ex101_usxbankxarcxcredit






EXECUTION VERSION    Published CUSIP Number:  00214UAD7  Revolving Loan CUSIP Number:  00214UAE5     DB1/ 120286909.9      CREDIT AGREEMENT  among  ARC DOCUMENT SOLUTIONS, LLC,  as Borrower,  THE LENDERS NAMED HEREIN  and  U.S. BANK NATIONAL ASSOCIATION,    as Administrative Agent, L/C Issuer and Swing Line Lender,  and  U.S. BANK NATIONAL ASSOCIATION     as Sole Lead Arranger and Sole Bookrunner  and  BMO HARRIS BANK N.A.     as the Syndication Agent  Dated as of April 22, 2021      





 






TABLE OF CONTENTS     Page     -i-    DB1/ 120286909.9    ARTICLE I. INTERPRETATION ......................................................................................... 1  1.01. Definitions.............................................................................................................. 1  1.02. GAAP ................................................................................................................... 44  1.03. Headings .............................................................................................................. 45  1.04. Plural Terms ......................................................................................................... 45  1.05. Time ..................................................................................................................... 45  1.06. Governing Law .................................................................................................... 45  1.07. Construction ......................................................................................................... 45  1.08. Entire Agreement ................................................................................................. 45  1.09. Calculation of Interest and Fees ........................................................................... 45  1.10. References ............................................................................................................ 45  1.11. Other Interpretive Provisions ............................................................................... 46  1.12. Rounding .............................................................................................................. 46  1.13. Rates ..................................................................................................................... 46  1.14. Divisions .............................................................................................................. 47  ARTICLE II. CREDIT FACILITIES .................................................................................... 47  2.01. Loan Facility ........................................................................................................ 47  2.02. Letters of Credit ................................................................................................... 53  2.03. Swing Line ........................................................................................................... 61  2.04. Amount Limitations, Commitment Reductions, Etc............................................ 64  2.05. Fees ...................................................................................................................... 65  2.06. Prepayments ......................................................................................................... 65  2.07. Other Payment Terms .......................................................................................... 70  2.08. Loan Accounts; Notes .......................................................................................... 71  2.09. Loan Funding ....................................................................................................... 73  2.10. Pro Rata Treatment .............................................................................................. 74  2.11. Availability of Types of Borrowings; Adequacy of Interest Rate ....................... 76  2.12. Taxes on Payments .............................................................................................. 80  2.13. Funding Loss Indemnification ............................................................................. 82  2.14. Security ................................................................................................................ 83  2.15. Mitigation Obligations; Replacement of the Lenders .......................................... 84  





 






DB1/ 120286909.9    TABLE OF CONTENTS  (continued)   Page     -ii-     2.16. Defaulting Lenders............................................................................................... 85  2.17. Incremental Term Loans; Increases in the Total Revolving Loan  Commitment ........................................................................................................ 88  2.18. One-Time Extension Option ................................................................................ 93  ARTICLE III. CONDITIONS PRECEDENT ........................................................................ 94  3.01. Initial Conditions Precedent ................................................................................. 94  3.02. Conditions Precedent to each Credit Event ......................................................... 95  ARTICLE IV. REPRESENTATIONS AND WARRANTIES ............................................... 95  4.01. Representations and Warranties ........................................................................... 95  4.02. Reaffirmation ..................................................................................................... 103  ARTICLE V. COVENANTS .............................................................................................. 103  5.01. Affirmative Covenants ....................................................................................... 103  5.02. Negative Covenants ........................................................................................... 109  5.03. Financial Covenants ........................................................................................... 123  ARTICLE VI. EVENTS OF DEFAULT .............................................................................. 123  6.01. Events of Default ............................................................................................... 123  6.02. Remedies ............................................................................................................ 126  ARTICLE VII. ADMINISTRATIVE AGENT AND RELATIONS AMONG  LENDERS ..................................................................................................... 127  7.01. Appointment, Powers and Immunities ............................................................... 127  7.02. Reliance by the Administrative Agent, L/C Issuer and Swing Line Lender ..... 129  7.03. Defaults .............................................................................................................. 129  7.04. Lender Indemnification ...................................................................................... 129  7.05. Non-Reliance ..................................................................................................... 130  7.06. Resignation of the Administrative Agent .......................................................... 130  7.07. Collateral Matters and Guaranty Matters ........................................................... 131  7.08. Performance of Conditions ................................................................................ 132  7.09. The Administrative Agent in its Individual Capacity; Other Relationships ...... 132  7.10. Collateral Matters/Lender Rate Contracts/Lender Bank Products ..................... 132  7.11. Administrative Agent May File Proofs of Claim ............................................... 133  7.12. Erroneous Payments........................................................................................... 133  ARTICLE VIII. MISCELLANEOUS ..................................................................................... 135  





 






DB1/ 120286909.9    TABLE OF CONTENTS  (continued)   Page     -iii-     8.01. Notices ............................................................................................................... 135  8.02. Expenses ............................................................................................................ 136  8.03. Indemnification .................................................................................................. 137  8.04. Waivers; Amendments ....................................................................................... 139  8.05. Successors and Assigns...................................................................................... 142  8.06. Setoff; Security Interest ..................................................................................... 148  8.07. No Third Party Rights ........................................................................................ 148  8.08. Partial Invalidity................................................................................................. 148  8.09. Jury Trial ............................................................................................................ 148  8.10. Confidentiality ................................................................................................... 149  8.11. Counterparts ....................................................................................................... 149  8.12. Consent to Jurisdiction ....................................................................................... 150  8.13. Relationship of Parties ....................................................................................... 150  8.14. Time ................................................................................................................... 151  8.15. Waiver of Punitive Damages ............................................................................. 151  8.16. USA PATRIOT Act ........................................................................................... 151  8.17. Clarification ....................................................................................................... 151  8.18. Acknowledgement and Consent to Bail-In of Affected Financial  Institutions.......................................................................................................... 151  8.19. Certain ERISA Matters ...................................................................................... 152  8.20. Acknowledgement Regarding Any Supported QFCs ........................................ 153  





 






  -iv-   DB1/ 120286909.9      SCHEDULES    SCHEDULE I  - THE LENDERS  SCHEDULE 3.01 - CONDITIONS PRECEDENT TO CLOSING      EXHIBITS    EXHIBIT A NOTICE OF LOAN BORROWING  EXHIBIT B NOTICE OF CONVERSION   EXHIBIT C NOTICE OF INTEREST PERIOD SELECTION  EXHIBIT D REVOLVING LOAN NOTE  EXHIBIT E CLOSING DATE TERM LOAN NOTE  EXHIBIT F INCREMENTAL TERM LOAN NOTE  EXHIBIT G FORM OF GUARANTY  EXHIBIT H ASSIGNMENT AGREEMENT  EXHIBIT I COMPLIANCE CERTIFICATE   EXHIBIT J [RESERVED]  EXHIBIT K NON-BANK CERTIFICATE  EXHIBIT L NOTICE OF SWING LINE BORROWING  EXHIBIT M SWING LINE NOTE  EXHIBIT N  INTERCOMPANY SUBORDINATION AGREEMENT  EXHIBIT O  SELLER SUBORDINATION AGREEMENT        f  





 






      DB1/ 120286909.9    CREDIT AGREEMENT  THIS CREDIT AGREEMENT, dated as of April 22, 2021, is entered into by and among:  (1) ARC DOCUMENT SOLUTIONS, LLC, a Texas limited liability company (the “Borrower”);  (2) each of the financial institutions party to this Agreement from time to time (collectively, the  “Lenders”); and (3) U.S. BANK NATIONAL ASSOCIATION (“U.S. Bank”), as Administrative  Agent, Swing Line Lender and L/C Issuer.  U.S. Bank has been given the title of sole lead arranger  and sole bookrunner in connection with this Agreement and BMO HARRIS BANK N.A. has been  given the title of syndication agent in connection with this Agreement.  RECITALS  A. The Borrower has requested that the Lenders provide certain credit facilities to the  Borrower.  B. The Lenders are willing to provide such credit facilities upon the terms and subject to  the conditions set forth herein.  AGREEMENT  NOW, THEREFORE, in consideration of the above Recitals, the mutual covenants  contained herein and other good and valuable consideration, the receipt and sufficiency of which  are hereby acknowledged, the parties hereto hereby agree as follows:   ARTICLE I. INTERPRETATION.  1.01.  Definitions.  Unless otherwise indicated in this Agreement or any other Credit  Document, each term set forth below, when used in this Agreement or any other Credit Document,  shall have the respective meaning given to that term below or in the provision of this Agreement  or other document, instrument or agreement referenced below.  “Acquired Person” shall mean any Person, the assets of a Person or an identifiable business  unit or division of any Person, in each case that is the subject of a Permitted Acquisition after the  Closing Date.  “Acquired Portion” shall have the meaning given to that term in Section 2.17(f).  “Administrative Agent” shall mean U.S. Bank, when acting in its capacity as administrative  agent under any of the Credit Documents, and any successor Administrative Agent appointed  pursuant to Section 7.06.  In such capacity, U.S. Bank is also acting as collateral agent for the  Lender Rate Contract Counterparties and Lender Bank Product Providers.    “Affected Lender” shall have the meaning given to that term in Section 2.15.   “Affiliate” shall mean, with respect to any Person, (a) each Person that, directly or  indirectly, owns or controls, whether beneficially or as a trustee, guardian or other fiduciary, ten  percent (10%) or more of any class of Equity Securities of such Person, (b) each Person that  controls, is controlled by or is under common control with such Person or any Affiliate of such  





 






DB1/ 120286909.9       -2-    Person or (c) each of such Person’s officers, directors, managers, joint venturers and partners;  provided, however, that in no case shall any Lender Party be deemed to be an Affiliate of any Loan  Party for purposes of this Agreement.  For the purpose of this definition, “control” of a Person  shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its  management or policies, whether through the ownership of voting securities, by contract or  otherwise.  “Agreement” shall mean this Credit Agreement.  “Alternate Base Rate” shall mean, for any day, a rate of interest per annum equal to the  highest of (a) 1.00%, (b) the Prime Rate for such day, (c) the sum of the Federal Funds Rate for  such day plus 0.50% per annum and (d) the LIBOR Rate (without giving effect to the Applicable  Margin) for a one-month Interest Period on such day (or if such day is not a Business Day, the  immediately preceding Business Day) for Dollars plus 1.00%; provided that the LIBOR Rate for  such day shall be based on the rate reported by the applicable financial information service 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 Federal Funds Rate, or the LIBOR Rate shall be effective from  the effective date of such change. If the Alternate Base Rate is being used when LIBOR  Borrowings are unavailable pursuant to Sections 2.01(e), 2.01(f), or 2.11, then the Alternate Base  Rate shall be the highest of clauses (a), (b) and (c) above, without reference to clause (d) above.  “Anti-Terrorism Law” shall mean each of: (a) the Executive Order; (b) the Patriot Act;  (c) the Money Laundering Control Act of 1986, 18 U.S.C. §§ 1956 & 1957; and (d) any other  Governmental Rule now or hereafter enacted to monitor, deter or otherwise prevent terrorism or  the funding or support of terrorism, including, without limitation, economic or financial sanctions  or trade embargoes imposed, administered or enforced from time to time by (i) 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 (ii) the United Nations Security  Council, the European Union, any European Union member state or Her Majesty’s Treasury of the  United Kingdom (collectively, “Sanctions”).    “Applicable Lending Office” shall mean, with respect to any Lender, (a) in the case of its  Base Rate Loans and Base Rate Portions, its Domestic Lending Office, and (b) in the case of its  LIBOR Loans and LIBOR Portions, its Euro-Dollar Lending Office.  “Applicable Margin” shall mean (a) in the case of interest calculable with respect to each  LIBOR Loan and LIBOR Portion (and with respect to the calculation of Letter of Credit fees  pursuant to Section 2.02(i)), the percentage per annum set forth in the column headed “LIBOR”  opposite the applicable Tier level below, (b) in the case of interest calculable with respect to each  Base Rate Loan and Base Rate Portion, the percentage per annum set forth in the column headed  “Base Rate” opposite the applicable Tier level below, and (c) in the case of the Commitment Fee,  the percentage per annum set forth in the column headed “Commitment Fee” opposite the  applicable Tier level below:  Tier Total Leverage Ratio LIBOR Base Rate Commitment  Fee Percentage  





 






DB1/ 120286909.9       -3-    I Greater than 1.50:1.00 1.75% 0.75% 0.25%  II Greater than 1.00:1.00 but  less than or equal to  1.50:1.00  1.50% 0.50% 0.20%  III Less than or equal to  1.00:1.00  1.25% 0.25% 0.15%    In the event any Incremental Term Loans are made, the Applicable Margins for such  Incremental Term Loans shall be as agreed between the Borrower and the relevant Lenders of such  Incremental Term Loans subject to the requirements and limitations set forth in Section 2.17(a)(ii).  Any increase or decrease in the Applicable Margin and Commitment Fee Percentage  resulting from a change in the Total Leverage Ratio shall become effective as of the third Business  Day immediately following the date a Compliance Certificate is delivered pursuant to  Section 5.01(a)(iii); provided, however, that if no Compliance Certificate is delivered when due in  accordance with such Section, then Tier I shall apply as of the date of the failure to deliver such  Compliance Certificate until such date as the Borrower delivers such Compliance Certificate and  thereafter the Applicable Margin and Commitment Fee Percentage shall be based on the Total  Leverage Ratio indicated on such Compliance Certificate until such time as the Applicable Margin  and Commitment Fee Percentage are further adjusted as set forth in this definition.  If the Total  Leverage Ratio reported in any Compliance Certificate shall be determined to have been  incorrectly reported and if correctly reported would have resulted in a higher Applicable Margin  and Commitment Fee Percentage, then the Applicable Margin and Commitment Fee Percentage  shall be retroactively adjusted to reflect the higher rate that would have been applicable had the  Total Leverage Ratio been correctly reported in such Compliance Certificate and the additional  amounts resulting therefrom shall be due and payable upon demand from the Administrative Agent  (the Borrower’s obligations to pay such additional amounts shall survive the payment and  performance of all other Obligations and the termination of this Agreement).    Notwithstanding the foregoing, as of the Closing Date, Tier II shall be deemed to be  applicable until the third Business Day immediately following the date a Compliance Certificate  is delivered pursuant to Section 5.01(a)(iii) for Holding’s fiscal quarter ending on or about June  30, 2021 and adjustments to the Tier then in effect shall thereafter be effected in accordance with  the preceding paragraphs.  “Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender,  (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages  a Lender.   “Assignee Lender” shall have the meaning given to that term in Section 8.05(c).  “Assignment” shall have the meaning given to that term in Section 8.05(c).  “Assignment Agreement” shall have the meaning given to that term in Section 8.05(c).  





 






DB1/ 120286909.9       -4-    “Assignment Effective Date” shall have, with respect to each Assignment Agreement, the  meaning set forth therein.  “Assignor Lender” shall have the meaning given to that term in Section 8.05(c).  “Attributable Debt” shall mean, on any date of determination:  (a) in respect of any Capital  Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such  Person prepared as of such date in accordance with GAAP; and (b) in respect of any Synthetic  Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease  that would appear on a balance sheet of such Person prepared as of such date in accordance with  GAAP if such lease were accounted for as a capital lease.  “Available Tenor” shall mean, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest  calculated with reference to such Benchmark, as applicable, that is or may be used for determining  the length of an Interest Period 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 (v) of Section 2.11(e).  “Bail-In Action” shall mean 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” shall mean (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).  “Base Rate” shall mean, for any day, a rate per annum equal to (a) the Alternate Base Rate  for such day plus (b) the Applicable Margin for such day, in each case changing when and as the  Alternate Base Rate or the Applicable Margin changes.  “Base Rate Borrowing” shall mean a Borrowing made with reference to the Base Rate.  “Base Rate Loan” shall mean, at any time, a Revolving Loan which then bears interest as  provided in Section 2.01(d)(i).  “Base Rate Portion” shall mean, at any time, a Portion of a Term Loan Borrowing, or a  Term Loan, as the case may be, which then bears interest at a rate specified in Section 2.01(d)(i).   “Benchmark” shall mean, initially, the LIBOR Base Rate; provided that if a Benchmark  Transition Event, a Term SOFR Transition Event, or an Early Opt-in Election, as applicable, and  its related Benchmark Replacement Date have occurred with respect to the LIBOR Base Rate or  





 






DB1/ 120286909.9       -5-    the then-current Benchmark, then “Benchmark” shall mean the applicable Benchmark  Replacement to the extent that such Benchmark Replacement has become effective pursuant to  Section 2.11(e).    “Benchmark Replacement” shall mean, 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:  (1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement  Adjustment;  (2) 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 Borrower 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 determining a benchmark rate as a replacement for the then-current  Benchmark for U.S. dollar-denominated syndicated credit facilities at such time 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,  notwithstanding anything to the contrary in this Agreement or in any other Credit 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 Credit Documents.  “Benchmark Replacement Adjustment” shall mean, 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  





 






DB1/ 120286909.9       -6-    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 Borrower 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 or (ii) any evolving  or then-prevailing market convention for determining a spread adjustment, or method for  calculating or determining such spread adjustment, for the replacement of such Benchmark  with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated  syndicated credit facilities;  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” shall mean, with respect to any  Benchmark Replacement, any technical, administrative or operational changes (including changes  to the definition of “Borrowing” and “LIBOR Borrowing,” the definition of “Alternate Base Rate,”  the definition of “Business Day,” the definition of “Interest Period” (or Section 2.01(c) or  Section 2.01(e)), 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 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 Credit Documents).   “Benchmark Replacement Date” shall mean the earliest to occur of the following events  with respect to the then-current Benchmark:  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition  





 






DB1/ 120286909.9       -7-    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 date of the public statement or publication of information referenced therein;  (3) in the case of a Term SOFR Transition Event, the date that is 30 days after  the date a Term SOFR Notice is provided to the Lenders and the Borrower so long as the  Administrative Agent has not received, by such time, written notice of objection to such  Term SOFR Notice from the Borrower; or  (4) in the case of an Early Opt-in Election, the sixth Business Day after the date  notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative  Agent has not received, by 5:00 p.m. on the fifth Business Day after the date notice of such  Early Opt-in Election is provided to the Lenders, written notice of objection to such Early  Opt-in Election from Lenders comprising the Required Lenders.  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” shall mean the occurrence of one or more of the following  events with respect to the 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 Federal Reserve Bank of New York, 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), 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  





 






DB1/ 120286909.9       -8-    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 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” shall mean 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 the then-current Benchmark for all  purposes hereunder and under any Credit Document in accordance with Section 2.11(e) and (y)  ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all  purposes hereunder and under any Credit Document in accordance with Section 2.11(e).  “Beneficial Ownership Certification” shall mean a certification regarding beneficial  ownership as required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” shall mean 31 CFR § 1010.230.  “Benefit Plan” shall mean, solely for purposes of Section 8.19, any of (a) an “employee  benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in  and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of  ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code)  the assets of any such “employee benefit plan” or “plan”.  “Borrower” shall have the meaning given to such term in clause (1) of the introductory  paragraph hereof.  “Borrower Materials” shall have the meaning given to that term in Section 5.01(a).  “Borrowing” shall mean a Revolving Loan Borrowing, a Term Loan Borrowing, or a  Swing Line Borrowing, as the context may require.  “Business Day” shall mean any day on which (a) commercial banks are not authorized or  required to close in San Francisco, California or New York, New York and (b) if such Business  Day is related to a LIBOR Loan or a LIBOR Portion, dealings in Dollar deposits are carried out in  the London interbank market.  “Capital Asset” shall mean, with respect to any Person, any tangible fixed or capital asset  owned or leased (in the case of a Capital Lease) by such Person, or any expense incurred by such  Person that is required by GAAP to be reported as a non-current asset on such Person’s balance  sheet.  





 






DB1/ 120286909.9       -9-    “Capital Expenditures” shall mean, with respect to any Person and any period, all  expenditures of such Person which should be capitalized in accordance with GAAP, in each case,  as reported in such Person’s investing section of the consolidated statement of cash flows prepared  in accordance with GAAP; provided that the term “Capital Expenditures” shall not include  (i) expenditures made in connection with the replacement, substitution, restoration, repair or  improvement of assets financed with (x) insurance proceeds paid on account of the loss of or  damage to the assets being replaced, substituted restored, repaired or improved or (y) awards of  compensation arising from the taking by eminent domain or condemnation of the assets being  replaced, in either case, to the extent that such proceeds or awards are not required to be applied  in accordance with Section 2.06(c)(vi), (ii) the purchase price of equipment that is purchased  simultaneously with the trade-in of existing equipment solely to the extent that the gross amount  of such purchase price is reduced by the credit granted by the seller of such equipment for the  equipment being traded in at such time, (iii) the purchase of plant, property or equipment to the  extent financed with the proceeds of asset sales that are not required to be applied pursuant to  Section 2.06(c)(iii), (iv) expenditures that constitute operating lease expenses in accordance with  GAAP, (v) expenditures that constitute Permitted Acquisitions, (vi) any capitalized interest  expense reflected as additions to property, plant or equipment in the consolidated balance sheet of  Holdings and its Subsidiaries or (vii) any non-cash costs reflected as additions to property, plant  or equipment in the consolidated balance sheet of Holdings and its Subsidiaries; and provided  further that in the case of any expenditures or purchases described in clauses (i) or (iii) above, such  expenditures or purchases shall not be excluded from “Capital Expenditures” to the extent that the  amount of (A) Net Insurance Proceeds (in the case of clause (i)(x)), (B) Net Condemnation  Proceeds (in the case of clause (i)(y)) or (C) Net Proceeds from asset sales (in the case of clause  (iii)), used to make such expenditures or purchases, is included in Net Income.    “Capital Leases” shall mean any and all lease obligations that, in accordance with GAAP,  are required to be capitalized on the books of a lessee.  “Cash Collateralize” shall mean to pledge and deposit with or deliver to the Administrative  Agent, for its own benefit and for the benefit of the L/C Issuer and/or the Lenders, as applicable,  as collateral subject to a first priority, perfected security interest securing the Obligations or the  obligations of a Defaulting Lender, as applicable, cash or deposit account balances in an amount  equal to the L/C Obligations or obligations of a Defaulting Lender, as applicable, pursuant to  documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer  (which documents are hereby consented to by the Lenders).  Derivatives of such term shall have a  corresponding meaning.  “Cash Equivalents” shall mean (1) (a) direct obligations of, or obligations the principal and  interest on which are unconditionally guaranteed by, the United States or obligations of any agency  of the United States to the extent such obligations are backed by the full faith and credit of the  United States, in each case maturing within one year from the date of acquisition thereof; (b)  certificates of deposit maturing within one year from the date of acquisition thereof issued by a  commercial bank or trust company organized under the laws of the United States or a state thereof  or that is a Lender; provided that (i) such deposits are denominated in Dollars, (ii) such bank or  trust company has capital, surplus and undivided profits of not less than $500,000,000 and (iii)  such bank or trust company has certificates of deposit or other debt obligations rated at least A-1  (or its equivalent) by Standard and Poor’s Ratings Services or P-1 (or its equivalent) by Moody’s  





 






DB1/ 120286909.9       -10-    Investors Service, Inc.;  (c) open market commercial paper maturing within 270 days from the date  of acquisition thereof issued by a corporation organized under the laws of the United States or a  state thereof; provided such commercial paper is rated at least A-1 (or its equivalent) by Standard  and Poor’s Ratings Services or P-1 (or its equivalent) by Moody’s Investors Service, Inc.; (d) any  repurchase agreement entered into with a commercial bank or trust company organized under the  laws of the United States or a state thereof or that is a Lender; provided that (i) such bank or trust  company has capital, surplus and undivided profits of not less than $500,000,000, (ii) such bank  or trust company has certificates of deposit or other debt obligations rated at least A-1 (or its  equivalent) by Standard and Poor’s Ratings Services or P-1 (or its equivalent) by Moody’s  Investors Service, Inc., (iii) the repurchase obligations of such bank or trust company under such  repurchase agreement are fully secured by a perfected security interest in a security or instrument  of the type described in clause (a), (b) or (c) above and (iv) such security or instrument so securing  the repurchase obligations has a fair market value at the time such repurchase agreement is entered  into of not less than 100% of such repurchase obligations, (e) debt securities with maturities of six  months or less from the date of acquisition backed by standby letters of credit issued by any  commercial bank satisfying the criteria described in clause (b) above, and (f) Investments in money  market funds substantially all of whose assets are invested in the types of assets described in  clauses (a) through (e) above; and (2) with respect to any Foreign Subsidiary, (a) investments of  the type and maturity described in clause (1) above of foreign commercial banks, which  investments or commercial banks (or the parents of such commercial banks) have the ratings  described in such clauses or reasonably equivalent ratings from comparable foreign rating agencies  (if available) and (b) other short-term investments utilized by Foreign Subsidiaries in accordance  with normal investment practices for cash management of comparable tenure and credit quality to  those described in clause (1) above, in each case, customarily utilized in countries in which such  Foreign Subsidiary operates for short term cash management purposes.  Notwithstanding the  foregoing, in no event shall “Cash Equivalents” include auction rate securities.  “Change of Control” shall mean the occurrence of any one or more of the following:  (a) The acquisition after the Closing Date of ownership, directly or indirectly,  beneficially or of record, by any person or group (within the meaning of the Securities Exchange  Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof) other than, directly  or indirectly, Kumarakulasingam Suriyakumar and his Affiliates (or any trust, foundation or other  entities created by him, or any of his heirs, executors or family members), of Equity Securities  representing more than 35% of the aggregate ordinary voting power or economic interest  represented by the issued and outstanding Equity Securities of Holdings; or   (b) Holdings shall cease to (i) beneficially own and control, directly or  indirectly, one hundred percent (100%) of the Equity Securities of any Credit Party or (ii) control  the board of directors or any other governing body of any Credit Party; or   (c) The occupation during any consecutive eighteen (18) month period after the  Closing Date of a majority of the seats (other than vacant seats) on the board of directors or other  governing body of Holdings by persons who were neither (i) nominated by the board of directors  or other governing body of Holdings nor (ii) appointed or approved by directors or members of  such other or other governing body so nominated, or  





 






DB1/ 120286909.9       -11-    (d) A “fundamental change,” “change of control” or “change in control” or any  similar term as defined in any document governing Subordinated Obligations of any Credit Party  which gives the holders of such Indebtedness the right to accelerate or otherwise require payment  of such Indebtedness prior to the maturity date thereof or the right to require such Credit Party to  redeem, purchase or otherwise defease, or offer to redeem, purchase or otherwise defease, all or  any portion of such Indebtedness.  For the purpose of this definition, “control” of a Person shall mean the possession,  directly or indirectly, of the power to direct or cause the direction of its management or policies,  whether through the ownership of voting securities, by contract or otherwise.  “Change of Law” shall mean the occurrence, after the Closing Date, of any of the  following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in  any law, rule, regulation or treaty or in the administration, interpretation, implementation or  application thereof by any Governmental Authority or (c) the making or issuance of any request,  rule, guideline or directive (whether or not having the force of law) by any Governmental  Authority; provided that notwithstanding anything herein to the contrary, (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 in each case be deemed to be a “Change of  Law”, regardless of the date enacted, adopted or issued.  “Closing Date” shall mean April 22, 2021.   “Closing Date Term Lenders” shall mean as of the Closing Date, no Person.  “Closing Date Term Loan” shall have the meaning given to that term in Section 2.01(b)(i).  “Closing Date Term Loan Borrowing” shall mean the borrowing by the Borrower of the  Closing Date Term Loans made by each of the Closing Date Term Lenders to the Borrower on the  Closing Date.  “Closing Date Term Loan Commitment” shall mean (a) as of the Closing Date, with respect  to each Lender, the Dollar amount set forth under the caption “Closing Date Term Loan  Commitment” opposite such Lender’s name on Part A of Schedule I as in effect on the Closing  Date and (b) after the Closing Date, zero.  “Closing Date Term Loan Note” shall have the meaning given to that term in  Section 2.08(c)(i).  “Closing Date Term Proportionate Share” shall mean:   (a) With respect to any Lender at any time prior to the Closing Date, the ratio  (expressed as a percentage rounded to the eighth digit to the right of the decimal point) of (i) such  Lender’s Closing Date Term Loan Commitment at such time to (ii) the Total Closing Date Term  Loan Commitment at such time; and  





 






DB1/ 120286909.9       -12-     (b) With respect to any Lender at any time after the Closing Date, the ratio  (expressed as a percentage rounded to the eighth digit to the right of the decimal point) of (i) the  Effective Amount of such Lender’s Closing Date Term Loan outstanding at such time to (ii) the  Effective Amount of all Closing Date Term Loans outstanding at such time.  “Collateral” shall mean all Property in which the Administrative Agent or any Lender has  a Lien, to the extent set forth in the Security Documents, to secure the Secured Obligations (as  defined in the Security Agreement).  “Commercial Letter of Credit” shall mean any documentary letter of credit issued by the  L/C Issuer under this Agreement; either as originally issued or as the same may be supplemented,  modified, amended, extended, restated or supplanted.  “Commitment Fee Percentage” shall mean, with respect to the Revolving Loan  Commitments at any time, the per annum percentage which is used to calculate Commitment Fees  for such Revolving Loan Commitments determined pursuant to the definition of Applicable  Margin.  “Commitment Fees” shall have the meaning given to that term in Section 2.05(b).  “Commitments” shall mean, collectively, the Revolving Loan Commitments, and the Term  Loan Commitments.    “Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et  seq.), as amended from time to time, and any successor statute.    “Communications” shall have the meaning given to that term in Section 8.01(b).    “Compliance Certificate” shall have the meaning given to that term in Section 5.01(a)(iii).  “Confidential Information” shall mean information delivered to any Lender or the  Administrative Agent by or on behalf of any Loan Party pursuant to the Credit Documents;  provided; however, that such term does not include information that (a) was publicly known or  otherwise known to the receiving party prior to the time of such disclosure, other than by virtue of  a breach of Section 8.10, (b) subsequently becomes publicly known through no act or omission by  the receiving party or any person acting on its behalf, other than by virtue of a breach of  Section 8.10, (c) otherwise becomes known to the receiving party other than through disclosure by  any Loan Party, other than by virtue of a breach of Section 8.10,  or (d) constitutes financial  statements delivered to the Lenders and the Administrative Agent under Section 5.01(a) that are  otherwise publicly available.  “Consolidated Adjusted EBITDA” shall mean, for any period, with respect to Holdings  and its Subsidiaries (determined on a consolidated basis in accordance with GAAP, to the extent  applicable), (a) Net Income for such period, plus (b) to the extent deducted in determining Net  Income for such period, the sum of the following for such period (without duplication): (i) Interest  Expense for such period, (ii) income tax expense for such period, (iii) depreciation and  amortization for such period, (iv) non-cash expenses related to stock based compensation for such  period, (v) extraordinary non-cash expenses and non-recurring non-cash expenses for such period  





 






DB1/ 120286909.9       -13-    (in each case other than any such non-cash expense to the extent it represents an accrual of or  reserve for cash expenditures in any future period) and (vi) fees, payments and expenses in  connection with any Permitted Acquisition or other investment or financing transactions payable  to third parties and minus (c) to the extent added in determining Net Income for such period, the  sum of the following for such period (without duplication): (i) interest income for such period and  (ii) the aggregate amount of extraordinary non-cash income and gains and non-recurring non-cash  income and gains during such period.     Pro forma credit shall be given for Consolidated Adjusted EBITDA attributable to an  Acquired Person as if owned on the first day of the applicable period; companies (or identifiable  business units or divisions) sold, transferred or otherwise disposed of during any period will be  treated as if not owned during the entire applicable period.    “Contingent Obligation” shall mean, with respect to any Person, (a) any Guaranty  Obligation of that Person; and (b) any direct or indirect obligation or liability, contingent or  otherwise, of that Person (i) in respect of any Surety Instrument issued for the account of that  Person or as to which that Person is otherwise liable for reimbursement of drawings or payments,  other than endorsements of instruments for deposit or collection in the ordinary course of business  (ii) as a partner or joint venturer in any partnership or joint venture (except if such obligation is  non-recourse to such Person), (iii) to purchase any materials, supplies or other Property from, or  to obtain the services of, another Person if the relevant contract or other related document or  obligation requires that payment for such materials, supplies or other Property, or for such services,  shall be made regardless of whether delivery of such materials, supplies or other Property is ever  made or tendered, or such services are ever performed or tendered, or (iv) in respect to any Rate  Contract that is not entered into in connection with a bona fide hedging operation that provides  offsetting benefits to such Person.  The amount of any Contingent Obligation shall (subject, in the  case of Guaranty Obligations, to the last sentence of the definition of “Guaranty Obligation”) be  deemed equal to the maximum reasonably anticipated liability in respect thereof, and shall, with  respect to item (b)(iv) of this definition be marked to market on a current basis, in each case as  required by GAAP.    “Continuing Lender” shall have the meaning given to that term in Section 2.18(b).  “Contractual Obligation” of any Person shall mean, any indenture, note, lease, loan  agreement, security, deed of trust, mortgage, security agreement, guaranty, instrument, contract,  agreement or other form of contractual obligation or undertaking to which such Person is a party  or by which such Person or any of its Property is bound.  “Control Agreement” shall mean a control agreement among the Borrower or a Guarantor,  a depository bank, a securities intermediary or a commodity intermediary, as the case may be, and  the Administrative Agent, in form and substance acceptable to the Administrative Agent.  “Corresponding Tenor” with respect to any Available Tenor means, 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.  





