section 7.1 for the most recently ended Test Period (in the case of any  acquisition made in reliance on this Section 7.8(j) that is a Material Acquisition, after giving effect to any  step-up applicable to Section 7.1(a) to the extent that the first Test Period ending after the date of the  consummation of such Material Acquisition would be an Increased Test Period in accordance with the  terms of Section 7.1(a)); provided that the aggregate cash consideration paid or payable by a Domestic  Loan Party for all acquisitions of (1) Subsidiaries that are not Domestic Loan Parties or (2) all or  substantially all the assets of a person or division or line of business of a person that are not held by a  Domestic Loan Party shall not exceed together with the aggregate amount of Investments by Domestic  Loan Parties made pursuant to the proviso to Section 7.8(f) and Guarantee Obligations pursuant to  Section 7.8(e), the greater of (x) $160,000,000 and (y) 37.5% of Consolidated EBITDA for the most  recently ended Test Period at any one time outstanding ;  (k) Investments if, after giving effect thereto, the Total Leverage Ratio calculated on the date  of incurrence thereof on a Pro Forma Basis would be less than 3.25 to 1.00 (it being understood that any  Investment permitted at the time it was made shall be deemed to be permitted notwithstanding that the  conditions specified in this paragraph (k) for such Investment may no longer be satisfied thereafter);  provided that no Event of Default shall have occurred and be continuing or would result therefrom;  (l) Investments by the Company and/or any of its Subsidiaries in an aggregate outstanding  amount not to exceed the portion, if any, of the Available Amount on such date that the Company elects  to apply to this clause (l); provided that no Event of Default shall have occurred and be continuing or  would result therefrom;  (m) non-cash consideration received, to the extent permitted by the Loan Documents, in  connection with the disposition of property permitted by this Agreement;  (n) Investments consisting of extensions of credit in the nature of accounts receivable, notes  receivable arising from the grant of trade credit, and guarantees for the benefit of existing or potential  suppliers, customers, distributors, licensors, licensees, lessees and lessors, in each case in the ordinary  course of business or consistent with past practice, and Investments received in satisfaction or partial  satisfaction thereof from financially troubled account debtors ;  (o) Hedge Agreements entered into not for speculative purposes;  (p) deposit accounts and securities accounts maintained in the ordinary course of business,  and to the extent constituting an Investment, Cash Management Obligations and Cash Pooling  Agreements;  





 






  134  (q) additional Investments by the Company or any of its Subsidiaries in an aggregate amount  (valued at cost) (for all Investments by the Company and all Subsidiaries pursuant to this clause (q)) not  to exceed the greater of (x) $105,000,000 and (y) 25.0% of Consolidated EBITDA for the most recently  ended Test Period at any one time outstanding;  (r) [reserved].  (s) Investments held by a Person that is acquired and becomes a Subsidiary or of a Person  merged or amalgamated or consolidated into any Subsidiary, in each case after the Closing Date and  which acquisition, merger, amalgamation or consolidation is permitted in accordance with another  provision of this Section 7.8, to the extent that such Investments held by such Person were not made in  contemplation of or in connection with such acquisition, merger, amalgamation or consolidation, and  were in existence on the date of such acquisition, merger, amalgamation or consolidation;  (t) any Investments in a Joint Venture to the extent such Investment is substantially  contemporaneously repaid in full with a dividend or other distribution from such Joint Venture;  (u) to the extent that they constitute Investments, purchases and acquisitions of inventory,  supplies, materials or equipment or purchases, acquisitions, licenses (or other grants or rights to use or  exploit) or leases of other assets, Intellectual Property, or other rights, in each case in the ordinary course  of business or consistent with past practice;  (v) Investments maintained in connection with any Loan Party’s deferred compensation plan  in the ordinary course of business;  (w) Investments consisting of rebates and extensions of credit in the nature of accounts  receivable or notes receivable arising from the grant of trade credit in the ordinary course of business or  consistent with past practice;  (x) any Investments acquired by the Company or any of its Subsidiaries:  (i) in exchange for any other Investment or accounts receivables held by the  Company or any such Subsidiary in connection with or as a result of a bankruptcy, workout,  reorganization or recapitalization of, or settlement or delinquent accounts and disputes with or  judgments against, the issuer of such Investment or accounts receivable;  (ii) as a result of a foreclosure by the Company or any of its Subsidiaries with respect  to any secured Investment or other transfer of title with respect to any secured Investment in  default;  (iii) as a result of the settlement, compromise or resolution of litigation, arbitration or  other disputes with Persons who are not Affiliates; or  (iv) in settlement of debts created in the ordinary course of business;  (y) Investments in prepaid expenses, negotiable instruments held for collection and lease,  utility and works compensation, performance and similar deposits in each case entered into as a result of  the operations of the business in the ordinary course;  (z) Investments in notes receivables payable to the Company or any Subsidiary by the  purchasers of assets purchased pursuant to Dispositions permitted in accordance with Section 7.5;  





 






  135  (aa) [reserved];  (bb) Investments by the Company in any Subsidiary consisting of reimbursement obligations  of the Company in respect of the issuance of Letters of Credit for the account of such Subsidiary  hereunder to support obligations of such Subsidiary;  (cc) [reserved];  (dd) to the extent they constitute Investments, any letters of credit issued or created by the  Company or its Subsidiaries pursuant to Sections 7.2(aa) or (cc);   (ee) Investments in Unrestricted Subsidiaries in an aggregate amount pursuant to this  Section 7.8(ee) not to exceed the greater of (x) $65,000,000 and (y) 15.0% of Consolidated EBITDA for  the most recently ended Test Period plus, in each case, all dividends, distributions, interest, payments,  returns of capital, repayments of other amounts received in cash, by the Domestic Loan Parties from  Unrestricted Subsidiaries;  (ff) Investments consisting of (or resulting from) Indebtedness permitted under Section 7.2,  Liens permitted under Section 7.3, Restricted Payments permitted under Section 7.6 (other than Section  7.6(k)), Restricted Debt Payments permitted by Section 7.15 and Dispositions permitted by Section 7.5  (other than Section 7.5(c));  (gg) Investments in the ordinary course of business consisting of endorsements for collection  or deposit and customary trade arrangements with customers, vendors, suppliers, licensors, sublicensors,  licensees and sublicensees;  (hh) [reserved];  (ii) (i) Guarantees of leases or subleases (in each case other than Capital Leases) or of other  obligations not constituting Indebtedness, (ii) Guarantees of the lease obligations of suppliers, customers,  franchisees and licensees of the Company and/or its Subsidiaries, in each case, in the ordinary course of  business or consistent with past practice and (iii) Investments consisting of guarantees of any supplier’s  obligations in respect of commodity contracts solely to the extent such commodities related to the  materials or products to be purchased by the Company or any Subsidiary;  (jj) Investments in Subsidiaries in connection with any Permitted Reorganization;  (kk) [reserved];  (ll) unfunded pension fund and other employee benefit plan obligations and liabilities to the  extent that they are permitted to remain unfunded under applicable Requirements of Law;  (mm) Investments consisting of the licensing, sublicensing or contribution of any intellectual  property or other intellectual property rights pursuant to joint marketing, collaboration or other similar  arrangements with other Persons;  (nn) contributions in connection with compensation arrangements to a “rabbi” trust for the  benefit of employees, directors, partners, members, consultants, independent contractors or other service  providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of any Borrower  or any of their Subsidiaries;  





 






  136  (oo) Investments consisting of earnest money deposits required in connection with purchase  agreements or other acquisitions or Investments otherwise permitted under this Section 7.8 and any other  pledges or deposits permitted by Section 7.3;  (pp) Term Loans repurchased by the Company or a Subsidiary pursuant to and subject to  immediate cancellation in accordance with this Agreement; and  (qq) Guarantee Obligations of any Borrower or any Subsidiary in respect of letters of support,  guarantees or similar obligations issued, made or incurred for the benefit of any Subsidiary of any  Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit  opinions performed in jurisdictions other than within the United States.  Any Investment that when made complies with the requirements of the definition of the term  “Cash Equivalents” may continue to be held notwithstanding that such Investment if made thereafter  would not comply with such requirements.  Notwithstanding the foregoing, no Investment consisting of or resulting from any transfer or other  Disposition of any material Intellectual Property by the Company or any Subsidiary may be made to an  Unrestricted Subsidiary except pursuant to clause (ee) above.  7.9. [Reserved].   7.10. Transactions with Affiliates. Enter into or suffer to exist 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 non-consolidated Affiliate involving aggregate payments  or consideration in excess of $15,000,000; provided that the foregoing restriction shall not apply to:  (a) the Transactions;   (b) transactions or agreements between the Company and/or its Subsidiaries;   (c) transactions in effect on the Closing Date listed, to the extent in excess of $5,000,000, on  Schedule 7.10 and any amendment, modification or extension to the agreements governing such  transactions to the extent such amendment, modification or extension, taken as a whole, is not materially  (i) adverse to the Lenders or (ii) more disadvantageous to the Lenders than the relevant transaction in  existence on the Closing Date;  (d) [reserved];  (e) transactions that (a) are upon fair and reasonable terms not materially less favorable to  the Company or such Subsidiary, as the case may be, than it would obtain in a comparable arm’s length  transaction with a Person that is not a non-consolidated Affiliate or (b) if in the good faith judgment of the  board of directors of the Company no comparable transaction is available with which to compare such  transaction, such transaction is fair to the Company or such Subsidiary from a financial point of view;  (f) any issuance, sale or grant of securities or other payments, awards or grants in cash,  securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock  ownership plans approved by the board of directors (or equivalent governing body) of the Company or  any Subsidiary;  





 






  137  (g) (i) any collective bargaining, employment, indemnification, expense reimbursement or  severance agreement or compensatory (including profit sharing) arrangement entered into by the  Company or any of its Subsidiaries with any Permitted Payee, (ii) any subscription agreement or similar  agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with  any Permitted Payee and (iii) payments or other transactions pursuant to any management equity plan,  employee compensation, benefit plan, stock option plan or arrangement, equity holder arrangement,  supplemental executive retirement benefit plan, any health, disability or similar insurance plan, or any  employment contract or arrangement which covers any Permitted Payee and payments pursuant thereto;  (h) Guarantees permitted by Section 7.2, Restricted Payments permitted under Section 7.6  (other than Section 7.6(k)), Investments permitted under Section 7.8 (other than Section 7.8(z) and  Section 7.8(ff)) and Restricted Debt Payments permitted by Section 7.15);  (i) (i) the formation of a joint venture or similar entity (and Investments permitted in  connection therewith), which would constitute a transaction with an Affiliate solely as a result of the  Company or any Subsidiary owning Capital Stock of, or otherwise controlling, such joint venture or  similar entity and (ii) transactions with any Person that is an Affiliate solely because a director or officer  of such Person is a director or officer of the Company or any Subsidiary;  (j) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities  provided on behalf of, members of the board of directors (or similar governing body), officers,  employees, members of management, managers, consultants and independent contractors of the Company  and/or any of its Subsidiaries in the ordinary course of business;  (k) any transaction in respect of which the Company delivers to the Administrative Agent a  letter addressed to the board of directors (or equivalent governing body) of the Company from an  accounting, appraisal or investment banking firm of nationally recognized standing stating that such  transaction is fair to the Company or such Subsidiary from a financial point of view or stating that the  terms, when taken as a whole, are not substantially less favorable to the Company or the applicable  Subsidiary than might be obtained at the time in a comparable arm’s length transaction from a Person  who is not an Affiliate;  (l) (i) Investments by Affiliates in securities or other Indebtedness of the Company or any  Subsidiary (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection  therewith) so long as the Investment is being offered by the Company or such Subsidiary generally to  other investors on the same or more favorable terms and (ii) payments to Affiliates in respect of securities  or other Indebtedness of the Company or any Subsidiary contemplated in the foregoing subclause (i) or  that were acquired from Persons other than the Company and the Subsidiaries, in each case, in accordance  with the terms of such securities or other Indebtedness;  (m) [reserved]; and  (n) transactions undertaken in the ordinary course of business or consistent with past practice  pursuant to membership in a purchasing consortium.  7.11. Sales and Leasebacks. Enter into or suffer to exist any arrangement with any Person  providing for the leasing by the Company or any Subsidiary of real or personal property that has been or  is to be sold or transferred in a related transaction by the Company or such Subsidiary 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 the Company or such Subsidiary; provided that any such transaction  shall be permitted so long as (i) such transaction is on an arm’s length basis and (ii) the resulting  