 






DB1/ 120286909.9       -14-    “Covered Entities” shall mean, collectively, (a) Holdings and its Subsidiaries and all  guarantors and all pledgors of Collateral and (b) each Person that, directly or indirectly, is in  control of a Person described in clause (a) above.  For purposes of this definition, control of a  Person shall mean the direct or indirect (x) ownership of, or power to vote, 25% or more of the  issued and outstanding equity interests having ordinary voting power for the election of directors  of such Person or other Persons performing similar functions for such Person, or (y) power to  direct or cause the direction of the management and policies of such Person whether by ownership  of equity interests, contract or otherwise.    “Credit Documents” shall mean and include this Agreement, the Notes, the Guaranty, the  Security Documents, each Letter of Credit Application, each Notice of Borrowing, each Notice of  Interest Period Selection, each Notice of Conversion, each of the Fee Letters, the Disclosure Letter  and all other documents, instruments and agreements delivered to the Administrative Agent or any  Lender pursuant to Sections 3.01 or 3.02 and all other documents, instruments and agreements  delivered by any Credit Party to the Administrative Agent or any Lender in connection with this  Agreement or any other Credit Document on or after the date of this Agreement, including, without  limitation, any amendments, consents or waivers, as the same may be amended, restated,  supplemented or modified from time to time, but excluding any Lender Rate Contracts and  documents with respect to Lender Bank Products.  “Credit Event” shall mean the making of any Loan (including a Swing Line Loan) or the  making of an L/C Credit Extension.  “Credit Event” shall not include the conversion of any Loan  or Portion or the selection of any new Interest Period for any LIBOR Loan or LIBOR Portion.   “Credit Party” shall mean the Borrower and each Guarantor.  “Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate  (which will 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 syndicated business loans; provided, that if the  Administrative Agent decides that any such convention is not administratively feasible for the  Administrative Agent, then the Administrative Agent may establish another convention in its  reasonable discretion.  “Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, and all other  applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership,  insolvency, reorganization, or similar debtor relief Governmental Rules from time to time in effect  affecting the rights of creditors generally.  “Decreasing Lender” shall have the meaning given to that term in Section 2.17(f).  “Default” shall mean an Event of Default or any event or circumstance not yet constituting  an Event of Default which, with the giving of any notice or the lapse of any period of time or both,  would become an Event of Default.  “Defaulting Lender” shall mean, subject to Section 2.16(b), 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  





 






DB1/ 120286909.9       -15-    Borrower in writing that such failure is the result of such Lender’s determination that one or more  conditions precedent to funding (each of which conditions precedent, together with any applicable  default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the  Administrative Agent, the L/C Issuer, the Swing Line 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 Swing Line Loans) within two Business Days of the date when due, (b) has notified the  Borrower, the Administrative Agent or the L/C Issuer or the Swing Line 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  Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply  with its prospective funding obligations hereunder (provided that such Lender shall cease to be a  Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the  Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that  has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it  a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or  similar Person charged with reorganization or liquidation of its business or assets, including the  Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in  such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be  a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that  Lender or any direct or indirect parent company thereof by a Governmental Authority so long as  such ownership interest does not result in or provide such Lender with immunity from the  jurisdiction of courts within the United States or from the enforcement of judgments or writs of  attachment on its assets or permit such Lender (or such Governmental Authority) to reject,  repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any  determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or  more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and  such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) upon delivery  of written notice of such determination to the Borrower, the L/C Issuer, the Swing Line Lender  and each Lender.  “Defaulting Lender Amendment Paragraph” shall have the meaning given to that term in  Section 8.04.  “Default Rate” shall have the meaning given to that term in Section 2.07(c).   “Designated Person” shall mean any Person who (i) is named on the list of Specially  Designated Nationals or Blocked Persons maintained by the U.S. Department of the Treasury's  Office of Foreign Assets Control (OFAC) and/or any other similar lists maintained by OFAC  pursuant to authorizing statute, executive order or regulation, but not including the Sectoral  Sanctions Identification List under Executive Order 13662, (ii) (A) is a Person whose property or  interest in property is blocked or subject to blocking pursuant to Section 1 of the Executive Order  or any related legislation or any other similar executive order(s) or (B) engages in any dealings or  transactions prohibited by Section 2 of the Executive Order or is otherwise associated with any  





 






DB1/ 120286909.9       -16-    such Person in any manner violative of Section 2 of the Executive Order, (iii) is (X) an agency of  the government of a country, (Y) an organization controlled by a country, or (Z) a Person resident,  organized or located in the Crimea region of Ukraine, Cuba, Iran, North Korea, or Syria, or in  other countries, as published from time to time by OFAC, as such programs may be applicable to  an agency, organization, country or Person, or (iv) any Person owned or controlled by any such  Person or Persons described in the foregoing clauses.   “Disclosure Letter” shall mean the disclosure letter, dated as of the Closing Date, and  addressed to the Administrative Agent and the Lenders containing certain schedules referenced  herein.  “Disqualified Securities” shall mean any Equity Security which, by its terms (or by the  terms of any security into which it is convertible or for which it is exchangeable), or upon the  happening of any event, (a) matures or is mandatorily redeemable, pursuant to a sinking fund  obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part,  on or prior to the date that is ninety-one (91) days after the latest Maturity Date, (b) is convertible  into or exchangeable for (i) debt securities or (ii) any Equity Security referred to in (a) above, in  each case at any time on or prior to the date that is ninety-one (91) days after the latest Maturity  Date, or (c) is entitled to receive a cash Distribution (other than for taxes attributable to the  operations of the business) or a Distribution of Disqualified Securities on or prior to the date that  is ninety-one (91) days after the latest Maturity Date; provided, however, that (i) only the portion  of such Equity Security which so matures or is mandatorily redeemable, is so convertible or  exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be  deemed to be a Disqualified Security, (ii) if such Equity Security are issued to any current or  former employees or other service providers or to any plan for the benefit of employees, directors,  officers, members of management or consultants (including any equity or incentive compensation  or benefit plan) of Holdings or its Subsidiaries or by any such compensation or plan to such current  or former employees, other service providers, directors, officers, members of management or  consultants, such Equity Securities shall not constitute Disqualified Securities solely because they  may be required to be repurchased by such Person in order to satisfy applicable statutory or  regulatory obligations or as a result of such current or former employee’s, other service provider’s,  director’s, officer’s, management member’s or consultant’s termination, death or disability, (iii)  any class of Equity Securities of such Person that by its terms authorizes such Person to satisfy its  obligations thereunder by delivery of Equity Securities that are not Disqualified Securities shall  not be deemed to be Disqualified Securities, and (iv) Equity Securities will not constitute  Disqualified Securities solely because of provisions giving holders thereof the right to require  repurchase or redemption upon an initial public offering, “asset sale” or “change of control”  occurring prior to such date if either (x) such Equity Securities provide that the issuer thereof will  not be required to redeem any such Equity Securities pursuant to such provisions prior to the  repayment in full of the Obligations or (y) such redemption is permitted hereunder.  For purposes  of this Agreement, the principal amount of any Disqualified Securities shall be deemed to be the  liquidation preference or the maximum fixed repurchase price, as the case may be.  “Distributions” shall mean the declaration or (without duplication) payment of any  distributions or dividends (in cash, Property or obligations) on, or other payments on account of,  or the setting apart of money for a sinking or other analogous fund for, or the purchase, repurchase,  redemption, retirement or other acquisition of, any Equity Securities of any Person or of any  





 






DB1/ 120286909.9       -17-    warrants, options or other rights to acquire the same (or to make any payments to any Person, such  as “phantom membership” or “phantom stock” payments or similar payments, where the amount  is calculated with reference to the fair market or equity value of any Person), but excluding  distributions or dividends payable by a Person solely in common Equity Securities of such Person.   “Dollars” and “$” shall mean the lawful currency of the United States and, in relation to  any payment under this Agreement, same day or immediately available funds.  “Domestic Subsidiary” shall mean each direct or indirect Subsidiary of Holdings organized  under the laws of the United States, any state thereof or the District of Columbia.  “Domestic Lending Office” shall mean, with respect to any Lender, (a) initially, its office  designated as such in Schedule I (or, in the case of any Lender which becomes a Lender pursuant  to Section 2.17 or by an assignment pursuant to Section 8.05(c), its office designated as such in  the applicable Assignment Agreement) and (b) subsequently, such other office or offices as such  Lender may designate to the Administrative Agent as the office at which such Lender’s Base Rate  Loans and Base Rate Portions will thereafter be maintained and for the account of which all  payments of principal of, and interest on, such Lender’s Base Rate Loans and Base Rate Portions  will thereafter be made.   “Early Opt-in Election” shall mean, if the then-current Benchmark is the LIBOR Base Rate,  the occurrence of:  (1) a notification by the Administrative Agent to each of the other parties hereto that at  least five currently outstanding U.S. 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 the then-current  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 the LIBOR Base Rate and the provision by the Administrative Agent of written notice  of such election to the Lenders.  “Earn-Outs” shall mean unsecured liabilities of a Loan Party arising under an agreement  to make any deferred payment as a part of the purchase price for a Permitted Acquisition, including  performance bonuses or consulting payments in any related services, employment or similar  agreement, in an amount that is subject to or contingent upon the revenues, income, cash flow or  profits (or the like) of the underlying target.  “EEA Financial Institution” shall mean (a) any credit institution or investment firm  established in any EEA Member Country that is subject to the supervision of an EEA Resolution  Authority, (b) any entity established in an EEA Member Country that is a parent of an institution  described in clause (a) of this definition, or (c) any financial institution established in an EEA  Member Country that is a subsidiary of an institution described in clause (a) or (b) of this definition  and is subject to consolidated supervision with its parent.   





 






DB1/ 120286909.9       -18-    “EEA Member Country” shall mean any of the member states of the European Union,  Iceland, Liechtenstein, and Norway.  “EEA Resolution Authority” shall mean 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.  “Effective Amount” shall mean (i) with respect to Revolving Loans, Term Loans, and  Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving  effect to (A) any borrowings and prepayments or repayments of Revolving Loans, Term Loans,  and Swing Line Loans and (B) with respect to Swing Line Loans, any risk participation amongst  the Lenders, as the case may be, occurring on such date; and (ii) with respect to any  L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect  to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount  of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding  unpaid drawings under any Letters of Credit or any reductions in the maximum amount available  for drawing under Letters of Credit taking effect on such date.  “Eligible Assignee” shall mean (a) any Lender, any Affiliate of any Lender and any  Approved Fund of any Lender; and (b) a Person that is (i) a commercial bank, savings and loan  association or savings bank organized under the laws of the United States, or any state thereof, and  having a combined capital and surplus of at least $500,000,000, (ii) a commercial bank organized  under the laws of any other country which is a member of the Organization for Economic  Cooperation and Development (the “OECD”), or a political subdivision of any such country, and  having a combined capital and surplus of at least $500,000,000; provided that such bank is acting  through a branch or agency located in the country in which it is organized or another country which  is also a member of the OECD, (iii) a finance company, insurance company or other financial  institution that is engaged in making, purchasing or otherwise investing in commercial loans in the  ordinary course of its business and having total assets in excess of $100,000,000, or (iv) a Person  that is primarily engaged in the business of commercial lending and that is (x) a Subsidiary of a  Lender, (y) a Subsidiary of a Person of which a Lender is a Subsidiary, or (z) a Person of which a  Lender is a Subsidiary; provided that notwithstanding the foregoing, “Eligible Assignee” shall not  include (1) any natural person, (2) without the prior written consent of all of the Lenders, any Loan  Party or any Affiliate of a Loan Party, or (3) any Defaulting Lender or any of its Affiliated Funds,  or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing  Persons described in this clause (3).  “Employee Benefit Plan” shall mean any “employee benefit plan” (as such term is defined in  Section 3(3) of ERISA) or any other benefit plan, program, policy, agreement or arrangement  providing for compensatory benefits, severance-related benefits or other employee benefits  established or maintained by a Loan Party or, with respect to any such employee benefit plan that is  subject to Section 412 of the IRC or Title IV of ERISA, any ERISA Affiliate.    “Environmental Damages” shall mean all claims, judgments, damages, losses, penalties,  liabilities (including strict liability), costs and expenses (including costs of investigation,  remediation, defense, settlement and attorneys’ fees and consultants’ fees), that are incurred at any  time (a) as a result of the existence of any Hazardous Materials upon, about or beneath any real  





 






DB1/ 120286909.9       -19-    property owned by or leased by any Loan Party or migrating or threatening to migrate to or from  any such real property, (b) arising from any investigation, proceeding or remediation of any  location at which any Loan Party or any predecessors are alleged to have directly or indirectly  disposed of Hazardous Materials or (c) arising in any manner whatsoever out of any violation of  Environmental Laws by any Loan Party or with respect to any real property owned or used by any  Loan Party.  “Environmental Laws” shall mean the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the  Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Resource Conservation  and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment  Response, Compensation and Liability Act of 1980 (including the Superfund Amendments and  Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601 et seq.; the Toxic Substances  Control Act, 15 U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C.  Section 651; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.  Section 11001 et seq.; the Mine Safety and Health Act of 1977, 30 U.S.C. Section 801 et seq.; the  Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; and all other Governmental Rules  relating to the protection of human health and safety and the environment, including all  Governmental Rules pertaining to the reporting, licensing, permitting, transportation, storage,  disposal, investigation or remediation of emissions, discharges, releases, or threatened releases of  Hazardous Materials into the air, surface water, groundwater, or land, or relating to the  manufacture, processing, distribution, use, treatment, storage, disposal, transportation or handling  of Hazardous Materials.  “Equity Securities” of any Person shall mean (a) all common stock, preferred stock,  participations, shares, partnership interests, limited liability company interests or other equity  interests in and of such Person (regardless of how designated and whether or not voting or non- voting) and (b) all warrants, options and other rights to acquire any of the foregoing.  “ERISA” shall mean the Employee Retirement Income Security Act of 1974.  “ERISA Affiliate” shall mean any Person which is treated as a single employer with any  Loan Party under Sections 414(b) and (c) of the IRC (and Sections 414(m) and (o) of the IRC for  purposes of the provisions relating to Section 412 of the IRC).  “ERISA Event” shall mean (a) a Reportable Event with respect to a Pension Plan; (b) a  withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063  of ERISA during a plan year in which it was a “substantial employer” (as defined in  Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal  under Section 4062(e) of ERISA which could give rise to any liability with respect to such  withdrawal; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a  Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of  a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment  as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings  to terminate a Pension Plan or Multiemployer Plan; (e) the institution by the PBGC of proceedings  to terminate a Pension Plan; (f) an event or condition which could constitute grounds under  Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any  Pension Plan or Multiemployer Plan; (g) the determination that a Pension Plan is considered an at- 





 






DB1/ 120286909.9       -20-    risk plan or a plan is in endangered or critical status within the meaning of Sections 430, 431 and  432 of the IRC or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under  Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of  ERISA, upon a Loan Party or any ERISA Affiliate; (i)  any failure by any Pension Plan to satisfy  the minimum funding standards (within the meaning of Sections 412 or 430 of the IRC or  Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; or (j) the filing  pursuant to Section 412 of the IRC or Section 302 of ERISA of an application for a waiver of the  minimum funding standard with respect to any Pension Plan, the failure to make by its due date a  required installment under Section 430(j) of the IRC with respect to any Pension Plan or the failure  by any Loan Party or any of its ERISA Affiliates to make any required contribution to a  Multiemployer Plan.    “Erroneous Payment” is defined in Section 7.12(a).  “EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule  published by the Loan Market Association (or any successor person), as in effect from time to  time.  “Euro-Dollar Lending Office” shall mean, with respect to any Lender, (a) initially, its  office designated as such in Schedule I (or, in the case of any Lender which becomes a Lender by  an assignment pursuant to Section 8.05(c), its office designated as such in the applicable  Assignment Agreement) and (b) subsequently, such other office or offices as such Lender may  designate to the Administrative Agent as the office at which such Lender’s LIBOR Loans and  LIBOR Portions will thereafter be maintained and for the account of which all payments of  principal of, and interest on, such Lender’s LIBOR Loans and LIBOR Portions will thereafter be  made.  “Event of Default” shall have the meaning given to that term in Section 6.01.  “Evergreen Letter of Credit” shall have the meaning given to that term in  Section 2.02(b)(iii).  “Excluded Foreign Credit Support” shall mean any of the following:  (a) any guaranty by  any Foreign Subsidiary of the Obligations, (b) the creation by any Foreign Subsidiary of a Lien on  any of such Foreign Subsidiary’s Property to secure the Obligations or any guaranty thereof, (c)  the pledge by any Loan Party of more than 65% of the combined voting power of all classes of  stock entitled to vote (within the meaning of Treasury Regulation Section 1.956-2(c)(2)  promulgated under the IRC) of any First-Tier Foreign Subsidiary to secure the Obligations or the  obligations of a Guarantor under the Credit Documents, or (d) the pledge by any Loan Party of the  Equity Securities of any Foreign Subsidiary that is not a First-Tier Foreign Subsidiary to secure  the Obligations or the obligations of a Guarantor under the Credit Documents.  “Excluded Non-Guarantor Entities” shall mean (a) Immaterial Subsidiaries, (b) any  Domestic Subsidiary of a Foreign Subsidiary of Holdings that is a “controlled foreign corporation”  within the meaning of Section 957 of the IRC and (c) any Domestic Subsidiary of Holdings all of  the assets of which constitute equity interests (including, for this purpose, any debt or other  instrument treated as equity for U.S. Federal income tax purposes) in one or more Foreign  





 






DB1/ 120286909.9       -21-    Subsidiaries that are “controlled foreign corporation” within the meaning of Section 957 of the  IRC other than de minimis assets.  “Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap  Obligation if, and to the extent that, all or a portion of the guaranty of such Guarantor of, or the  grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guaranty  thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order  of the Commodity Futures Trading Commission (or the application or official interpretation of any  thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract  participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time  the guaranty of such Guarantor or the grant of such security interest becomes effective with respect  to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more  than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is  attributable to swaps for which such guaranty or security interest is or becomes illegal.    “Executive Order” shall mean Executive Order No. 13224 on Terrorist Financings: -  Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To  Commit, or Support Terrorism issued on 23rd September, 2001.  “Existing Maturity Date” shall have the meaning given to that term in Section 2.18(a).  “Fair Market Value” shall mean, with respect to any asset (including any Equity Securities  of any Person), the price at which a willing buyer, not an Affiliate of the seller, and a willing seller  who does not have to sell, would agree to purchase and sell such asset, as determined in good faith  by the Borrower or the Loan Party selling such asset.  “FASB ASC” shall mean the Accounting Standards Codification of the Financial  Accounting Standards Board.  “FATCA” shall mean Sections 1471 through 1474 of the IRC, as of the date of this  Agreement (or any amended versions of Sections 1471 through 1474 of the IRC that are  substantively comparable and not materially more onerous to comply with) and any current or  future regulations or official interpretations thereof.  “Federal Funds Rate” shall mean, for any day, the greater of (a) zero and (b) the rate per  annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds  transactions by depository institutions (as determined in such manner as the Federal Reserve Bank  of New York shall set forth on its public website from time to time) and published on the next  succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective  rate or, if such rate is not so published for any day which is a Business Day, the average of the  quotations at approximately 11:00 a.m. (New York City time) on such day on such transactions  received by the Administrative Agent from three federal funds brokers of recognized standing  selected by the Administrative Agent in its sole discretion.  “Federal Reserve Board” shall mean the Board of Governors of the Federal Reserve  System.  





 






DB1/ 120286909.9       -22-    “Fee Letters” shall mean, collectively, (a) the engagement letter dated as of April 5, 2021  between the Borrower and U.S. Bank and (b) any other fee letter, engagement letter or mandate  letter executed by one or more Loan Parties and the Administrative Agent and/or one or more  arrangers in connection with this Agreement (including any fee letter executed in connection with  any transaction under Section 2.17).    “Financial Statements” shall mean, with respect to any accounting period for any Person,  statements of income (and, (x) in the case of financial statements in respect of a fiscal quarter or  fiscal year, statements of cash flows and (y) in the case of financial statements in respect of a fiscal  year, statements of retained earnings, or stockholders’ equity or members’ equity or partners’  capital) of such Person for such period, and a balance sheet of such Person as of the end of such  period, setting forth in each case in comparative form figures for the corresponding period in the  preceding fiscal year if such period is less than a full fiscal year or, if such period is a full fiscal  year, corresponding figures from the preceding annual financial statements and, in each case,  corresponding figures from the comparable budgeted and projected figures for such period, all  prepared in reasonable detail and in accordance with GAAP.    “First-Tier Foreign Subsidiary” shall mean any Foreign Subsidiary whose Equity  Securities are owned or held directly by Holdings or a Domestic Subsidiary of Holdings.  “Fixed Charge Coverage Ratio” shall mean, as of the last day of each fiscal quarter, (a)  Consolidated Adjusted EBITDA for the four consecutive fiscal quarter period ending on that date,  plus (b) rent expense of the Loan Parties for such period, minus (c) the sum of, without duplication,  (i) an amount equal to fifty percent (50%) of the aggregate amount of all Capital Expenditures  made by the Loan Parties during such period, (ii) if positive, cash Taxes (net of any cash Tax  refunds) paid by the Loan Parties during such period and (iii) the aggregate amount of Distributions  made by the Loan Parties excluding, to the extent made during such period, (1) any and all  Distributions made by one Loan Party to another Loan Party and (2) any and all Restricted  Payments permitted under Section 5.02(f) (including Permitted Stock Repurchases) up to an  aggregate amount of $10,000,000 for all such permitted Restricted Payments made during the  twelve month period ending on the last day of such fiscal quarter, divided by (d) Fixed Charges  for such period.  “Fixed Charges” shall mean, for any period or as the last day of such period, as applicable,  the sum, without duplication, for Holdings and its Subsidiaries (determined on a consolidated basis  in accordance with GAAP, to the extent applicable), of the following items: (a) (i) Interest Expense  described in clauses (a) and (b) of the definition thereof that are paid or payable in cash for such  period net of cash interest income received or receivable for such period and (ii) Interest Expense  described in clause (c) of the definition thereof expensed (on a net basis) on a statement of income  for such period, (b) rent expense for such period, (c) mandatory principal prepayments and other  principal payments required to be made on Indebtedness during such period (excluding payments  that are included in clause (d) below), (d) regularly scheduled payments of principal on  Indebtedness during such period, including the aggregate amount of any voluntary prepayments  prior to or during such period, but only to the extent such voluntary prepayments reduced any  regularly scheduled payment of principal during such period, and (e) the aggregate amount of  Capital Lease payments (and any portion thereof) other than any payments, during such period  





 






DB1/ 120286909.9       -23-    that have been optionally prepaid and would have been treated as principal in accordance with  GAAP, if any.    “Floor” shall mean 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 LIBOR Rate.  “Foreign Plan” shall mean any employee benefit plan maintained or contributed to by any  Loan Party or any ERISA Affiliate which is mandated or governed by any Governmental Rule of  any Governmental Authority other than the United States.  “Foreign Subsidiary” shall mean each direct or indirect Subsidiary of Holdings that is not  a Domestic Subsidiary.  “Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with respect  to the L/C Issuer, such Defaulting Lender’s Revolving Proportionate Share of the Effective  Amount of all L/C Obligations, other than L/C Obligations as to which such Defaulting Lender’s  participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance  with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s  Revolving Proportionate Share of the Effective Amount of all Swing Line Loans, other than Swing  Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to  other Lenders in accordance with the terms hereof.  “Fund” shall mean any Person (other than a natural person) that is (or will be) engaged in  making, purchasing, holding or otherwise investing in commercial loans and similar extensions of  credit in the ordinary course of its business.  “Funded Indebtedness” of any Person shall mean, without duplication:  (a) All outstanding obligations of such Person evidenced by notes, bonds,  debentures or other similar instruments and all other obligations of such Person for borrowed  money (including obligations to repurchase receivables and other assets sold with recourse);  (b) All Attributable Debt of such Person;  (c) All Disqualified Securities of such Person;  (d) All earnout obligations arising from an acquisition (excluding ordinary  course acquisitions of customer lists) at the value from time to time carried on the balance sheet  of such Person in accordance with GAAP;   (e) With respect to any terminated Rate Contracts, the Termination Value  thereof; and  (f) All Contingent Obligations of such Person with respect to the obligations  of other Persons of the types described in clauses (a) - (e) above.  





 






DB1/ 120286909.9       -24-    To the extent not included above, “Funded Indebtedness” of the Loan Parties shall  include all outstanding Obligations in respect of Loans.   “GAAP” shall mean generally accepted accounting principles and practices as in effect in  the United States from time to time, consistently applied.  “Governmental Authority” shall mean any international, domestic or foreign national, state  or local government, any political subdivision thereof, any department, agency, authority or bureau  of any of the foregoing, or any other entity exercising executive, legislative, judicial, regulatory,  tax or administrative functions of or pertaining to government, including, without limitation, the  Federal Trade Commission, Federal Deposit Insurance Corporation, the Federal Reserve Board,  the Comptroller of the Currency, any central bank or any comparable authority and any supra- national bodies such as the European Union.  “Governmental Authorization” shall mean any permit, license, registration, approval,  finding of suitability or licensing, authorization, plan, directive, order, consent, exemption, waiver,  consent order or consent decree of or from, or notice to, action by or filing with, any Governmental  Authority.  “Governmental Charges” shall mean, with respect to any Person, all levies, assessments,  fees, claims or other charges imposed by any Governmental Authority upon such Person or any of  its Property or otherwise payable by such Person.  “Governmental Rule” shall mean any law, rule, regulation, ordinance, order, code  interpretation, judgment, decree, directive, Governmental Authorization, guidelines, policy or  similar form of decision of any Governmental Authority.  “Guarantor” shall mean (i) Holdings and (ii) each now existing or hereafter acquired or  created direct or indirect Domestic Subsidiary of Holdings (other than Excluded Non-Guarantor  Entities) which becomes a party to the Guaranty.    “Guaranty” shall mean the Guaranty Agreement in substantially the form of Exhibit G  delivered by each Guarantor from time to time party thereto in favor of the Administrative Agent  and the Lender Parties.  “Guaranty Obligation” shall mean, with respect to any Person, any direct or indirect  liability of that Person with respect to any Indebtedness, lease, dividend, letter of credit or other  obligation (the “primary obligations”) of another Person (the “primary obligor”), including any  obligation of the primary obligor, whether or not contingent, (a) to purchase, repurchase or  otherwise acquire such primary obligations or any Property constituting direct or indirect security  therefor, or (b) to advance or provide funds (i) for the payment or discharge of any such primary  obligation, or (ii) to maintain working capital or equity capital of the primary obligor or otherwise  to maintain the net worth or solvency or any balance sheet item, level of income or financial  condition of the primary obligor, or (c) to purchase Property, securities or services primarily for  the purpose of assuring the owner thereof of the ability of the primary obligor to make payment of  such primary obligation, or (d) otherwise to assure or hold harmless the holder of any such primary  obligation against loss in respect thereof, provided that the term “Guaranty Obligation” shall not  include (1) endorsements for collection or deposit in the ordinary course of business and (2)  





 






DB1/ 120286909.9       -25-    indemnification obligations of a Person or any of its Subsidiaries entered into in the ordinary  course of business, or otherwise in connection with a sale of Equity Securities, the disposition of  assets or the incurrence of Indebtedness, in each case, to the extent permitted hereby.  The amount  of any Guaranty Obligation shall be deemed equal to the stated or determinable amount of the  primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if  indeterminable, the maximum liability in respect thereof.  “Hazardous Materials” shall mean all pollutants, contaminants and other materials,  substances and wastes which are hazardous, toxic, caustic, harmful or dangerous to human health  or the environment, including petroleum and petroleum products and byproducts, radioactive  materials, asbestos, polychlorinated biphenyls and all materials, substances and wastes which are  classified or regulated as “hazardous,” “toxic” or similar descriptions under any Environmental  Law.  “Holdings” shall mean ARC Document Solutions, Inc., a Delaware corporation.  “Honor Date” shall have the meaning given to that term in Section 2.02(c)(i).  “Immaterial Subsidiaries” shall mean those Domestic Subsidiaries designated by the  Borrower in writing to the Administrative Agent that when considered on an individual or  aggregate basis, do not have (A) revenues, net profit or Consolidated Adjusted EBITDA  attributable to such Immaterial Subsidiaries in excess of 5% of the consolidated revenues,  consolidated net profit or Consolidated Adjusted EBITDA, respectively, of Holdings and its  Subsidiaries for the most recent four consecutive fiscal quarter period for which the Borrower has  delivered Holdings’ Financial Statements or (B) assets with an aggregate book value in excess of  5% of the consolidated total assets of Holdings and its Subsidiaries as of the last day of the most  recent fiscal quarter ended for which the Borrower has delivered Holdings’ Financial Statements.   The Borrower’s written notice described above shall include calculations with respect to  clauses (A) and (B) in detail reasonably satisfactory to the Administrative Agent.  Any Subsidiary  created pursuant to a Plan of Division by a Loan Party that is not an Immaterial Subsidiary shall  be deemed not to be an Immaterial Subsidiary.  “Incremental Effective Date” shall have the meaning given to that term in Section 2.17(e).    “Incremental Revolving Lender” shall have the meaning given to that term in  Section 2.17(b).  “Incremental Term Lender” shall have the meaning given to that term in Section 2.17(a)(i).  “Incremental Term Loan Amendment” shall have the meaning given to that term in  Section 2.17(a)(ii).  “Incremental Term Loan Borrowing” shall mean the borrowing by the Borrower on an  Incremental Effective Date of Incremental Term Loans in the manner set forth in Section 2.17.  “Incremental Term Loan Commitment” shall mean the commitment of any Lender to make  an Incremental Term Loan comprising an Incremental Term Loan Borrowing pursuant to  Section 2.17(a).  





 






DB1/ 120286909.9       -26-    “Incremental Term Loan” shall have the meaning given to such term in Section 2.17(a)(i).  “Incremental Term Loan Maturity Date” shall mean, with respect to any Incremental Term  Loan, the Incremental Term Loan Maturity Date specified in the Incremental Term Loan  Amendment applicable to such Incremental Term Loan; provided that in no event shall any  Incremental Term Loan Maturity Date be earlier than the Revolving Loan Maturity Date or the  Term Loan Maturity Date and shall mean, with respect to an Incremental Term Lender, the  applicable Incremental Term Loan Maturity Date, as such date may be extended with respect to  such Lender pursuant to Section 2.18.  “Incremental Term Loan Note” shall have the meaning given to such term in  Section 2.08(c)(ii).    “Incremental Term Proportionate Share” shall mean:  (a) With respect to any Lender at any time prior to an Incremental Effective  Date with respect to any particular Incremental Term Loan Borrowing, the ratio (expressed as a  percentage rounded to the eighth digit to the right of the decimal point) of (i) such Lender’s  Incremental Term Loan Commitment with respect to such Incremental Term Loan Borrowing at  such time to (ii) the amount of such Incremental Term Loan Borrowing at such time; and  (b) With respect to any Lender at any time after an Incremental Effective Date  with respect to any particular Incremental Term Loan Borrowing, the ratio (expressed as a  percentage rounded to the eighth digit to the right of the decimal point) of (i) the Effective Amount  of such Lender’s Incremental Term Loan comprising such Incremental Term Loan Borrowing  outstanding at such time to (ii) the Effective Amount of all Incremental Term Loans comprising  such Incremental Term Loan Borrowing outstanding at such time.  “Indebtedness” of any Person shall mean, without duplication:  (a) All outstanding obligations of such Person evidenced by notes, bonds,  debentures or other similar instruments and all other obligations of such Person for borrowed  money (including obligations to repurchase receivables and other assets sold with recourse);  (b) All obligations of such Person for the deferred purchase price of property  or services (including obligations under letters of credit and other credit facilities which secure or  finance such purchase price), except for trade accounts payable and repayable in accordance with  customary trade practices and other accrued liabilities, in each case incurred in the ordinary course  of business; provided that any earn-out obligations arising from an acquisition (excluding ordinary  course acquisitions of customer lists) shall be included in “Indebtedness” at the value from time to  time carried on the balance sheet of such Person in accordance with GAAP;  (c) All obligations of such Person under conditional sale or other title retention  agreements with respect to property acquired by such Person (to the extent of the value of such  property if the rights and remedies of the seller or the lender under such agreement in the event of  default are limited solely to repossession or sale of such property);  (d) All Attributable Debt of such Person;  





 






DB1/ 120286909.9       -27-    (e) All Disqualified Securities of such Person;  (f) With respect to any terminated Rate Contracts, the Termination Value  thereof;  (g) All obligations of such Person, contingent or otherwise, under or with  respect to Surety Instruments and all obligations of such Person with respect to letters of credit,  whether drawn or undrawn, contingent or otherwise;  (h) All Contingent Obligations of such Person with respect to the obligations  of other Persons of the types described in clauses (a) - (g) above; and  (i) All obligations of other Persons (“primary obligors”) of the types described  in clauses (a) - (h) above to the extent secured by any Lien on any property (including accounts  and contract rights) of such Person, even though such Person has not assumed or become liable  for the payment of such obligations (and, for purposes of this clause (i), the amount of the  Indebtedness of such Person shall be deemed to be the lesser of (x) the amount of all obligations  of such primary obligors so secured by (or for which any holder of such obligations has an existing  right, contingent or otherwise, to be secured by) the property of such Person and (y) the value of  such property).    To the extent not included above, “Indebtedness” of the Loan Parties shall include  all outstanding Obligations in respect of Loans and Letters of Credit.  “Indemnifiable Taxes” shall have the meaning given to that term in Section 2.12(a).  “Indemnitees” shall have the meaning given to that term in Section 8.03.  “Intercompany Subordination Agreement” shall mean an intercompany subordination  agreement, dated as of the Closing Date, executed and delivered by Holdings, each of its  Subsidiaries and the Administrative Agent in the form of Exhibit N.    “Interest Expense” shall mean, for any period, the sum for the Loan Parties (determined on  a consolidated basis without duplication in accordance with GAAP), of the following: (a) all  interest, fees, charges and related expenses payable during such period to any Person in connection  with Indebtedness or the deferred purchase price of assets that, if described in this clause (a), are  treated as interest in accordance with GAAP, (b) the portion of rent actually paid during such  period under Capital Leases that should be treated as interest in accordance with GAAP and (c) the  net amounts payable (or minus the net amounts receivable) under Rate Contracts accrued as an  expense (on a net basis) on a statement of income during such period (whether or not actually paid  or received during such period).    “Interest Period” shall mean, with respect to any LIBOR Loan, the time periods selected  by the Borrower pursuant to Section 2.01(c) or Section 2.01(e) which commences on the first day  of such Loan or the effective date of any conversion and ends on the last day of such time period,  and thereafter, each subsequent time period selected by the Borrower pursuant to Section 2.01(f)  which commences on the last day of the immediately preceding time period and ends on the last  day of that time period.  





 






DB1/ 120286909.9       -28-    “Investment” of any Person shall mean any loan or advance of funds by such Person to any  other Person (other than advances to employees of such Person for moving and travel expenses,  drawing accounts and similar expenditures in the ordinary course of business), any purchase or  other acquisition of any Equity Securities or Indebtedness of any other Person, any capital  contribution by such Person to or any other investment by such Person in any other Person  (including (x) any Guaranty Obligations of such Person with respect to any obligations of any  other Person and (y) any payments made by such Person on account of obligations of any other  Person); provided, however, that Investments shall not include (a) accounts receivable or other  indebtedness owed by customers or suppliers of such Person (other than any Loan Party) in the  ordinary course of such Person’s business or (b) prepaid expenses of such Person incurred and  prepaid in the ordinary course of business consistent with past practice.  “IRC” shall mean the U.S. Internal Revenue Code of 1986.  “ISP” shall have the meaning given to that term in Section 2.02(h).   “ISDA Definitions” shall mean 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.  “Lead Arranger” shall mean U.S. Bank National Association in its capacity as sole lead  arranger and sole bookrunner with respect to this Agreement.  Except as expressly set forth in  Section 8.02, Section 8.03, Section  8.04 and Section 8.19, the capacity of the Lead Arranger is  titular in nature, and the Lead Arranger shall have no special rights or obligations over those of a  Lender by reason thereof.  “Joint Venture” shall mean a joint venture, limited liability company, corporation,  partnership, other entity or other legal arrangement (whether created pursuant to a contract or  conducted through a separate legal entity) formed by a Loan Party and one or more other Persons  who are not Loan Parties.  “L/C Advance” shall mean, with respect to each Revolving Lender, such Revolving  Lender’s payment or participation in any L/C Borrowing in accordance with its L/C Risk  Participation therein.   “L/C Borrowing” shall mean an extension of credit resulting from a drawing under any  Letter of Credit which has not been reimbursed on the date when made or refinanced as a  Revolving Loan Borrowing.  “L/C Credit Extension” shall mean, with respect to any Letter of Credit, the issuance  thereof, the amendment thereof, the extension of the expiry date thereof, or the renewal or increase  of the amount thereof.  “L/C Issuer” shall mean U.S. Bank in its capacity as issuer of Letters of Credit hereunder,  or any successor issuer of Letters of Credit hereunder.   





 






DB1/ 120286909.9       -29-    “L/C Obligations” shall mean, as at any date of determination, the aggregate undrawn face  amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts,  including all L/C Borrowings.  “L/C Risk Participation” shall mean, with respect to any Lender and any Letter of Credit  as of any date of determination, the sum of (a) such Lender’s Revolving Proportionate Share of  the Effective Amount of the L/C Obligation attributable to such Letter of Credit outstanding at  such time plus (b) the aggregate amount of all Defaulting Lenders’ Revolving Proportionate Shares  of the Effective Amount of the L/C Obligation attributable to such Letter of Credit outstanding at  such time that have been reallocated to such Lender pursuant to Section 2.16(a)(iv).  “Lender” and “Lenders” shall have the meaning given to such terms in clause (2) of the  introductory paragraph hereof and includes the L/C Issuer and the Swing Line Lender.  “Lender Bank Product Provider” shall mean any Lender or Affiliate of a Lender which  provides one or more Lender Bank Products.  “Lender Bank Products” shall mean each and any of the following types of services or  facilities extended to any Credit Party by any Lender Bank Product Provider: (a) commercial credit  cards; (b) cash management services (including treasury management services, purchasing cards,  daylight overdrafts, multicurrency accounts, foreign cash letters, merchant card services,  controlled disbursement services, ACH transactions, and interstate depository network services),  and (c) returned items and foreign exchange services and facilities.     “Lender Parties” shall mean, collectively, the Lenders, the Lead Arranger, the Lender Rate  Contract Counterparties, the Lender Bank Product Providers and the Administrative Agent.   “Lender Rate Contract(s)” shall mean one or more Rate Contracts between any Credit Party  and one or more Lender Rate Contract Counterparties with respect to Indebtedness under this  Agreement, on terms acceptable to such Credit Party and such Lender Rate Contract Counterparty  that is a party to such Rate Contract.    “Lender Rate Contract Counterparty” shall mean any Lender or Affiliate of a Lender which  enters into a Lender Rate Contract.  “Lender Recipient” is defined in Section 7.12(a).  “Letter of Credit” shall mean any letter of credit issued hereunder.  A Letter of Credit may  be a Commercial Letter of Credit or a Standby Letter of Credit.  “Letter of Credit Application” shall mean an application and agreement (including any  master letter of credit agreement) for the issuance or amendment of a letter of credit in the form  from time to time in use by the L/C Issuer.  “Letter of Credit Expiration Date” shall mean the day that is thirty days prior to the  Revolving Loan Maturity Date (or, if such day is not a Business Day, the next preceding Business  Day).  





 






DB1/ 120286909.9       -30-    “Letter of Credit Sublimit” shall mean an amount equal to the lesser of (a) $20,000,000  and (b) the Total Revolving Loan Commitment.  The Letter of Credit Sublimit is part of, and not  in addition to, the Total Revolving Loan Commitment.    “LIBOR Borrowing” shall mean a Borrowing made with reference to the LIBOR Rate.  “LIBOR Loan” shall mean, at any time, a Revolving Loan which then bears interest as  provided in Section 2.01(d)(ii).   “LIBOR Portion” shall mean, at any time, a Portion of a Term Loan Borrowing, or a Term  Loan, as the case may be, which then bears interest at a rate specified in Section 2.01(d)(ii).   “LIBOR Base Rate” shall mean, for the relevant Interest Period, the greater of (a) zero and  (b) the applicable interest settlement rate for deposits in Dollars administered by ICE Benchmark  Administration (or any other Person that takes over the administration of such rate) appearing on  the applicable Reuters Screen (or on any successor or substitute page) as of 11:00 a.m. (London  time) on the Quotation Date for such Interest Period, and having a maturity equal to such Interest  Period; provided that, if the applicable Reuters Screen (or any successor or substitute page) is not  available to the Administrative Agent for any reason, the applicable LIBOR Base Rate for the  relevant Interest Period shall instead be the applicable interest settlement rate for deposits in  Dollars administered by ICE Benchmark Administration (or any other Person that takes over the  administration of such rate) as reported by any other generally recognized financial information  service selected by the Administrative Agent as of 11:00 a.m. (London time) on the Quotation  Date for such Interest Period, and having a maturity equal to such Interest Period.  “LIBOR Rate” shall mean, for the relevant Interest Period, the sum of (a) the quotient of  (i) the LIBOR Base Rate applicable to such Interest Period, divided by (ii) one minus the Reserve  Percentage, plus (b) the Applicable Margin.  “Licenses” shall mean, collectively, any and all licenses (including provisional licenses),  certificates of need, accreditations, permits, franchises, rights to conduct business, approvals (by a  Governmental Authority or otherwise), consents, qualifications, operating authority and any other  authorizations.  “Lien” shall mean, with respect to any Property, any security interest, mortgage, pledge,  lien, charge or other encumbrance in, of, or on such Property or the income therefrom, including  the interest of a vendor or lessor under a conditional sale agreement, Capital Lease or other title  retention agreement, or any agreement to provide any of the foregoing, and the filing of any  financing statement or similar instrument under the Uniform Commercial Code or comparable law  of any jurisdiction.  “Loan” shall mean a Revolving Loan, a Term Loan or a Swing Line Loan, as the context  may require.  “Loan Account” shall have the meaning given to that term in Section 2.08(a).  “Loan Parties” shall mean, collectively, Holdings and its Subsidiaries.  





 






DB1/ 120286909.9       -31-    “Margin Stock” shall have the meaning given to that term in Regulation U issued by the  Federal Reserve Board.  “Material Adverse Effect” shall mean (a) a material adverse change in, or material adverse  effect on, the business, operations, condition (financial or otherwise), assets, properties or  liabilities (whether actual or contingent) of the Credit Parties, taken as a whole, (b) a material  impairment of the ability of the Credit Parties, taken as a whole, to pay or perform the Obligations  in accordance with the terms of this Agreement, any Guaranty or any other Credit Document; (c) a  material adverse effect on the rights and remedies of the Administrative Agent or any Lender under  this Agreement, the other Credit Documents or any related document, instrument or agreement;  (d) a material adverse effect on the value of the Collateral, the Administrative Agent’s or any  Lender’s security interest in the Collateral or the perfection or priority of such security interests,  due to an action or failure to act on the part of any Credit Party; or (e) a material adverse effect on  the validity or enforceability of any of the Credit Documents.  “Material Contracts” shall mean long term customer contracts which contribute more than  5% of consolidated revenues of Holdings and its Subsidiaries for the most recent four consecutive  fiscal quarter period for which the Borrower has delivered Holdings’ Financial Statements.   “Material Foreign Subsidiary” shall mean, from and after the date the aggregate amount of  revenues of all Foreign Subsidiaries for the most recent four consecutive fiscal quarter period for  which the Borrower has delivered Holdings’ Financial Statements exceeds 20% of the  consolidated revenues of Holdings and its Subsidiaries for such period, each such First-Tier  Foreign Subsidiary owned by a Credit Party that the Borrower specifies in each Compliance  Certificate that becomes a Pledged Foreign Subsidiary so that after all required steps are taken, the  calculation above as to all Foreign Subsidiaries (other than Pledged Foreign Subsidiaries and their  respective Subsidiaries) shall not exceed the 20% threshold.    “Maturity” or “maturity” shall mean, with respect to any Loan, interest, fee or other amount  payable by the Borrower under this Agreement or the other Credit Documents, the date such Loan,  interest, fee or other amount becomes due, whether upon the stated maturity or due date, upon  acceleration or otherwise.  “Maturity Date” shall mean (a) for Obligations in respect of Revolving Loans, Swing Line  Loans and Letters of Credit, the Revolving Loan Maturity Date, (b) for Obligations in respect of  Term Loans (other than Incremental Term Loans), the Term Loan Maturity Date, and (c) for  Obligations in respect of any Incremental Term Loan, the Incremental Term Loan Maturity Date  applicable to such Incremental Term Loan.    “Multiemployer Plan” shall mean any multiemployer plan within the meaning of  Section 3(37) of ERISA maintained by any Loan Party or any ERISA Affiliate, or to which any  Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or previously has  made or been obligated to make contributions.  “Negative Pledge” shall mean a Contractual Obligation which contains a covenant binding  on any Loan Party that prohibits Liens on any of its Property, other than (a) any such covenant  contained in a Contractual Obligation granting or relating to a particular Permitted Lien which  





 






DB1/ 120286909.9       -32-    affects only the Property that is the subject of such Permitted Lien and (b) any such covenant that  does not apply to Liens securing the Obligations.  “Net Condemnation Proceeds” shall mean an amount equal to: (a) any cash payments or  cash proceeds received by a Loan Party or the Administrative Agent as a result of any  condemnation or other taking or temporary or permanent requisition of any Property of a Loan  Party, any interest therein or right appurtenant thereto, or any change of grade affecting such  Property, as the result of the exercise of any right of condemnation or eminent domain by a  Governmental Authority (including a transfer to a Governmental Authority in lieu or anticipation  of a condemnation), minus (b) (i) any actual and reasonable costs incurred by a Loan Party in  connection with any such condemnation or taking (including reasonable fees and expenses of  counsel), (ii) provisions for all including sales, transfer, income, gains or other taxes payable (or  estimated in good faith by the Borrower to become payable) as a result of such condemnation,  without regard to the consolidated results of operations of the Loan Parties, taken as a whole,  (iii) payment of the outstanding principal amount of, premium or penalty, if any, and interest on  any Indebtedness (other than the Obligations) that is secured by a Lien on the assets in question  and that is required to be repaid under the terms thereof as a result of such condemnation or taking,  (iv) amounts required to be turned over to landlords (or their mortgagees) pursuant to the terms of  any lease to which any Loan Party is party, (v) in the case of any governmental taking involving  an asset of a non-wholly-owned Subsidiary of Holdings, the pro rata portion of the Net  Condemnation Proceeds (calculated without regard to this clause (v)) not available for distribution  to or for the account of Holdings or any other wholly-owned Subsidiary as a result thereof and (vi)  any funded escrow established in connection with any such condemnation or taking (provided that  to the extent that any amounts are released from such escrow to a Loan Party, such amounts, net  of any related expenses, shall constitute Net Condemnation Proceeds).  “Net Income” shall mean with respect to any fiscal period, the net income of the Loan  Parties for such period determined on a consolidated basis in accordance with GAAP, consistently  applied, provided that Net Income shall not include any dividends or distributions received by any  Loan Party.  “Net Insurance Proceeds” shall mean an amount equal to: (a) any cash payments or cash  proceeds received by a Loan Party or the Administrative Agent under any casualty policy in respect  of a covered loss thereunder with respect to any property, minus (b) (i) any actual and reasonable  costs incurred by a Loan Party in connection with the adjustment or settlement of any claims of a  Loan Party in respect thereof (including reasonable fees and expenses of counsel), (ii) provisions  for all taxes payable as a result of such event without regard to the consolidated results of  operations of Loan Parties, taken as a whole, (iii) payment of the outstanding principal amount of,  premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured  by a Lien on the assets in question and that is required to be repaid under the terms thereof as a  result of such casualty, (iv) amounts required to be turned over to landlords (or their mortgagees)  pursuant to the terms of any lease to which any Loan Party is party and (v) any funded escrow  established in connection with any such casualty (provided that to the extent that any amounts are  released from such escrow to a Loan Party, such amounts, net of any related expenses, shall  constitute Net Insurance Proceeds).  





 






DB1/ 120286909.9       -33-    “Net Proceeds” shall mean:  (a) With respect to any sale of any asset or property by any Person, the  aggregate cash consideration received by such Person from such sale less the sum of (i) the actual  amount of the reasonable fees and commissions payable by such Person other than to any of its  Affiliates, (ii) the reasonable legal expenses and other costs and expenses directly related to such  sale that are to be paid by such Person other than to any of its Affiliates (including, without  limitation, transfer, sale, use and other similar taxes payable in connection with such sale),  (iii) income taxes reasonably estimated to be payable by such Person as a result of such sale,  (iv) the amount of any Indebtedness (other than the Obligations) which is secured by such asset  and is required to be repaid or prepaid by such Person as a result of such sale, (v) any funded  escrow established pursuant to the documents evidencing any such sale or disposition to secure  any indemnification obligations or adjustments to the purchase price associated with any such sale  or disposition (provided that to the extent that any amounts are released from such escrow to such  Person, such amounts, net of any related expenses, shall constitute Net Proceeds) and (vi) without  duplication of clause (v) above, the amount of any reasonable reserve established in accordance  with GAAP against any adjustment to the sale price or any liabilities (other than any Taxes  deducted pursuant to clause (iii) above) (x) related to any of the applicable assets and (y) retained  by such Person including Pension Plan and other post-employment benefit liabilities and liabilities  related to environmental matters or against any indemnification obligations (however, the amount  of any subsequent reduction of such reserve (other than in connection with a payment in respect  of any such liability) shall be deemed to be Net Proceeds of such asset sale occurring on the date  of such reduction); and  (b) With respect to any issuance or incurrence of any Indebtedness by any  Person, the aggregate cash consideration received by such Person from such issuance or incurrence  less the sum of (i) the actual amount of the reasonable fees and commissions payable by such  Person other than to any of its Affiliates and (ii) the reasonable legal expenses and the other  reasonable costs and expenses directly related to such issuance or incurrence that are to be paid by  such Person other than to any of its Affiliates; and  (c) With respect to any issuance of Equity Securities by any Person, the  aggregate cash consideration received by such Person from such issuance less the sum of (i) the  actual amount of the reasonable fees and commissions payable by such Person other than to any  of its Affiliates and (ii) the reasonable legal expenses and the other reasonable costs and expenses  directly related to such issuance that are to be paid by such Person other than to any of its Affiliates.  “New Lender” shall have the meaning given to that term in Section 2.17(c).  “Non-Bank Certificate” shall have the meaning given to that term in Section 2.12(e).  “Non-Bank Lender” shall have the meaning given to that term in Section 2.12(e).  “Non-Defaulting Lender” shall mean, at any time, each Lender that is not a Defaulting  Lender at such time.  “Nonrenewal Notice Date” shall have the meaning given to that term in  Section 2.02(b)(iii).  





 






DB1/ 120286909.9       -34-    “Note” shall mean a Revolving Loan Note, a Term Loan Note or a Swing Line Note.  “Notice of Borrowing” shall mean a Notice of Loan Borrowing or a Notice of Swing Line  Borrowing.  “Notice of Conversion” shall have the meaning given to that term in Section 2.01(e).  “Notice of Interest Period Selection” shall have the meaning given to that term in  Section 2.01(f)(ii).  “Notice of Loan Borrowing” shall have the meaning given to that term in Section 2.01(c).  “Notice of Swing Line Borrowing” shall mean a notice of a Swing Line Borrowing  pursuant to Section 2.03(b), which, if in writing, shall be substantially in the form of Exhibit L.  “Obligations” shall mean and include (a) all loans, advances, debts, liabilities and  obligations, howsoever arising, owed or owing by the Borrower of every kind and description  (whether or not evidenced by any note or instrument and whether or not for the payment of money),  direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising  pursuant to the terms of this Agreement or any of the other Credit Documents, including without  limitation all interest (including interest that accrues after the commencement of any bankruptcy  or other insolvency proceeding by or against the Borrower, whether or not allowed or allowable),  fees, charges, expenses, attorneys’ fees and accountants’ fees chargeable to and payable by the  Borrower hereunder and thereunder and (b) any and all obligations, howsoever arising, owed or  owing by any Loan Party to any Lender Party under or in connection with any Lender Rate  Contract or Lender Bank Product (provided that if any such Lender Party ceases to be a Lender or  an Affiliate of a Lender hereunder, such obligations under this clause (b) shall be limited to those  that relate to any transaction entered into under any such Lender Rate Contract or any Lender Bank  Product extended or provided prior to the date such party ceased to be a Lender or an Affiliate of  a Lender); provided that “Obligations” shall exclude all Excluded Swap Obligations.    “Organizational Documents” shall mean, with respect to any Person, collectively, (a) such  Person’s articles or certificate of incorporation, articles or certificate of organization, certificate of  limited partnership, certificate of formation, or comparable documents filed or recorded with the  applicable Governmental Authority of such Person’s jurisdiction of formation and (b) such  Person’s, bylaws, limited liability company agreement, partnership agreement or other comparable  organizational or governing documents, in each case, after giving effect to any restatements thereof  through the Closing Date, and as may be amended, restated, supplemented or modified from time  to time after the Closing Date to the extent permitted by this Agreement.  “Participant” shall have the meaning given to that term in Section 8.05(b).  “Participant Register” shall have the meaning given to that term in Section 8.05(b).  “Participation Seller” shall have the meaning given to that term in Section 8.05(h).   





 






DB1/ 120286909.9       -35-    “Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate  Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly  known as the USA Patriot Act).  “Payment Recipient” is defined in Section 7.12(a).  “PBGC” shall mean the Pension Benefit Guaranty Corporation.  “Pension Plan” shall mean any “employee pension benefit plan” (as such term is defined  in Section 3(2) of ERISA), other than a Multiemployer Plan and a Foreign Plan, that is subject to  Title IV of ERISA or the minimum funding standards under Section 412 of the IRC and is  sponsored or maintained by a Loan Party or any ERISA Affiliate or to which a Loan Party or any  ERISA Affiliate contributes or has any obligation under or in the case of a multiple employer or  other plan described in Section 4064(a) of ERISA, has made contributions at any time.  “Permitted Acquisition” shall mean any acquisition permitted under Section 5.02(d)(ii).  “Permitted Indebtedness” shall have the meaning given to that term in Section 5.02(a).  “Permitted Liens” shall have the meaning given to that term in Section 5.02(b).  “Permitted Stock Repurchase” shall mean any repurchase, redemption or other acquisition  of the Equity Securities of Holdings permitted under Section 5.02(f)(iii).  “Person” shall mean and include an individual, a partnership, a corporation (including a  business trust), a joint stock company, an unincorporated association, a limited liability company,  a joint venture, a trust or other entity or a Governmental Authority.  “Plan of Division” shall mean (a) any division or plan of division adopted pursuant to under  Delaware law by a Delaware limited liability company or limited partnership whereby such entity  is divided into two or more entities and the assets, property, rights, series, debts, liabilities and  duties of such entity are allocated among the resulting entities or (b) any analogous plan or scheme  adopted pursuant to the applicable laws of another jurisdiction by a Person organized under the  applicable laws of such other jurisdiction.  “Pledged Foreign Subsidiary” shall mean each First-Tier Foreign Subsidiary that is a  wholly-owned subsidiary so long as the Equity Securities of such Foreign Subsidiary have been  pledged by the Borrower and/or the applicable Guarantor(s) pursuant to a pledge agreement (or  foreign equivalent thereof) governed by the laws of the jurisdiction of formation of such Foreign  Subsidiary in form and substance reasonably acceptable to the Administrative Agent as  contemplated by Section 5.01(i) and the other requirements of Section 5.01(i) have been satisfied  in respect thereof.  “Pledged Intercompany Notes” shall mean original demand promissory notes in favor of  one or more of the Borrower and the Guarantors evidencing intercompany advances pledged to  the Administrative Agent pursuant to the Security Agreement.  





 






DB1/ 120286909.9       -36-    “PTE” shall mean, solely for purposes of Section 8.19, a prohibited transaction class  exemption issued by the U.S. Department of Labor, as any such exemption may be amended from  time to time.  “Portion” shall mean a portion of the principal amount of a Term Loan Borrowing or a  Term Loan, as applicable.  A Term Loan Borrowing shall consist of one or more Portions, and  each Term Loan comprising such Term Loan Borrowing shall consist of the same number of  Portions, with each such Term Loan Portion corresponding pro rata to a Term Loan Borrowing  Portion.  Any reference to a Portion of a Term Loan Borrowing shall include the corresponding  Portion of each Term Loan comprising such Term Loan Borrowing.    “Prime Rate” shall mean a rate per annum equal to the prime rate of interest announced  from time to time by U.S. Bank or its parent (which is not necessarily the lowest rate charged to  any customer), changing when and as such prime rate changes.  “Property” shall mean any interest in any kind of property or asset, whether real, personal  or mixed, or tangible or intangible.  “Proportionate Share” shall mean a Revolving Proportionate Share or a Term Proportionate  Share, as the context may require.  “Proposed Target” shall have the meaning given to that term in Section 5.02(d)(ii).  “Public Lender” shall have the meaning given to that term in Section 5.01(a).   “Quotation Date” shall mean, in relation to any Interest Period for which an interest rate is  to be determined, two Business Days before the first day of that period.  “Rate Contract” shall mean any agreement with respect to any swap, cap, collar, hedge,  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.   “Receipt Date” shall have the meaning given to that term in Section 2.06(c)(vi).  “Reduction Notice” shall have the meaning given to that term in Section 2.04(a).  “Reference Time” with respect to any setting of the then-current Benchmark means (1) if  such Benchmark is the LIBOR Base Rate, 11:00 a.m. (London time) on the day that is two London  banking days preceding the date of such setting, and (2) if such Benchmark is not the LIBOR Base  Rate, the time determined by the Administrative Agent in its reasonable discretion.  “Register” shall have the meaning given to that term in Section 8.05(d).  “Relevant Governmental Body” shall mean the Federal Reserve Board and/or the Federal  Reserve Bank of New York, or a committee officially endorsed or convened by the Federal  Reserve Board and/or the Federal Reserve Bank of New York, or any successor thereto.  