 






  138  Indebtedness is permitted by Section 7.2; provided that no Event of Default shall have occurred and be  continuing or would result therefrom and such sale/leaseback shall be for no less than the fair market  value of such property at the time of such sale/leaseback as determined by the Company in good faith   (collectively, the “Permitted Sale/Leasebacks”) (the Company agreeing that all Permitted  Sale/Leasebacks shall be Asset Sales and any Lien on or security interests in any such property created by  the Loan Documents shall be automatically released upon consummation of such Permitted  Sale/Leasebacks and the Collateral Agent shall take any action reasonably requested by the Company to  evidence such release).  7.12. Changes in Fiscal Periods. Permit the fiscal year of the Company to end on a day other  than the day that results in the nearest Saturday closest to December 31 of each year; provided, however,  that the Company may, upon written notice to the Administrative Agent, change the financial reporting  convention above to (x) a calendar year-end convention or (y) any other financial reporting convention  reasonably acceptable to the Administrative Agent, in which case, the Company and the Administrative  Agent will, and are hereby authorized by the Lenders to, make any amendments to this Agreement that  are necessary, in the reasonable judgment of the Administrative Agent and the Company, to reflect such  change in fiscal year.  7.13. Negative Pledge Clauses. Enter into or suffer to exist or become effective any agreement  that prohibits or limits the ability of the Company or any of its Subsidiaries (other than Excluded  Subsidiaries (except to the extent any Subsidiary is an Excluded Subsidiary solely pursuant to clause (iii)  of the definition thereof)) to create, incur, assume or suffer to exist any Lien upon any of its property  (other than Company Stock and other Excluded Assets) 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) this Agreement and the other Loan Documents;   (b) any agreements governing secured Indebtedness permitted hereby (in which case, any  prohibition or limitation shall only be effective against the assets securing such Indebtedness) or  Permitted Receivables Financings or Supply Chain Financings (in which case, any prohibition or  limitation shall only be effective against the assets included in such Permitted Receivables Financing or  Supply Chain Financings);   (c) restrictions by reason of customary provisions restricting assignments, subletting,  licensing, sublicensing or other transfers (including the granting of any Lien) contained in leases,  subleases, licenses, sublicenses, joint venture agreements, asset sale agreements, trading, netting,  operating, construction, service, supply, purchase, sale or other agreements entered into in the ordinary  course of business or consistent with past practice (each of the foregoing, a “Covered Agreement”)  (provided that such restrictions are limited to the relevant Covered Agreement and/or the property or  assets secured by such Liens or the property or assets subject to such Covered Agreement);  (d) customary restrictions on the creation of Liens on any property or assets arising under a  security agreement governing a Lien permitted under this Agreement;   (e) customary restrictions and conditions contained in agreements relating to the sale of a  Subsidiary or any assets pending such sale; provided such restrictions and conditions apply only to the  Subsidiary or assets that are to be sold and such sale is permitted hereunder;  (f) customary restrictions in Intellectual Property license agreements;  





 






  139  (g) any encumbrance or restriction assumed in connection with an acquisition of the property  or Capital Stock of any Person, so long as such encumbrance or restriction relates solely to the Person and  its subsidiaries (including the Capital Stock of the relevant Person or Persons) and/or property so acquired  (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created in  contemplation of such acquisition;  (h) restrictions imposed by customary provisions in partnership agreements, limited liability  company organizational governance documents, joint venture agreements and other similar agreements (i)  relating to the transfer of the assets of, or ownership interests in, the relevant partnership, limited liability  company, joint venture or any similar Person (or any “shell company” Company with respect thereto), (ii)  relating to such joint venture or its members and/or (iii) otherwise entered into in the ordinary course of  business;  (i) restrictions on cash or other deposits permitted under Section 7.3 and/or 7.8 and any net  worth or similar requirements, including such restrictions or requirements imposed by Persons under  contracts entered into in the ordinary course of business or for whose benefit such cash or other deposits  or net worth requirements exist;  (j) restrictions (i) set forth in documents which exist on the Closing Date or (ii) which are  contemplated as of the Closing Date and, in the case of this clause (ii), to the extent the assets or property  subject to such restriction are in excess of $5,000,000, set forth on Schedule 7.13;  (k) restrictions arising under or as a result of applicable Requirements of Law or the terms of  any license, authorization, concession or permit issued or granted by a Governmental Authority;  (l) restrictions with respect to any Subsidiary that was previously an Unrestricted Subsidiary,  pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date  on which such Subsidiary became a Subsidiary; provided that such agreement was not entered into in  anticipation of such Subsidiary or such Unrestricted Subsidiary becoming a Subsidiary and any such  restriction does not extend to any assets or property of the Company or any other Subsidiary other than  the assets and property of such Subsidiary;  (m) [reserved];  (n) other restrictions or encumbrances imposed by any amendment, modification,  restatement, renewal, increase, supplement, refunding, replacement or refinancing of the contracts,  instruments or obligations referred to in the preceding clauses of this Section 7.13; provided that no such  amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or  refinancing is, in the good faith judgment of the Company, materially more restrictive with respect to  such encumbrances and other restrictions, taken as a whole, than those in effect prior to the relevant  amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or  refinancing.  7.14. Lines of Business. Enter into any material business, either directly or through any  Subsidiary, except for those businesses substantially similar to the businesses in which the Company and  its Subsidiaries are engaged on the Closing Date, after giving effect to the Transactions, or that are  reasonably related, complementary, synergistic or ancillary thereto or reasonable extensions thereof.  7.15. Optional Payments and Modifications of Subordinated Indebtedness. (i) Make or agree to  pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other  property) of or in respect of principal of or interest on any Subordinated Indebtedness, or any payment or  





 






  140  other distribution (whether in cash, securities or other property), including any sinking fund or similar  deposit, on account of the purchase, redemption, retirement, acquisition, defeasance, cancelation or  termination of such Subordinated Indebtedness (collectively, “Restricted Debt Payments”), or (ii)  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 agreement, instrument or other document evidencing  Subordinated Indebtedness (other than any such amendment, modification, waiver or other change that is  not in the reasonable judgment of the Company materially adverse to the Lenders); provided that so long  as no Event of Default has occurred and is continuing, the Company may:  (a) make regularly scheduled interest and principal payments as and when due in respect of  any Subordinated Indebtedness, other than payments prohibited by the subordination provisions thereof;  (b) refinance Subordinated Indebtedness with the Net Cash Proceeds of a Permitted  Refinancing;  (c) make payments of or in respect of Subordinated Indebtedness made solely with the Net  Cash Proceeds of Qualified Capital Stock issued by the Company after the Closing Date;   (d) (A) convert any Subordinated Indebtedness into Qualified Capital Stock and (B) to the  extent constituting a Restricted Debt Payment, pay payment-in-kind interest with respect to any  Indebtedness that is permitted under Section 7.2;   (e) make Restricted Debt Payments in an aggregate amount not to exceed the portion, if any,  of the Available Amount on such date that the Company elects to apply to this clause (e); provided that no  Event of Default shall have occurred and be continuing or would result therefrom;  (f) make additional payments of or in respect of Subordinated Indebtedness; provided that  the aggregate principal amount of such payments pursuant to this clause (f) may not exceed the greater of  (x) $55,000,000 and (y) 12.5% of Consolidated EBITDA for the most recently ended Test Period;   (g) make unlimited Restricted Debt Payments at any time the Total Leverage Ratio is equal  to or less than 3.00 to 1.00 calculated on the date of incurrence thereof on a Pro Forma Basis after giving  effect to such payment (it being understood and agreed that any fee, premium or expense paid or payable  in connection with such payment shall not be subject to or included within the calculation of such  amount); and  (h) make payments as part of, or to enable another Person to make, an “applicable high yield  discount obligation” catch-up payment.  7.16. Use of Proceeds. Request any Loan or Letter of Credit, and no Borrower nor any  Subsidiary shall use, and shall use commercially reasonable efforts to procure that its Subsidiaries and its  or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan or  Letter of Credit (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 directly or, to any Borrower’s Knowledge, indirectly funding, financing or facilitating  any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country,  except to the extent permitted for a Person required to comply with Sanctions, or (c) in any manner that  would result in the violation of any Sanctions applicable to any party hereto.  The foregoing clauses (b)  and (c) of this Section 7.16 will not apply to any party hereto to which the Blocking Regulation applies, if  and the extent that such representations are or would be unenforceable by or in respect of that party  pursuant to, or would otherwise result in a breach and/or violation of, (i) any provision of the Blocking  





 






  141  Regulation (or any law or regulation implementing the Blocking Regulation in any member state of the  European Union) or (ii) any similar blocking or anti-boycott law in the United Kingdom.  SECTION 8. EVENTS OF DEFAULT  If any of the following events shall occur and be continuing:  (a) (i) any Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation  when due in accordance with the terms hereof; or (ii) any Borrower shall fail to pay any interest on any  Loan or Reimbursement Obligation, or any other amount payable hereunder or under any other Loan  Document, in the case of this clause (ii), 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 shall prove to have been inaccurate in any material respect on or as of the date  made or deemed made and, to the extent capable of being corrected, such inaccuracy is not corrected on  or prior to 30 days from the earlier of (x) the first date a Responsible Officer of the Company has  Knowledge of such inaccuracy and (y) the date on which the Company received notice thereof from the  Administrative Agent or the Required Lenders of such misrepresentation; 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) (in each case with respect to legal existence of any  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), and such default shall continue unremedied for a period of 30 days after  receipt of notice thereof by the Company from the Administrative Agent or the Required Lenders; or  (e) the Company or any of its Subsidiaries shall (i) default in making any payment of any  principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans and  Reimbursement Obligations) on the scheduled or original due date with respect thereto or any interest on  any such Indebtedness, in each case, beyond the period of grace, if any, provided in the instrument or  agreement under which such Indebtedness was created or (ii) default in the observance or performance of  any other agreement or condition relating to any such Indebtedness or contained in any instrument or  agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, in  each case of clauses (i) or (ii) the effect of which default or other event or condition is to cause, 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 the giving of notice if required, such 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 a default, event or condition described in clause (i) or (ii) of this paragraph (e)  shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or  conditions of the type described in clauses (i) or (ii) of this paragraph (e) shall have occurred and be  continuing with respect to Indebtedness the aggregate outstanding principal amount of which exceeds in  the aggregate of $75,000,000 for the Company and its Subsidiaries; or  (f) (i) the Company or any of Significant Subsidiaries 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  





 