 






DB1/ 120286909.9       -37-    “Relevant Sale” shall have the meaning given to that term in Section 2.06(c)(iii).  “Replacement Lender” shall have the meaning given to that term in Section 2.15.   “Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA and  applicable regulations thereunder (other than events for which the thirty (30) day notice period has  been waived).  “Requested Maturity Date” shall have the meaning given to that term in Section 2.18(a).    “Required Lenders” shall mean, at any time, the Lenders whose aggregate Proportionate  Shares then exceed fifty percent (50%) of the total aggregate amount of the Proportionate Shares  of all Lenders; provided that at any time any Lender is a Defaulting Lender, such Defaulting  Lender shall be excluded in determining “Required Lenders”, and “Required Lenders” shall  mean at such time Non-Defaulting Lenders having total Proportionate Shares exceeding fifty  percent (50%) of the total Proportionate Shares of all Non-Defaulting Lenders.  Notwithstanding  the foregoing, in no event shall Required Lenders consist of fewer than two Non-Defaulting  Lenders at any time at which there are two or more Non-Defaulting Lenders party to this  Agreement, and for purposes of the foregoing, Lenders that are Affiliates (and Approved Funds  of such Lender or an Affiliate thereof) of one another shall be treated as a single Lender.    “Required Revolving Lenders” shall mean, at any time, the Revolving Lenders whose  aggregate Revolving Proportionate Share then exceed fifty percent (50%) of the total aggregate  amount of the Revolving Proportionate Shares of all Revolving Lenders; provided that at any time  any Revolving Lender is a Defaulting Lender, such Defaulting Lender shall be excluded in  determining “Required Revolving Lenders”, and “Required Revolving Lenders” shall mean at  such time Non-Defaulting Lenders having total Revolving Proportionate Shares exceeding fifty  percent (50%) of the total Revolving Proportionate Shares of all Non-Defaulting Lenders.   Notwithstanding the foregoing, in no event shall Required Revolving Lenders consist of fewer  than two Non-Defaulting Lenders at any time at which there are two or more Revolving Lenders  that are not Non-Defaulting Lenders party to this Agreement, and for purposes of the foregoing,  Revolving Lenders that are Affiliates (and Approved Funds of such Lender or an Affiliate thereof)  of one another shall be treated as a single Lender.    “Requirement of Law” applicable to any Person shall mean (a) such Person’s  Organizational Documents, (b) any Governmental Rule applicable to such Person, (c) any  Governmental Authorization granted by or obtained from any Governmental Authority or under  any Governmental Rule for the benefit of such Person or (d) any judgment, decision, award,  decree, writ or determination of any Governmental Authority or arbitrator, 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.  “Reserve Percentage” shall mean, for any day during any Interest Period, the reserve  percentage in effect on such day, whether or not applicable to any Lender, under regulations issued  from time to time by Federal Reserve Board for determining the maximum reserve requirement  (including any emergency, special, supplemental or other marginal reserve requirement) with  respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in  





 






DB1/ 120286909.9       -38-    Regulation D).  The LIBOR Rate for each outstanding LIBOR Loan shall be adjusted  automatically as of the effective date of any change in the Reserve Percentage.  “Responsible Officer” shall mean, with respect to a Loan Party, the chief executive officer,  president, chief operating officer, chief financial officer, vice president of finance, treasurer or  assistant treasurer, or assistant secretary, of such Loan Party.  Any document delivered hereunder  that is signed by a Responsible Officer of a Loan Party and any request or other communication  conveyed telephonically or otherwise by a Responsible Officer of a Loan Party (or any Person  reasonably believed by the Administrative Agent to be a Responsible Officer of a Loan Party) shall  be conclusively presumed to have been authorized by all necessary corporate, company,  partnership and/or other action on the part of such Loan Party and such Responsible Officer (or  such Person reasonably believed by the Administrative Agent to be a Responsible Officer) shall  be conclusively presumed to have acted on behalf of such Loan Party.    “Restricted Amount” shall have the meaning given to that term in Section 2.06(d).  “Restricted Payment” shall mean a Distribution.    “Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any  UK Financial Institution, a UK Resolution Authority.  “Revolving Loan” shall have the meaning given to that term in Section 2.01(a).   “Revolving Loan Availability” shall mean, at any time, the remainder of (a) the Total  Revolving Loan Commitment at such time minus (b) the sum of the Effective Amount of all  Revolving Loans and Swing Line Loans and the Effective Amount of all L/C Obligations  outstanding at such time.  “Revolving Loan Borrowing” shall mean a borrowing by the Borrower consisting of the  Revolving Loans made by each of the Revolving Lenders to the Borrower on the same date and of  the same Type pursuant to a single Notice of Loan Borrowing for Revolving Loans.  “Revolving Loan Commitment” shall mean, with respect to each Lender, the Dollar  amount set forth under the caption “Revolving Loan Commitment” opposite such Lender’s name  on Part A of Schedule I, or, if changed, such Dollar amount as may be set forth for such Lender in  the Register.  “Revolving Loan Maturity Date” shall mean, with respect to a Revolving Lender, April 22,  2026, as such date may be extended with respect to such Lender pursuant to Section 2.18.  “Revolving Loan Note” shall have the meaning given to that term in Section 2.08(b).  “Revolving Proportionate Share” shall mean:  (a) With respect to any Lender so long as the Revolving Loan Commitments  are in effect, the ratio (expressed as a percentage rounded to the eighth digit to the right of the  decimal point) of (i) such Lender’s Revolving Loan Commitment at such time to (ii) the Total  Revolving Loan Commitment at such time; and  





 






DB1/ 120286909.9       -39-    (b) With respect to any Lender at any other time, the ratio (expressed as a  percentage rounded to the eighth digit to the right of the decimal point) of (i) the sum of (A) the  aggregate Effective Amount of such Lender’s Revolving Loans, (B) such Lender’s pro rata share  of the Effective Amount of all L/C Obligations, and (C) such Lender’s pro rata share of the  aggregate Effective Amount of all Swing Line Loans to (ii) the sum of (A) the aggregate Effective  Amount of all Revolving Loans and Swing Line Loans and (B) the Effective Amount of all  L/C Obligations.  The Revolving Proportionate Share of each Lender as of the Closing Date is set forth under  the caption “Revolving Proportionate Share” opposite such Lender’s name on Schedule I.   “Sale and Leaseback” shall mean, with respect to any Person, the sale of Property owned  by such Person (the “Seller”) to another Person (the “Buyer”), together with the substantially  concurrent leasing of such Property by the Buyer to the Seller.   “SEC” shall mean the U.S. Securities and Exchange Commission or any successor thereto.  “Security Agreement” shall mean that certain Security Agreement, dated as of the Closing  Date, among each Credit Party that is party thereto and the Administrative Agent.  “Security Documents” shall mean and include the Security Agreement, each Control  Agreement, each other pledge agreement or security agreement from time to time delivered in  accordance with Section 5.01(i), and all other instruments, agreements, certificates, and documents  (including Uniform Commercial Code financing statements and fixture filings) delivered to the  Administrative Agent or any Lender in connection with any Collateral or to secure the Obligations  or the obligation of a Guarantor under the Credit Documents.  “Seller Subordinated Notes” shall mean, collectively, the unsecured promissory notes  issued by any Loan Party to any seller in connection with a Permitted Acquisition which are  expressly subordinated and made junior to the payment and performance in full of all the  Obligations in accordance with a subordination agreement substantially in the form of Exhibit O.  “SOFR” shall mean, with respect to any Business Day, a rate per annum equal to the  secured overnight financing rate for such Business Day published by the SOFR Administrator on  the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time), or in the  case of an update to such rate by the SOFR Administrator, at approximately 2:30 p.m. (New York  City time) on the immediately succeeding Business Day.  “SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor  administrator of the secured overnight financing rate).  “SOFR Administrator’s Website” shall mean the website of the Federal Reserve Bank of  New York, currently at http://www.newyorkfed.org, or any successor source for the secured  overnight financing rate identified as such by the SOFR Administrator from time to time.  “Solvent” shall mean, with respect to any Person on any date, that on such date (a) the fair  value of the Property of such Person is greater than the fair value of the liabilities (including  contingent, subordinated, matured and unliquidated liabilities) of such Person, (b) the present fair  





 






DB1/ 120286909.9       -40-    saleable value of the assets of such Person is greater than the amount that will be required to pay  the probable liability of such Person on its debts as they become absolute and matured, (c) such  Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such  Person’s ability to pay as such debts and liabilities mature and (d) such Person is not engaged in  or about to engage in business or transactions for which such Person’s Property would constitute  an unreasonably small capital.   “Subordinated Obligations” shall mean, as of any date of determination, (a) Earn-Outs  arising from and after the Closing Date, and (b) any other Indebtedness of the Loan Parties  (including seller notes) on that date which has been subordinated in right of payment to the  Obligations in a manner reasonably satisfactory to the Required Lenders and contains such other  protective terms with respect to senior debt (such as amount, maturity, amortization, interest rate,  covenants, defaults, remedies, payment blockage and terms of subordination) as the Required  Lenders may reasonably require.  “Subsidiary” of any Person shall mean (a) any corporation of which more than 50% of the  issued and outstanding Equity Securities having ordinary voting power to elect a majority of the  board of directors of such corporation (irrespective of whether at the time capital stock of any other  class or classes of such corporation shall or might have voting power upon the occurrence of any  contingency) is at the time directly or indirectly owned or controlled by such Person, by such  Person and one or more of its other Subsidiaries or by one or more of such Person’s other  Subsidiaries, (b) any partnership, joint venture, limited liability company or other association of  which more than 50% of the Equity Securities having the power to vote, direct or control the  management of such partnership, joint venture or other association is at the time owned and  controlled by such Person, by such Person and one or more of the other Subsidiaries or by one or  more of such Person’s other Subsidiaries or (c) any other Person included in the Financial  Statements of such Person on a consolidated basis.  Unless otherwise indicated in this Agreement,  “Subsidiary” shall mean a Subsidiary of Holdings.    “Surety Instruments” shall mean all letters of credit (including standby and commercial),  banker’s acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.  “Swap Obligation” shall mean with respect to any Guarantor, any obligation to pay or  perform under any agreement, contract or transaction that constitutes a “swap” within the meaning  of section 1a(47) of the Commodity Exchange Act.  “Swing Line” shall mean the revolving credit facility made available by the Swing Line  Lender pursuant to Section 2.03.  “Swing Line Borrowing” shall mean a borrowing of a Swing Line Loan.  “Swing Line Lender” shall mean U.S. Bank in its capacity as provider of Swing Line  Loans, or any successor swing line lender hereunder.  “Swing Line Loan” shall have the meaning specified in Section 2.03(a).  “Swing Line Note” shall have the meaning given to that term in Section 2.08(d).  





 






DB1/ 120286909.9       -41-    “Swing Line Risk Participation” shall mean, with respect to any Lender and any Swing  Line Loan as of any date of determination, the sum of (a) such Lender’s Revolving Proportionate  Share of the Effective Amount of such Swing Line Loan outstanding at such time plus (b) the  aggregate amount of all Defaulting Lenders’ Revolving Proportionate Shares of the Effective  Amount of such Swing Line Loan outstanding at such time that have been reallocated to such  Lender pursuant to Section 2.16(a)(iv).  “Swing Line Settlement Date” shall mean the fifteenth day of each month and the last  Business Day of each month.  “Swing Line Sublimit” shall mean an amount equal to the lesser of (a) $5,000,000 and  (b) the Total Revolving Loan Commitment.  The Swing Line Sublimit is part of, and not in addition  to, the Total Revolving Loan Commitment.    “Syndication Agent” shall mean BMO Harris Bank N.A. in its capacity as syndication  agent in connection with this Agreement.  Except as expressly set forth in Section 8.03 and  Section 8.04, the capacity of the Syndication Agent is titular in nature, and the Syndication Agent  shall have no special rights or obligations over those of a Lender by reason thereof.  “Taxes” shall mean all taxes, assessments, charges, duties, fees, levies or other  governmental charges, including, without limitation, all U.S. federal, state, local, foreign and other  income, franchise, profits, gross receipts, capital gains, capital stock, transfer, property, sales, use,  value-added, occupation, property, excise, severance, windfall profits, stamp, license, payroll,  social security, withholding and other taxes, assessments, charges, duties, fees, levies or other  governmental charges of any kind whatsoever (whether payable directly or by withholding and  whether or not requiring the filing of a Tax Return), all estimated taxes, deficiency assessments,  additions to tax, penalties and interest and shall include any liability for such amounts as a result  either of being a member of a combined, consolidated, unitary or affiliated group or of a contractual  obligation to indemnify any person or other entity.  “Tax Return” shall mean all tax returns, statements, forms and reports (including elections,  declarations, disclosures, schedules, estimates and information returns) for Taxes.    “Terminating Lender” shall have the meaning given to that term in Section 2.18(a).  “Term Lender” shall mean a Closing Date Term Lender or a Lender that has made or is an  assignee of an Incremental Term Loan.    “Term Loan” shall mean a Closing Date Term Loan or an Incremental Term Loan.  “Term Loan Borrowing” shall mean the Closing Date Term Loan Borrowing or an  Incremental Term Loan Borrowing.  “Term Loan Commitment” shall mean a Closing Date Term Loan Commitment or an  Incremental Term Loan Commitment.  “Term Loan Installment Date” shall mean the last Business Day in March, June, September  and December of each year.  





 






DB1/ 120286909.9       -42-    “Term Loan Maturity Date” shall mean, with respect to a Term Lender, the maturity date  of the initial Incremental Term Loan made under this Agreement, as such date may be extended  with respect to such Lender pursuant to Section 2.18.  “Term Loan Note” shall mean a Closing Date Term Loan Note or an Incremental Term  Loan Note.  “Term Proportionate Share” shall mean a Closing Date Term Proportionate Share or an  Incremental Term Proportionate Share, as the context may require.  “Term SOFR” shall mean, 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.  “Term SOFR Notice” shall mean 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” shall mean the determination by the Administrative Agent  at any time, in its sole discretion, 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, has previously occurred resulting in a Benchmark Replacement in accordance with  Section 2.11(e) that is not Term SOFR.  “Termination Value” shall mean, in respect of any one or more Rate Contracts, after taking  into account the effect of any legally enforceable netting agreement relating to such Rate Contracts,  (a) for any date on or after the date such Rate Contracts have been closed out and termination  value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior  to the date referenced in clause (a) the amount(s) determined as the mark-to-market value(s) for  such Rate Contracts, as determined by the Administrative Agent based upon one or more mid- market or other readily available quotations provided by any recognized dealer in such Rate  Contracts which may include any Lender.  “Total Closing Date Term Loan Commitment” shall mean, as of the Closing Date, zero  Dollars ($0).    “Total Lender Risk Participation” shall mean, with respect to any Lender as of any date of  determination, the sum of (a) such Lender’s L/C Risk Participations in all Letters of Credit  outstanding at such time plus (b) such Lender’s Swing Line Risk Participations in all Swing Line  Loans outstanding at such time.  “Total Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) (i) all  Funded Indebtedness of Holdings and its Subsidiaries (determined on a consolidated basis without  duplication in accordance with GAAP) as of such date, minus (ii) all Unrestricted, Unencumbered  Liquid Assets of the Credit Parties maintained in accounts located in the United States as of such  





 






DB1/ 120286909.9       -43-    date to (b) Consolidated Adjusted EBITDA for the four consecutive fiscal quarter period most  recently ended for which Financial Statements of Holdings and its Subsidiaries are available.    “Total Revolving Loan Commitment” shall mean, at any time from and after the Closing  Date, Seventy Million Dollars ($70,000,000) or, if such amount is reduced pursuant to  Section 2.04(a), the amount to which so reduced and in effect at such time.    “Type” shall mean, with respect to any Loan, Borrowing or Portion at any time, the  classification of such Loan, Borrowing or Portion by the type of interest rate it then bears, whether  an interest rate based upon the Base Rate or the LIBOR Rate.  “UCP” shall have the meaning given to that term in Section 2.02(h).  “UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined  under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom  Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook  (as amended from time to time) promulgated by the United Kingdom Financial Conduct  Authority, which includes certain credit institutions and investment firms, and certain affiliates  of such credit institutions or investment firms.  “UK Resolution Authority” shall mean the Bank of England or any other public  administrative authority having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” shall mean the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.  “Unfunded Pension Liability” shall mean the excess of a Pension Plan’s benefit liabilities  under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,  determined in accordance with the assumptions used for funding the Pension Plan pursuant to  Section 412 of the IRC for the applicable plan year.  “Unreimbursed Amount” shall have the meaning given to that term in Section 2.02(c)(i).  “Unused Revolving Commitment” shall mean, at any time, the remainder of (a) the Total  Revolving Loan Commitment at such time minus (b) the sum of the Effective Amount of all  Revolving Loans and the Effective Amount of all L/C Obligations outstanding at such time.  For  the avoidance of doubt, Swing Line Loans shall not be counted as Revolving Loans for purposes  of determining the amount of Unused Revolving Commitment.  “United States” and “U.S.” shall mean the United States of America.  “Unrestricted, Unencumbered Liquid Assets” shall mean cash and Cash Equivalents  owned directly by the Credit Parties and, solely for purposes of the test set forth in Section  5.02(f)(iii)(H), such other Domestic Subsidiaries, in each case, which are unrestricted and  unencumbered (other than Liens on such cash and Cash Equivalents in favor of the Administrative  Agent under the Credit Documents or bankers liens and rights of setoff or offset with respect to  customary depository arrangements entered into in the ordinary course of business).  





 






DB1/ 120286909.9       -44-    “U.S. Bank” shall have the meaning given to that term in clause (3) of the introductory  paragraph hereof.  “Write-Down and Conversion Powers” shall mean, (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.  1.02.  GAAP.  Unless otherwise indicated in this Agreement or any other Credit  Document, all accounting terms used in this Agreement or any other Credit Document shall be  construed, and all accounting and financial computations hereunder or thereunder shall be  computed, in accordance with GAAP applied in a consistent manner with the principles used in  the preparation of the Financial Statements of Holdings referred to in Section 4.01(i).   Notwithstanding the other provisions of this Section 1.02, for purposes of determining compliance  with any covenant (including the computation of any financial covenant) contained herein,  Indebtedness and other liabilities of Holdings and the other Loan Parties shall be deemed to be  carried at 100% of the outstanding principal amount thereof, and, to the extent applicable, the  effects of FASB ASC 825 (and FASB ASC 470-20, if applicable) on financial liabilities shall be  disregarded.  If GAAP changes, as applicable, during the term of this Agreement such that any  covenants contained herein would then be required or permitted to be calculated in a different  manner or with different components, other than changes in GAAP that require items to be  included in the definition of Indebtedness that were not so required before such change in GAAP,  the Borrower, the Lenders and the Administrative Agent agree to negotiate in good faith to amend  this Agreement in such respects as are necessary to conform those covenants as criteria for  evaluating the Loan Parties’ financial condition to substantially the same criteria as were effective  prior to such change in GAAP; provided, however, that, until the Borrower, the Lenders and the  Administrative Agent so amend this Agreement, all such covenants shall be calculated in  accordance with GAAP, as in effect immediately prior to such change in GAAP.  Notwithstanding  any other provision contained herein or in the definition of “Capital Lease”, any lease that is treated  as an operating lease for purposes of GAAP prior to the issuance by the Financial Accounting  Standards Board on February 25, 2016 of an Accounting Standards Update shall not be treated as  Indebtedness, Attributable Debt or as a capital lease and shall continue to be treated as an operating  lease (and any future lease, if it were in effect on the date hereof, that would be treated as an  operating lease for purposes of GAAP as of such date shall be treated as an operating lease), in  each case for purposes of this Agreement, notwithstanding any actual or proposed change in GAAP  or in the application thereof (including through conforming changes made with IFRS) after the  date hereof.  





 






DB1/ 120286909.9       -45-    1.03.  Headings.  The table of contents, captions and section headings appearing in this  Agreement are included solely for convenience of reference and are not intended to affect the  interpretation of any provision of this Agreement.  1.04.  Plural Terms.  All terms defined in this Agreement or any other Credit Document  in the singular form shall have comparable meanings when used in the plural form and vice versa.  1.05.  Time.  All references in this Agreement and each of the other Credit Documents to  a time of day shall mean San Francisco, California time, unless otherwise indicated.  1.06.  Governing Law.  This Agreement and, unless otherwise expressly provided in any  such Credit Document, each of the other Credit Documents shall be governed by and construed in  accordance with the laws of the State of New York without reference to conflicts of law rules other  than Section 5-1401 of the General Obligations Law of the State of New York.  The scope of the  foregoing governing law provision is intended to be all-encompassing of any and all disputes that  may be brought in any court or any mediation or arbitration proceeding and that relate to the subject  matter of the Credit Documents, including contract claims, tort claims, breach of duty claims and  all other common law and statutory claims.  1.07.  Construction.  This Agreement is the result of negotiations among, and has been  reviewed by, the Borrower, the Lenders, the Administrative Agent and their respective counsel.   Accordingly, this Agreement shall be deemed to be the product of all parties hereto, and no  ambiguity shall be construed in favor of or against the Borrower, any Lender or the Administrative  Agent.  1.08.  Entire Agreement.  This Agreement and each of the other Credit Documents, taken  together, constitute and contain the entire agreement of the Borrower, the Lenders and the  Administrative Agent and supersede any and all prior agreements, negotiations, correspondence,  understandings and communications among the parties, whether written or oral, respecting the  subject matter hereof.    1.09.  Calculation of Interest and Fees.  All calculations of interest and fees under this  Agreement and the other Credit Documents for any period (a) shall include the first day of such  period and exclude the last day of such period; provided that any Loan, Portion or other Obligation  that is repaid on the same day on which it is made shall bear interest for one day and (b) shall be  calculated on the basis of a year of 360 days for actual days elapsed, except that during any period  any Loan or Portion bears interest based upon the Prime Rate, such interest shall be calculated on  the basis of a year of 365 or 366 days, as appropriate, for actual days elapsed.    1.10.  References.  (a)  References in this Agreement to “Recitals,” “Sections,” “Paragraphs,”  “Exhibits” and “Schedules” are to recitals, sections, paragraphs, exhibits and schedules herein and  hereto unless otherwise indicated.  (b)  References in this Agreement or any other Credit Document to any  document, instrument or agreement (i) shall include all exhibits, schedules and other attachments  hereto or thereto, (ii) shall include all documents, instruments or agreements issued or executed in  





 






DB1/ 120286909.9       -46-    replacement thereof if such replacement is permitted hereby or thereby, and (iii) shall mean such  document, instrument or agreement, or replacement or predecessor thereto, as amended, restated,  modified and supplemented from time to time and in effect at any given time if such amendment,  restatement, modification or supplement is permitted hereby or thereby.  (c)  References in this Agreement or any other Credit Document to any  Governmental Rule (i) shall include any successor Governmental Rule, (ii) shall include all rules  and regulations promulgated under such Governmental Rule (or any successor Governmental  Rule), and (iii) shall mean such Governmental Rule (or successor Governmental Rule) and such  rules and regulations, as amended, restated, modified, codified or reenacted from time to time and  in effect at any given time.  (d)  References in this Agreement or any other Credit Document to any Person  in a particular capacity (i) shall include any successors to and permitted assigns of such Person in  that capacity and (ii) shall exclude such Person individually or in any other capacity.  (e) For purposes of this Agreement, Loans may be classified and referred to by  Class (e.g., a “Revolving Loan”) or by Type (e.g., a “LIBOR Loan”) or by Class and Type (e.g., a  “LIBOR Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a  “Revolving Borrowing”) or by Type (e.g., a “LIBOR Borrowing”) or by Class and Type (e.g., a  “LIBOR Revolving Borrowing”).  1.11.  Other Interpretive Provisions.  The words “hereof,” “herein” and “hereunder” and  words of similar import when used in this Agreement or any other Credit Document shall refer to  this Agreement or such other Credit Document, as the case may be, as a whole and not to any  particular provision of this Agreement or such other Credit Document, as the case may be.  The  words “include” and “including” and words of similar import when used in this Agreement or any  other Credit Document shall not be construed to be limiting or exclusive and shall be deemed to  be followed by the phrase “without limitation.”  In the event of any inconsistency between the  terms of this Agreement and the terms of any other Credit Document, the terms of this Agreement  shall govern.  1.12.   Rounding.  Any financial ratios required to be maintained by the Borrower pursuant  to this Agreement shall be calculated by dividing the appropriate component by the other  component, carrying the result to one place more than the number of places by which such ratio is  expressed in this Agreement and rounding the result up or down to the nearest number (with a  round-up if there is no nearest number) to the number of places by which such ratio is expressed  in this Agreement.   1.13.   Rates.  The interest rate on LIBOR Borrowings is determined by reference to the  LIBOR Rate, which is derived from the LIBOR Base Rate. Section 2.11(e) provides a mechanism  for (a) determining an alternative rate of interest if the LIBOR Base Rate is no longer available or  in the other circumstances set forth in Section 2.11(e), and (b) modifying this Agreement to give  effect to such alternative rate of interest. The Administrative Agent does not warrant or accept any  responsibility for, and shall not have any liability with respect to, the administration, submission  or any other matter related to the LIBOR Base Rate or other rates in the definition of LIBOR Base  Rate or with respect to any alternative or successor rate thereto, or replacement rate thereof,  





 






DB1/ 120286909.9       -47-    including without limitation, whether any such alternative, successor or replacement reference  rate, as it may or may not be adjusted pursuant to Section 2.11(e), will have the same value as, or  be economically equivalent to, the LIBOR Base Rate.  1.14.   Divisions.  For all purposes under the Credit Documents, in connection with any  division or plan of division under Delaware law (or any comparable event under a different  jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset,  right, obligation or liability of a different Person, then it shall be deemed to have been transferred  from the original Person to the subsequent Person, and (b) if any new Person comes into existence,  such new Person shall be deemed to have been organized on the first date of its existence by the  holders of its Equity Securities at such time.  ARTICLE II. CREDIT FACILITIES.  2.01.  Loan Facility.    (a)  Revolving Loan Availability.  On the terms and subject to the conditions of  this Agreement, each Revolving Lender severally agrees to advance to the Borrower from time to  time during the period beginning on the Closing Date up to, but not including the Revolving Loan  Maturity Date such loans in Dollars as the Borrower may request under this Section 2.01(a)  (individually, a “Revolving Loan”); provided, however, that (i) the sum of (A) the Effective  Amount of all Revolving Loans made by such Revolving Lender at any time outstanding and  (B) such Revolving Lender’s Total Lender Risk Participation at any time shall not exceed such  Revolving Lender’s Revolving Loan Commitment at such time and (ii) the sum of (A) the  Effective Amount of all Revolving Loans made by all the Revolving Lenders at any time  outstanding and (B) the Effective Amount of all L/C Obligations and Swing Line Loans at any  time outstanding shall not exceed the Total Revolving Loan Commitment at such time.  All  Revolving Loans shall be made on a pro rata basis by the Revolving Lenders in accordance with  their respective Revolving Proportionate Shares, with each Revolving Loan Borrowing to be  comprised of a Revolving Loan by each Revolving Lender equal to such Revolving Lender’s  Revolving Proportionate Share of such Revolving Loan Borrowing.  Except as otherwise provided  herein, the Borrower may borrow, repay and reborrow Revolving Loans up to, but not including  the Revolving Loan Maturity Date.  (b)   Term Loan Availability.    (i)  Closing Date Term Loans.  On the terms and subject to the  conditions of this Agreement, each Closing Date Term Lender severally agrees to advance to the  Borrower in a single advance on the Closing Date a loan in Dollars under this Section 2.01(b)  (individually, a “Closing Date Term Loan”); provided, however, that there are no Closing Date  Term Loans made by any Lender on the Closing Date and nothing set forth in this Agreement  on the Closing Date shall be deemed to constitute a commitment by any Lender to make a Term  Loan.   (ii)  Incremental Term Loans.  On the terms and subject to the conditions  of this Agreement, if there is to be an Incremental Term Loan Borrowing pursuant to Section 2.17,  each Incremental Term Lender and New Lender that has an Incremental Term Loan Commitment  





 






DB1/ 120286909.9       -48-    with respect to such Incremental Term Loan Borrowing hereby severally agrees to advance to the  Borrower in a single advance on the Incremental Effective Date specified for such Incremental  Term Loan Borrowing pursuant to Section 2.17 an Incremental Term Loan in Dollars; provided,  however, that (A) the principal amount of the Incremental Term Loan made by such Incremental  Term Lender or New Lender shall not exceed the Incremental Term Loan Commitment of such  Incremental Term Lender or New Lender with respect to such Incremental Term Loan Borrowing  and (B) the aggregate principal amount of all Incremental Term Loans made by all such  Incremental Term Lenders and New Lenders shall not exceed the aggregate amount of all  Incremental Term Loan Commitments with respect to such Incremental Term Loan Borrowing.   The Incremental Term Loans shall be made on a pro rata basis by the applicable Incremental Term  Lenders and New Lenders in accordance with their respective Incremental Term Proportionate  Shares of such Incremental Term Loan Borrowing, with such Incremental Term Loan Borrowing  to be comprised of an Incremental Term Loan by each such Incremental Term Lender or New  Lender equal to such Incremental Term Lender’s or New Lender’s Incremental Term  Proportionate Share of such Incremental Term Loan Borrowing.  The Borrower may not reborrow  the principal amount of an Incremental Term Loan after repayment or prepayment thereof.    (c)   Notice of Loan Borrowing.  The Borrower shall request each Revolving  Loan Borrowing and each Term Loan Borrowing by delivering to the Administrative Agent an  irrevocable written notice substantially in the form of Exhibit A (a “Notice of Loan Borrowing”),  duly executed by a Responsible Officer of the Borrower and appropriately completed which  specifies, among other things:  (i)  Whether the applicable Borrowing is a Revolving Loan Borrowing,  the Closing Date Term Loan Borrowing or an Incremental Term Loan Borrowing;  (ii)   In the case of a Revolving Loan Borrowing or a Term Loan  Borrowing, the principal amount of the requested Revolving Loan Borrowing or Incremental Term  Loan Borrowing, which, in the case of a Revolving Loan Borrowing, shall (except as expressly set  forth herein) be in the amount of (A) $1,000,000 or an integral multiple of $100,000 in excess  thereof in the case of a Borrowing consisting of Base Rate Loans; or (B) $1,000,000 or an integral  multiple of $500,000 in excess thereof in the case of a Borrowing consisting of LIBOR Loans;  (iii)  Whether the requested Borrowing is to consist of Base Rate Loans  or LIBOR Loans (in the case of a Revolving Loan Borrowing) or Base Rate Portions or LIBOR  Portions (in the case of a Term Loan Borrowing);  (iv)  If the requested Borrowing is to consist of LIBOR Loans or LIBOR  Portions, the initial Interest Periods selected by the Borrower for such LIBOR Loans or LIBOR  Portions in accordance with Section 2.01(f); and  (v)  The date of the requested Revolving Loan Borrowing or Incremental  Term Loan Borrowing, which shall be a Business Day.  The Borrower shall give (x) each Notice of Loan Borrowing for Revolving Loans to the  Administrative Agent not later than 11:00 a.m. at least three (3) Business Days before the date of  the requested Revolving Loan Borrowing in the case of a Revolving Loan Borrowing consisting  





 






DB1/ 120286909.9       -49-    of LIBOR Loans and not later than 11:00 a.m. at least one (1) Business Day before the date of the  requested Revolving Loan Borrowing in the case of a Revolving Loan Borrowing consisting of  Base Rate Loans, (y) the Notice of Loan Borrowing for the Closing Date Term Loan Borrowing  to the Administrative Agent no later than 11:00 a.m. at least three (3) Business Days before the  Closing Date and (z) the Notice of Loan Borrowing for an Incremental Term Loan Borrowing to  the Administrative Agent not later than 11:00 a.m. at least three (3) Business Days before the date  of the requested Incremental Term Loan Borrowing in the case of an Incremental Term Loan  Borrowing consisting of LIBOR Portions and not later than 11:00 a.m. at least one (1) Business  Day before the date of the requested Incremental Term Loan Borrowing in the case of an  Incremental Term Loan Borrowing consisting of Base Rate Portions.  Each Notice of Loan  Borrowing shall be delivered by first-class mail or facsimile (or by e-mail containing a PDF of  such signed and completed Notice of Loan Borrowing) to the Administrative Agent at the office  or facsimile number (or e-mail address, as the case may be) and during the hours specified in  Section 8.01; provided, however, that, if requested by the Administrative Agent, the Borrower  shall promptly deliver to the Administrative Agent the original of any Notice of Loan Borrowing  initially delivered by facsimile or e-mail.  The Administrative Agent shall promptly notify (x) each  Revolving Lender of the contents of each Notice of Loan Borrowing for Revolving Loans and of  the amount and Type of (and, if applicable, the Interest Period for) the Revolving Loan to be made  by such Revolving Lender as part of the requested Revolving Loan Borrowing and (y) each Term  Lender of the contents of the Notice of Loan Borrowing for the Term Loan Borrowing and of the  amount of the Term Loan to be made by such Term Lender as part of the requested Term Loan  Borrowing.  Unless the Borrower delivers a customary LIBOR indemnity letter to the  Administrative Agent at least four (4) Business Days prior to the Closing Date, the Revolving  Loan Borrowing and the Closing Date Term Loan Borrowing advanced on the Closing Date shall  consist of Base Rate Loans.   (d)  Interest Rates.  The Borrower shall pay interest on the unpaid principal  amount of each Revolving Loan and each Term Loan from the date of such Revolving Loan and  such Term Loan, as applicable, until paid in full, at one of the following rates per annum:    (i)  During such periods as such Loan is a Base Rate Loan or Base Rate  Portion, at a rate per annum equal to the Base Rate, such rate to change from time to time as the  Applicable Margin or the Alternate Base Rate shall change; and  (ii)  During such periods as such Loan is a LIBOR Loan or LIBOR  Portion, at a rate per annum equal at all times during each Interest Period for such LIBOR Loan  or LIBOR Portion to the LIBOR Rate for such Interest Period, such rate to change from time to  time during such Interest Period as the Applicable Margin shall change.  The number of Borrowings consisting of LIBOR Loans and LIBOR Portions shall not exceed  ten (10) in the aggregate at any time.  (e)  Conversion of Loans.  Subject to Section 2.13, the Borrower may convert  any Revolving Loan Borrowing or any Portion of a Term Loan Borrowing from one Type of  Revolving Loan Borrowing or Portion of a Term Loan Borrowing, respectively, to the other Type;  provided, however, that any conversion of (i) a Revolving Loan Borrowing consisting of Base  Rate Loans into a Revolving Loan Borrowing consisting of LIBOR Loans shall be in the amount  





 






DB1/ 120286909.9       -50-    of $1,000,000 or an integral multiple of $500,000 in excess thereof,(ii) a Revolving Loan  Borrowing consisting of LIBOR Loans into a Revolving Loan Borrowing consisting of Base Rate  Loans shall be in the amount of $1,000,000 or an integral multiple of $100,000 in excess thereof,  (iii) a Base Rate Portion of a Term Loan Borrowing into a LIBOR Portion of a Term Loan  Borrowing shall be in the amount of $1,000,000 or an integral multiple of $500,000 in excess  thereof and (iv) a LIBOR Portion of a Term Loan Borrowing into a Base Rate Portion of a Term  Loan Borrowing shall be in the amount of $1,000,000 or an integral multiple of $100,000 in excess  thereof; provided, further, that no Base Rate Loan or Base Rate Portion may be converted into a  LIBOR Loan or LIBOR Portion, respectively, after the occurrence and during the continuance of  an Event of Default and provided, further, that any conversion of a LIBOR Loan or LIBOR Portion  on any day other than the last day of the Interest Period therefor shall be subject to the payments  required under Section 2.13.  The Borrower shall request such a conversion by delivering to the  Administrative Agent an irrevocable written notice to the Administrative Agent substantially in  the form of Exhibit B (a “Notice of Conversion”), duly executed by a Responsible Officer of the  Borrower and appropriately completed, which specifies, among other things:  (i)  The Revolving Loan Borrowing or the Portion of a Term Loan  Borrowing which is to be converted, as applicable;  (ii)  The amount and Type of Revolving Loan Borrowing into which  such Revolving Loan Borrowing is to be converted or the amount and Type of each Portion of a  Term Loan Borrowing into which it is to be converted, as applicable;  (iii)  If such Revolving Loan Borrowing is to be converted into a  Revolving Loan Borrowing consisting of LIBOR Loans or if any Portion of a Term Loan  Borrowing is to be converted into a LIBOR Portion, the initial Interest Period selected by the  Borrower for such LIBOR Loans or LIBOR Portion in accordance with Section 2.01(f), as  applicable; and  (iv)  The date of the requested conversion, which shall be a Business Day.  The Borrower shall give each Notice of Conversion to the Administrative Agent not later than  11:00 a.m. at least three (3) Business Days before the date of the requested conversion of a Base  Rate Loan into a LIBOR Loan (or Base Rate Portion into a LIBOR Portion) or at least one (1)  Business Day before the date of the requested conversion of a LIBOR Loan into a Base Rate Loan  (or a LIBOR Portion into a Base Rate Portion).  Each Notice of Conversion shall be delivered by  first-class mail or facsimile or by e-mail containing a PDF of such signed and completed Notice  of Conversion to the Administrative Agent at the office or to the facsimile number or e-mail  address and during the hours specified in Section 8.01; provided, however, that, if requested by  the Administrative Agent, the Borrower shall promptly deliver to the Administrative Agent the  original of any Notice of Conversion initially delivered by facsimile or e-mail.  The Administrative  Agent shall promptly notify (x) each Revolving Lender of the contents of each Notice of  Conversion relating to Revolving Loans and (y) each Term Lender of the contents of each Notice  of Conversion relating to Term Loans or Portions thereof.  For the avoidance of doubt, the  provisions of this Section 2.01(e) relate to the conversion of the type of interest rate (LIBOR or  Base Rate) applicable to the applicable Loans or Portions and do not permit the conversion of a  Revolving Loan, Term Loan or Portion into any other kind of Loan provided hereunder.  