  142  it or its debts, except for any such case, proceeding or action in connection with any liquidation or  dissolution otherwise permitted pursuant to Section 7.4 of this Agreement, 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 the Company or any of its Significant Subsidiaries shall make a general assignment for the  benefit of its creditors; or (ii) there shall be commenced against the Company or any of its Significant  Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above that (A) results  in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed,  undischarged or unbonded for a period of 60 days; provided that in the case of any Swiss Borrower, any  debt enforcement proceeding (Betreibung) which has not led to a notice of bankruptcy  (Betreibungsandrohung) shall not constitute an Event of Default; or (iii) there shall be commenced  against the Company or any of its Significant Subsidiaries 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  Company or any of its Significant Subsidiaries shall take any corporate 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 Company or any of its Significant Subsidiaries shall generally not, or shall be unable to,  or shall admit in writing its inability to, pay its debts as they become due; or  (g) (i) any Person shall engage in any “prohibited transaction” (as defined in Section 406 of  ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” or  “failure to meet the minimum funding standards” (each as defined in Section 412 of the Code or 302 of  ERISA), whether or not waived, shall exist with respect to any Single Employer Plan or any Lien in favor  of the PBGC or a Plan shall arise on the assets of the Company or any Commonly Controlled Entity, (iii)  a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee  appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which  Reportable Event or commencement of proceedings or appointment of a trustee would reasonably be  expected to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single  Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Company or any Commonly  Controlled Entity shall, or would reasonably be expected to, incur any liability in connection with a  withdrawal from, or the Insolvency of, a Multiemployer Plan or (vi) any other event or condition shall  occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or  condition, together with all other such events or conditions, if any, could be expected to have a Material  Adverse Effect; or  (h) one or more judgments or decrees shall be entered against the Company or any of its  Subsidiaries involving in the aggregate for the Company and its Subsidiaries a liability (not covered by  insurance as to which the relevant insurance company has not denied 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 days from the entry thereof (it being understood that, notwithstanding the definition of  “Default,” no “Default” shall be triggered solely by the rendering of a judgment or judgments prior to the  lapse of such 60 day period so long as such judgments are capable of satisfaction by payment at any  time); or  (i) any of the Security Documents shall cease, for any reason, to be in full force and effect,  or any Loan Party shall so assert in writing, or any Lien created by any of the Security Documents shall  cease to be enforceable and of the same effect and priority purported to be created thereby on a material  portion of the Collateral, except to the extent that such cessation results from the failure of the Collateral  Agent to maintain possession of certificates representing securities pledged or to file continuation  statements under the Uniform Commercial Code of any applicable jurisdiction;  





 






  143  (j) any material portion of the guarantees contained in the Guarantee Agreement, taken as a  whole, shall cease, for any reason, to be in full force and effect (other than as permitted in a Loan  Document or in accordance with its terms) or any Loan Party shall so assert; or  (k) (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the  Exchange Act), shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the  Exchange Act), directly or indirectly, of more than 35.0% of the outstanding common voting stock of the  Company; or (ii) the board of directors of the Company shall cease to consist of a majority of Continuing  Directors (collectively, a “Change of Control”).  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 any Borrower, automatically the Revolving Commitments shall  immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts  owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations,  whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the  documents required thereunder) shall immediately become due and payable, and (B) if such event is any  other Event of Default, either or both of the following actions may be taken: (i) with the consent of the  Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the  Administrative Agent shall, by notice to the Borrowers declare the Revolving Commitments to be  terminated forthwith, whereupon the Revolving Commitments thereof shall immediately terminate; and  (ii) 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 Borrowers, declare the Loans  hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other  Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then  outstanding Letters of Credit shall have presented the documents required thereunder) to be due and  payable forthwith, whereupon the same shall immediately become due and payable. With respect to all  Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an  acceleration pursuant to this paragraph, each applicable Borrower shall at such time deposit in a cash  collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn  and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall be  applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the  unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any,  shall be applied to repay other obligations of each such Borrower hereunder and under the other Loan  Documents. After all such Letters of Credit shall have expired or been fully drawn upon, all  Reimbursement Obligations shall have been satisfied and all other obligations of the Borrowers hereunder  and under the other Loan Documents shall have been paid in full, the balance, if any, in such cash  collateral account shall be returned to the applicable Borrower(s) (or such other Person as may be  lawfully entitled thereto). Except as expressly provided above in this Section, presentment, demand,  protest and all other notices of any kind are hereby expressly waived by each Borrower.  SECTION 9. THE AGENTS  9.1. Appointment. (a)  Each Lender hereby irrevocably designates and appoints the  Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents,  and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such  action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise  such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms  of this Agreement and the other Loan Documents, together with such other powers as are reasonably  incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the  Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein,  or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities,  





 






  144  duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or  otherwise exist against the Administrative Agent.  (b) The Administrative Agent shall also act as the “collateral agent” under the Loan  Documents, and each of the Lenders and the Swingline Lender and each Issuing Lender hereby  irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender,  Swingline Lender and Issuing Lender for purposes of acquiring, holding and enforcing any and all Liens  on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such  powers and discretion as are reasonably incidental thereto.  9.2. Delegation of Duties. The Administrative Agent may execute any of its duties under this  Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled  to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not  be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with  reasonable care.  9.3. Exculpatory Provisions. Neither any Agent nor any of their respective officers, directors,  employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted  to be taken by it or such Person under or in connection with this Agreement or any other Loan Document  (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court  of competent jurisdiction to have resulted from its or such Person’s own bad faith, gross negligence or  willful misconduct) 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 Agents 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 a party thereto to perform its  obligations hereunder or thereunder. The Agents shall not be under any obligation to any Lender to  ascertain or to inquire as to the observance or performance of any of the agreements contained in, or  conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records  of any Loan Party.  9.4. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely,  and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent,  certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or  conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper  Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrowers),  independent accountants and other experts selected by the Administrative Agent. The Administrative  Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written  notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent.  The Administrative Agent shall be fully justified in failing or refusing to take any action under this  Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the  Required Lenders (or, if so specified by this Agreement, all Lenders) if the Administrative Agent believes  in good faith that such action shall expose it to liability or it shall first be indemnified to its satisfaction by  the Lenders against any and all liability and expense that may be incurred by it by reason of taking or  continuing to take any such action. The Administrative Agent shall in all cases be fully protected in  acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance  with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders), and such  request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all  future holders of the Loans.  





 






  145  9.5. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or  notice of the occurrence of any Default hereunder unless the Administrative Agent has received notice  from a Lender or a Borrower referring to this Agreement, describing such Default and stating that such  notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the  Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such  action with respect to such Default as shall be reasonably directed by the Required Lenders as set forth in  this Agreement (or, if so specified by this Agreement, all Lenders); provided that unless and until the  Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be  obligated to) take such action, or refrain from taking such action, with respect to such Default as it shall  deem advisable in the best interests of the Lenders and permitted by this Agreement.  9.6. Non-Reliance on Agents and Other Lenders; Acknowledgements of Lenders and Issuing  Lenders. (a) Each Lender expressly acknowledges that neither the Agents nor any of their respective  officers, directors, employees, agents, attorneys-in-fact or affiliates have made any representations or  warranties to it and that no act by any Agent hereinafter taken, including any review of the affairs of a  Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any representation or warranty  by any Agent to any Lender. Each Lender and each Issuing Lender represents and warrants that (i) the  Loan Documents set forth the terms of a commercial lending facility, (ii) it is engaged in making,  acquiring or holding commercial loans  and in providing other facilities set forth herein as may be  applicable to such Lender or Issuing Lender, in each case in the ordinary course of business, and not for  the purpose of purchasing, acquiring or holding any other type of financial instrument (and each Lender  and each Issuing Lender agrees not to assert a claim in contravention of the foregoing), (iii) it has,  independently and without reliance upon the Administrative Agent, any Arranger, or any other Lender or  Issuing 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 and (iv) it is sophisticated with  respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth  herein, as may be applicable to such Lender or such Issuing Lender, and either it, or the Person exercising  discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such  other facilities, is experienced in making, acquiring or holding such commercial loans or providing such  other facilities.  Each Lender and each Issuing Lender also acknowledges that it will, independently and  without reliance upon the Administrative Agent, any Arranger or any other Lender or Issuing 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.  Except for  notices, reports and other documents expressly required to be furnished to the Lenders by the  Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to  provide any Lender with any credit or other information concerning the business, operations, property,  condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a  Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors,  employees, agents, attorneys-in-fact or affiliates.  (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.  





 






  146  (c) (i) Each Lender and each Issuing Lender hereby agrees that (x) if the Administrative Agent  notifies such Lender or Issuing Lender that the Administrative Agent has determined in its sole discretion  that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as  a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and  collectively, a “Payment”) were erroneously transmitted to such Lender or Issuing Lender (whether or  not known to such Lender or Issuing Lender), and demands the return of such Payment (or a portion  thereof), such Lender or Issuing Lender, as the case may be, shall promptly, but in no event later than one  Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion  thereof) as to which such a demand was made in same day funds, together with interest thereon in respect  of each day from and including the date such Payment (or portion thereof) was received by such Lender  of Issuing Lender to the date such amount is repaid to the Administrative Agent at the greater of the  NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry  rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable  law, such Lender or Issuing Lender shall not assert, and hereby waives, as to the Administrative Agent,  any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or  counterclaim by the Administrative Agent for the return of any Payments received, including without  limitation any defense based on “discharge for value” or any similar doctrine.  A notice of the  Administrative Agent to any Lender or Issuing Lender under this Section 9.6(c) shall be conclusive,  absent manifest error.  (ii) Each Lender and each Issuing Lender hereby further agrees that if it receives a  Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount  than, or on a different date from, that specified in a notice of payment sent by the Administrative  Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that  was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case,  that an error has been made with respect to such Payment.  Each Lender and each Issuing Lender  agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof)  may have been sent in error, such Lender or Issuing Lender, as the case may be, shall promptly  notify the Administrative Agent of such occurrence and, upon demand from the Administrative  Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the  Administrative Agent the amount of any such Payment (or portion thereof) as to which such a  demand was made in same day funds, together with interest thereon in respect of each day from  and including the date such Payment (or portion thereof) was received by such Lender or Issuing  Lender to the date such amount is repaid to the Administrative Agent at the greater of the  NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking  industry rules on interbank compensation from time to time in effect.  (iii) Each Borrower and each other Loan Party hereby agrees that (x) in the event an  erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Lender, as  applicable, that has received such Payment (or portion thereof) for any reason (such unrecovered  amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice  to such Lender or Issuing Lender at any time, (i) such Lender or Issuing Lender shall be deemed  to have assigned its Loans (but not its Revolving Commitments or L/C Commitments) with  respect to which such erroneous Payment was made (the “Erroneous Payment Impacted  Loan”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount  as the Administrative Agent may specify) (such assignment of the Loans (but not Revolving  Commitments or L/C Commitments) of the Erroneous Payment Impacted Loans, the “Erroneous  Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the  assignment fee to be waived by the Administrative Agent in such instance), and is hereby  (together with the Company) deemed to execute and deliver an Assignment and Assumption with  respect to such Erroneous Payment Deficiency Assignment, and such Lender or Issuing Lender  





 






  147  shall deliver any Notes evidencing such Loans to the Company or the Administrative Agent, (ii)  the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous  Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as  the assignee Lender shall become a Lender or Issuing Lender, as applicable, hereunder with  respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning  Issuing Lender shall cease to be a Lender or Issuing Lender, as applicable, hereunder with respect  to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its  obligations under the indemnification provisions of this Agreement and its applicable Revolving  Commitments and L/C Commitments which shall survive as to such assigning Lender or  assigning Issuing Lender and (iv) the Administrative Agent may reflect in the Register its  ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment;  provided, that for the avoidance of doubt, no Erroneous Payment Deficiency Assignment will  reduce the Revolving Commitments or L/C Commitments of any Lender or Issuing Lender and  such Revolving Commitments and L/C Commitments shall remain available in accordance with  the terms of this Agreement and (y) an erroneous Payment shall not pay, prepay, repay, discharge  or otherwise satisfy any Obligations owed by such Borrower or any other Loan Party; provided,  that for the avoidance of doubt, clauses (x) and (y) above shall not apply to the extent any such  Payment is, and solely with respect to the amount of such Payment that is, comprised of funds  received by the Administrative Agent from such Borrower or any other Loan Party for the  purpose of making such Payment.  (iv) Each party’s obligations under this Section 9.6(c) shall survive the resignation or  replacement of the Administrative Agent or any transfer of rights or obligations by, or the  replacement of, a Lender or Issuing Lender, the termination of the Commitments or the  repayment, satisfaction or discharge of all Obligations under any Loan Document.  9.7. Indemnification. The Lenders agree to severally indemnify each Agent in its capacity as  such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers  to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on  which indemnification is sought under this Section (or, if indemnification is sought after the date upon  which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in  accordance with such Aggregate Exposure Percentages immediately prior to such date), from and against  any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or  disbursements of any kind whatsoever that may at any time (whether before or after the payment of the  Loans) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of,  the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by  or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or  omitted by such Agent under or in connection with any of the foregoing; provided that no Lender shall be  liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions,  judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of  a court of competent jurisdiction to have resulted from such Agent’s bad faith, gross negligence or willful  misconduct. The agreements in this Section 9.7 shall survive the payment of the Loans and all other  amounts payable hereunder.  9.8. Agent in Its Individual Capacity. Each Agent and its affiliates may make loans to, accept  deposits from and generally engage in any kind of business with any Loan Party as though such Agent  was not an Agent. With respect to its Loans made or renewed by it and with respect to any Letter of  Credit issued or participated in by it, each Agent shall have the same rights and powers under this  Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not  an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its individual capacity.  