 






DB1/ 120286909.9       -51-    (f)  LIBOR Loan Interest Periods.  (i)  The initial and each subsequent Interest Period selected by the  Borrower for a Revolving Loan Borrowing consisting of LIBOR Loans, or a LIBOR Portion of a  Term Loan Borrowing, as applicable, shall be one (1), three (3) or six (6) months; provided,  however, that (A) any Interest Period which would otherwise end on a day which is not a Business  Day shall be extended to the next succeeding Business Day unless such next Business Day falls in  another calendar month, in which case such Interest Period shall end on the immediately preceding  Business Day; (B) any Interest Period which begins on the last Business Day of a calendar month  (or on a day for which there is no numerically corresponding day in the calendar month at the end  of such Interest Period) shall end on the last Business Day of the calendar month at the end of such  Interest Period; (C) no Interest Period shall end after the Maturity Date for the applicable Loan;  (D) no LIBOR Loan or LIBOR Portion shall be made or continued for an additional Interest Period  after the occurrence and during the continuance of an Event of Default (unless otherwise consented  to by the Required Lenders); and (E) no Interest Period for any LIBOR Portion of a Term Loan  Borrowing shall end after a Term Loan Installment Date unless, after giving effect to such Interest  Period, the aggregate principal amount of the Base Rate Portion and all LIBOR Portions of such  Term Loan Borrowing having Interest Periods ending on or prior to such Term Loan Installment  Date equals or exceeds the principal payment on such Term Loan Borrowing due on such Term  Loan Installment Date.  (ii)  The Borrower shall notify the Administrative Agent of the  Borrower’s selection of a new Interest Period for a Revolving Loan Borrowing consisting of  LIBOR Loans or a LIBOR Portion of a Term Loan Borrowing, as applicable, by an irrevocable  written notice substantially in the form of Exhibit C (a “Notice of Interest Period Selection”), duly  executed by a Responsible Officer of the Borrower and appropriately completed, not later than  11:00 a.m. at least three (3) Business Days prior to the last day of each Interest Period for (x) a  Revolving Loan Borrowing consisting of LIBOR Loans or (y) a LIBOR Portion of a Term Loan  Borrowing, as applicable, of the Interest Period selected by the Borrower for the next succeeding  Interest Period for such LIBOR Loans or LIBOR Portion; provided, however, that no LIBOR Loan  or LIBOR Portion shall be continued for an additional Interest Period after the occurrence and  during the continuance of an Event of Default.  Each Notice of Interest Period Selection shall be  given by first-class mail or facsimile or by e-mail containing a PDF of such signed and completed  Notice of Interest Period Selection to the Administrative Agent at the office or to the facsimile  number or e-mail address and during the hours specified in Section 8.01; provided, however, that,  if requested by the Administrative Agent, the Borrower shall promptly deliver to the  Administrative Agent the original of any Notice of Interest Period Selection initially delivered by  facsimile or e-mail.  If (A) the Borrower shall fail to notify the Administrative Agent of the next  Interest Period for a Revolving Loan Borrowing consisting of LIBOR Loans or a LIBOR Portion  of a Term Loan Borrowing, as applicable, in accordance with this Section 2.01(f) or (B) an Event  of Default has occurred and is continuing on the last date of an Interest Period for any LIBOR  Loan or LIBOR Portion, such LIBOR Loan(s) and LIBOR Portion(s) shall automatically convert  to Base Rate Loan(s) and Base Rate Portion(s), as applicable, on the last day of the current Interest  Period therefor.  The Administrative Agent shall promptly notify (x) each Revolving Lender of the  contents of each Notice of Interest Period Selection for the Revolving Loans and (y) each Term  Lender of the contents of each Notice of Interest Period Selection for a Term Loan Borrowing and  Portions thereof.   





 






DB1/ 120286909.9       -52-    (g)   Scheduled Payments.    (i)   Interest – All Loan and Portions.  The Borrower shall pay accrued  interest on the unpaid principal amount of each Revolving Loan Borrowing, each Swing Line  Loan, each Term Loan Borrowing and each Portion thereof in arrears (i) in the case of a Base Rate  Loan or Base Rate Portion, on the last Business Day of each calendar month, (ii) in the case of a  LIBOR Loan or LIBOR Portion, on the last day of each Interest Period therefor (and, if any such  Interest Period is longer than three (3) months, every three (3) months after the first day of such  Interest Period); (iii) in the case of all Loans (other than Incremental Term Loans), on the  Revolving Loan Maturity Date and the Term Loan Maturity Date, and (iv) in the case of an  Incremental Term Loan, on the Incremental Term Loan Maturity Date applicable to such  Incremental Term Loan.  All interest that is not paid when due shall be due on demand.  (ii)   Scheduled Principal Payments – Revolving  Loans and  Unreimbursed Amounts.  The Borrower shall repay the principal amount of the Revolving Loans  and Unreimbursed Amounts on the Revolving Loan Maturity Date.  The Borrower shall also make  the mandatory prepayments if and when required by Section 2.06(c).  (iii)  Scheduled Principal Payments – Closing Date Term Loans.  The  Borrower shall repay the principal amount of the Closing Date Term Loans on each Term Loan  Installment Date set forth below by the principal amount set forth opposite the period during which  such Term Loan Installment Date occurs below:       Period    Closing Date Term Loan  Principal Payment    N/A N/A  N/A N/A  Term Loan Maturity Date N/A    provided, that (A) such scheduled installments of principal of the Closing Date Term Loans set  forth above shall be reduced by any optional or mandatory prepayments of the Closing Date Term  Loans applied to such installments in accordance with Section 2.06 and (B) the Borrower shall pay  all outstanding principal on the Closing Date Term Loans, together with all accrued and unpaid  interest thereon, on the Term Loan Maturity Date.  (iv)  Scheduled Principal Payments – Incremental Term Loans.  In the  event any Incremental Term Loans are made, such Incremental Term Loans shall be repaid in  amounts and on dates as agreed between the Borrower and the Incremental Term Lenders of such  Incremental Term Loans in the Incremental Term Loan Amendment for such Incremental Term  Loans, in each case, subject to the requirements and limitations set forth in Section 2.17(a)(ii).    





 






DB1/ 120286909.9       -53-    (v)  Mandatory Prepayments. The Borrower shall also make the  mandatory prepayments if and when required by Section 2.06(c), which shall be applied to the  Loans in the manner set forth in Section 2.06(d).  2.02.  Letters of Credit.  (a)  The Letter of Credit Commitment.  (i)  On the terms and subject to the conditions set forth herein, (A) the  L/C Issuer (1) shall, from time to time on any Business Day during the period from the Closing  Date until the Letter of Credit Expiration Date, issue Letters of Credit in Dollars for the account  of the Borrower in support of the obligations of the Borrower or any other Loan Party, and amend  or renew Letters of Credit previously issued by it, in accordance with Section 2.02(b) below, and  (2) shall honor drafts under the Letters of Credit; and (B) the Revolving Lenders severally agree  to participate in Letters of Credit issued for the account of the Borrower in support of the  obligations of the Borrower or any other Loan Party; provided that the L/C Issuer shall not be  obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no  Revolving Lender shall be obligated to participate in, any Letter of Credit if as of the date of  such L/C Credit Extension, (w) the Effective Amount of all Revolving Loans, Swing Line Loans  and L/C Obligations would exceed the Total Revolving Loan Commitment at such time, (x) the  aggregate Effective Amount of the Revolving Loans of any Revolving Lender, plus such  Revolving Lender’s Total Lender Risk Participation would exceed such Revolving Lender’s  Revolving Loan Commitment, (y) the expiry date of such requested Letter of Credit would occur  after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved such  expiry date or (z) the Effective Amount of the L/C Obligations would exceed the Letter of Credit  Sublimit.  Each Letter of Credit shall be in a form reasonably acceptable to the L/C Issuer.   Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s  ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may,  during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired  or that have been drawn upon and reimbursed.  Nothing herein limits the Borrower’s obligations  under Section 2.06(c)(i).    (ii)  The L/C Issuer shall be under no obligation to issue any Letter of  Credit if:  (A)  any order, judgment or decree of any Governmental  Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing  such Letter of Credit, or any Requirement of Law applicable to the L/C Issuer or any request or  directive (whether or not having the force of law) from any Governmental Authority with  jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the  issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon  the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement  (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing  Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not  applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;  





 






DB1/ 120286909.9       -54-    (B)  subject to Section 2.02(b)(iii), (1) in the case of any Standby  Letter of Credit, the expiry date of such requested Letter of Credit would occur more than twelve  months after the date of issuance or last renewal or (2) in the case of any Commercial Letter of  Credit, the expiry date of such requested Letter of Credit would occur more than 180 days after  the date of issuance or last renewal, in either case unless the Required Revolving Lenders have  approved such expiry date;  (C)  the expiry date of such requested Letter of Credit would  occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved  such expiry date;  (D)  the issuance of such Letter of Credit would violate one or  more policies of the L/C Issuer or the terms and conditions of the applicable Letter of Credit  Application;   (E)  such Letter of Credit is in a face amount less than $25,000,  in the case of a Commercial Letter of Credit or $100,000 (or such lesser amount agreed upon by  the L/C Issuer) in the case of any other type of Letter of Credit or denominated in a currency other  than Dollars;   (F)  such Letter of Credit is in violation of the ISP, the UCP or  other applicable Governmental Rule; or  (G)  any Lender is at such time a Defaulting Lender hereunder,  unless such Lender’s Fronting Exposure has been reallocated to other Lenders in accordance with  Section 2.16(a) or the L/C Issuer has entered into arrangements satisfactory to the L/C Issuer with  the Borrower or such Defaulting Lender to eliminate the L/C Issuer’s Fronting Exposure.  (iii)  The L/C Issuer shall be under no obligation to amend any Letter of  Credit if (A) the L/C Issuer would have no obligation under the terms hereof to issue such Letter  of Credit as amended or (B) the beneficiary does not accept the proposed amendment to such  Letter of Credit.  (b)  Procedures for Issuance and Amendment of Letters of Credit; Evergreen  Letters of Credit.  (i)  Each Letter of Credit shall be issued or amended, as the case may  be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the  Administrative Agent) in the form of a Letter of Credit Application, appropriately completed  and signed by a Responsible Officer of the Borrower.  Such Letter of Credit Application must  be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m., at least  four (4) Business Days (or such later date and time as the L/C Issuer may agree in a particular  instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the  case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of  Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer:  (A) the proposed issuance date of the requested Letter of Credit (which date shall be a Business  Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the  beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing  





 






DB1/ 120286909.9       -55-    thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any  drawing thereunder; (G) the account party thereunder, and (H) such other matters as the  L/C Issuer may reasonably require.  In the case of a request for an amendment of any outstanding  Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably  satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of  amendment thereof (which date shall be a Business Day); (C) the nature of the proposed  amendment; and (D) such other matters as the L/C Issuer may reasonably require.  (ii)  Promptly after receipt of any Letter of Credit Application, the  L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the  Administrative Agent has received a copy of such Letter of Credit Application from the  Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.   Upon receipt by the L/C Issuer of confirmation from the Administrative Agent that the requested  issuance or amendment is permitted in accordance with the terms hereof, then, subject to the  terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit  for the account of the Borrower or enter into the applicable amendment, as the case may be, in  each case in accordance with the L/C Issuer’s usual and customary business practices.   Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed  to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a  participation in such Letter of Credit in an amount equal to the product of such Revolving  Lender’s Revolving Proportionate Share times the amount of such Letter of Credit; provided,  however, that the amount of such Lender’s participation shall be adjusted in the manner set forth  in Section 2.16(a)(iv).  The Administrative Agent shall promptly notify each Revolving Lender  upon the issuance of a Letter of Credit.  (iii)  If the Borrower so requests in any applicable Letter of Credit  Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of  Credit that has automatic renewal provisions (each, an “Evergreen Letter of Credit”); provided  that any such Evergreen Letter of Credit must permit the L/C Issuer to prevent any such renewal  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 (the “Nonrenewal  Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of  Credit is issued.  Unless otherwise directed by the L/C Issuer, the Borrower shall not be required  to make a specific request to the L/C Issuer for any such renewal.  Once an Evergreen Letter of  Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not  require) the L/C Issuer to permit the renewal of such Letter of Credit at any time to a date not  later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not  permit any such renewal if (A) the L/C Issuer would have no obligation at such time to issue  such Letter of Credit in its renewed form under the terms hereof, or (B) it has received notice  (which may be by telephone or in writing) on or before the Business Day immediately preceding  the Nonrenewal Notice Date (1) from the Administrative Agent that the Required Lenders have  elected not to permit such renewal or (2) from the Administrative Agent, any Lender or the  Borrower that one or more of the applicable conditions specified in Section 3.02 is not then  satisfied.  Notwithstanding anything to the contrary contained herein, the L/C Issuer shall have  no obligation to permit the renewal of any Evergreen Letter of Credit at any time.  





 






DB1/ 120286909.9       -56-    (iv)  Promptly after its delivery of any Letter of Credit or any amendment  to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the  L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete  copy of such Letter of Credit or amendment.  (c)  Drawings and Reimbursements; Funding of Participations.  (i)  Upon any drawing under any Letter of Credit, the L/C Issuer shall  notify the Borrower and the Administrative Agent of the amount to be paid by the L/C Issuer as  a result of such drawing and the date on which payment is to be made by the L/C Issuer to the  beneficiary of such Letter of Credit in respect of such drawing; provided, however, that in the  case of Commercial Letters of Credit, subsequent notification by routine methods shall be  deemed sufficient notice.  Not later than 11:00 a.m., on the date of any payment by the L/C Issuer  under a Letter of Credit (each such date of payment, an “Honor Date”), the Borrower shall  reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of  such drawing, which may be effected through the debiting of one or more deposit accounts  maintained with the Administrative Agent.  If the Borrower fails to so reimburse the L/C Issuer  by such time, the Administrative Agent shall promptly notify each Revolving Lender of the  Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the  amount of such Revolving Lender’s L/C Risk Participation with respect thereto.  In such event,  the Borrower shall be deemed to have requested a Revolving Loan Borrowing of Base Rate  Loans to be disbursed on the Business Day following the Honor Date in an amount equal to the  Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.01  for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion  of the Total Revolving Loan Commitment and the conditions set forth in Section 3.02 (other than  the delivery of a Notice of Loan Borrowing for Revolving Loans).  Any notice given by the  L/C Issuer or the Administrative Agent pursuant to this Section 2.02(c)(i) may be given by  telephone if immediately confirmed in writing; provided, that the lack of such an immediate  confirmation shall not affect the conclusiveness or binding effect of such notice.  (ii)  Each Revolving Lender (including the Revolving Lender acting as  L/C Issuer) shall upon any notice pursuant to Section 2.02(c)(i) make funds available to the  Administrative Agent for the account of the L/C Issuer at the Administrative Agent’s office in  an amount equal to its L/C Risk Participation with respect to the Unreimbursed Amount not later  than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent,  whereupon, subject to the provisions of Section 2.02(c)(iii), each Revolving Lender that so  makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such  amount.  The Administrative Agent shall remit the funds so received to the L/C Issuer.  (iii)  With respect to any Unreimbursed Amount that is not fully  refinanced by a Revolving Loan Borrowing because the conditions set forth in Section 3.02  cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from  the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so  refinanced, which L/C Borrowing shall be due and payable on demand (together with interest)  and shall bear interest at the rate applicable to Revolving Loans upon the occurrence and during  the continuance of an Event of Default.  In such event, each Revolving Lender’s payment to the  Administrative Agent for the account of the L/C Issuer pursuant to Section 2.02(c)(ii) shall be  





 






DB1/ 120286909.9       -57-    deemed payment in respect of its participation in such L/C Borrowing and shall constitute an  L/C Advance from such Revolving Lender in satisfaction of its participation obligation under  this Section 2.02.  (iv)  Until each Revolving Lender funds its Revolving Loan or  L/C Advance pursuant to this Section 2.02(c) to reimburse the L/C Issuer for any amount drawn  under any Letter of Credit, interest in respect of such Revolving Lender’s L/C Risk Participation  with respect thereto shall be solely for the account of the L/C Issuer.  For the avoidance of doubt,  interest shall accrue beginning on the Honor Date for any such draw under a Letter of Credit.  (v)  Each Revolving Lender’s obligation to make Revolving Loans or  L/C Advances to reimburse the L/C Issuer for, or participate in, amounts drawn under Letters of  Credit, as contemplated by this Section 2.02(c), shall be absolute and unconditional and shall not  be affected by any circumstance, including (A) any setoff, offset, counterclaim, recoupment,  defense or other right which such Revolving Lender may have against the L/C Issuer, the  Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of  a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not  similar to any of the foregoing.  Any such reimbursement shall not relieve or otherwise impair  the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made  by the L/C Issuer under any Letter of Credit, together with interest as provided herein.  (vi)  If any Revolving Lender fails to make available to the  Administrative Agent for the account of the L/C Issuer any amount required to be paid by such  Revolving Lender pursuant to the foregoing provisions of this Section 2.02(c) by the time  specified in Section 2.02(c)(ii), the L/C Issuer shall be entitled to recover from such Revolving  Lender (acting through the Administrative Agent), on demand, such amount with interest thereon  for the period from the date such payment is required to the date on which such payment is  immediately available to the L/C Issuer at a rate per annum equal to the Federal Funds Rate from  time to time in effect.  A certificate of the L/C Issuer submitted to any Revolving Lender (through  the Administrative Agent) with respect to any amounts owing under this Section 2.02(c)(vi) shall  be conclusive absent manifest error.  (d)  Repayment of Participations.    (i)  At any time after the L/C Issuer has made a payment under any  Letter of Credit and has received from any Revolving Lender such Revolving Lender’s  L/C Advance in respect of such payment in accordance with Section 2.02(c), if the  Administrative Agent receives for the account of the L/C Issuer any payment related to such  Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of Cash  Collateral applied thereto by the Administrative Agent), or any payment of interest thereon, the  Administrative Agent will distribute to such Revolving Lender a portion of such payment  allocable to such Revolving Lender’s L/C Risk Participation with respect to such Letter of Credit  in the same funds as those received by the Administrative Agent.  (ii)  If any payment received by the Administrative Agent for the account  of the L/C Issuer pursuant to Section 2.02(c)(i) is required to be returned, each Revolving Lender  shall pay to the Administrative Agent for the account of the L/C Issuer a portion of such payment  





 






DB1/ 120286909.9       -58-    allocable to such Revolving Lender’s L/C Risk Participation with respect to such Letter of Credit  on demand of the Administrative Agent, plus interest thereon from the date of such demand to  the date such amount is returned by such Revolving Lender, at a rate per annum equal to the  daily Federal Funds Rate from time to time in effect.  (e)  Obligations Absolute.  The obligation of the Borrower to reimburse the  L/C Issuer for each drawing under each Letter of Credit, and to repay each L/C Borrowing and  each drawing under a Letter of Credit that is refinanced by a Borrowing of Revolving Loans, shall  be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms  of this Agreement and the other Credit Documents under all circumstances, including the  following:  (i)  any lack of validity or enforceability of such Letter of Credit, this  Agreement, or any other agreement or instrument relating thereto;  (ii)  any change in the time, manner or place of payment of, or in any  other term of, all or any of the obligations of the Borrower in respect of any Letter of Credit or  any other amendment or waiver of, or any consent to departure from, all or any of the Credit  Documents;  (iii)   the existence of any claim, counterclaim, setoff, offset, defense or  other right that the Borrower or any other Loan Party may have at any time against any  beneficiary or any transferee of such Letter of Credit (or any Person for whom any such  beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether  in connection with this Agreement, the transactions contemplated hereby or by such Letter of  Credit or any agreement or instrument relating thereto, or any unrelated transaction;  (iv)  any draft, demand, certificate or other document presented under  such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or  any statement therein being untrue or inaccurate in any respect; or any loss or delay in the  transmission or otherwise of any document required in order to make a drawing under such Letter  of Credit;  (v)  any payment by the L/C Issuer under such Letter of Credit against  presentation of a draft or certificate that does not strictly comply with the terms of such Letter of  Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person  purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of  creditors, liquidator, receiver or other representative of or successor to any beneficiary or any  transferee of such Letter of Credit, including any arising in connection with any proceeding  under any Debtor Relief Law;   (vi) the existence, character, quality, quantity, condition, packing, value  or delivery of any Property purported to be represented by documents presented in connection  with any Letter of Credit or any difference between any such Property and the character, quality,  quantity, condition, or value of such Property as described in such documents;  





 






DB1/ 120286909.9       -59-    (vii)  the time, place, manner, order or contents of shipments or deliveries  of Property as described in documents presented in connection with any Letter of Credit or the  existence, nature and extent of any insurance relative thereto;  (viii)  the solvency or financial responsibility of any party issuing  any documents in connection with a Letter of Credit;  (ix)  any failure or delay in notice of shipments or arrival of any Property;  (x)  any error in the transmission of any message relating to a Letter of  Credit not caused by the L/C Issuer, or any delay or interruption in any such message;  (xi)  any error, neglect or default of any correspondent of the L/C Issuer  in connection with a Letter of Credit;  (xii)  any consequence arising from acts of God, war, insurrection, civil  unrest, disturbances, labor disputes, emergency conditions or other causes beyond the control of  the L/C Issuer;  (xiii)  the form, accuracy, genuineness or legal effect of any  contract or document referred to in any document submitted to the L/C Issuer in connection with  a Letter of Credit; and  (xiv)  any other circumstance or happening whatsoever, whether or not  similar to any of the foregoing, including any other circumstance that might otherwise constitute  a defense available to, or a discharge of, the Borrower.  The 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 the Borrower’s  instructions or other irregularity, the Borrower will promptly notify the L/C Issuer.  The Borrower  shall be conclusively deemed to have waived any such claim against the L/C Issuer and its  correspondents unless such notice is given as aforesaid.  (f)  Role of L/C Issuer.  Each of the Borrower and the Lenders agrees that, in  paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to  obtain any document (other than any sight draft, certificates and documents expressly required by  the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document  or the authority of the Person executing or delivering any such document.  Neither the  Administrative Agent nor the L/C Issuer nor any of their respective affiliates, directors, officers,  employees, agents or advisors nor any of the correspondents, participants or assignees of the  L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith  at the request or with the approval of such Lender or the Required Lenders; (ii) any action taken  or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution,  effectiveness, validity or enforceability of any document or instrument related to any Letter of  Credit or Letter of Credit Application.  The Borrower hereby assumes all risks of the acts or  omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided,  however, that this assumption is not intended to, and shall not, preclude the Borrower from  pursuing such rights and remedies as it may have against the beneficiary or transferee at law or  





 






DB1/ 120286909.9       -60-    under any other agreement.  Neither the Administrative Agent nor the L/C Issuer nor any of their  respective affiliates, directors, officers, employees, agents or advisors nor any of the  correspondents, participants or assignees of the L/C Issuer shall be liable or responsible for any of  the matters described in Section 2.02(e); provided, however, that anything in such clauses to the  contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the  L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as  opposed to consequential or exemplary, damages suffered by the Borrower which are determined  by a final, non-appealable judgment of a court of competent jurisdiction to have arisen from the  L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under  any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s)  strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in  limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in  substantial compliance with the terms of a Letter of Credit, without responsibility for further  investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not  be responsible for the validity or sufficiency of any instrument transferring or assigning or  purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds  thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.  (g)  Cash Collateral.  Upon the request of the Administrative Agent, (A) if the  L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such  drawing has resulted in an L/C Borrowing or (B) if, as of the Letter of Credit Expiration Date, any  Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, the  Borrower shall immediately Cash Collateralize the Obligations in an amount equal to 105% of the  then Effective Amount of the L/C Obligations.  The Borrower hereby grants the Administrative  Agent, for the benefit of the L/C Issuer and the Lenders, a Lien on all such cash and deposit account  balances described in the definition of “Cash Collateralize” as security for the Obligations.  The  Lien held by the Administrative Agent in such cash collateral to secure the Obligations shall be  released upon the satisfaction of each of the following conditions: (1) no Letters of Credit shall be  outstanding, (2) all L/C Obligations shall have been repaid in full and (3) no Default shall have  occurred and be continuing.  Cash Collateral shall be maintained in blocked, non-interest bearing  deposit accounts at U.S. Bank and may be invested in Cash Equivalents reasonably acceptable to  the Administrative Agent.  Such accounts must be subject to control agreements pursuant to which  the Administrative Agent has “control,” as such term is used in the Uniform Commercial Code,  sufficient to perfect on a first priority basis a security interest in such cash collateral.  Upon the  drawing of any for which funds are on deposit as Cash Collateral, such funds shall be applied, to  the extent permitted under applicable Governmental Rules, to reimburse the L/C Issuer.  (h)  Applicability of ISP and UCP.  Unless otherwise expressly agreed by the  L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of the “International  Standby Practices 1998” published by the Institute of International Banking Law & Practice (or  such later version thereof as may be in effect at the time of issuance) (the “ISP”) shall apply to  each Standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for  Documentary Credits, as most recently published by the International Chamber of Commerce at  the time of issuance (the “UCP”), shall apply to each Commercial Letter of Credit.  (i)  Letter of Credit Fees.  The Borrower shall pay, to the Administrative Agent  for the account of each Revolving Lender in accordance with its L/C Risk Participation in each  





 






DB1/ 120286909.9       -61-    Letter of Credit, a Letter of Credit fee for each such Letter of Credit for the period from the date  of issuance of such Letter of Credit until the expiry thereof, at a per annum rate equal to the  Applicable Margin for LIBOR Loans (plus two percent (2.00%) during such time that the Default  Rate is in effect with respect to the Obligations pursuant to Section 2.07(c)) applicable from time  to time during such period multiplied by the actual daily maximum amount available to be drawn  under such Letter of Credit; provided, however, that any fees payable for the account of a  Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not  provided Cash Collateral satisfactory to the L/C Issuer pursuant to Section 2.16(c) shall be  payable, to the maximum extent permitted by applicable Governmental Rules, to the other  Revolving Lenders in accordance with the upward adjustments of their respective participations  in such Letter of Credit pursuant to Section 2.16(a)(iv), with the balance of such fee, if any, payable  to the L/C Issuer for its own account; provided, however, that if the Borrower has provided Cash  Collateral satisfactory to the L/C Issuer in respect of such Defaulting Lender’s obligations in  respect of such Letter of Credit, the balance of such fee, if any, shall be payable to the Borrower.   Such fee for each Letter of Credit shall be due and payable quarterly in arrears on the last Business  Day of each calendar quarter, commencing with the first such day to occur after the issuance of  such Letter of Credit and on the Letter of Credit Expiration Date.  Each such fee, when due, shall  be fully earned and when paid, shall be non-refundable.  If there is any change in the Applicable  Margin for LIBOR Loans during any fiscal quarter, the Applicable Margin used for the calculation  of the Letter of Credit fee shall be the Applicable Margin for LIBOR Loans on each day during  such quarter.    (j)   Documentary and Processing Charges Payable to L/C Issuer.  The Borrower  shall pay directly to the L/C Issuer for its own account the customary presentation, transfer,  amendment, modification, extension, renewal, draw, negotiation and other processing fees, and  other stand costs and charges, of the L/C Issuer relating to Letters of Credit as from time to time  in effect; provided that the fees described in this Section 2.02(j) shall not include any fronting fee,  issuing fee or other similar fee.  Such fees and charges are due and payable on demand, fully earned  when due and are nonrefundable.   (k)  Conflict with Letter of Credit Application.  In the event of any conflict  between the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall  control.  2.03.  Swing Line.    (a)  The Swing Line.  On the terms and subject to the conditions set forth herein,  the Swing Line Lender shall make loans (each such loan, a “Swing Line Loan”) in Dollars to the  Borrower from time to time on any Business Day during the period from the Closing Date up to  but not including the Revolving Loan Maturity Date in an aggregate amount not to exceed at any  time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing  Line Loans, when aggregated with the Effective Amount of Revolving Loans of the Swing Line  Lender in its capacity as a Revolving Lender of Revolving Loans, may exceed the amount of such  Revolving Lender’s Revolving Loan Commitment; provided, however, that after giving effect to  any Swing Line Loan, (i) the aggregate Effective Amount of all Revolving Loans, Swing Line  Loans and L/C Obligations shall not exceed the Total Revolving Loan Commitment at such time,  and (ii) the aggregate Effective Amount of the Revolving Loans of any Revolving Lender (other  





 






DB1/ 120286909.9       -62-    than the Swing Line Lender), plus such Revolving Lender’s Total Lender Risk Participation shall  not exceed such Revolving Lender’s Revolving Loan Commitment, and provided, further, that the  Swing Line Lender shall not make any Swing Line Loan to refinance an outstanding Swing Line  Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the  Borrower may borrow under this Section 2.03, prepay under Section 2.06, and reborrow under this  Section 2.03.  Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making  of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and  unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing  Line Loan in an amount equal to the product of such Revolving Lender’s Revolving Proportionate  Share times the amount of such Swing Line Loan.  Furthermore, if there at any time exists a  Defaulting Lender, unless such Lender’s Fronting Exposure has been reallocated to other Lenders  in accordance with Section 2.16(a), before making any Swing Line Loans, the Swing Line Lender  may condition the provision of such Swing Line Loans on its entering into arrangements  satisfactory to the Swing Line Lender with the Borrower or such Defaulting Lender to eliminate  the Swing Line Lender’s Fronting Exposure.  (b)  Borrowing Procedures.  Each Swing Line Borrowing shall be requested  pursuant to the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative  Agent, which may be given by telephone.  Each such notice must be received by the Swing Line  Lender and the Administrative Agent not later than 11:00 a.m. on the requested borrowing date,  and shall specify (i) the amount to be borrowed, which amount shall be a minimum amount of  $100,000 or an integral multiple of $25,000 in excess thereof, and (ii) the requested borrowing  date, which shall be a Business Day.  Each such telephonic notice must be confirmed promptly by  the delivery to the Swing Line Lender and the Administrative Agent of a written Notice of Swing  Line Borrowing, appropriately completed and signed by a Responsible Officer of the Borrower,  which notice may be delivered by facsimile.  Promptly after receipt by the Swing Line Lender of  any telephonic Notice of Swing Line Borrowing, the Swing Line Lender will confirm with the  Administrative Agent (by telephone or in writing) that the Administrative Agent has also received  such Notice of Swing Line Borrowing and, if not, the Swing Line Lender will notify the  Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line  Lender has received notice (by telephone or in writing) from the Administrative Agent (including  at the request of any Revolving Lender) prior to 1:00 p.m. on the date of the proposed Swing Line  Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of  the limitations set forth in the first proviso to the first sentence of Section 2.03(a), or (B) that one  or more of the applicable conditions specified  in Section 3.02 is not then satisfied, then, subject  to the terms and conditions hereof, the Swing Line Lender will, not later than 4:00 p.m., on the  borrowing date specified in such Notice of Swing Line Borrowing, make the amount of its Swing  Line Loan available to the Borrower at its office by crediting the account of the Borrower on the  books of the Swing Line Lender in immediately available funds.  (c)  Refinancing of Swing Line Loans.  (i)  The Swing Line Lender at any time in its sole and absolute  discretion may request, on behalf of the Borrower (which hereby irrevocably requests the Swing  Line Lender to act on its behalf), that each Revolving Lender make a Base Rate Loan in an  amount equal to the amount of such Revolving Lender’s Swing Line Risk Participation with  respect to the Swing Line Loans then outstanding.  Such request shall be made in accordance  





 






DB1/ 120286909.9       -63-    with the requirements of Section 2.01, without regard to the minimum and multiples specified  therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the  Total Revolving Loan Commitment and the conditions set forth in Section 3.02.  The Swing Line  Lender shall furnish the Borrower with a copy of the applicable Notice of Loan Borrowing for  Revolving Loans promptly after delivering such notice to the Administrative Agent.  Each  Revolving Lender shall make an amount equal to its Swing Line Risk Participation in the amount  specified in such Notice of Loan Borrowing for Revolving Loans available to the Administrative  Agent in immediately available funds for the account of the Swing Line Lender at the  Administrative Agent’s office not later than 1:00 p.m., on the day specified in such Notice of  Loan Borrowing for Revolving Loans, whereupon, subject to Section 2.03(c)(ii), each Revolving  Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the  Borrower in such amount.  The Administrative Agent shall remit the funds so received to the  Swing Line Lender.  (ii)  If for any reason any Revolving Loan Borrowing cannot be  requested in accordance with Section 2.03(c)(i) or any Swing Line Loan cannot be refinanced  by such a Revolving Loan Borrowing, the Notice of Loan Borrowing for Revolving Loans  submitted by the Swing Line Lender shall be deemed to be a request by the Swing Line Lender  that each of the Revolving Lenders fund the amount of its Swing Line Risk Participation in the  relevant Swing Line Loan and each Revolving Lender’s payment to the Administrative Agent  for the account of the Swing Line Lender pursuant to Section 2.03(c)(i) shall be deemed payment  in respect of such Swing Line Risk Participation.  (iii)  If any Revolving Lender fails to make available to the  Administrative Agent for the account of the Swing Line Lender any amount required to be paid  by such Revolving Lender pursuant to the foregoing provisions of this Section 2.03(c) by the  time specified in Section 2.03(c)(i), the Swing Line Lender shall be entitled to recover from such  Revolving Lender (acting through the Administrative Agent), on demand, such amount with  interest thereon for the period from the date such payment is required to the date on which such  payment is immediately available to the Swing Line Lender at a rate per annum equal to the  daily Federal Funds Rate from time to time in effect.  A certificate of the Swing Line Lender  submitted to any Revolving Lender (through the Administrative Agent) with respect to any  amounts owing under this Section 2.03(c)(iii) shall be conclusive absent manifest error.  (iv)  Each Revolving Lender’s obligation to make Revolving Loans or to  purchase and fund Swing Line Risk Participations in Swing Line Loans pursuant to this  Section 2.03(c) shall be absolute and unconditional and shall not be affected by any  circumstance, including (A) any setoff, offset, counterclaim, recoupment, defense or other right  which such Revolving Lender may have against the Swing Line Lender, the Borrower or any  other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event  of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the  foregoing.  Any such purchase of participations shall not relieve or otherwise impair the  obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.  (d)  Repayment of Participations.    





 






DB1/ 120286909.9       -64-    (i)  At any time after any Revolving Lender has purchased and funded  a Swing Line Risk Participation in a Swing Line Loan, if the Swing Line Lender receives any  payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such  Revolving Lender an amount equal to such Revolving Lender’s Swing Line Risk Participation  with respect thereto (appropriately adjusted, in the case of interest payments, to reflect the period  of time during which such Revolving Lender’s Swing Line Risk Participation was outstanding  and funded) in the same funds as those received by the Swing Line Lender.  (ii)  If any payment received by the Swing Line Lender in respect of  principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender,  each Revolving Lender shall pay to the Swing Line Lender the amount of such Revolving Lender’s  Swing Line Risk Participation with respect thereto on demand of the Administrative Agent, plus  interest thereon from the date of such demand to the date such amount is returned, at a rate per  annum equal to the daily Federal Funds Rate from time to time in effect.  The Administrative  Agent will make such demand upon the request of the Swing Line Lender.  (e)  Interest for Account of Swing Line Lender.  Subject to Section 2.07(c), each  Swing Line Loan shall bear interest on the outstanding principal amount thereof from the  applicable borrowing date at a rate per annum equal to the Base Rate.  The Swing Line Lender  shall be responsible for invoicing the Borrower for interest on the Swing Line Loans.  Until each  Revolving Lender funds its Base Rate Loan or Swing Line Risk Participation pursuant to this  Section 2.03 to refinance such Revolving Lender’s Swing Line Risk Participation of any Swing  Line Loan, interest in respect of such Swing Line Risk Participation shall be solely for the account  of the Swing Line Lender.    (f)  Payments Directly to Swing Line Lender.  The Borrower shall make all  payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line  Lender.  2.04.  Amount Limitations, Commitment Reductions, Etc.  (a)  Optional Reduction or Cancellation of Commitments.  The Borrower may,  upon three (3) Business Days written notice to the Administrative Agent (each a “Reduction  Notice”), permanently reduce the Total Revolving Loan Commitment by the amount of $1,000,000  or an integral multiple of $500,000 in excess thereof or cancel the Total Revolving Loan  Commitment in its entirety; provided, however, that:  (i)  The Borrower may not reduce the Total Revolving Loan  Commitment prior to the Revolving Loan Maturity Date, if, after giving effect to such reduction,  the Effective Amount of all Revolving Loans, L/C Obligations and Swing Line Loans then  outstanding would exceed the Total Revolving Loan Commitment; and  (ii)  The Borrower may not cancel the Total Revolving Loan  Commitment prior to the Revolving Loan Maturity Date, if, after giving effect to such  cancellation, any Revolving Loan, L/C Obligation or Swing Line Loan would then remain  outstanding.  





 






DB1/ 120286909.9       -65-    Any Reduction Notice shall be irrevocable; provided that any Reduction Notice may state that  such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice  may be revoked or the date set forth therein may be extended by the Borrower (by written notice  to the Administrative Agent on or prior to the specified effective date previously provided in the  applicable Reduction Notice) if such condition is not satisfied.  (b)  Mandatory and Scheduled Reduction of Commitments.   (i)  [Reserved].    (ii)  The Total Revolving Loan Commitment shall be automatically and  permanently reduced to zero on the Revolving Loan Maturity Date.  (iii)   The Total Closing Date Term Loan Commitment is zero on the  Closing Date.  (iv)  The Incremental Term Loan Commitments with respect to any  Incremental Term Loan Borrowing shall be automatically and permanently reduced to zero at the  close of business on the Incremental Effective Date.  (c)  Effect of Revolving Loan Commitment Adjustments.  From the effective  date of any reduction or increase of the Total Revolving Loan Commitment, the Commitment Fees  payable pursuant to Section 2.05(b) shall be computed on the basis of the Total Revolving Loan  Commitment as so reduced or increased.  Once reduced or cancelled, the Total Revolving Loan  Commitment may not be increased or reinstated without the prior written consent of all Lenders  (except as permitted under Section 2.17).  Any reduction of the Total Revolving Loan  Commitment pursuant to Section 2.04(a) shall be applied ratably to reduce each Lender’s  Revolving Loan Commitment in accordance with Section 2.10(a)(i).  2.05.  Fees.  (a)  Fee Letters.  The Borrower shall pay to the applicable parties under each of  the Fee Letters, for their own account, the fees and other compensation in the amounts and at the  times set forth in such Fee Letters.   (b)  Commitment Fees.  The Borrower shall pay to the Administrative Agent,  for the ratable benefit of the Revolving Lenders (other than any Defaulting Lender with respect to  the period during which it is a Defaulting Lender) as provided in Sections 2.10(a)(v), commitment  fees (collectively, the “Commitment Fees”) equal to the Commitment Fee Percentage of the daily  average Unused Revolving Commitment, for the period beginning on the date of this Agreement  and ending on the Revolving Loan Maturity Date.  The Borrower shall pay the Commitment Fees  in arrears on the last Business Day of each calendar quarter and on the Revolving Loan Maturity  Date (or if the Total Revolving Loan Commitment is cancelled on a date prior to the Revolving  Loan Maturity Date, on such prior date).    





 






DB1/ 120286909.9       -66-    2.06.  Prepayments.  (a)  Terms of All Prepayments.  Upon the prepayment of any Loan (whether  such prepayment is an optional prepayment under Section 2.06(b), a mandatory prepayment  required by Section 2.06(c) or a mandatory prepayment required by any other provision of this  Agreement or the other Credit Documents, including a prepayment upon acceleration), the  Borrower shall pay (i) if a LIBOR Loan or LIBOR Portion is being prepaid under Section 2.06(b)  or Section 2.06(c), to the Administrative Agent for the account of the Lender that made such  LIBOR Loan or LIBOR Portion all accrued interest to the date of such prepayment on the amount  prepaid, (ii) if a prepayment is made upon acceleration, to the Administrative Agent for the account  of the Lender that made such Loan all accrued interest and fees to the date of such prepayment on  the amount prepaid and (iii) to such Lender if such prepayment is the prepayment of a LIBOR  Loan or of a LIBOR Portion on a day other than the last day of an Interest Period for such LIBOR  Loan or such LIBOR Portion, all amounts payable to such Lender pursuant to Section 2.13.  Any  prepayment shall be without prejudice to the Borrower’s obligations under any Rate Contract,  which shall remain in full force and effect subject to the terms of such Rate Contract (including  provisions that may require a reduction, modification or early termination of a swap transaction,  in whole or in part, in the event of such prepayment, and may require the Borrower to pay any fees  or other amounts for such reduction, modification or early termination), and no such fees or  amounts shall be deemed a penalty hereunder or otherwise. Any prepayment shall be without  prejudice to the Borrower’s obligations under any Rate Contract, which shall remain in full force  and effect subject to the terms of such Rate Contract (including provisions that may require a  reduction, modification or early termination of a swap transaction, in whole or in part, in the event  of such prepayment, and may require the Borrower to pay any fees or other amounts for such  reduction, modification or early termination), and no such fees or amounts shall be deemed a  penalty hereunder or otherwise.  (b)  Optional Prepayments.    (i)  At its option, the Borrower may, upon notice from the Borrower to  the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time,  voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided,  that (A) such notice must be received by the Swing Line Lender and the Administrative Agent not  later than 10:00 am on the Business Day prior to the date of the prepayment, and (B) any such  prepayment shall be in a minimum principal amount of $100,000 or an integral multiple of $25,000  in excess thereof.  Each such notice shall specify the date and specify a minimum amount of such  prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment  and the payment amount specified in such notice shall be due and payable on the date specified  therein.  (ii)  At any time there are no Swing Line Loans outstanding, at its option,  the Borrower may, without premium or penalty but subject to Section 2.13 in the case of LIBOR  Loans, upon notice from the Borrower to the Administrative Agent no later than 10:00 a.m., in the  case of Base Rate Loans, one Business Day prior to the date of the prepayment and, in the case of  LIBOR Loans, three Business Days prior to the date of the prepayment, at any time or from time  to time, voluntarily prepay the Revolving Loans in any Revolving Loan Borrowing and all accrued  but unpaid interest thereon in part, in a minimum principal amount of $1,000,000 or an integral  





 






DB1/ 120286909.9       -67-    multiple of $500,000 in excess thereof, or in whole; provided that if such prepayment is on any  day other than on the last day of the Interest Period applicable to such LIBOR Loans, the Borrower  shall be subject to the payments required by Section 2.13.  If such notice is given by the Borrower,  the Borrower shall make such prepayment and the payment amount specified in such notice shall  be due and payable on the date specified therein.  (iii)  At its option, the Borrower may, without premium or penalty but  subject to Section 2.13 in the case of LIBOR Portions, upon notice from the Borrower to the  Administrative Agent no later than 10:00 a.m., in the case of Base Rate Portions, one Business  Day prior to the date of the prepayment and, in the case of LIBOR Portions, three Business Days  prior to the date of the prepayment, at any time or from time to time, voluntarily prepay any Portion  of a Term Loan Borrowing and all accrued but unpaid interest thereon in part, in a minimum  principal amount of $1,000,000 or an integral multiple of $500,000 in excess thereof, or in whole;  provided that if such prepayment is on any day other than on the last day of the Interest Period  applicable to such LIBOR Portion, the Borrower shall be subject to the payments required by  Section 2.13.  If such notice is given by the Borrower, the Borrower shall make such prepayment  and the payment amount specified in such notice shall be due and payable on the date specified  therein.  Any optional prepayment of the Term Loans shall be applied as directed by the Borrower  (or, in the absence of direction from the Borrower, on a pro rata basis among the remaining  scheduled Term Loan amortization payments).   (iv)   Any optional prepayments of any Incremental Term Loans shall be  as provided in the Incremental Term Loan Amendment for such Incremental Term Loans.     (c)  Mandatory Prepayments.  The Borrower shall prepay (or Cash  Collateralize, as applicable) the Obligations as follows:    (i)  If, at any time, the Effective Amount of all Revolving Loans, Swing  Line Loans and L/C Obligations then outstanding exceeds the Total Revolving Loan  Commitment at such time, the Borrower shall immediately (A) prepay the Swing Line Loans to  the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the  Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and  (C) otherwise, if an Event of Default has occurred and is continuing, Cash Collateralize the  Obligations in an amount equal to 105% of the then Effective Amount of the L/C Obligations,  in an aggregate principal amount equal to such excess.     (ii)  The Borrower shall repay each Swing Line Loan on the earlier to  occur of (A) the second Swing Line Settlement Date occurring after such Swing Line Loan is  made and (B) the Revolving Loan Maturity Date.   (iii)  If, at any time after the Closing Date, any Loan Party sells or  otherwise disposes of any assets (other than (x) sales made in the ordinary course of business  and (y) other sales permitted under Section 5.02(c) (excluding Section 5.02(c)(v)(I) with respect  to the asset sales only and Section 5.02(c)(xiii) thereof)) in any single transaction or series of  related transactions and the Net Proceeds from such sale or disposition exceed $2,500,000, the  Borrower shall, not later than thirty (30) days after the completion of each such sale or other  disposition, prepay (or Cash Collateralize, as applicable) the outstanding Loans and other  





 






DB1/ 120286909.9       -68-    Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal  amount equal to one hundred percent (100%) of the Net Proceeds from any such sale or  disposition.  Notwithstanding the foregoing, the Borrower shall not be required to make a  prepayment pursuant to this Section 2.06(c)(iii) with respect to any sale or other disposition (a  “Relevant Sale”) if the Borrower advises the Administrative Agent in writing within thirty (30)  days after the completion of each such Relevant Sale that the applicable Loan Party intends to  reinvest all or any portion of such Net Proceeds in productive assets used in the business of the  Loan Parties to the extent the reinvestment in such productive assets occurs within twelve (12)  months after the date of such Relevant Sale, or, if the applicable Loan Party enters into a binding  commitment during such twelve (12) month period, within 180 days after the expiration of such  twelve (12) month period.  If, at any time after the occurrence of a Relevant Sale and prior to the  acquisition of the related replacement assets, the periods provided in the preceding sentence shall  elapse or an Event of Default described in Section 6.01(a), (f) or (g) shall occur, then the  Borrower shall immediately prepay (or Cash Collateralize, as applicable), the outstanding Loans  and other Obligations in the amount and in the manner described in the first sentence of this  Section 2.06(c)(iii).  (iv)  If, at any time after the Closing Date, any Loan Party issues or incurs  any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds,  debentures or other similar instruments but excluding Permitted Indebtedness, the Borrower  shall, immediately after such issuance or incurrence, prepay (or Cash Collateralize, as  applicable) the outstanding Loans and other Obligations in the manner set forth in  Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent  (100%) of the Net Proceeds of such Indebtedness.  (v)  If, at any time after the Closing Date, any Loan Party issues or sells  any Equity Securities or receives any equity capital contribution from any other Person (other  than through the issuance of (x) Equity Securities by any Loan Party to another Loan Party, (y)   the contribution of capital by any Loan Party to another Loan Party or (z) any Equity Interest of  any Person (A) pursuant to any employee stock or stock option compensation plan, (B) to the  management of the target of a Permitted Acquisition by way of “roll-over” equity or pursuant to  new subscription by such management or (C) the proceeds of such issuance are used to pay the  purchase price of a pending Permitted Acquisition; provided that if (a) such Net Proceeds are  not used to pay the purchase price of such Permitted Acquisition and (b) such Net Proceeds are  not used to pay the purchase price of one or more other Permitted Acquisitions or used to make  Investments permitted by this Agreement, in each case, within one (1) year after such Net  Proceeds arise, such Net Proceeds shall be used to make prepayments subject to this  Section 2.06(c)(v) without giving effect to this parenthetical) and receives aggregate Net  Proceeds from all such issuances and sales of Equity Securities and such equity capital  contributions in excess of $35,000,000, the Borrower shall, within (5) Business Days receipt of  such Net Proceeds, prepay (or Cash Collateralize, as applicable) the outstanding Loans and other  Obligations in the manner set forth in Section 2.06(d), in each case, in an aggregate principal  amount equal to the following applicable percentage of such aggregate Net Proceeds in excess  of $35,000,000: (I) twenty five percent (25%) (if the Borrower was not in compliance with the  Total Leverage Ratio as of the last day of the most recent fiscal quarter for which the Borrower  has delivered Holdings’ Financial Statements) and (II) at all other times, zero percent (0%).   





 






DB1/ 120286909.9       -69-    (vi)  Not later than thirty (30) days after the date of receipt (the “Receipt  Date”) by a Loan Party (or the Administrative Agent) of any Net Insurance Proceeds or Net  Condemnation Proceeds which exceed $2,500,000 in connection with a particular circumstance  or event, the Borrower shall prepay (or Cash Collateralize, as applicable) the outstanding Loans  and other Obligations in the manner set forth in Section 2.06(d) in an amount equal to such Net  Insurance Proceeds or Net Condemnation Proceeds.  Notwithstanding the foregoing, the  Borrower shall not be required to make a prepayment pursuant to this Section 2.06(c)(vi) with  respect to any particular Net Insurance Proceeds or Net Condemnation Proceeds if the Borrower  advises the Administrative Agent in writing within 30 days after the related Receipt Date that it  or another Loan Party intends to (x) repair, restore or replace the assets from which such Net  Insurance Proceeds or Net Condemnation Proceeds were derived or (y) invest in productive  assets used in the business of the Loan Parties, to the extent such repair, restoration, replacement  or investment is completed within twelve (12) months after the related Receipt Date or, if the  applicable Loan Party enters into a binding commitment during such twelve (12) month period,  within one hundred and eighty (180) days after the expiration of such twelve (12) month period.   If, at any time after the occurrence of a Receipt Date and prior to the completion of the  corresponding repair, restoration or replacement, the applicable periods provided in the  preceding sentence shall elapse without the completion of the related repair, restoration or  replacement, or an Event of Default described in Section 6.01(a), (f) or (g) shall occur, then the  Borrower shall immediately prepay (or Cash Collateralize, as applicable) the outstanding Loans  and other Obligations in the amount and in the manner described in the first sentence of this  Section 2.06(c)(vi).    (vii)  The Borrower shall deliver to the Administrative Agent, at the time  of each prepayment (or Cash Collateralization, as applicable) required under this Section 2.06(c),  (A) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable  detail the calculation of the amount of such prepayment (or Cash Collateralization, as applicable)  and (B) to the extent practicable, at least three days prior written notice of such prepayment (or  Cash Collateralization, as applicable).  Each notice of prepayment (or Cash Collateralization, as  applicable) shall specify the prepayment (or Cash Collateralization, as applicable) date and the  Type and principal amount of each Loan (or portion thereof) to be prepaid.  In the event that the  Borrower shall subsequently determine that the actual amount required to be prepaid (or Cash  Collateralized, as applicable) was greater than the amount set forth in such certificate, the  Borrower shall promptly make an additional prepayment of the Loans and/or deliver additional  Cash Collateral in an amount equal to the amount of such excess, and the Borrower shall  concurrently therewith deliver to the Administrative Agent a certificate signed by a Responsible  Officer of the Borrower demonstrating the derivation of the additional amount resulting in such  excess.  (d)  Application of Loan Prepayments.  All prepayments required under  Sections 2.06(c)(iii)-(vi) shall be applied first, to prepay the Term Loans and Incremental Term  Loans on a pro rata basis to the extent Term Loans and Incremental Term Loans are then  outstanding, second, to prepay the Swing Line Loans to the extent Swing Line Loans are then  outstanding, third, to prepay the Revolving Loans to the extent Revolving Loans are then  outstanding and fourth, following the occurrence and during the continuance of any Event of  Default, to Cash Collateralize the Obligations in an amount equal to 105% of the then Effective  Amount of the L/C Obligations.  Without modifying the order of application of prepayments set  





 






DB1/ 120286909.9       -70-    forth in the preceding or succeeding sentence, all such prepayments shall, to the extent possible,  be first applied to prepay Base Rate Loans and Base Rate Portions and then if any funds remain,  to prepay LIBOR Loans and LIBOR Portions.  All such mandatory prepayments of the Term Loans  and Incremental Term Loans will be applied to the remaining scheduled amortization payments in  the inverse order of maturity.     Notwithstanding anything to the contrary in this Section 2.06, all mandatory prepayments  required under Sections 2.06(c)(iii)-(vi), to the extent attributable to Foreign Subsidiaries, are  subject to permissibility under local law (e.g., financial assistance, corporate benefit, thin  capitalization, capital maintenance and similar legal principles, restrictions on up-streaming of  cash intra group and the fiduciary and statutory duties of the directors of the relevant subsidiaries)  such that if such Foreign Subsidiary would be in violation of applicable local law by virtue of  repatriation, the portion of the funds so affected will not be required to be prepaid and may be  retained by the applicable Foreign Subsidiary (provided that the Borrower shall use commercially  reasonable efforts to take all actions required by applicable local law to permit such repatriation)  until such time the applicable local law permits repatriation to the United Sates whereupon such  funds shall be repatriated and promptly applied to the repayment of the Loans pursuant to  Section 2.06(c)(iii)-(vi).  Further, if Holdings or any of its Subsidiaries determine in good faith  that they would incur a material adverse tax liability (including any withholding tax) if all or a  portion of the funds required to make a mandatory prepayment were up-streamed, transferred as a  Distribution or otherwise repatriated (a “Restricted Amount”), the amount the Borrower will be  required to mandatorily prepay shall be reduced by the Restricted Amount until such time as it  may upstream, transfer or repatriate such Restricted Amount without incurring such material  adverse tax liability, whereupon such Restricted Amount will be repatriated and promptly applied  to the repayment of the Loans pursuant to Section 2.06(c)(iii)-(vi).  2.07.  Other Payment Terms.  (a)  Place and Manner.  All payments to be made by the Borrower under this  Agreement or any other Credit Document shall be made without condition or deduction for any  counterclaim, defense, recoupment, setoff or offset.  The Borrower shall make all payments due  to each Lender or the Administrative Agent under this Agreement or any other Credit Document  by payments to the Administrative Agent at the Administrative Agent’s office located at the  address specified in Section 8.01, with each payment due to a Lender to be for the account of such  Lender and such Lender’s Applicable Lending Office.  The Borrower shall make all payments  under this Agreement or any other Credit Document in lawful money of the United States and in  same day or immediately available funds not later than 12:00 noon on the date due.  The  Administrative Agent shall promptly disburse to each Lender each payment received by the  Administrative Agent for the account of such Lender.   (b)  Date.  Whenever any payment due hereunder shall fall due on a day other  than a Business Day, such payment shall be made on the next succeeding Business Day, and such  extension of time shall be included in the computation of interest or fees, as the case may be.  (c)  Default Rate.  Upon the occurrence and during the continuation of any  Event of Default other than an Event of Default described in Section 6.01(a), (f) or (g), at the  option of the Required Lenders, from and after the date of such Event of Default until the time  





 






DB1/ 120286909.9       -71-    when such Event of Default shall have been cured or waived in writing by the Required Lenders  or all the Lenders (as may be required by this Agreement), the Borrower shall pay interest on the  aggregate, outstanding principal amount of all Obligations hereunder (excluding Obligations in  respect of Lender Rate Contracts and Lender Bank Products) at a per annum rate equal to the  otherwise applicable interest rate plus two percent (2.00%) or, if no such per annum rate is  applicable to any such Obligations, at a per annum rate equal to the Base Rate, plus two percent  (2.00%) (the “Default Rate”) payable on demand.  Upon the occurrence and during the  continuation of an Event of Default described in Section 6.01(a), (f) or (g) until the time when  such Event of Default shall have been cured or waived in writing by the Required Lenders or all  the Lenders (as may be required by this Agreement), the Borrower shall pay interest on the  aggregate, outstanding principal amount of all Obligations hereunder at a per annum rate equal to  the Default Rate (such Default Rate becoming effective on such date of occurrence of such Event  of Default without notice and shall be immediately due and payable without notice or demand).   Overdue interest shall itself bear interest at the Default Rate, and shall be compounded with the  principal Obligations daily, to the fullest extent permitted by applicable Governmental Rules.     (d)  Application of Payments.  All payments hereunder shall be applied first to  unpaid fees, costs and expenses then due and payable under this Agreement or the other Credit  Documents, second to accrued interest then due and payable under this Agreement or the other  Credit Documents and finally to reduce the principal amount of outstanding Loans and  L/C Borrowings.  The proceeds of the Collateral will be applied as set forth in Section 6.02.    (e)  Failure to Pay the Administrative Agent.  Unless the Administrative Agent  shall have received notice from the Borrower at least one (1) Business Day prior to the date on  which any payment is due to the Lenders hereunder that the Borrower will not make such payment  in full, the Administrative Agent shall be entitled to assume that the Borrower has made or will  make such payment in full to the Administrative Agent on such date and the Administrative Agent  may, in reliance upon such assumption, cause to be paid to the Lenders on such due date an amount  equal to the amount then due such Lenders.  If and to the extent the Borrower shall not have so  made such payment in full to the Administrative Agent, each such Lender shall repay to the  Administrative Agent forthwith on demand such amount distributed to such Lender together with  interest thereon, for each day from the date such amount is distributed to such Lender until the date  such Lender repays such amount to the Administrative Agent, at a per annum rate equal to the  daily Federal Funds Rate from time to time in effect.  A certificate of the Administrative Agent  submitted to any Lender with respect to any amount owing by such Lender under this  Section 2.07(e) shall be conclusive absent manifest error.  2.08.  Loan Accounts; Notes.  (a)  Loan Accounts.  The obligation of the Borrower to repay the Loans made  to it by each Lender and to pay interest thereon at the rates provided herein shall be evidenced  by an account or accounts maintained by such Lender on its books (individually, a “Loan  Account”), except that any Lender may request that its Loans be evidenced by a note or notes  pursuant to Section 2.08(b), Section 2.08(c), and Section 2.08(d).  Each Lender shall record in  its Loan Accounts (i) the date and amount of each Loan made by such Lender, (ii) the interest  rates applicable to each such Loan and each Portion thereof and the effective dates of all changes  thereto, (iii) the Interest Period for each LIBOR Loan and LIBOR Portion, (iv) the date and  





 






DB1/ 120286909.9       -72-    amount of each principal and interest payment on each Loan and Portion and (v) such other  information as such Lender may determine is necessary for the computation of principal and  interest payable to it by the Borrower hereunder; provided, however, that any failure by a Lender  to make, or any error by any Lender in making, any such notation shall not affect the Borrower’s  Obligations.  The Loan Accounts shall be conclusive absent manifest error as to the matters noted  therein.  In addition to the Loan Accounts, each Lender and the Administrative Agent shall  maintain in accordance with its usual practice accounts or records evidencing the purchases and  sales by such Lender of participations in Letters of Credit and Swing Line Loans.  In the event  of any conflict between the accounts and records maintained by the Administrative Agent and  the accounts and records of any Lender in respect of such matters, the accounts and records of  the Administrative Agent shall control.  (b)  Revolving Loan Notes.  Upon request by any Revolving Lender, each  Revolving Lender’s Revolving Loans shall be evidenced by a promissory note substantially in the  form of Exhibit D (individually, a “Revolving Loan Note”) which note shall be (i) payable to such  Revolving Lender, (ii) in the amount of such Revolving Lender’s Revolving Loan Commitment,  (iii) dated the Closing Date (or such other date acceptable to the applicable Lender) and  (iv) otherwise appropriately completed.  The Borrower authorizes each Revolving Lender to  record on the schedule annexed to such Revolving Lender’s Revolving Loan Note the date and  amount of each Revolving Loan made by such Revolving Lender and of each payment or  prepayment of principal thereon made by the Borrower, and agrees that all such notations shall be  conclusive absent manifest error with respect to the matters noted; provided, however, that any  failure by a Revolving Lender to make, or any error by any Revolving Lender in making, any such  notation shall not affect the Borrower’s Obligations.  The Borrower further authorizes each  Revolving Lender to attach to and make a part of such Revolving Lender’s Revolving Loan Note  continuations of the schedule attached thereto as necessary.  If, because any Revolving Lender  designates separate Applicable Lending Offices for Base Rate Loans and LIBOR Loans, such  Revolving Lender requests that separate promissory notes be executed to evidence separately such  Revolving Loans, then each such note shall be substantially in the form of Exhibit D, mutatis  mutandis to reflect such division, and shall be (w) payable to such Revolving Lender, (x) in the  amount of such Revolving Lender’s Revolving Loan Commitment, (y) dated the Closing Date (or  such other date acceptable to the applicable Lender) and (z) otherwise appropriately completed.   Such notes shall, collectively, constitute a Revolving Loan Note.  (c)  Term Loan Notes.    (i)  Upon request by any Closing Date Term Lender, each Closing Date  Term Lender’s Closing Date Term Loan shall be evidenced by a promissory note substantially  in the form of Exhibit E (individually, a “Closing Date Term Loan Note”) which note shall be  (i) payable to such Closing Date Term Lender, (ii) in the amount of such Closing Date Term  Lender’s Closing Date Term Loan, (iii) dated the Closing Date (or such other date acceptable to  the applicable Lender) and (iv) otherwise appropriately completed.  If, because any Closing Date  Term Lender designates separate Applicable Lending Offices for Base Rate Portions and LIBOR  Portions, such Closing Date Term Lender requests that separate promissory notes be executed to  evidence separately such Portions, then each such note shall be substantially in the form of  Exhibit E, mutatis mutandis to reflect such division, and shall be (w) payable to such Closing  Date Term Lender, (x) in the amount of such Closing Date Term Lender’s Closing Date Term  





 