 






  148  9.9. Successor Administrative Agent. The Administrative Agent may resign as Administrative  Agent upon 20 days’ notice to the Lenders and the Borrowers. If the Administrative Agent shall resign as  Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders  shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall  (unless an Event of Default under Section 8(a) or Section 8(f) with respect to any Borrower shall have  occurred and be continuing) be subject to approval by the Borrowers (which approval shall not be  unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers  and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor  agent effective upon such appointment and approval, and the former Administrative Agent’s rights,  powers and duties as Administrative Agent shall be terminated, without any other or further act or deed  on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of  the Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is 20  days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative  Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall assume and  perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required  Lenders appoint (with the consent of the Borrowers (to the extent required by the immediately preceding  sentence)) a successor agent as provided for above. After any retiring Administrative Agent’s resignation  as Administrative Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken  or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan  Documents.   9.10. 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 not, for the avoidance of doubt, to or for the benefit of the Borrower or any  other Loan Party, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of  ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments or this Agreement,   (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a  class exemption for certain transactions determined by independent qualified professional asset  managers), PTE 95-60 (a class exemption for certain transactions involving insurance company  general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance  company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions  involving bank collective investment funds) or PTE 96-23 (a class exemption for certain  transactions determined by in-house asset managers), is applicable with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the Letters of  Credit, the Commitments and this Agreement,   (iii) (A) such Lender is an investment fund managed by a “Qualified Professional  Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional  Asset Manager made the investment decision on behalf of such Lender to enter into, participate  in, administer and perform the Loans, the Letters of Credit, the Commitments and this  Agreement, (C) the entrance into, participation in, administration of and performance of the  Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of  sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender,  the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such  





 






  149  Lender’s entrance into, participation in, administration of and performance of the Loans, the  Letters of Credit, the Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in writing  between the Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless 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 in  accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x)  represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants,  from the date such Person became a Lender party hereto to the date such Person ceases being a Lender  party hereto, for the benefit of the Administrative Agent, and not, for the avoidance of doubt, to or for the  benefit of the Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with  respect to the assets of such Lender involved in such Lender’s entrance into, participation in,  administration of and performance of the Loans, the Letters of Credit, the Commitments and this  Agreement (including in connection with the reservation or exercise of any rights by the Administrative  Agent under this Agreement, any Loan Document or any documents related hereto or thereto).  9.11. Agents.  None of the Arrangers or Agents (other than the Administrative Agent)  identified in this Agreement shall have any rights, powers, obligations, liabilities, responsibilities or  duties under this Agreement or any other Loan Document, except in its capacity, as applicable, as a  Lender, a Swingline Lender or an Issuing Lender hereunder.  Without limiting any other provision of this  Section 9, no such Arranger or Agent in its capacity as such shall have or be deemed to have any  fiduciary relationship with any Lender (including any Swingline Lender or any Issuing Lender) or any  other Person by reason of this Agreement or any other Loan Document.  9.12. Credit Bidding.  The Credit 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 Credit 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 Credit 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  





 






  150  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 10.1), (iv) the Administrative  Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Credit  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 Credit 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 Credit 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 Credit Party or any acquisition  vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each  Credit Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above,  each Credit Party shall execute such documents and provide such information regarding the Credit Party  (and/or any designee of the Credit 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.  SECTION 10. MISCELLANEOUS  10.1. Amendments and Waivers. (a) 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 that is a party to the relevant  Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and  each Loan Party that is a 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 or extend any L/C Participant’s interest in any Issuing Lender’s  obligations and rights under any Letter of Credit beyond the Revolving Termination Date, 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, (y) that any amendment or modification in the financial definitions in  this Agreement shall not constitute a reduction in the rate of interest or commitment fee for purposes of  this clause (i) and (z) in each case of this clause (i), waivers of, or consents or departures from, mandatory  prepayments, mandatory reductions of commitments, or of any Default or Event of Default) or extend the  scheduled date of any payment thereof or increase the amount or extend the expiration date of any  Lender’s Revolving Commitment with respect to any Lender, in each case without the consent of each  Lender directly affected thereby; (ii) reduce any percentage specified in the definition of Required  Lenders or Required Revolving Lenders, or change any other provision of any Loan Document specifying  the number or percentage of Lenders required to waive, amend or modify any term thereof, release all or  substantially all of the Collateral (other than as otherwise permitted hereunder or in the other Loan  Documents) under the Collateral Agreement or release all or substantially all of the value of the  





 






  151  guarantees (other than as otherwise permitted hereunder or in the other Loan Documents) under the  Guarantee Agreement, in each case without the consent of all Lenders or reduce the percentage specified  in the definition of Majority Facility Lenders with respect to any Facility without the consent of all  Lenders under such Facility; (iii) amend or modify any provision of Section 5.03 of the Collateral  Agreement without the consent of each Lender directly and adversely affected thereby; (iv) amend,  modify or waive any provision of Section 2.19 in a manner that would alter the pro rata sharing of  payments or Section 10.7(a) without the consent of each Lender directly and adversely affected thereby,  or amend, modify or waive any other provision of Section 2.19 without the consent of the Majority  Facility Lenders in respect of each Facility adversely affected thereby; (v) [reserved]; (vi) [reserved]; (vii)  amend, modify or waive any provision of Section 9 without the consent of the Administrative Agent;  (viii) amend, modify or waive any provision of Section 2.8 or 2.9 without the consent of the Swingline  Lender; (ix) amend, modify or waive any provision of Section 3 without the consent of each Issuing  Lender; (x) add any currencies as Foreign Currencies under this Agreement in which a Lender is required  to make Loans, in each case without the written consent of each Lender directly affected thereby; (xi)  consent to the assignment or transfer by any Borrower of any of its rights and obligations under this  Agreement and the other Loan Documents without the consent of each Lender directly affected thereby  (other than as permitted by Section 10.6(a)); (xii) eliminate or reduce any voting rights under this Section  10.1 without the consent of each Lender directly affected thereby; provided that, notwithstanding the  foregoing, any waiver or amendment of any condition precedent set forth in Section 5.2 as it pertains to  any loans under the Revolving Facility shall require the written consent of only the Company and the  Required Revolving Lenders (and not the Required Lenders). 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 waived shall be  deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other  Default, or impair any right consequent thereon. Any Defaulting Lender’s right to approve or disapprove  any amendment, waiver or consent with respect to this Agreement and the other Loan Documents shall be  restricted as set forth in Section 2.28(d).  (b)   (i) the Company and the Administrative Agent may enter into any Incremental  Facility Amendment in accordance with Section 2.27, any Extension Amendment in accordance  with Section 2.26 and any Refinancing Amendment in accordance with Section 2.30 and such  Extension Amendments, Incremental Facility Amendments and Refinancing Amendments shall  be effective to amend the terms of this Agreement and the other applicable Loan Documents, in  each case, without any further action or consent of any other party to any Loan Document; and  (ii) this Agreement and the other Loan Documents may be amended with the written  consent of only the Administrative Agent and the Borrowers to the extent necessary in order to  evidence and implement the designation or removal of Subsidiary Borrowers pursuant to Section  2.29.  (c) Notwithstanding the foregoing, the Administrative Agent, with the consent of the  Borrowers, 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 such amendment shall become  effective without any further action or consent of any other party to any Loan Document if the same is not  objected to in writing by the Required Lenders within five Business Days following receipt of notice  thereof.  





 






  152  10.2. Notices. All notices, requests and demands to or upon the respective parties hereto to be  effective shall be in writing (including by telecopy), 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 telecopy notice, when received, addressed as  follows in the case of the Company, the other Borrowers 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:  The Company or any other Borrower: Kontoor Brands, Inc., 400 N. Elm Street,  Greensboro, NC 27401, Attn: Dave Kovach     The Administrative Agent or the Collateral Agent: April Yebd  Telephone: +1 312 732 2628  Fax: +1 844 490 5663  jpm.agency.cri@jpmorgan.com   with a copy to  april.yebd@jpmorgan.com  10 S. Dearborn St. Floor L2 Chicago, IL 60603      or, in the case of Swingline Loans that are  denominated in Euros:      European Loan Operations  3rd Floor, Prestige Platina, Near Marathahalli  Junction, Sarjapur Outer Ring Road,  Kadabeesanahalli, Vathur Hobli, Bangalore –  560087, India  Telephone: +91 80 679 05451  Fax: +1 214 291 4365  E-Fax: 442074923297@tls.ldsprod.com    Email: european.loan.operations@jpmorgan.com  with a copy to  loan_and_agency_london@jpmorgan.com    provided that any notice, request or demand to or upon the Administrative Agent or the Lenders shall not  be effective until received.  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 until the respective maturity dates of the  Facilities.  