DB1/ 120286909.9       -73-    Loan, (y) dated the Closing Date (or such other date acceptable to the applicable Lender) and  (z) otherwise appropriately completed.  Such notes shall, collectively, constitute a Closing Date  Term Loan Note.  (ii)  Upon request by any Incremental Term Lender, each Incremental  Term Lender’s Incremental Date Term Loan shall be evidenced by a promissory note substantially  in the form of Exhibit F (individually, an “Incremental Term Loan Note”) which note shall be  (i) payable to such Incremental Term Lender, (ii) in the amount of such Incremental Term  Lender’s Incremental Term Loan, (iii) dated the Incremental Effective Date for the applicable  Incremental Term Loan Borrowing and (iv) otherwise appropriately completed.  If, because any  Incremental Term Lender designates separate Applicable Lending Offices for Base Rate Portions  and LIBOR Portions, such Incremental Term Lender requests that separate Incremental Term Loan  Note be executed to evidence separately such Portions, then each such note shall be substantially  in the form of Exhibit F, mutatis mutandis to reflect such division, and shall be (w) payable to such  Incremental Term Lender, (x) in the amount of such Incremental Term Lender’s Incremental Term  Loan, (y) dated the Incremental Effective Date for the applicable Incremental Term Loan  Borrowing and (z) otherwise appropriately completed.  Such notes shall, collectively, constitute  an Incremental Term Loan Note.  (d)  Swing Line Notes.  Upon request by the Swing Line Lender, the Swing Line  Lender’s Swing Line Loans shall be evidenced by a promissory note substantially in the form of  Exhibit M (individually, a “Swing Line Note”) which note shall be (i) payable to the Swing Line  Lender, (ii) in the amount of the Swing Line Lender’s Swing Line Loans, (iii) dated the Closing  Date (or such other date acceptable to the applicable Lender) and (iv) otherwise appropriately  completed.  2.09.  Loan Funding.  (a)  Lender Funding and Disbursement to the Borrower.  Each Lender shall,  before 11:00 a.m. on the date of each Borrowing, make available to the Administrative Agent at  the Administrative Agent’s office specified in Section 8.01, in same day or immediately available  funds, such Lender’s Revolving Proportionate Share or Term Proportionate Share of such  Borrowing.  After the Administrative Agent’s receipt of such funds and upon satisfaction of the  applicable conditions set forth in Section 3.02 (and, if such Borrowing consists of the initial Loans,  Section 3.01), the Administrative Agent shall promptly make all funds so received available to the  Borrower in like funds as received by the Administrative Agent by (i) crediting the account of the  Borrower maintained by the Borrower on the books of U.S. Bank with the amount of such funds  or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the  Administrative Agent by the Borrower; provided, however, that if, on the date of the Borrowing  there are Swing Line Loans and/or L/C Borrowings outstanding, then the proceeds of such  Borrowing shall be applied, first, to the payment in full of any such L/C Borrowings, second, to  the payment in full of any such Swing Line Loans, and third, to the Borrower as provided above.  (b)  Lender Failure to Fund.  Unless the Administrative Agent shall have  received notice from a Lender prior to the date of any Borrowing that such Lender will not make  available to the Administrative Agent such Lender’s Revolving Proportionate Share or Term  Proportionate Share, as the case may be, of such Borrowing, the Administrative Agent shall be  





 






DB1/ 120286909.9       -74-    entitled to assume that such Lender has made or will make such portion available to the  Administrative Agent on the date of such Borrowing in accordance with Section 2.09(a), and the  Administrative Agent may on such date, in reliance upon such assumption, disburse or otherwise  credit to the Borrower a corresponding amount.  If any Lender does not make the amount of such  Lender’s Revolving Proportionate Share or Term Proportionate Share, as the case may be, of any  Borrowing available to the Administrative Agent on or prior to the date of such Borrowing, such  Lender shall pay to the Administrative Agent, on demand, interest which shall accrue on such  amount from the date of such Borrowing until such amount is paid to the Administrative Agent at  per annum rates equal to the daily Federal Funds Rate from time to time in effect.  A certificate of  the Administrative Agent submitted to any Lender with respect to any amount owing by such  Lender under this Section 2.09(b) shall be conclusive absent manifest error with respect to such  amount.  If the amount of any Lender’s Revolving Proportionate Share or Term Proportionate  Share, as the case may be, of any Borrowing is not paid to the Administrative Agent by such  Lender within three (3) Business Days after the date of such Borrowing, the Borrower shall repay  such amount to the Administrative Agent, on demand, together with interest thereon, for each day  from the date such amount was disbursed to the Borrower until the date such amount is repaid to  the Administrative Agent, at the interest rate applicable at the time to the Loans comprising such  Borrowing.  (c)  Lenders’ Obligations Several.  The failure of any Lender to make the Loan  to be made by it as part of any Borrowing or to fund participations in Letters of Credit and Swing  Line Loans to be funded by it shall not relieve any other Lender of its obligation hereunder to make  its Loan as part of such Borrowing or fund its participations in Letters of Credit and Swing Line  Loans, but, except as a result of a reallocation of a Defaulting Lender’s Revolving Proportionate  Share of the Effective Amount of L/C Obligations and Swing Line Loans pursuant to  Section 2.16(a)(iv),  no Lender shall be obligated in any way to make any Loan or fund any  participation in Letters of Credit or Swing Line Loans which another Lender has failed or refused  to make or otherwise be in any way responsible for the failure or refusal of any other Lender to  make any Loan required to be made by such other Lender on the date of any Borrowing or to fund  any participation required to be funded by such other Lender.  2.10.  Pro Rata Treatment.  (a)  Borrowings, Commitment Reductions, Etc.  Except as otherwise  provided herein (including the application of funds provided for under Section 2.16(a)(ii) arising  from the existence of a Defaulting Lender and the termination of the unused Commitment of a  Defaulting Lender provided for under Section 2.16(a)(vi)):  (i)  Each Revolving Loan Borrowing and reduction of the Total  Revolving Loan Commitment shall be made or shared among the Lenders pro rata according to  their respective Revolving Proportionate Shares;  (ii)   (A) The Closing Date Term Loan Borrowing shall be made or shared  among the Closing Date Term Lenders pro rata according to their respective Closing Date Term  Proportionate Shares and (B) each Incremental Term Loan Borrowing shall be made or shared  among the Incremental Term Lenders and New Lenders with Incremental Term Loan  





 






DB1/ 120286909.9       -75-    Commitments with respect thereto pro rata according to their respective Incremental Term  Proportionate Shares;  (iii)   Each payment of principal on Loans in any Borrowing or on any  L/C Advances in any L/C Borrowing shall be shared among the Lenders which hold the Loans  in such Borrowing or the L/C Advances in such L/C Borrowing pro rata according to the  respective unpaid principal amounts of such Loans or L/C Advances then owed to such Lenders;  provided, however, during any time there is a Defaulting Lender, each payment of principal on  Loans or L/C Advances shall be shared by only the Non-Defaulting Lenders that made such  Loans or L/C Advances pro rata according to the respective unpaid principal amounts of such  Loans or L/C Advances then owed to such Non-Defaulting Lenders until the unpaid principal  amounts of all Loans or L/C Advances, as applicable, are held by all Lenders according to their  respective Proportionate Shares;  (iv)  Each payment of interest on Loans in any Borrowing shall be shared  among the Lenders which hold the Loans in such Borrowing pro rata according to (A) the  respective unpaid principal amounts of such Loans of such Lenders and (B) the dates on which  such Loans became owing to such Lenders;  (v)  Each payment of Commitment Fees shall be shared among the  Lenders with Revolving Loan Commitments (other than Defaulting Lenders) pro rata according  to (A) their respective Revolving Proportionate Shares and (B) in the case of each Lender which  becomes a Lender hereunder after the Closing Date, the date upon which such Lender so became  a Lender;  (vi)   Letter of Credit fees payable under Section 2.02(i) shall be shared  among the Lenders with Revolving Loan Commitments (other than Defaulting Lenders) and the  L/C Issuer pro rata according to (A) their respective L/C Risk Participations and Fronting  Exposure with respect to the applicable Letters of Credit and (B) in the case of each Lender  which becomes a Lender hereunder after the Closing Date, the date upon which such Lender so  became a Lender;   (vii)  Each payment of interest (other than interest on Loans or interest in  respect of Lender Rate Contracts or Lender Bank Products) shall be shared among the Lenders  and the Administrative Agent owed the amount upon which such interest accrues pro rata  according to (A) the respective amounts so owed such Lenders and the Administrative Agent  and (B) the dates on which such amounts became owing to such Lenders and the Administrative  Agent;   (viii)  Each payment of any fees due in connection with any  amendment hereto or any waiver of or forbearance from any Event of Default existing hereunder  shall be shared among those Lenders consenting to such amendment, waiver or forbearance or  as otherwise agreed to by such Lenders; and  (ix)   All other payments under this Agreement and the other Credit  Documents (including, without limitation, fees paid in connection with any amendment, consent,  waiver or the like) shall be for the benefit of the Person or Persons specified.  





 






DB1/ 120286909.9       -76-    (b)  Sharing of Payments, Etc.  If any Lender shall obtain any payment (whether  voluntary, involuntary, through the exercise of any right of setoff, offset, or otherwise) on account  of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by  it, in excess of its ratable share of payments on account of the Loans and the L/C Obligations  obtained by all Lenders entitled to such payments, such Lender shall forthwith purchase from the  other Lenders such participations in the Loans and/or participations in L/C Obligations or in Swing  Line Loans as shall be necessary to cause such purchasing Lender to share the excess payment  ratably with each of them; provided, however, that if all or any portion of such excess payment is  thereafter recovered from such purchasing Lender, such purchase shall be rescinded and each other  Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery  together with an amount equal to such other Lender’s ratable share (according to the proportion of  (i) the amount of such other Lender’s required repayment to (ii) the total amount so recovered from  the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender  in respect of the total amount so recovered without right to payment of interest.  The Borrower  agrees that any Lender so purchasing a participation from another Lender pursuant to this  Section 2.10(b) may, to the fullest extent permitted by law, exercise all its rights of payment  (including the right of setoff or offset) with respect to such participation as fully as if such Lender  were the direct creditor of the Borrower in the amount of such participation.  Notwithstanding the foregoing, the provisions of this Section 2.10(b) shall not be construed to  apply to (x) any payment made by the Borrower pursuant to and applied in accordance with the  express terms of this Agreement (including (1) the sharing of principal payments among Non- Defaulting Lenders pursuant to the proviso to Section 2.10(a)(iii) and (2) the application of funds  provided for under Section 2.16(a)(ii) arising from the existence of a Defaulting Lender) or (y) any  payment obtained by a Lender as consideration for the assignment of or sale of a participation in  any of its Loans or participations in L/C Obligations or in Swing Line Loans to any assignee or  participant.  2.11.  Availability of Types of Borrowings; Adequacy of Interest Rate.  (a)  Inability to Determine Rates.  Notwithstanding anything to the contrary in  this Agreement or any other Credit Document, if the Administrative Agent determines (which  determination shall be conclusive absent manifest error), or the Required Lenders notify the  Administrative Agent that the Required Lenders have determined, that:  





 






DB1/ 120286909.9       -77-    (i) deposits of a type and maturity appropriate to match fund LIBOR  Borrowings are not available to such Lenders in the relevant market, or  (ii) the interest rate applicable to LIBOR Borrowings for any requested  Interest Period is not ascertainable or available (including, without limitation,  because the applicable Reuters Screen (or on any successor or substitute page on  such screen) is unavailable) or does not adequately and fairly reflect the cost of  making or maintaining LIBOR Borrowings,   Then the Administrative Agent shall (i) give notice thereof to the Borrower and the Lenders as  promptly as practicable thereafter, (ii) suspend the availability of LIBOR Borrowings and (iii)  require any affected LIBOR Borrowings to be repaid or, at the Borrower’s option, converted to  Base Rate Borrowings, subject to the payment of any funding indemnification amounts required  by Section 2.13.    (b)  Illegality.  If any Change of Law shall make it unlawful or impossible for  any Lender to make or maintain any LIBOR Loan or LIBOR Portion, such Lender shall  immediately notify the Administrative Agent and the Borrower in writing of such Change of Law.   Upon receipt of such notice, (i) the Borrower’s right to request the making of, conversion to or a  new Interest Period for LIBOR Loans or LIBOR Portions with respect to such Lender shall be  terminated, and (ii) the Borrower shall, at the request of such Lender, either (A) pursuant to  Section 2.01(e), convert any such then outstanding LIBOR Loans or LIBOR Portions of such  Lender into Base Rate Loans or Base Rate Portions, as the case may be, at the end of the current  Interest Period for such LIBOR Loans or LIBOR Portions or (B) immediately repay or convert  any such LIBOR Loans or LIBOR Portions of such Lender if such Lender shall notify the Borrower  that such Lender may not lawfully continue to fund and maintain such LIBOR Loans or LIBOR  Portions.  Any conversion or prepayment of LIBOR Loans or LIBOR Portions made pursuant to  the preceding sentence prior to the last day of an Interest Period for such LIBOR Loans or LIBOR  Portions shall be deemed a prepayment thereof for purposes of Section 2.13.  After any Lender  notifies the Administrative Agent and the Borrower of such a Change of Law and until such Lender  notifies the Administrative Agent and the Borrower that it is no longer unlawful or impossible for  such Lender to make or maintain a LIBOR Loan or a LIBOR Portion, all Revolving Loans and all  Portions of the Term Loan of such Lender shall be Base Rate Loans and Base Rate Portions,  respectively.    (c)  Increased Costs.  If, any Change of Law:  (i)  Shall subject any Lender to any tax, duty or other charge with  respect to any Loan or Letter of Credit, or shall change the basis of taxation of payments by the  Borrower to any Lender under this Agreement (except for Indemnifiable Taxes, Other Taxes and  Taxes excluded from indemnification under Section 2.12); or  (ii)  Shall impose, modify or hold applicable any reserve (excluding any  Reserve Percentage or other reserve to the extent included in the calculation of the LIBOR Rate  for any Loans or Portions), special deposit, liquidity or similar requirement against assets held  by, deposits or other liabilities in or for the account of, advances or loans by, or any other  acquisition of funds by any Lender for any LIBOR Loan or LIBOR Portion; or  





 






DB1/ 120286909.9       -78-    (iii)  Shall impose on any Lender any other condition related to any  LIBOR Loan or LIBOR Portion or such Lender’s Commitments;  and the effect of any of the foregoing is to increase the cost to such Lender of making, renewing,  or maintaining any such LIBOR Loan or LIBOR Portion or its Commitments or to reduce any  amount receivable by such Lender hereunder; then the Borrower shall from time to time, subject  to such Lender’s compliance with its obligations under Section 2.15(a), within five (5) Business  Days after demand by the Administrative Agent (accompanied by the certificate referred to in the  next sentence), pay to such Lender additional amounts sufficient to reimburse such Lender for  such increased costs or to compensate such Lender for such reduced amounts; provided that the  Borrower shall not be obligated to pay any such amount which arose prior to the date which is 270  days preceding the date of such demand or is attributable to periods prior to the date which is 270  days preceding the date of such demand (except that, if the Change in Law giving rise to such  increased costs or reductions is retroactive, then the 270-day period referred to above shall be  extended to include the period of retroactive effect thereof).  A certificate setting forth in  reasonable detail the amount of such increased costs or reduced amounts, submitted by such  Lender to the Administrative Agent for delivery to the Borrower shall be conclusive absent  manifest error.  The obligations of the Borrower under this Section 2.11(c) shall survive the  payment and performance of the Obligations and the termination of this Agreement.    (d)  Capital Requirements.  If any Lender determines that any Change of Law  affecting such Lender or any lending office of such Lender or such Lender’s holding company, if  any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate  of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as  a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or  participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of  Credit issued by any L/C Issuer, to a level below that which such Lender or such Lender’s holding  company could have achieved but for such Change of Law (taking into consideration such  Lender’s policies and the policies of such Lender’s holding company with respect to capital  adequacy and liquidity), then from time to time the Borrower will pay to such Lender such  additional amount or amounts as will compensate such Lender or such Lender’s holding company  for any such reduction suffered.  A certificate setting forth in reasonable detail the amount of such  increased costs, submitted by any Lender to the Administrative Agent for delivery to the Borrower  shall be conclusive absent manifest error.  The obligations of the Borrower under this  Section 2.11(d) shall survive the payment and performance of the Obligations and the termination  of this Agreement.    (e)  Benchmark Replacement.    (i) Benchmark Transition Event; Early Opt-in Election. Notwithstanding  anything to the contrary herein or in any other Credit Document, if a Benchmark  Transition Event or an Early Opt-in 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” for such Benchmark Replacement Date, such Benchmark  Replacement will replace such Benchmark for all purposes hereunder and under  





 






DB1/ 120286909.9       -79-    any Credit 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 Credit Document and (y) if a Benchmark  Replacement is determined in accordance with clause (3) of the definition of  “Benchmark Replacement” for such Benchmark Replacement Date, such  Benchmark Replacement will replace such Benchmark for all purposes hereunder  and under any Credit Document in respect of any Benchmark setting at or after 5:00  p.m. on the fifth Business Day after the date notice of such Benchmark  Replacement is provided by the Administrative Agent to the Lenders without any  amendment to, or further action or consent of any other party to, this Agreement or  any other Credit 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.   (ii) Term SOFR Transition Event. Notwithstanding anything to the contrary  herein or in any other Credit Document and subject to the proviso below in this  paragraph, 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 Credit 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 Credit Document; provided that, this  clause (e)(ii) 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  a Term SOFR Transition Event and may do so in its sole discretion.  (iii) Benchmark Replacement Conforming Changes. 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 Credit  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 Credit Document.   (iv) Notices; Standards for Decisions and Determinations. The Administrative  Agent will promptly notify the Borrower and the Lenders of (A) any occurrence of  a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its  related Benchmark Replacement Date, (B) the implementation of any Benchmark  Replacement, (C) the effectiveness of any Benchmark Replacement Conforming  Changes, (D) the removal or reinstatement of any tenor of a Benchmark pursuant  to clause (v) below and (E) the commencement or conclusion of any Benchmark  Unavailability Period.  Any determination, decision or election that may be made  by the Administrative Agent or, if applicable, any Lender (or group of Lenders)  pursuant to this Section 2.11(e), including any determination with respect to a tenor,  rate or adjustment or of the occurrence or non-occurrence of an event, circumstance  





 






DB1/ 120286909.9       -80-    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 Credit Document, except, in each case, as expressly required pursuant to this  Section 2.11(e).   (v) Unavailability of Tenor of Benchmark. Notwithstanding anything to the  contrary herein or in any other Credit 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 or the LIBOR Base 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” (or Section 2.01(c) or Section 2.01(e) 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” (or Section 2.01(c) or  Section 2.01(e) for all Benchmark settings at or after such time to reinstate such  previously removed tenor.   (vi) Benchmark Unavailability Period. Upon notice to the Borrower by the  Administrative Agent in accordance with Section 8.01 of the commencement of a  Benchmark Unavailability Period and until a Benchmark Replacement is  determined in accordance with this Section 2.11(e), the Borrower may revoke any  request for a LIBOR Borrowing, or any request for the conversion or continuation  of a LIBOR Borrowing to be made, converted or continued during any Benchmark  Unavailability Period and, failing that, the Borrower will be deemed to have  converted any such request into a request for a Base Rate Borrowing or conversion  to a Base Rate Borrowing. 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.  2.12.  Taxes on Payments.  (a)  Except as otherwise expressly provided in this Section 2.12, all payments  by the Borrower under this Agreement or any other Credit Document shall be made free and clear  of, and without deduction for, any and all present or future federal, state, local and foreign taxes,  levies, imposts, duties, deductions, fees, assessments, withholdings, or other charges of whatever  





 






DB1/ 120286909.9       -81-    nature and all interest, penalties and other liabilities with respect thereto, including withholding  taxes imposed by any jurisdiction or any political subdivision thereof, but excluding (i) taxes  imposed on a Lender’s overall net income and franchise taxes imposed on such Lender, in each  case, by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision  thereof and (ii) any taxes imposed on any “withholdable payment” payable to such recipient as a  result of the failure of such recipient to satisfy the applicable requirements of FATCA (all such  nonexcluded taxes, levies, imposts, duties, deductions, fees, assessments, withholdings, or other  charges of whatever nature and all interest, penalties and other liabilities being referred to herein  as “Indemnifiable Taxes”).  If Indemnifiable Taxes are imposed in respect of any sum payable  hereunder to any Lender, then (i) subject to the penultimate sentence of Section 2.12(e), the sum  payable shall be increased by the amount necessary so that after making all required deductions  such Lender shall receive an amount equal to the sum it would have received had no such  deductions been made, (ii) the Borrower shall make all required deductions and (iii) the Borrower  shall pay the full amount deducted to the relevant taxing authority or other Governmental  Authority in accordance with applicable law.  For the avoidance of doubt, for purposes of this  Section 2.12, “applicable law” includes FATCA.  (b)   Other Taxes.  In addition, the Borrower agrees to pay any present or future  stamp or documentary taxes and any excise, transfer, sales and use, value added or property taxes,  charges or similar levies that arise from any payment made hereunder or from the execution,  delivery or registration of, or otherwise with respect to, this Agreement or any other Credit  Document (hereinafter referred to as “Other Taxes”).  (c)  Tax Indemnification.  Subject to the penultimate sentence of  Section 2.12(e), the Borrower agrees to indemnify the Administrative Agent and each Lender for  the full amount of all Indemnifiable Taxes and Other Taxes (including any Taxes or Other Taxes  imposed by any jurisdiction on amounts payable under this Section 2.12) paid by such Lender, and  any liability (including penalties, interest and expenses) arising therefrom or with respect thereto,  whether or not such Taxes or Other Taxes were correctly or legally asserted.  Such indemnification  shall be made within 30 days following the date the Administrative Agent or such Lender makes  written demand therefor.    (d)  Evidence of Payment.  Within 30 days after the date of any payment of  Taxes or Other Taxes withheld hereunder (and, with respect to any Taxes or Other Taxes not so  withheld, to the extent available), the Borrower will furnish to the Administrative Agent, at the  Administrative Agent’s office, the original or a certified copy of a receipt evidencing payment  thereof.  (e)  Withholding Exemption Certificates.  On or prior to the date of the initial  Loans or, if such date does not occur within thirty (30) days after the date of this Agreement, by  the end of such 30-day period, each Lender which is not organized under the laws of the United  States or a state thereof shall deliver to the Borrower and the Administrative Agent (A) two duly  completed copies of United States Internal Revenue Service Form W-8BEN, Form W-8BEN-E or  Form W-8ECI (or successor applicable form), as the case may be, certifying in each case that such  Lender is entitled to receive payments of interest under this Agreement without deduction or  withholding of any United States federal income taxes, or (B) if the Lender is not a “bank” within  the meaning of Section 881(c)(3)(A) of the IRC and cannot deliver either United States Internal  





 






DB1/ 120286909.9       -82-    Revenue Service Form W-8BEN, FormW-8BEN-E or Form W-8ECI (with respect to a complete  exemption under an income tax treaty) pursuant to clause (A) above (any such lender, a “Non- Bank Lender”), (x) a certificate substantially in the form of Exhibit K (any such certificate, a “Non- Bank Certificate”) and (y) two accurate and complete original signed copies of United States  Internal Revenue Service Form W-8BEN or Form W-8BEN-E (with respect to the portfolio  interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to  a complete exemption from United States withholding tax with respect to payments of interest to  be made under this Agreement.  Each such Lender further agrees (i) promptly to notify the  Borrower and the Administrative Agent of any change of circumstances which would prevent such  Lender from receiving payments hereunder without any deduction or withholding of Indemnifiable  Taxes and (ii) if such Lender has not so notified the Borrower and the Administrative Agent of  any change of circumstances which would prevent such Lender from receiving payments  hereunder without any deduction or withholding of Indemnifiable Taxes, then upon the reasonable  request of the Borrower or the Administrative Agent, to deliver to the Borrower and the  Administrative Agent a new certificate or form, certifying that such Lender is entitled to receive  payments under this Agreement without deduction of Indemnifiable Taxes, but only if and to the  extent such Lender is legally entitled to do so.  If a Lender (other than an assignee pursuant to a  request by the Borrower under Section 2.15) fails to provide to the Borrower or the Administrative  Agent pursuant to the first sentence of this Section 2.12(e) (or, in the case of an Assignee Lender,  Section 8.05(c)) any certificates or other evidence required by such provision to establish that such  Lender is, at the time it becomes a Lender hereunder, entitled to receive payments under this  Agreement without deduction or withholding of any United States federal income taxes, such  Lender shall not be entitled to any indemnification under Section 2.12(a) for any such Taxes  imposed on such Lender primarily as a result of such failure, except to the extent that such Lender  (or its assignor, if any) was entitled, at the time such Lender became a Lender hereunder, to receive  additional amounts from the Borrower with respect to such Tax pursuant to Section 2.12(a).   Notwithstanding anything to the contrary contained in this Section 2.12, the Borrower agrees to  pay additional amounts and to indemnify each Lender in the manner set forth in Section 2.12(a)  and Section 2.12(c) (without regard to the identity of the jurisdiction requiring the deduction or  withholding) in respect of any amounts deducted or withheld by it as described in the immediately  preceding sentence as a result of any changes after the Closing Date (or, in the case of any Lender  becoming a Lender more than 30 days following the Closing Date, after the date such Lender  becomes a Lender) in any applicable law, treaty, governmental rule, regulation, guideline or order,  or in the interpretation thereof, relating to Taxes other than FATCA, and, in the case of FATCA,  any such change that is not substantially comparable or materially more onerous to comply with  than FATCA.  (f)  Lender to Use Reasonable Efforts.   Any Lender claiming any additional  amounts in respect of Indemnifiable Taxes payable pursuant to this Section 2.12 shall use  reasonable efforts (consistent with legal and regulatory restrictions and such Lender’s internal  policies) to file any certificate or document reasonably requested by the Borrower, if the making  of such a filing would avoid the need for or reduce the amount of any such Indemnifiable Taxes  attributable to the Loans and would not, in the sole determination of such Lender, result in any  unreimbursed loss, cost or expense or otherwise be disadvantageous to such Lender.  





 






DB1/ 120286909.9       -83-    (g)   Survival.  Without prejudice to the survival of any other agreement  contained herein, the agreements and obligations contained in this Section 2.12 shall survive the  payment in full of principal, interest and all other Obligations hereunder.  (h)  Tax Returns.  Nothing contained in this Section 2.12 shall require the  Administrative Agent or any Lender to make available any of its Tax Returns or any other  information that it deems to be confidential or proprietary.  (i)  FATCA.  If a payment made to a Lender under any Credit 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, such Lender shall use reasonable  efforts to deliver to the Borrower and the Administrative Agent such documentation as is required  by FATCA.  Solely for purposes of this clause (i), FATCA shall include any amendments made to  FATCA after the date of this Agreement.  2.13.  Funding Loss Indemnification.  If the Borrower shall (a) repay, prepay or convert  any LIBOR Loan or LIBOR Portion on any day other than the last day of an Interest Period therefor  (whether a scheduled payment, an optional prepayment or conversion, a mandatory prepayment or  conversion, a payment upon acceleration or otherwise), (b) fail to borrow any LIBOR Loan or  LIBOR Portion for which a Notice of Loan Borrowing has been delivered to the Administrative  Agent (whether as a result of the failure to satisfy any applicable conditions or otherwise), (c) fail  to convert any Revolving Loans into LIBOR Loans or any Portion of a Term Loan Borrowing into  a LIBOR Portion in accordance with a Notice of Conversion delivered to the Administrative Agent  (whether as a result of the failure to satisfy any applicable conditions or otherwise), (d) fail to  continue a LIBOR Loan or a LIBOR Portion for which a Notice of Interest Period Selection has  been delivered to the Administrative Agent, or (e) request, pursuant to Section 2.15(b), that a  LIBOR Loan or LIBOR Portion is assigned other than on the last day of the Interest Period  applicable thereto (and such that a LIBOR Loan or LIBOR Portion is assigned), the Borrower shall  pay to the appropriate Lender within five (5) Business Days after demand a prepayment fee, failure  to borrow fee, failure to convert fee or failure to continue fee, as the case may be (determined as  though 100% of the LIBOR Loan or LIBOR Portion had been funded in the London interbank  eurodollar currency market), equal to the sum of:  (a)  the amount (which shall not be less than zero), if any, by which (i) the  additional interest would have accrued on the amount prepaid or not borrowed at the LIBOR Rate  for LIBOR Loans and LIBOR Portions if that amount had remained or been outstanding through  the last day of the applicable Interest Period exceeds (ii) the interest that such Lender could recover  by placing such amount on deposit in the London interbank eurodollar currency market for a period  beginning on the date of the prepayment or failure to borrow and ending on the last day of the  applicable Interest Period (or, if no deposit rate quotation is available for such period, for the most  comparable period for which a deposit rate quotation may be obtained); plus  (b)  all reasonable out-of-pocket expenses incurred by such Lender reasonably  attributable to such payment, prepayment or failure to borrow.  Each Lender’s determination of the amount of any prepayment fee payable under this Section 2.13  shall be conclusive in the absence of manifest error.  The obligations of the Borrower under this  





 






DB1/ 120286909.9       -84-    Section 2.13 shall survive the payment and performance of the Obligations and the termination of  this Agreement.  2.14.  Security.  (a)  Security Documents.  The Loans, together with all other Obligations, shall  be secured by the Liens granted by the Borrower under the Security Documents.  All obligations  of a Guarantor under the Credit Documents shall be secured by the Liens granted by such  Guarantor under the Security Documents.  So long as the terms thereof are in compliance with this  Agreement, each Lender Rate Contract and Lender Bank Product shall be secured by the Lien of  the Security Documents with the priority set forth in Section 6.02.    (b)  Further Assurances.  Subject to the limitations set forth in Section 5.01(i)  and the Security Documents, the Borrower shall deliver, and shall cause each Guarantor to deliver,  to the Administrative Agent such security agreements, pledge agreements, control agreements, and  other instruments, agreements, certificates, opinions and documents (including Uniform  Commercial Code financing statements) as the Administrative Agent may reasonably request to:  (i)  grant, perfect, maintain, protect and evidence security interests in  favor of the Administrative Agent, for the benefit of the Lender Parties, in the Collateral prior to  the Liens or other interests of any Person, except for Permitted Liens; and  (ii)  otherwise establish, maintain, protect and evidence the rights  provided to the Administrative Agent, for the benefit of the Lender Parties, pursuant to the  Security Documents.  The Borrower shall fully cooperate with the Administrative Agent and the Lenders and perform  all additional acts requested by the Administrative Agent or any Lender to effect the purposes of  this Section 2.14.  2.15.  Mitigation Obligations; Replacement of the Lenders.    (a)  If any Lender shall demand any payment under Section 2.11(c),  Section 2.11(d) or Section 2.12(a), then such Lender shall (at the request of the Borrower) use its  commercially reasonable efforts to designate a different Applicable Lending Office for the funding  or booking of its Loans hereunder or to assign its rights and obligation hereunder to another of its  offices, branches or Affiliates, if such designation or assignment (i) would eliminate or reduce  amounts payable pursuant to Section 2.11(c), Section 2.11(d) or Section 2.12(a), as the case may  be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense or  would not otherwise be disadvantageous to such Lender.  The Borrower shall pay all reasonable  costs and expenses incurred by such Lender in connection with any such designation or  assignment.   (b)  If (a) any Lender shall become a Defaulting Lender, (b) any Lender shall  suspend its obligation to make or maintain LIBOR Loans or LIBOR Portions pursuant to  Section 2.11(b) for a reason which is not applicable to any other Lender, (c) any Lender shall  demand any payment under Sections 2.11(c), 2.11(d) or 2.12(a) and such Lender has declined or  is unable to designate a different Applicable Lending Office pursuant to Section 2.15(a), or (d) any  





 