 






  153  10.5. Expenses; Limitation of Liability; Indemnity, Etc..   (a) Expenses.  Each Borrower agrees  (a) within 30 days following presentation of a  summary statement, to reimburse the Administrative Agent for its reasonable and invoiced out-of-pocket  expenses that have been incurred in connection with the development, preparation, execution, delivery  and administration of, and any amendment, supplement, waiver or modification to, this Agreement and  the other Loan Documents and the consummation of the Transactions contemplated hereby and thereby  (including the fees, charges and disbursements of one firm of counsel to the Administrative Agent and  Lenders, as a whole, and of a single local counsel in each appropriate jurisdiction (which may include, a  single special counsel acting in multiple jurisdictions) for the Administrative Agent and Lenders, as a  whole, (and, in the case of an actual or perceived conflict of interest, of another firm of counsel (and, if  applicable, another local counsel in each appropriate jurisdiction) for all similarly affected persons)) or  the Issuing Lender in connection with the issuance, amendment, renewal or extension of any Letter of  Credit or any demand for payment thereunder, and (b) within 30 days following presentation of a  summary statement, to pay or reimburse each Lender (including each Swingline Lender), each Issuing  Lender and the Administrative Agent for all its reasonable and invoiced out-of-pocket costs and expenses  incurred in connection with the enforcement or preservation of any rights under this Agreement, the other  Loan Documents and any such other documents, or Letters of Credit issued hereunder, including all such  reasonable out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect  of such Loans or Letters of Credit (including the fees, charges and disbursements of one firm of counsel  to the Administrative Agent and Lenders, as a whole, and of a single local counsel in each appropriate  jurisdiction (which may include, a single special counsel acting in multiple jurisdictions) for the  Administrative Agent and Lenders, as a whole, (and, in the case of an actual or perceived conflict of  interest, of another firm of counsel (and, if applicable, another local counsel in each appropriate  jurisdiction) for all similarly affected persons)),   (b) Indemnity. Each Borrower agrees to indemnify and hold harmless each Lender (including  each Swingline Lender), each Issuing Lender, each Agent and the Administrative Agent and their  respective Affiliates and their respective directors, officers, employees, advisors, agents and other  representatives (each, an “Indemnitee”) from and against any and all losses, claims, damages and  liabilities to which any such Indemnitee may become subject arising out of or in connection with this  Agreement, any Loan Documents, the Transactions or any actual or prospective claim, litigation,  investigation, arbitration or proceeding relating to any of the foregoing (including in relation to enforcing  the terms of this paragraph) (each, a “Proceeding”), regardless of whether any Indemnitee is a party  thereto, whether or not such Proceedings are brought by the Company, its equity holders, Affiliates,  creditors or any other person, and to reimburse each Indemnitee from time to time, within 30 days  following the presentation of a summary statement, for any reasonable and invoiced out-of-pocket legal  expenses of one firm of counsel for all such Indemnitees, taken as a whole, and of a single local counsel  in each appropriate jurisdiction (which may include a single special counsel acting in multiple  jurisdictions) for all such Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict  of interest, of another firm of counsel (and, if applicable, another firm of local counsel in each appropriate  jurisdiction) for all similarly affected Indemnitee), in connection with any of the foregoing, provided that  the foregoing indemnity will not, as to any Indemnitee, apply to losses, claims, damages, liabilities or  related expenses to the extent they (i) are found by a final, non-appealable judgement of a court of  competent jurisdiction to arise from the willful misconduct, bad faith or gross negligence of such  Indemnitee or its Affiliates, directors, officers, employees, advisors, agents or other representatives  (collectively, the “Related Parties”), (ii) are found by a final, non-appealable judgement of a court of  competent jurisdiction to result from a material breach of the obligations of such Indemnitee or any such  Indemnitee’s Related Parties under this Agreement or (iii) result from any Proceeding that does not  involve an act or omission by the Company or its Affiliates and that is brought by an Indemnitee or  Related Party against any other Indemnitee or Related Party (other than any claims against any  





 






  154  Indemnitee in its capacity or in fulfilling its role as an agent or arranger or any similar role in connection  with this Agreement).   (c) Limitation of Liability. None of the Lenders (including each Swingline Lender), any  Issuing Lender, any Agent and the Administrative Agent and their respective Affiliates and their  respective directors, officers, employees, advisors, agents and other representatives (each such Person, A  “Lender-Related Person”) 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 the gross negligence, bad faith or willful misconduct of  such Lender-Related Person. To the fullest extent permitted by applicable law, each party hereto agrees  that it shall not assert, and hereby waives, any claim against any other party hereto, the Company and any  Lender-Related Person or any of their respective Affiliates or the respective directors, officers,  employees, advisors, and agents of the foregoing, on any theory of liability, for special, indirect,  consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection  with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument  contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit, or  the use of the proceeds thereof; provided that the foregoing shall not limit the obligations of the Borrower  under this Section 10.5 in respect of any such damages claimed against the indemnitees by Persons other  than Indemnitees. The agreements in this Section 10.5 shall survive repayment of the Loans and all other  amounts payable hereunder and termination of this Agreement.   (d) This Section 10.5 shall not apply with respect to Taxes other than any Taxes that  represent losses, claims or damages arising from any non-Tax claim.    10.6. Successors and Assigns; Participations and Assignments. (a) This Agreement shall be  binding upon and inure to the benefit of the Borrowers, the Lenders, the Administrative Agent, all future  holders of the Loans and their respective successors and assigns, except that no Borrower may assign or  transfer any of its rights or obligations under this Agreement without the prior written consent of each  Lender (except in a transaction permitted by Section 7.4).  (b) Any Lender may, without the consent of any Borrower or the Administrative Agent, in  accordance with applicable law, at any time sell to one or more banks, financial institutions or other  entities other than an Ineligible Institution (each, a “Participant”) participating interests in any Loan  owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder  and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest  to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement  shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such  Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other  Loan Documents, the Participant will have no proprietary interest in the benefit of this Agreement or in  any monies received by the Lender under or in relation to this Agreement (including in the bankruptcy or  similar event of the Lender) and the Borrowers, the Issuing Lenders, the other Lenders and the  Administrative Agent shall continue to deal solely and directly with such Lender in connection with such  Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall  any Participant under any such participation have any right to approve any amendment or waiver of any  provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to  the extent that such amendment, waiver or consent would reduce the principal of or interest on, the Loans  or any fees payable hereunder, postpone the date of any scheduled amortization payment or the final  maturity of the Loans, in each case to the extent subject to such participation. Any agreement or  instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall  retain the sole right to enforce this Agreement and the other Loan Documents and, other than as set forth  





 






  155  in the preceding sentence, to approve any amendment, modification or waiver of any provision of this  Agreement or any other Loan Document. Each Borrower also agrees that each Participant shall be entitled  to the benefits of Sections 2.20, 2.21 and 2.22 (subject to the requirements and limitations in Section  2.21) with respect to its participation in the Commitments and the Loans outstanding from time to time as  if it was a Lender; provided that such Participant (i) agrees to be subject to the provisions of Sections 2.23  and 2.24 as if it were an assignee under paragraph (c) of this Section and (ii) shall not be entitled to  receive any greater amount pursuant to Section 2.20 or 2.21 than the transferor Lender would have been  entitled to receive in respect of the amount of the participation transferred by such transferor Lender to  such Participant had no such transfer occurred. Each Lender that sells a participation, acting solely for this  purpose as a non-fiduciary agent of the Borrowers, shall 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 this Agreement (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, Letters of Credit or its other obligations under any Loan Document) except to  the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or  other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender, each  Loan Party and the Administrative Agent shall treat each person whose name is recorded in the  Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this  Agreement, notwithstanding notice to the contrary.  As used herein, “Ineligible Institution” means (a) a natural person, (b) a Disqualified Lender, (c)  a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a  natural person or relative(s) thereof, (d) a Defaulting Lender or (e) any of the Company and its  Subsidiaries and Affiliates.  The Administrative Agent shall not be responsible or have any liability for, or have any duty to  ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified  Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be  obligated to ascertain, monitor or inquire as to whether any Lender or participant or prospective Lender or  participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any  assignment or participation of Loans, or disclosure of confidential information, to any Disqualified  Lender.  (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and  from time to time assign (subject to clause (iii) of the proviso below) to any other Lender, any Affiliate of  any Lender or any Lender Affiliate (other than any Ineligible Institution) or, with the consent of the  Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or  delayed), to an additional bank, financial institution or other entity other than an Ineligible Institution (an  “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment  and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is  required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and  recording in the Register; provided that (i) no such assignment to an Assignee (other than any Lender, any  Affiliate of any Lender or any Lender Affiliate), unless otherwise agreed to by the Company and  Administrative Agent, shall be in an aggregate principal amount of less than $5,000,000 in the case of  Revolving Commitments or $500,000 in the case of Term Loans (provided that assignments made by any  Lender on the same day to an Assignee and its Affiliates (including any Lender Affiliates) and  contemporaneous assignments by Lender Affiliates to a single Assignee may be treated as a single  assignment for purposes of satisfying any such minimum assignment amount requirement (other than in  the case of an assignment of all of a Lender’s interests under the applicable Facility)), (ii) after giving  





 






  156  effect to any such assignment, such Lender and its Affiliates (including any Lender Affiliates) shall retain  Commitments and Term Loans in an aggregate principal amount of at least $5,000,000 in the case of  Revolving Commitments and $500,000 in the case of Term Loans (other than in the case of an  assignment of all of a Lender’s interests under the applicable Facility), in each case unless otherwise  agreed by the applicable Borrower(s) and the Administrative Agent, (iii) no Lender may assign any  interest in the Revolving Facility (other than, with the consent of the Administrative Agent, not to be  unreasonably withheld or delayed, to an Affiliate of such Lender or, to another Lender then holding  Revolving Commitments) without the consent of the Administrative Agent, the Borrowers, each Issuing  Lender and the Swingline Lender (not to be unreasonably withheld or delayed), (iv) no Lender may  assign an interest in the Revolving Facility (unless such assignment is to a Swiss Qualifying Bank)  without the consent of the Swiss Borrowers (not to be unreasonably withheld or delayed (it being  understood that withholding consent to a proposed assignment that would result in any non-compliance  with the Swiss Non-Bank Rules shall be deemed reasonable)), and (v) solely with respect to Term Loans,  each Borrower shall be deemed to have consented to an assignment if it has not objected thereto by  written notice to the Administrative Agent within ten Business Days of its receipt of notice thereof. For  purposes of the proviso contained in the preceding sentence, the amount described therein shall be  aggregated in respect of each Lender and its related Lender Affiliates, if any (other than in the case of an  assignment of all of a Lender’s interests under this Agreement). Any such assignment need not be ratable  as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the  effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall  be deemed a party hereto and, to the extent provided in such Assignment and Assumption, have the rights  and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the  Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from  its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of  an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party  hereto). Notwithstanding any provision of this Section 10.6, the consent of the Borrowers shall not be  required for any assignment that occurs when an Event of Default pursuant to Sections 8(a) or 8(f) shall  have occurred and be continuing with respect to any Borrower.  Notwithstanding the foregoing, the Borrowers may, in their sole discretion, withhold consent to  any assignment to any Person that is not expressly a Disqualified Lender but is known by such Borrower  to be an Affiliate of a Disqualified Lender without regard as to whether such Person is identifiable as an  Affiliate of a Disqualified Lender on the basis of such Affiliate’s name.  (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address  referred to in Section 10.2, a copy of each Assignment and Assumption delivered to it and a register (the  “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and  the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The  entries in the Register shall be conclusive absent manifest error, and each Borrower, each other Loan  Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the  Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes  of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective  only upon appropriate entries with respect thereto being made in the Register (and each Note shall  expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be  registered on the Register only upon surrender for registration of assignment or transfer of the Note  evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one  or more new Notes shall be issued to the designated Assignee. The Register shall be available for  inspection by any Lender at any reasonable time and from time to time upon reasonable prior notice.  (e) Upon its receipt of an Assignment and Assumption executed by an Assignor, an Assignee  and any other Person whose consent is required by Section 10.6(c), together with payment to the  





 






  157  Administrative Agent of a registration and processing fee of $3,500 (which shall not be an obligation of  the Borrowers), the Administrative Agent shall (i) promptly accept such Assignment and Assumption and  (ii) record the information contained therein in the Register on the effective date determined pursuant  thereto.  (f) 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 Company 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.   (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of  this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that  such provisions do not prohibit assignments creating security interests, including any pledge or  assignment by a Lender of any Loan or Note to any Federal Reserve Bank or other central banking  authority having jurisdiction over such Lender in accordance with applicable law.  (h) Each applicable 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  paragraph (g) above.  (i) Any assignment or transfer by a Lender of rights or obligations under this Agreement that  does not comply with this Section 10.6, whether or not such assignment or transfer is reflected in the  Register, 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 (b) of this Section 10.6.  (j) The Company shall have the right (i) at the sole expense of any Lender that is a  Disqualified Lender and/or the Person that assigned its Commitments and/or Loans to such Disqualified  Lender or to any Lender to the extent the Borrower’s consent was requested pursuant to Section 10.6 and  not obtained, to seek to replace or terminate such Disqualified Lender or other Lender as a Lender by  causing such Lender to (and such Lender shall be obligated to) assign (without recourse) any or all of its  Commitments and/or Loans and its rights and obligations under this Agreement to one or more assignees  (which may, at the Company’s sole option, be or include the Company or any Subsidiary); provided that  (1) the Administrative Agent shall not have any obligation to the Company to find such a replacement  Lender, (2) the Company shall not have any obligation to such Disqualified Lender or other Lender or any  other Person to find such a replacement Lender or accept or consent to any such assignment to itself or  any other Person and (3) the assignee (or, at its option, the Company) shall pay to such Disqualified  Lender or other Lender concurrently with such assignment an amount (which payment shall be deemed  payment in full) equal to the lesser of (x) the face principal amount of the Commitments and/or Loans so  assigned and (y) the amount that such Disqualified Lender or other Lender paid to acquire such  Commitments and/or Loans, in each case without interest thereon (it being understood that if the effective  date of such assignment is not an Interest Payment Date, such assignee shall be entitled to receive on the  next succeeding Interest Payment Date interest on the principal amount of the Loans so assigned that has  accrued and is unpaid from the Interest Payment Date last preceding such effective date (except as may be  otherwise agreed between such assignee and the Company)), or (ii) to prepay any Loans held by such  Disqualified Lender or other Lender, in whole or in part, by paying an amount (which payment shall be  deemed payment in full) equal to the lesser of (x) the face principal amount of the Commitments and/or  Loans so prepaid and (y) the amount that such Disqualified Lender or other Lender paid to acquire such  Loans, (in each case without interest thereon), and if applicable, terminate the Commitments of such  Disqualified Lender, in whole or in part.  In connection with any such replacement, (1) if the Disqualified  





 






  158  Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and  Assumption and/or any other documentation necessary or appropriate (in the good faith determination of  the Administrative Agent or the Company, which determination shall be conclusive) to reflect such  replacement by the later of (a) the date on which the replacement Lender executes and delivers such  Assignment and Assumption and/or such other documentation and (b) the date as of which the  Disqualified Lender shall be paid by the assignee Lender (or, at its option, the Company) the amount  required pursuant to this Section 10.6(j), then such Disqualified Lender or other Lender shall be deemed  to have executed and delivered such Assignment and Assumption and/or such other documentation as of  such date and the Company shall be entitled (but not obligated) to execute and deliver such Assignment  and Assumption and/or such other documentation on behalf of such Disqualified Lender or other Lender,  and the Administrative Agent shall record such assignment in the Register, (2) each Lender (whether or  not then a party hereto) agrees to disclose to the Company the amount that the applicable Disqualified  Lender paid to acquire Commitments and/or Loans from such Lender and (3) each Lender that is a  Disqualified Lender or other Lender agrees to disclose to the Company the amount it paid to acquire the  Commitments and/or Loans held by it.  The list of Disqualified Lenders shall be held by the  Administrative Agent but shall not be posted or distributed to the Lenders, prospective Lenders and  prospective Assignees and Participants; provided that such list shall be provided to Lenders, prospective  Lenders, prospective Assignees and prospective Participants upon request.  (k) Notwithstanding anything to the contrary contained herein, any Lender may, at any time,  assign all or a portion of its rights and obligations under this Agreement in respect of its Term Loans to  the Company, or any Subsidiary (each, an “Affiliated Lender”) through (x) Dutch auctions or other  offers to purchase open to all Lenders on a pro rata basis in accordance with procedures to be established  by the “auction agent” consistent with this Section 10.6(k) or (y) open market purchases on a non-pro rata  basis (which purchases may be effected at any price as agreed between such Lender and such Affiliated  Lender in their respective sole discretion); provided that:  (i) any Term Loans acquired by any Affiliated Lender shall, to the extent permitted  by applicable Requirements of Law, be retired and cancelled immediately upon the acquisition  thereof; provided that upon any such retirement and cancellation, the aggregate outstanding  principal amount of the Term Loans shall be deemed reduced by the full par value of the  aggregate principal amount of the Term Loans so retired and cancelled; provided that to the  extent any Term Loans acquired by any Affiliated Lender are not permitted to be retired and  cancelled under applicable Requirements of Law, such Affiliated Lender shall be deemed to have  acknowledged and agreed that such Term Loans held by such Affiliated Lender shall be  disregarded in both the numerator and denominator in the calculation of any Required Lender or  other Lender vote and such Affiliated Lender, solely in its capacity as an Affiliated Lender, will  not be entitled to (x) attend (including by telephone) or participate in any meeting or discussion  (or portion thereof) solely among the Administrative Agent or any Lender or among Lenders to  which the Loan Parties or their representatives are not invited or (y) receive any information or  material prepared by the Administrative Agent or any Lender or any communication by or among  the Administrative Agent and one or more Lenders;  (ii) no Event of Default exists at the time of acceptance of bids for the Dutch Auction  or the confirmation of such open market purchase, as applicable, and purchases of Term Loans  pursuant to this Section 10.6(k) may not be funded with the proceeds of Revolving Loans; and  (iii) no Affiliated Lender shall be required to represent or warrant that it is not in  possession of material non-public information with respect to the Borrower and/or any subsidiary  thereof and/or their respective securities in connection with any assignment permitted by this  Section 10.6(k).  





 






  159  10.7. Adjustments; Set-off.  (a) Except to the extent that (i) this Agreement expressly provides  for payments to be allocated to a particular Lender or to the Lenders under a particular Facility (including  any payment obtained by a Lender as consideration for any permitted assignment of or permitted sale of a  participation in any of its Loans or Commitments hereunder) or (ii) a payment is made in respect of  obligations under Lender Hedge Agreements or Cash Management Obligations, if any Lender (a  “Benefitted Lender”) shall receive any payment of all or part of the Obligations owing to it, or receive  any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or  proceedings of the nature referred to in Section 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 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; provided further, that to the extent prohibited by applicable  law as described in the definition of “Excluded Swap Obligation,” no amounts received from, or set off  with respect to, any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor.  (b) In addition to any rights and remedies of the Lenders and the Issuing Lenders provided  by law, each Lender and each Issuing Lender shall have the right, without prior notice to any Borrower,  any such notice being expressly waived by each Borrower to the extent permitted by applicable law, upon  the occurrence and during the continuance of an Event of Default, to set off and appropriate and apply  against such amount any and all deposits (general or special, time or demand, provisional or final), in any  currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or  indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender, such  Issuing Lender or, in each case, any Affiliate, branch or agency thereof to or for the credit or the account  of such Borrower, as the case may be. Each Lender and each Issuing Lender agrees promptly to notify  each applicable Borrower and the Administrative Agent after any such setoff and application made by  such Lender or such Issuing Lender, provided that the failure to give such notice shall not affect the  validity of such setoff and application.  10.8. Counterparts; Effectiveness; Electronic Execution. 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 counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z)  any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt,  any notice delivered pursuant to Section 10.2), certificate, request, statement, disclosure or authorization  related to this Agreement, any other Loan Document and/or the transactions contemplated hereby and/or  thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed  pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be  effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or  such Ancillary Document, as applicable.  The words “execution,” “signed,” “signature,” “delivery,” and  words of like import in or relating to this Agreement, any other Loan Document and/or any Ancillary  Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any  electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that  reproduces an image of an actual executed signature page), each of which shall be of the same legal  effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a  paper-based recordkeeping system, as the case may be; provided that, without limiting the foregoing, (i)  to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative  Agent and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by  





 






  160  or on behalf of the Borrower or any other Loan Party without further verification thereof and without any  obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of  the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by a  manually executed counterpart.  Without limiting the generality of the foregoing, the Borrower and each  Loan Party hereby (A) agrees that, for all purposes, including without limitation, in connection with any  workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the  Administrative Agent, the Lenders, the Borrower and the Loan Parties, Electronic Signatures transmitted  by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed  signature page and/or any electronic images of this Agreement, any other Loan Document and/or any  Ancillary Document shall have the same legal effect, validity and enforceability as any paper original and  (B) the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this  Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged  electronic record in any format, which shall be deemed created in the ordinary course of such Person’s  business, and destroy the original paper document (and all such electronic records shall be considered an  original for all purposes and shall have the same legal effect, validity and enforceability as a paper  record).  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 agreement of  the Borrowers, the Administrative Agent and the Lenders with respect to the subject matter hereof, and  there are no promises, undertakings, representations or warranties by the Administrative Agent or any  Lender relative to 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 AND THE OTHER LOAN DOCUMENTS AND  ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS  AGREEMENT AND THE OTHER LOAN DOCUMENTS WHETHER IN TORT, CONTRACT (AT  LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND  INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.  10.12. Submission To Jurisdiction; Waivers. (a) Each party hereto hereby irrevocably and  unconditionally:  (i) 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 general jurisdiction of the courts  of the State of New York in New York County, the courts of the United States for the Southern  District of New York in New York County, and appellate courts from any thereof;  (ii) 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;  





 






  161  (iii) agrees that service of process in any such action or proceeding may be effected  by mailing a copy thereof by registered or certified mail (or any substantially similar form of  mail), postage prepaid, to such party, as the case may be at its address set forth in Section 10.2 or  at such other address of which the other parties shall have been notified pursuant thereto;  (iv) agrees that nothing herein shall affect the right to effect service of process in any  other manner permitted by law or shall limit the right to sue in any other jurisdiction; and  (v) 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 any special,  exemplary, punitive or consequential damages.  Nothing in this Agreement or in any other Loan Document shall affect any right each party hereto  may otherwise have to enforce any judgment in any action or proceeding relating to this Agreement in the  courts of any jurisdiction.  (b) Upon any Subsidiary becoming a Foreign Subsidiary Borrower, such Foreign Subsidiary  Borrower hereby agrees to irrevocably and unconditionally appoint the Company or an agent for service  of process located in the City of New York (the “New York Process Agent”), reasonably satisfactory to  the Administrative Agent, as its agent to receive on behalf of such Foreign Subsidiary Borrower and its  property service of copies of the summons and complaint and any other process which may be served in  any action or proceeding in any such New York State or Federal court described in paragraph (a) of this  Section and agrees promptly to appoint a successor New York Process Agent in the City of New York  (which successor New York Process Agent shall accept such appointment in a writing reasonably  satisfactory to the Administrative Agent) prior to the termination for any reason of the appointment of the  initial New York Process Agent. In any such action or proceeding in such New York State or Federal  court, such service may be made on such Foreign Subsidiary Borrower by delivering a copy of such  process to such Foreign Subsidiary Borrower in care of the New York Process Agent at the New York  Process Agent’s address and by depositing a copy of such process in the mails by certified or registered  air mail, addressed to such Foreign Subsidiary Borrower at its address specified in the Joinder Agreement  (such service to be effective upon such receipt by the New York Process Agent and the depositing of such  process in the mails as aforesaid). Each Foreign Subsidiary Borrower hereby irrevocably and  unconditionally authorizes and directs the New York Process Agent to accept such service on its behalf.  As an alternate method of service, each Foreign Subsidiary Borrower irrevocably and unconditionally  consents to the service of any and all process in any such action or proceeding in such New York State or  Federal court by mailing of copies of such process to such Foreign Subsidiary Borrower by certified or  registered air mail at its address specified in the Joinder Agreement. Each Foreign Subsidiary Borrower  agrees that, to the fullest extent permitted by applicable law, a final judgment in any such action or  proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in  any other manner provided by law.  To the extent that any Foreign Subsidiary Borrower has or hereafter may acquire any immunity  (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from  set-off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of  execution of judgment, execution of judgment or otherwise) with respect to itself or any of its property,  such Foreign Subsidiary Borrower hereby irrevocably waives and agrees not to plead or claim such  immunity in respect of its obligations under this Agreement or any other Loan Document.  10.13. [Reserved].  





 






  162  10.14. Releases of Guarantees and Liens.  (a) The Administrative Agent, the Lenders and the  Issuing Lenders irrevocably agree that the Lien on any property and any related guarantee obligations will  be automatically released (i) (1) to the extent necessary to permit consummation of any transaction not  prohibited by any Loan Document, (2) upon any sale or transfer of Collateral or any other transaction  permitted or not prohibited hereunder or under the Loan Documents to any Person that is not a Loan  Party, (3) to the extent property constituting Collateral is owned by any Guarantors, upon the release of  such Guarantor from its obligations under the Guarantee Agreement or in accordance with the succeeding  sentence, (4) so long as no Event of Default has occurred and is continuing, to the extent the Collateral  becomes Excluded Assets or a Guarantor becomes an Excluded Subsidiary in a transaction permitted  hereunder, the primary purpose of which transaction is not to effect the release of such Guarantor or any  other Guarantor from its obligations under the Loan Documents, or a Guarantor ceases to be a Subsidiary  in a transaction permitted hereunder or (5) that has been consented to in accordance with Section 10.1, (ii)  under the circumstances described in paragraph (b) below and (iii) upon the occurrence and during the  continuation of a Suspension Period Event, in accordance with the provisions of Section 3.15(c) of the  Guarantee Agreement and Section 7.12(b), (f), (g) and (h) of the Collateral Agreement.  Notwithstanding  anything to the contrary contained herein or in any other Loan Document, the Administrative Agent and  the Collateral Agent are 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 (without  consent rights) requested by the Company (including to execute and deliver any instruments, documents,  consents, acknowledgements, and agreements necessary or desirable to evidence or confirm the release of  any Guarantor or Collateral pursuant to the foregoing provisions of this paragraph) having the effect of  releasing any Collateral or Loan Party from its guarantee obligations.  (b) The Administrative Agent, the Lenders and the Issuing Lenders irrevocably agree that at  such time as the Loans, the Reimbursement Obligations and the other obligations under the Loan  Documents (other than obligations under or in respect of Lender Hedge Agreements, Lender Cash  Management Obligations and contingent indemnity obligations not due and payable) shall have been paid  in full, the Commitments have been terminated and no Letters of Credit shall be outstanding (other than  Letters of Credit that are cash collateralized or backstopped on terms reasonably satisfactory to the  applicable Issuing Lender), the Collateral shall be automatically released from the Liens created by the  Security Documents, and the Security Documents and all guarantees and other obligations (other than  those expressly stated to survive such termination) of the Company and each Loan Party under the  Security Documents shall automatically terminate, all without delivery of any instrument or performance  of any act by any Person.  (c) The Administrative Agent, the Lenders and the Issuing Lenders irrevocably agree that  Liens on assets of the Loan Parties created by the Loan Documents will be automatically terminated and  released upon the transfer of such assets to a Foreign Subsidiary (other than a Foreign Subsidiary  Borrower) pursuant to Section 7.5(r). The Administrative Agent and the Collateral Agent are hereby  irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender) to take  any action (without consent rights) (including to execute and deliver any instruments, documents,  consents, acknowledgements, and agreements necessary or desirable to evidence or confirm the release  pursuant to the foregoing provisions of this paragraph) requested by the Company to effect any  termination or release described in this paragraph (c).  10.15. Confidentiality. Each of the Administrative Agent and each Lender and each of their  respective Affiliates agrees to keep confidential all information received by them in connection with the  Transactions and the related transactions and information received from the Company relating to the  Company or its business; 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, any  Affiliate of any Lender or any Lender Affiliate (provided that any such Lender Affiliate or Affiliate is  





 






  163  advised of its obligation to retain such information as confidential, and such Administrative Agent or  Lender shall be responsible for its Affiliates’ and Lender Affiliates’ compliance with this paragraph)  solely in connection with the Transactions, (b) to any pledgee referred to in Section 10.6(g), any  Transferee or prospective Transferee or any insurance or risk protection providers (provided that in no  event shall any disclosure of such information be made to any person that is a Disqualified Lender as of  the relevant time); provided that the disclosure of any such information to any such party (other than a  Federal Reserve Bank or other central banking authority) shall be made subject to the acknowledgment  and acceptance by such party that such information is being disseminated on a confidential basis or  customary market standards for dissemination of such type of information, (c) to its employees, legal  counsel, independent auditors, professionals and other experts or agents who are informed of the  confidential nature thereof (provided that the Administrative Agent or Lender shall be responsible for  compliance of such persons with this paragraph), (d) upon the request or demand of any Governmental  Authority, including audits and examinations conducted by bank accountants, any governmental bank  regulatory authority exercising examination or regulatory authority or self-regulatory authorities, in which  case (except with respect to any audit or examination conducted by bank accountants or any  governmental bank regulatory authority exercising examination or regulatory authority), such party will  promptly notify the Company, in advance, to the extent permitted by law, (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 in which case, such party will promptly notify the Company, in advance, to the extent permitted  by law, (f) if requested or required to do so in connection with any litigation or similar proceeding in  which case, such party will promptly notify the Company, in advance, to the extent permitted by law, (g)  to the extent any such information becomes publicly available other than by reason of disclosure by such  Administrative Agent or Lender or its Affiliates or representatives in in breach of this Agreement; (h) to  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; provided that the disclosure of any such  information to any such party shall be made subject to the acknowledgment and acceptance by such party  that such information is being disseminated on a confidential basis or customary market standards for  dissemination of such type of information, (j) to any direct, indirect, actual or perspective counterparty  (and its advisor) to any swap, derivative or securitization transaction related to any obligations or any  insurance or risk protection providers in respect thereof (so long as such party agrees to be bound by the  provisions of this Section 10.15); provided that the disclosure of any such information to any such party  shall be made subject to the acknowledgment and acceptance by such party that such information is being  disseminated on a confidential basis or customary market standards for dissemination of such type of  information, (k) to the CUSIP Service Bureau or any similar agency in connection with the issuance and  monitoring of CUSIP numbers with respect to the Loans or (l) if agreed by the Company in its sole  discretion, to any other Person; provided that no information shall be disclosed to a Disqualified Lender.  The Administrative Agent, Arrangers and the Lenders may disclose the existence of this Agreement and  information about this Agreement that is routinely provided by arrangers to such service providers to  market data service providers (including league table providers) that serve the lending industry and to  service providers to the Administrative Agent and the Lenders in connection with the administration and  management of this Agreement, the Loan Documents and the Commitments.  Nothing in any Loan  Document shall prevent disclosure of any confidential information or other matter to the extent that  preventing that disclosure would otherwise cause any transaction contemplated by the Loan Documents,  or any transaction carried out in connection with any transaction contemplated thereby, to become an  arrangement described in Part II A 1 of Annex IV of Directive 2011/16/EU.  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 Company 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  





 






  164  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 Company 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 information about  the Company and its Affiliates and their related parties or their respective securities. Accordingly, each  Lender represents to the Company 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.  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. Patriot Act. Each Lender that is subject to the requirements of the Patriot Act hereby  notifies each Borrower and each Guarantor that pursuant to the requirements of the Patriot Act, it is  required to obtain, verify and record information that identifies each Borrower, which information  includes the name and address of each Borrower and each Guarantor and other information that will allow  such Lender to identify each Borrower and each Guarantor in accordance with the Patriot Act.  10.18. No Fiduciary Duty. Each 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, (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 any of the Loan  Parties rely on, any fiduciary duty to any of 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, (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 and (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.  10.19. Usury. Notwithstanding anything to the contrary contained in any Loan Document, the  interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non- usurious interest permitted by applicable law (the “Maximum Rate”). If Administrative Agent or any  Lender shall receive interest in an amount that exceeds the Maximum Rate, the excessive interest shall be  applied to the principal of the Obligations or, if it exceeds the unpaid principal, refunded to the applicable  Borrower. In determining whether the interest contracted for, charged or received by Administrative  Agent or any Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable  





 






  165  law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest,  (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate and spread,  in equal or unequal parts, the total amount of interest throughout the contemplated term of this  Agreement.  10.20. Acknowledgement and Consent to Bail-In of Affected Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement  or understanding among any such parties, each party hereto acknowledges that any liability of any  Affected Financial Institution arising under any Loan Document may be subject to the Write-Down and  Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges  and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the applicable Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is  an Affected Financial Institution; and  (b) the effects of any Bail-In Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other instruments  of ownership in such Affected Financial Institution, its Company 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 the applicable Resolution Authority.  10.21. Conversion of Currencies. (a) If, for the purpose of obtaining judgment in any court, it is  necessary to convert a sum owing hereunder in one currency into another currency, each party hereto  (including, upon any Subsidiary becoming a Subsidiary Borrower, such Subsidiary Borrower) agrees, to  the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which, in  accordance with normal banking procedures in the relevant jurisdiction, the first currency could be  purchased with such other currency on the Business Day immediately preceding the day on which final  judgment is given.  (b) The obligations of the Company and the Subsidiary Borrowers in respect of any sum due  to any party hereto or any holder of the obligations owing hereunder (the “Applicable Creditor”) shall,  notwithstanding any judgment in a currency (the “Judgment Currency”) other than the currency in  which such sum is stated to be due hereunder (the “Agreement Currency”), be discharged only to the  extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be  so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking  procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if  the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable  Creditor in the Agreement Currency, the Company and the Subsidiary Borrowers agree, as a separate  obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such  loss. The obligations of the Company and the Subsidiary Borrowers contained in this Section 10.21 shall  survive the termination of this Agreement and the payment of all other amounts owing hereunder.  





 






  166  10.22. Separate Obligations. For the avoidance of doubt, the Administrative Agent, each Issuing  Lender, each Lender and each Loan Party acknowledges and agrees that, notwithstanding anything to the  contrary in this Agreement or any of the other Loan Documents, the Obligations of the Foreign Loan  Parties under this Agreement or any of the other Loan Documents shall be separate and distinct from the  Obligations of the Domestic Loan Parties, and the Obligations of the Foreign Loan Parties shall be  expressly limited to the Obligations of the Foreign Subsidiary Borrowers (the “Foreign Obligations”). In  furtherance of the foregoing, each of the parties acknowledges and agrees that the liability of any Foreign  Loan Party for the payment and performance of its covenants, representations and warranties set forth in  this Agreement and the other Loan Documents shall be several from and not joint with the Obligations of  the Domestic Loan Parties (the “Domestic Obligations”); the Foreign Loan Parties shall not guarantee  the Domestic Obligations (including, for the avoidance of doubt, any guarantees by the Domestic Loan  Parties of the Foreign Obligations). Notwithstanding anything to the contrary in this Agreement or any of  the other Loan Documents, the Obligations of the each Swiss Borrower under this Agreement or any of  the other Loan Documents shall be separate and distinct from the Obligations of each other Loan Party,  and the Obligations of each Swiss Borrower shall be expressly limited to its own Obligations. In  furtherance of the foregoing, each of the parties acknowledges and agrees that the liability of each Swiss  Borrower for the payment and performance of its covenants, representations and warranties set forth in  this Agreement and the other Loan Documents shall be several and not joint with the Obligations of each  other Loan Party. Notwithstanding the above, the Domestic Loan Parties shall guarantee the payment and  performance of the Foreign Obligations, and the Collateral of the Domestic Loan Parties shall secure such  guarantees, in each case as set forth in and in accordance with the applicable Security Documents.  10.23. Several Obligations. The respective obligations of the Lenders under this Agreement are  several and not joint and no Lender shall be responsible for the failure of any other Lender to satisfy its  obligations hereunder.   10.24. MIRE Events. In connection with any amendment to this Agreement pursuant to which  any increase, extension or renewal of Loans is contemplated, the Borrowers shall cause to be delivered to  the Administrative Agent for any Mortgaged Property, a completed “life of the loan” Federal Emergency  Management Agency Standard Flood Hazard Determination and for any Mortgaged Property with a  building in a special flood hazard area, an acknowledgment by the applicable Loan Party, and evidence of  flood insurance, as may be required pursuant to the Flood Laws.   10.25. Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan  Documents provide support, through a guarantee or otherwise, for Swap 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  





 






  167  States or a state of the United States.  In the event a Covered Party or a BHC Act Affiliate of a Covered  Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the  Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may  be exercised against such Covered Party are permitted to be exercised to no greater extent than such  Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and  the Loan Documents were governed by the laws of the United States or a state of the United States.   Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties  with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to  a Supported QFC or any QFC Credit Support.  10.26. No Novation.  Each Loan Party hereby confirms that (i) its obligations and liabilities  under the Existing Credit Agreement, as modified by this Agreement (and excluding any Tranche B Term  Loans (as defined in the Existing Credit Agreement) that are prepaid on the Closing Date) and the other  Loan Documents to which it is a party remain in full force and effect on a continuous basis after giving  effect to the this Agreement and nothing in this Agreement shall be deemed to be a novation of any of the  Obligations, as defined in the Existing Credit Agreement, (ii) the Credit Parties remain entitled to the  benefits of the Guarantee Agreement and the security interests granted or created in the Security  Documents and the other Loan Documents, (iii) notwithstanding the effectiveness of the terms of this  Agreement, the Security Documents and the other Loan Documents are, and shall continue to be, in full  force and effect and are ratified and confirmed in all respects and (iv) from and after the Closing Date,  each reference to this “Agreement”, the “Credit Agreement” or other reference originally applicable to the  Existing Credit Agreement contained in any Loan Document shall be a reference to this Agreement, as  further amended, supplemented, restated or otherwise modified from time to time.  Each Loan Party  ratifies and confirms that all Liens granted, conveyed, or assigned to any Agent by such Person pursuant  to each Loan Document to which it is a party remain in full force and effect, are not released or reduced,  and continue to secure full payment and performance of the Obligations under this Agreement.   Notwithstanding any provision of this Agreement or any other Loan Document or instrument executed in  connection herewith, the execution and delivery of this Agreement and the incurrence of Obligations  under this Agreement with respect to the Tranche A Term Facility and the Revolving Facility shall be in  substitution in full for, but not in repayment of, the Obligations with respect to such Facilities owed by  the Loan Parties under the Existing Credit Agreement.  [Remainder of page intentionally left blank]  





 






  [Signature Page to Credit Agreement]  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and  delivered as of the date first above written.    JPMORGAN CHASE BANK, N.A.,                                  as Administrative Agent, Collateral Agent, Tranche  A Term Lender, Revolving Lender, Issuing Lender  and Swingline Lender    By: /s/ Antje Focke  Name: Antje Focke  Title: Executive Director  





 






  [Signature Page to Credit Agreement]  BANK OF AMERICA, N.A., as a Tranche A Term  Lender, a Revolving Lender and an Issuing Lender    /s/ Anthony Hoye  Name: Anthony Hoye  Title: Director          BANK OF AMERICA, N.A., CANADA BRANCH,  as a Revolving Lender    /s/ Medina Sales de Andrade  Name: Medina Sales de Andrade  Title: Vice President        





 






  [Signature Page to Credit Agreement]  HSBC BANK USA, N.A., as a Tranche A Term  Lender, a Revolving Lender and an Issuing Lender    /s/ Kevin Toda  Name: Kevin Toda  Title: SVP          





 






  [Signature Page to Credit Agreement]  WELLS FARGO BANK, N.A., as a Tranche A  Term Lender, a Revolving Lender and an Issuing  Lender    /s/ Carl Hinrichs  Name: Carl Hinrichs  Title: Director    





 






  [Signature Page to Credit Agreement]  BARCLAYS BANK PLC, as a Tranche A Term  Lender, a Revolving Lender and an Issuing Lender    /s/ Ritam Bhalla  Name: Ritam Bhalla  Title: Director    





 






  [Signature Page to Credit Agreement]  TRUIST BANK, as a Tranche A Term Lender and a  Revolving Lender    /s/ J. Carlos Navarrete  Name: J. Carlos Navarrete  Title: Director    





 






  [Signature Page to Credit Agreement]  PNC BANK, NATIONAL ASSOCIATION, as a  Tranche A Term Lender and a Revolving Lender    /s/ Dawn Kondrat  Name: Dawn Kondrat  Title: Senior Vice President    





 






  [Signature Page to Credit Agreement]  BNP PARIBAS, as a Tranche A Term Lender and a  Revolving Lender    /s/ Emma Petersen  Name: Emma Petersen  Title: Director      /s/ David Foster  Name: David Foster  Title: Director      





 






  [Signature Page to Credit Agreement]  CITIBANK, NA, as a Tranche A Term Lender and a  Revolving Lender   /s/ Jason Boera  Name: Jason Boera  Title: Senior Vice President          





 






  [Signature Page to Credit Agreement]  ING BANK N.V., DUBLIN BRANCH, as a Tranche  A Term Lender and a Revolving Lender     /s/ Cormac Langford  Name: Cormac Langford  Title: Director      /s/ Sean Hassett  Name: Sean Hassett  Title: Director        





 






  [Signature Page to Credit Agreement]  SANTANDER BANK, N.A., as a Tranche A Term  Lender and a Revolving Lender    /s/ Irv Roa  Name: Irv Roa  Title: Managing Director  





 






  [Signature Page to Credit Agreement]  GOLDMAN SACHS BANK USA, as a Revolving  Lender  /s/ Rebecca Kratz  Name: Rebecca Kratz  Title: Authorized Signatory  





 






  [Signature Page to Credit Agreement]  TD BANK, N.A., as a Tranche A Term Lender and a  Revolving Lender     /s/ Bernadette Collins  Name: Bernadette Collins  Title: Senior Vice President  





 






  [Signature Page to Credit Agreement]  U.S. BANK NATIONAL ASSOCIATION, as a  Tranche A Term Lender and a Revolving Lender    /s/ Mark D. Rodgers  Name: Mark D. Rodgers  Title: Vice President  





 






  [Signature Page to Credit Agreement]  THE HUNTINGTON NATIONAL BANK, as a  Tranche A Term Lender and a Revolving Lender    /s/ Mike Kelly  Name: Mike Kelly  Title: V.P.  





 






  [Signature Page to Credit Agreement]  KBC BANK NV, as a Tranche A Term Lender and a  Revolving Lender    /s/ Deborah Carlson  Name: Deborah Carlson  Title: Director      /s/ Francis X. Payne  Name: Francis X. Payne  Title: Managing Director        





 






  [Signature Page to Credit Agreement]  FIRST NATIONAL BANK, as a Tranche A Term  Lender and a Revolving Lender     /s/ John Fink  Name: John Fink   Title: SVP Commerical Banking      





 






  [Signature Page to Credit Agreement]      PINNACLE BANK, as a Tranche A Term Lender  /s/ Max N. Greer III  Name: Max N. Greer III  Title: Senior Vice President      





 






  [Signature Page to Credit Agreement]    FIRST HORIZON BANK, as a Tranche A Term  Lender     /s/ Keith A. Sherman  Name: Keith A. Sherman  Title: Senior Vice President      





 






  [Signature Page to Credit Agreement]    Accepted and agreed to as of the date first written above:    KONTOOR BRANDS, INC.  By: /s/ David Kovach  Name: David Kovach  Title: Vice President and Treasurer      KONTOOR INTERNATIONAL INTERNATIONAL  SAGL  By: /s/ Luther Reece Medlin III  Name: Luther Reece Medlin III  Title: Managing Officer  





 






  Annex A-1  Annex A  PRICING GRID FOR REVOLVING FACILITY (INCLUDING SWINGLINE LOANS) AND  TRANCHE A TERM FACILITY  Level  Corporate  Rating  Total  Leverage  Ratio  Applicable  Margin  for Term  Benchmark  Loans / RFR  Loans / Daily  Simple ESTR  Loans / CDOR  Loans  Applicable  Margin for  ABR Loans /  Canadian  Prime Rate  Loans  Commitment  Fee Rate  I ≥ Baa3 / BBB- ≤ 0.50:1.00 1.375% 0.375% 0.20%  II Ba1 / BB+ > 0.50:1.00 but  ≤ 1.50:1.00  1.50% 0.50% 0.25%  III Ba2 / BB > 1.50:1.00 but  ≤ 2.50:1.00  1.625% 0.625% 0.25%  IV Ba 3/ BB- > 2.50:1.00 but  ≤ 3.50:1.00  1.75% 0.75% 0.30%  V ≤ B1/ B+ > 3.50:1.00 2.00% 1.00% 0.35%    The Level applicable for determining pricing (the “Pricing Level”) shall be the higher of the  Applicable Corporate Rating Level (as defined below) and the Total Leverage Ratio Level (determined as  of each Adjustment Date (defined below)) then applicable (it being understood that Level I is the  “highest” Level); provided that if the Applicable Corporate Rating Level and the Total Leverage Ratio  Level then applicable fall more than one Level apart, the Pricing Level shall be the Level immediately  below the higher of the two.  The “Applicable Corporate Rating Level” shall mean (i) if the corporate  ratings of each of S&P and Moody’s fall within the same Level, such Level, (ii) if the corporate ratings of  each of S&P and Moody’s fall one Level apart, the higher of such Levels and (iii) if the corporate ratings  of each of S&P and Moody’s fall more than one Level apart, the Level immediately below the higher of  the two; provided that if only one rating agency shall have in effect a corporate rating (other than by  reason of the circumstances referred to in the last sentence of this paragraph), then the Applicable  Corporate Rating Level shall be determined by reference to the Level in which such rating falls; provided  further that if neither S&P nor Moody’s has in effect a corporate rating (other than by reason of the  circumstances referred to in the last sentence of this paragraph), then the Applicable Corporate Rating  Level shall be deemed to be Level V. If the ratings established or deemed to have been established by a  rating agency shall be changed (other than as a result of a change in the rating system of such rating  agency), such change shall be effective as of the date on which it is first announced by the applicable  rating agency, irrespective of when notice of such change shall have been furnished by the Company to  the Administrative Agent and the Lenders, and each change in the Pricing Level as a result thereof shall  apply during the period commencing on the effective date of such change and ending on the date  immediately preceding the effective date of the next such change.  If the rating system of S&P or  Moody’s shall change, or if any such rating agency shall cease to be in the business of providing  corporate ratings, the Company and the Lenders shall negotiate in good faith an amendment to reflect  such changed rating system or the unavailability of corporate ratings from such rating agency and,  





 






  Annex A-2  pending the effectiveness of any such amendment, the Pricing Level shall be determined by reference to  the corporate rating of such rating agency most recently in effect prior to such change or cessation.  Changes in the Applicable Margin with respect to Revolving Loans, Swingline Loans, Tranche A  Term Loans or the Commitment Fee Rate resulting from changes in the Total Leverage Ratio shall  become effective on the date (the “Adjustment Date”) on which financial statements have been delivered  pursuant to Section 6.1 for the most recently ended fiscal quarter or fiscal year of the Borrower, as  applicable, commencing with the first full fiscal quarter of the Borrower following the Closing Date, and  shall remain in effect until the next change to be effected pursuant to this paragraph. If any financial  statements referred to above are not delivered within the time periods specified above, then, until such  financial statements have been delivered (or an earlier date, in the reasonable discretion of the  Administrative Agent), the Total Leverage Ratio as at the end of the fiscal period that would have been  covered thereby shall for purposes of this definition be deemed to be Level V. Each determination of the  Total Leverage Ratio pursuant to this pricing grid shall be made with respect to (or, in the case of clause  (a) of the definition thereof, as at the end of) the Test Period ending at the end of the period covered by  the relevant financial statements.