DB1/ 120286909.9       -85-    Lender has not consented to a proposed change, waiver, discharge or termination of the provisions  of this Agreement as contemplated by Section 8.04 that requires the consent of all Lenders or each  Lender affected thereby and which has been approved by the Required Lenders as provided in  Section 8.04, then the Administrative Agent may (or upon the written request of the Borrower if  the Borrower has located or identified a Replacement Lender that is an Eligible Assignee and is  reasonably acceptable to the Administrative Agent as contemplated below, shall use commercially  reasonable efforts to) replace such Lender (the “Affected Lender”), or cause such Affected Lender  to be replaced, with another lender (the “Replacement Lender”) satisfying the requirements of an  Assignee Lender under Section 8.05(c), by having the Affected Lender sell and assign all of its  rights and obligations under this Agreement and the other Credit Documents (including for  purposes of this Section 2.15, participations in L/C Obligations and in Swing Line Loans) to the  Replacement Lender pursuant to Section 8.05(c); provided, however, that neither the  Administrative Agent nor any Lender shall have any obligation to identify or locate a Replacement  Lender for the Borrower (it being expressly agreed that in such circumstances it is the Borrower’s  obligation to identify or locate a Replacement Lender that is an Eligible Assignee and is acceptable  to the Administrative Agent).  Upon receipt by any Affected Lender of a written notice from the  Administrative Agent stating that the Administrative Agent is exercising the replacement right set  forth in this Section 2.15, such Affected Lender shall sell and assign all of its rights and obligations  under this Agreement and the other Credit Documents (including for purposes of this Section 2.15,  participations in L/C Obligations and in Swing Line Loans) to the Replacement Lender pursuant  to an Assignment Agreement and Section 8.05(c) for a purchase price equal to the sum of the  principal amount of the Affected Lender’s Loans so sold and assigned or such other amount is  agreed to by such Affected Lender and such Replacement Lender), all accrued and unpaid interest  thereon and its ratable share of all fees and other amounts to which it is entitled.  Notwithstanding  the foregoing, a Lender that is an Affected Lender shall not be required to make an assignment as  described in this Section 2.15(b), if prior to the effectiveness of the applicable assignment, the  circumstances which made such Lender an Affected Lender cease to apply, whether as a result of  a waiver by the applicable Lender or otherwise.  2.16.  Defaulting Lenders.  (a)   Adjustments.  Notwithstanding anything to the contrary contained in this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is  no longer a Defaulting Lender, to the extent permitted by applicable law:  (i)   Waivers and Amendments.  Such Defaulting Lender’s right to  approve or disapprove any amendment, modification, supplement, extension, termination,  waiver or consent with respect to this Agreement or any other Credit Document shall be restricted  as set forth in the definition of Required Lenders and in the Defaulting Lender Amendment  Paragraph.    (ii)  Reallocation of Payments. Any payment of principal, interest, fees  or other amounts received by the Administrative Agent for the account of such Defaulting Lender  (whether voluntary or mandatory, at maturity, pursuant to Section 6.02, received by the  Administrative Agent from a Defaulting Lender pursuant to Section 8.06(a) or otherwise),  subject to the proviso in Section 2.10(a)(iii), shall be applied at such time or times as may be  determined by the Administrative Agent as follows: first, to the payment of any amounts owing  





 






DB1/ 120286909.9       -86-    by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a  pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or Swing Line  Lender; third, if so determined by the Administrative Agent or requested by the L/C Issuer, to  Cash Collateralize the L/C Issuer’s Fronting Exposures with respect to such Defaulting Lender  in accordance with Section 2.16(c); fourth, if so requested by the Borrower (so long as no Default  exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund  its portion thereof as required by this Agreement, as determined by the Administrative Agent;  fifth, if so agreed by the Administrative Agent and the Borrower, to be held in a non-interest  bearing deposit account and released in order to (x) satisfy such Defaulting Lender’s potential  future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize  the L/C Issuer’s future Fronting Exposures with respect to such Defaulting Lender with respect  to future Letters of Credit issued under this Agreement, in accordance with Section 2.16(c);  sixth, to the payment of any amounts owing to the Lenders or the L/C Issuer or the Swing Line  Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender  or the L/C Issuer or the Swing Line Lender against that Defaulting Lender as a result of such  Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no  Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment  of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as  a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth,  to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided  that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowing in  respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such  Loans were made or the related Letters of Credit were issued at a time when the conditions set  forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the  Loans of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to  being applied to the payment of any Loans of, or L/C Borrowings owed to, such Defaulting  Lender until such time as all Loans and funded and unfunded participations in L/C Borrowings  and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments  without giving effect to Section 2.16(a)(iv).  Any payments, prepayments or other amounts paid  or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting  Lender or to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and  redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.  (iii)   Certain Fees. Any Defaulting Lender (A) shall not be entitled to  receive any Commitment Fee under Section 2.05(b) for any period during which that Lender is  a Defaulting Lender (and the Borrower shall not be required to pay any such fees that otherwise  would have been required to have been paid to that Defaulting Lender) and (B) shall be limited  in its right to receive Letter of Credit fees as provided in Section 2.02(i).  (iv)   Reallocation of Participations to Reduce Fronting Exposure.  All or  any part of such Defaulting Lender’s Revolving Proportionate Share of the Effective Amount of  L/C Obligations and Swing Line Loans shall automatically (effective on the day such Lender  becomes a Defaulting Lender) be reallocated among the Non-Defaulting Lenders in accordance  with their respective Revolving Proportionate Shares (calculated without regard to such  Defaulting Lender’s Revolving Loan Commitment) but only to the extent that such reallocation  does not cause the sum of (I) the Effective Amount of all Revolving Loans made by such Non- Defaulting Lender outstanding at such time and (II) such Non-Defaulting Lender’s Total Lender  





 






DB1/ 120286909.9       -87-    Risk Participation at such time to exceed such Non-Defaulting Lender’s Revolving Loan  Commitment at such time.  No reallocation hereunder shall constitute a waiver or release of any  claim of any party hereunder against a Defaulting Lender arising from that Lender having  become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such  Non-Defaulting Lender’s increased exposure following such reallocation.   (v)  Cash Collateral; Prepayment of Swing Line Loans.  If the  reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower  shall, without prejudice to any right or remedy available to it hereunder or under law,  immediately following notice by the Administrative Agent, (x) first, prepay Swing Line Loans  in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash  Collateralize such Defaulting Lender’s Revolving Proportionate Share of the Effective Amount  of L/C Obligations (after giving effect to any partial reallocation pursuant to clause (iv) above)  in accordance with Section 2.16(c).  (vi)   Termination of Revolving Loan Commitment.  The Borrower may  terminate the unused amount of the Revolving Loan Commitment of a Defaulting Lender upon  not less than three (3) Business Days’ prior notice to the Administrative Agent (which will  promptly notify the Lenders thereof), and in such event the provisions of clause (ii) above will  apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender  under this Agreement (whether on account of principal, interest, fees, indemnity or other  amounts); provided that (i) no Event of Default shall have occurred and be continuing and  (ii) such termination will not be deemed to be a waiver or release of any claim the Borrower, the  Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender may have against  such Defaulting Lender.  (b)   Defaulting Lender Cure.  If the Borrower, the Administrative Agent and the  L/C Issuer and the Swing Line Lender agree in writing in their sole discretion that a Defaulting  Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so  notify the parties hereto, whereupon as of the effective date specified in such notice and subject to  any conditions set forth therein (which may include arrangements with respect to any Cash  Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans  of the other Lenders or take such other actions as the Administrative Agent may determine to be  necessary to cause the Revolving Loans and funded and unfunded participations in Letters of  Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their  Revolving Proportionate Shares (without giving effect to Section 2.16(a)(iv)), whereupon such  Lender will cease to be a Defaulting Lender; provided that no adjustments will be made  retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while  that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise  expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non- Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising  from that Lender’s having been a Defaulting Lender.  (c)   Cash Collateral Provisions.    (i)   At any time that there shall exist a Defaulting Lender, within one (1)  Business Day after the request of the Administrative Agent or the L/C Issuer, the Borrower shall  





 






DB1/ 120286909.9       -88-    deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting  Exposure of the L/C Issuer (after giving effect to Section 2.16(a)(iv) and any Cash Collateral  provided by the Defaulting Lender).  In addition, as a condition to issuing any Letter of Credit,  the L/C Issuer may require that the Borrower deliver to the Administrative Agent Cash Collateral  in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.16(a)(iv)  and any Cash Collateral provided by the Defaulting Lender).    (ii)   All Cash Collateral shall be maintained in blocked, non-interest  bearing deposit accounts with the Administrative Agent.  The Borrower, and to the extent  provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to  the control of) the Administrative Agent, for the benefit of the Administrative Agent and the  L/C Issuer, and agrees to maintain, a first priority security interest in all such Cash Collateral, all  as security for the Defaulting Lender’s obligations to which such Cash Collateral may be applied  pursuant to clause (iii) below.  If at any time the Administrative Agent determines that Cash  Collateral is subject to any right or claim of any Person other than the Administrative Agent as  herein provided, or that the total amount of such Cash Collateral is less than the applicable  Fronting Exposure, the Borrower or the relevant Defaulting Lender will, within one (1) Business  Day after the request of the Administrative Agent, pay or provide to the Administrative Agent  additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving  effect to any Cash Collateral provided by the Defaulting Lender).  (iii)   Notwithstanding anything to the contrary contained in this  Agreement, Cash Collateral provided under this Section 2.16 in respect of Letters of Credit, shall  be held and applied to the satisfaction of the Defaulting Lender’s obligations to fund  participations in respect of L/C Obligations (including, as to Cash Collateral provided by a  Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was  so provided, prior to any other application of such property as may be provided for herein.  (iv)   Cash Collateral (or the appropriate portion thereof) provided to  reduce Fronting Exposure shall be released promptly following (A) the elimination of the  applicable Fronting Exposure (including by the termination of Defaulting Lender status of the  applicable Lender (or, as appropriate, its assignee)), or (B) the Administrative Agent’s good faith  determination that there exists excess Cash Collateral; provided, however, (x) that Cash  Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance  of a Default (and, following the application as provided in clause (iii) above, may be otherwise  applied in accordance with Section 6.02), and (y) the Person providing Cash Collateral and the  L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future  anticipated Fronting Exposure or other obligations.    2.17.   Incremental Term Loans; Increases in the Total Revolving Loan Commitment    Notwithstanding anything to the contrary in this Agreement or any other Credit  Document and notwithstanding the references to this Section 2.17, Incremental Term Loans and  increases in the Total Revolving Loan Commitment in the Credit Documents, as of the Closing  Date, the Borrower does not have any right to request Incremental Term Loans and increases in  the Total Revolving Loan Commitment under this Section 2.17 and the Borrower may not request  





 






DB1/ 120286909.9       -89-    Incremental Term Loans and increases in the Total Revolving Loan Commitment under this  Section 2.17.  (a)   Incremental Term Loans.    (i)  The Borrower may at any time prior to the Term Loan Maturity Date  request one or more Borrowings of additional Term Loans (each, an “Incremental Term Loan”);  provided, however, that the Borrower shall not make such a request if the conditions set forth in  Section 2.17(i) are not satisfied.  Any such request shall be submitted by the Borrower to the  Administrative Agent (which shall promptly forward copies to the existing Term Lenders), specify  the proposed Incremental Effective Date (as defined below) and amount of such proposed  Incremental Term Loan Borrowing and be accompanied by a certificate of a Responsible Officer  of the Borrower certifying that no Event of Default exists or will occur as a result of such  Incremental Term Loan Borrowing.  Only those existing Term Lenders that agree to extend an  Incremental Term Loan as part of such Incremental Term Loan Borrowing (each, an “Incremental  Term Lender”) and those New Lenders that agree to extend an Incremental Term Loan as part of  such Incremental Term Loan Borrowing that shall be entitled to receive any fees in connection  with such Incremental Term Loan Borrowing.  No Term Lender shall have any obligation, express  or implied, to offer any Incremental Term Loan.  Only the consent of each Incremental Term  Lender shall be required for an advance of an Incremental Term Loan pursuant to this  Section 2.17(a).  No Term Lender that elects not to advance an Incremental Term Loan may be  replaced in respect of its existing Term Loan as a result thereof without such Term Lender’s written  consent.  (ii)  Any Incremental Term Loans will be made subject to this  Agreement pursuant to an amendment (an “Incremental Term Loan Amendment”) to this  Agreement and, as appropriate, the other Credit Documents, executed (in the case of such  amendment to this Agreement) by the Borrower, each Incremental Term Lender, if any, each New  Lender, if any, and the Administrative Agent.  The Incremental Term Loans shall have terms and  conditions substantially identical to those applicable to the Closing Date Term Loans (other than  with respect to pricing (provided that the pricing for the Incremental Term Loans shall be based  on the same “Tiers” and corresponding Total Leverage Ratios (but not necessarily the same  Applicable Margins) as is set forth in the then effective definition of Applicable Margin),  arrangement fees, upfront fees and additional fees, amortization, maturity and any different  drawing conditions that are agreed to in the applicable Incremental Term Loan Amendment) and  will be otherwise on terms and subject to conditions reasonably satisfactory to the Administrative  Agent.  Each Incremental Term Loan Amendment shall, without the consent of any other Lenders,  amend the provisions of this Agreement and the other Credit Documents to set forth the terms of  the Incremental Term Loans, including the amount and final maturity thereof (which shall not be  earlier than the Revolving Loan Maturity Date or the Term Loan Maturity Date), any provisions  relating to amortization (it being agreed that the weighted average life of such loans may be no  less than the then current weighted average life of the Closing Date Term Loans and that there  shall be no provisions for mandatory prepayments of and offers to prepay the Incremental Term  Loans (other than on a ratable basis with the Closing Date Term Loans)) and the interest to accrue  and be payable thereon and any fees to be payable in respect thereof, and to effect such other  changes as the Borrower and the Administrative Agent shall deem reasonably necessary or  advisable in connection with such Incremental Term Loans.  If the Applicable Margin for any  





 






DB1/ 120286909.9       -90-    Incremental Term Loans payable to the Lenders in respect of such Incremental Term Loans  exceeds the Applicable Margin for the Closing Date Term Loans by more than 1.00%, then (x) the  Applicable Margins for the Closing Date Term Loans shall be increased so that the Applicable  Margin for the Closing Date Term Loans (giving effect to such increase in the Applicable Margins)  is no more than 1.00% less than the Applicable Margin for such Incremental Term Loans and (y)  the Applicable Margins for the Revolving Loans shall be increased by a corresponding amount.   For purposes of comparing the Applicable Margins of the Incremental Term Loans and the Closing  Date Term Loans, such Applicable Margins shall be calculated in the manner described in the  foregoing sentence for each “Tier” of the definition of Applicable Margin (assuming such “Tier”  were in effect for the entire term of the Incremental Term Loans and Closing Date Term Loans),  and any increase to the Applicable Margins for the Closing Date Term Loans and Revolving Loans  shall be made pursuant to the foregoing sentence only with respect to those “Tiers” of the definition  of Applicable Margin for which the Applicable Margin for the Closing Date Term Loans is more  than 0.50% less than the interest at the corresponding pricing tiers applicable to such Incremental  Term Loans.  All Incremental Term Loans shall rank pari passu in right of payment with the other  Loans and shall benefit equally and ratably from the Security Documents.   (b)  Increases in the Total Revolving Loan Commitment.  The Borrower may,  at any time prior to the Revolving Loan Maturity Date, request to increase the Total Revolving  Loan Commitment provided, however, that the Borrower shall not make such a request if the  conditions set forth in Section 2.17(i) are not satisfied.  Any such request shall be submitted by the  Borrower to the Administrative Agent (which shall promptly forward copies to the existing  Revolving Lenders), specify the proposed Incremental Revolving Effective Date (as defined  below) and amount of such proposed increase in the Total Revolving Loan Commitment and be  accompanied by a certificate of a Responsible Officer of the Borrower certifying that no Event of  Default exists or will occur as a result of such increase in the Total Revolving Loan Commitment.   Only those existing Revolving Lenders that agree to increase the Total Revolving Loan  Commitment (each, an “Incremental Revolving Lender”) and those New Lenders that agree to  commit to increase the Total Revolving Loan Commitment shall be entitled to receive any fees in  connection with such increase in the Total Revolving Loan Commitment.  No Revolving Lender  shall have any obligation, express or implied, to offer an increase in its Revolving Loan  Commitment.  Only the consent of each Incremental Revolving Lender shall be required for an  increase in the respective Revolving Loan Commitment pursuant to this Section 2.17(b).  No  Revolving Lender that elects not to increase the amount of its Revolving Loan Commitment may  be replaced in respect of its existing Revolving Loan Commitment as a result thereof without such  Revolving Lender’s written consent.  (c)  Identification of Lenders.  Each existing Term Lender (for an Incremental  Term Loan Borrowing) or existing Revolving Lender (for an increase in the Total Revolving Loan  Commitment) shall, within ten (10) Business Days after the Borrower have submitted their request  under Section 2.17(a) or Section 2.17(b), as applicable, specify the amount of the proposed  Incremental Term Loan or increase in its Revolving Loan Commitment which it is willing to offer.   To the extent the Incremental Term Loan Commitments of the existing Term Lenders or increased  Revolving Loan Commitments of the existing Revolving Lenders, as applicable, are insufficient  or at an earlier time agreed to by the Borrower and the Administrative Agent, the Borrower may  designate new lenders who qualify as Eligible Assignees and which are reasonably acceptable to  the Administrative Agent as additional Lenders hereunder in accordance with this Section 2.17(c)  





 






DB1/ 120286909.9       -91-    (each such new Lender being a “New Lender”), which New Lender may advance all or a portion  of an Incremental Term Loan Borrowing or provide all or a portion of the increase in the amount  of the Total Revolving Loan Commitment.  The Administrative Agent may agree to assist the  Borrower in identifying new lenders who qualify as Eligible Assignees, and if the Administrative  Agent so agrees, the Borrower may pay a fee to the Administrative Agent solely for the account  of the Administrative Agent in connection with such services.  The Borrower and the  Administrative Agent shall have discretion jointly to adjust the allocation of an increased aggregate  principal amount of Incremental Term Loans among Incremental Term Lenders and New Lenders.   The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation  of an increased aggregate principal amount of the Total Revolving Loan Commitment among  Incremental Revolving Lenders and New Lenders.  (d)  Joinder of New Lenders.  Each New Lender shall become an additional  party hereto as a New Lender concurrently with the effectiveness of the proposed Incremental  Term Loan Borrowing or increase in the Total Revolving Loan Commitment upon its execution  of an instrument of joinder (which may contain such modifications to this Agreement and terms  and conditions relating thereto as may be necessary solely to ensure that the Incremental Term  Loans made by such New Lenders as part of such Incremental Term Loan Borrowings or the  Revolving Loans made by such New Lender under the increased Total Revolving Loan  Commitment are treated as Obligations for all purposes under the Credit Documents), in each case  in form and substance reasonably satisfactory to the Administrative Agent.  Each New Lender  shall provide the documentation required by Section 2.12.  (e)  Conditions to Incremental Effective Date.  The obligation of the applicable  Incremental Term Lenders and New Lenders to make an Incremental Term Loan is subject to  compliance with the terms of this Section 2.17 and the satisfaction of the conditions set forth in  Section 2.17(i), in each case to the reasonable satisfaction of the Administrative Agent.  The  obligation of the applicable Incremental Revolving Lenders and New Lenders to increase the Total  Revolving Loan Commitment is subject to compliance by the Borrower with the terms set forth in  this Section 2.17 and the reasonable satisfaction of the conditions set forth in Section 2.17(i), in  case to the satisfaction of the Administrative Agent.  Any increase in the Total Revolving Loan  Commitment and/or Incremental Term Loan requested by Borrower shall occur on the date  proposed by the Borrower if the conditions identified above are complied with (the “Incremental  Effective Date”) in the principal amount equal to (i) the amount to which the Incremental  Revolving Lenders are willing to commit as an increase in the Total Revolving Loan Commitment  or the aggregate amount which the Incremental Term Lenders are willing to advance as an  Incremental Term Loan plus (ii) the aggregate amount offered by the New Lenders with respect to  the Total Revolving Loan Commitment or an Incremental Term Loan, in either case as adjusted  by the Borrower and the Administrative Agent pursuant to the last sentence of Section 2.17(c).  (f)  Funding of Incremental Term Loans; Rebalancing of Revolving Loan  Commitments.  On or prior to the Incremental Effective Date, with respect to any Incremental  Term Loan, the Administrative Agent shall notify each applicable Incremental Term Lender and  New Lender of the amount required to be funded by such Incremental Term Lender or New  Lender.  On or prior to the Incremental Effective Date, with respect to any increase in the Total  Revolving Loan Commitment, the Administrative Agent shall notify each Incremental Revolving  Lender and New Lender of the amount required to be paid by or to such Lender so that the  





 






DB1/ 120286909.9       -92-    Revolving Loans held by the Revolving Lenders on the Incremental Effective Date (before giving  effect to any new Revolving Loans made on such date) shall be held by each Revolving Lender  pro rata in accordance with the Revolving Loan Commitments of the Revolving Lenders as  adjusted pursuant to the last sentence of Section 2.17(c).  Each Revolving Lender which is required  to reduce the amount of Revolving Loans held by it (each such Revolving Lender, a “Decreasing  Lender”) shall irrevocably assign, without recourse or warranty of any kind whatsoever (except  that each Decreasing Lender warrants that it is the legal and beneficial owner of the Revolving  Loans assigned by it under this Section 2.17(f) and that such Revolving Loans are held by such  Decreasing Lender free and clear of adverse claims created by it), to each Incremental Revolving  Lender and New Lender participating in the applicable increase in the Total Revolving Loan  Commitment, and each applicable Incremental Revolving Lender and New Lender shall  irrevocably acquire from the Decreasing Lenders, a portion of the principal amount of the  Revolving Loans of each Decreasing Lender (collectively, the “Acquired Portion”) outstanding on  the Incremental Effective Date (before giving effect to any new Revolving Loans made on such  date) in an amount such that the principal amount of the Revolving Loans held by each applicable  Incremental Revolving Lender, New Lender and Decreasing Lender as of the Incremental  Effective Date shall be held in accordance with each such Revolving Lender’s Revolving  Proportionate Share (if any) as of such date.  Such assignment and acquisition shall be effective  on the Incremental Effective Date automatically and without any action required on the part of any  party other than the payment by the applicable Incremental Revolving Lenders and New Lenders  to the Administrative Agent for the account of the Decreasing Lenders of an aggregate amount  equal to the Acquired Portion, which amount shall be allocated and paid by the Administrative  Agent promptly after receipt in the type of funds received and to the extent practicable on the  Incremental Effective Date to the Decreasing Lenders pro rata based upon the respective  reductions in the principal amount of the Revolving Loans held by such Revolving Lenders on the  Incremental Effective Date (before giving effect to any new Revolving Loans made on such date).   Each of the Administrative Agent and the Revolving Lenders shall adjust its records accordingly  to reflect the payment of the Acquired Portion.  The payments to be made in respect of the  Acquired Portion shall be made by the applicable Incremental Revolving Lenders and New  Lenders to the Administrative Agent in Dollars in immediately available funds at or before 12:00  p.m. on the Incremental Effective Date, such payments to be made by the applicable Incremental  Revolving Lenders and New Lenders pro rata based upon the respective increases in the amount  of the Revolving Loan Commitments held by such Revolving Lenders on the Incremental Effective  Date.  (g)  Required Documentation.  In connection with any Incremental Term Loan  Borrowing or increase the Total Revolving Loan Commitment, the Borrower shall execute and  deliver such documentation relating to such Incremental Term Loan Borrowing or increase in the  Total Revolving Loan Commitment as the Administrative Agent may reasonably request,  including new or amended Incremental Term Loan Notes or Revolving Loan Notes, any joinder  agreements related to a New Lender, reaffirmations of the Guaranty executed by the Guarantors,  copies of resolutions regarding any Incremental Term Loan Borrowing or increase in the Total  Revolving Loan Commitment certified as true and correct by a Responsible Officer of the  Borrower, amendments and legal opinions.  (h)  Prepayments of LIBOR Loans.  To the extent any of the Revolving Loans  acquired by the applicable Incremental Revolving Lenders and New Lenders from the Decreasing  





 






DB1/ 120286909.9       -93-    Lenders pursuant to Section 2.17(f) above are LIBOR Loans and the Incremental Effective Date  is not the last day of an Interest Period for such LIBOR Loans, the Decreasing Lenders shall be  entitled to compensation from the Borrower as provided in Section 2.13 (as if Borrower had  prepaid such Revolving Loans in an amount equal to the Acquired Portion on the Incremental  Effective Date).  (i)  Conditions to All Incremental Term Loans and Increases in Total Revolving  Loan Commitments.  No Incremental Term Borrowing or increase in the Total Revolving Loan  Commitment may be made under this Agreement unless, after giving effect to such Incremental  Term Loan Borrowing or increase in the Total Revolving Loan Commitment, each of the following  conditions is satisfied:  (i)  The aggregate principal amount of all Incremental Term Loan  Borrowings made during the term of this Agreement, together with the aggregate amount of all  increases in the Total Revolving Loan Commitment pursuant to this Section 2.17 during the term  of this Agreement, does not exceed $0;  (ii)  The proposed Incremental Term Loan Borrowing or increase in the  Total Revolving Loan Commitments shall be equal to $5,000,000 or a multiple of $1,000,000 in  excess thereof;  (iii)  The aggregate number of Incremental Term Loan Borrowings made  during the term of this Agreement, together with the aggregate number of all increases in the Total  Revolving Loan Commitment during the term of this Agreement, does not exceed three (3);  (iv)  The Borrower shall not have previously reduced or cancelled the  Total Revolving Loan Commitment pursuant to Section 2.04(a); and  (v)   No Event of Default has occurred and is continuing or shall occur as  a result of such Incremental Term Loan Borrowing or increase in the Total Revolving Loan  Commitment.    2.18.  One-Time Extension Option.    (a)   The Borrower may make a one-time request, by written notice to the  Administrative Agent and each of the Lenders not less than 30 days prior to the earliest Maturity  Date, that the Revolving Loan Maturity Date, the Term Loan Maturity Date and the Incremental  Term Loan Maturity Date (as to each tranche of Loans, the “Existing Maturity Date”) be extended  for one year (the “Requested Maturity Date”).  Each Lender, acting in its sole discretion, shall, not  later than the date which is 10 days after the receipt by the Lenders of any such notice from the  Borrower, notify the Borrower and the Administrative Agent in writing of its election to extend or  not to extend the Maturity Date with respect to its Commitments and Loans.  Any Lender that does  not timely notify the Borrower and the Administrative Agent of its election to extend the Maturity  Date shall be deemed to have elected not to extend the Maturity Date with respect to its  Commitments and Loans (any Lender that timely notifies the Borrower and the Administrative  Agent of an election not to extend its Commitments and Loans and any Lender so deemed to have  elected not to extend its Revolving Loan Commitment, Revolving Loans and Term Loans being  referred to as a “Terminating Lender”).  The election of any Lender to agree to a requested  





 






DB1/ 120286909.9       -94-    extension shall not obligate any other Lender so to agree.  For the avoidance of doubt, each Lender  shall only have the option to either elect to or decline to extend its Maturity Date for all of its  Commitments and Loans.    (b)   If and only if Lenders holding at least 35% of the aggregate amount of  Revolving Loan Commitments and Term Loans on the date of the notice delivered by the  Borrower pursuant to Section 2.18(a) above (including Revolving Loan Commitments and Term  Loans of all Terminating Lenders on such date) shall have agreed during the period referred to  in such Section 2.18(a) to extend the Existing Maturity Date, then (A) the Maturity Date of the  Lenders other than Terminating Lenders (each, a “Continuing Lender” and collectively, the  “Continuing Lenders”) shall, subject to the other provisions of this Agreement, be extended to  the Requested Maturity Date, and as to such Lenders the term “Maturity Date”, as used herein,  shall on and after the date as of which the requested extension is effective mean such Requested  Maturity Date; provided that if such date is not a Business Day, then such Requested Maturity  Date shall be the next preceding Business Day, (B) the Revolving Loan Commitments,  Revolving Loans and Term Loans of the Terminating Lenders shall continue until the Existing  Maturity Date, and shall then terminate (and the Total Revolving Loan Commitment shall be  permanently reduced by an amount equal to the aggregate Revolving Loan Commitments of the  Terminating Lenders on such date), and as to the Terminating Lenders, the term “Maturity Date”,  as used herein, shall continue to mean the Existing Maturity Date and (C) on the Existing  Maturity Date, the amount of the participations held by each Revolving Lender in each Letter of  Credit then outstanding shall be adjusted automatically such that, after giving effect to such  adjustments, the Revolving Lenders that are Continuing Lenders shall hold participations in each  such Letter of Credit in proportion to their respective Revolving Proportionate Shares.    (c)   In the event that the Existing Maturity Date shall have been extended for  the Continuing Lenders in accordance with Section 2.18(b) and, in connection with such  extension, there are Terminating Lenders, the Borrower may, at its own expense, require any  Terminating Lender to transfer and assign in whole or in part, without recourse (in accordance  with Section 8.05) all or part of its interests, rights and obligations under this Agreement to an  Assignee Lender (which Assignee Lender may be another Lender, if another Lender accepts  such assignment) that shall assume such assigned obligations and that shall agree that its  Revolving Loan Commitment and Term Loans will have the Maturity Date in effect for  Continuing Lenders pursuant to Section 2.18(b); provided, however, that (i) the Borrower shall  have received a written consent of the Administrative Agent, L/C Issuer and Swing Line Lender  in the case of an Assignee Lender that is not a Lender (which consent shall not unreasonably be  withheld) and (ii) the assigning Lender shall have received from the Borrower or such Assignee  Lender full payment in immediately available funds of the principal of and interest accrued to  the date of such payment on the Loans made by it hereunder to the extent that such Loans are  subject to such assignment, any fees accrued on such Lender’s Revolving Loan Commitment to  the date of such payment and all other amounts owed to it hereunder (including any amounts that  would be payable to the assigning Lender pursuant to Section 2.13 if such assignment were,  instead, a prepayment of the Loans of such Lender).  Any such Assignee Lender’s Maturity Date  shall be the Maturity Date in effect at the time of such assignment for the Continuing Lenders.   The Borrower shall not have any right to require a Lender to assign any part of its interests, rights  and obligations under this Agreement pursuant to this Section 2.18(c) unless it has notified such  





 






DB1/ 120286909.9       -95-    Lender in writing of its intention to require the assignment thereof at least ten days prior to the  proposed assignment date.  (d)   Conditions to Effectiveness of Extensions.  Notwithstanding the foregoing,  the extension of the Maturity Date pursuant to this Section shall not be effective with respect to  any Lender unless:  (i)  no Default shall have occurred and be continuing on the date of such  extension and after giving effect thereto; and  (ii)   The representations and warranties of the Loan Parties set forth in  Article IV and in the other Credit Documents are true and correct in all material respects (except  to the extent that such representation and warranty is qualified by materiality, in which case such  representation and warranty must be true in all respects) on and as of the extension date, or if  such representation speaks as of an earlier date, as of such earlier date.  (e)   Conflicting Provisions.  To the extent inconsistent, this Section shall  supersede any provisions in Section 2.10 or Section 8.04 to the contrary.    ARTICLE III.  CONDITIONS PRECEDENT.  3.01.  Initial Conditions Precedent.  The Closing Date and the obligations of the Lenders  to make the Loans comprising the initial Borrowing are subject to the satisfaction or waiver of the  conditions set forth on Schedule 3.01 as in effect on the Closing Date.  3.02.  Conditions Precedent to each Credit Event.  The occurrence of each Credit Event  (including the initial Borrowings occurring on the Closing Date and any Incremental Term Loan  Borrowing) is subject to the further conditions that:  (a)  The Borrower shall have delivered to the Administrative Agent and, if  applicable, the L/C Issuer or the Swing Line Lender, the Notice of Borrowing or Letter of Credit  Application, as the case may be, for such Credit Event in accordance with this Agreement; and  (b)  On the date such Credit Event is to occur and after giving effect to such  Credit Event, the following shall be true and correct:  (i)  The representations and warranties of the Loan Parties set forth in  Article IV and in the other Credit Documents are true and correct in all material respects (except  to the extent that such representation and warranty is qualified by materiality, in which case such  representation and warranty must be true in all respects) as if made on such date, or if such  representation speaks as of an earlier date, as of such earlier date;   (ii)  No Default has occurred and is continuing or will result from such  Credit Event; and  (iii)  No material adverse change in the business, assets, liabilities,  operations, performance or condition (financial or otherwise) of the Borrower individually or the  Credit Parties (taken as a whole) has occurred since December 31, 2020.  





 






DB1/ 120286909.9       -96-     The submission by the Borrower to the Administrative Agent of each Notice of Borrowing  and each Letter of Credit Application shall be deemed to be a representation and warranty by the  Borrower that each of the statements set forth above in this Section 3.02(b) is true and correct as  of the date of such notice.  ARTICLE IV. REPRESENTATIONS AND WARRANTIES.  4.01.  Representations and Warranties.  In order to induce the Administrative Agent and  the Lenders to enter into this Agreement, the Borrower hereby represents and warrants to the  Administrative Agent and the Lenders for itself and each of the other Loan Parties as follows and  agrees that each of such representations and warranties shall be deemed to survive until full  payment of the Obligations and shall apply anew to each Credit Event.     (a)  Due Incorporation, Qualification, etc.  Each Loan Party (i) is a corporation,  partnership, limited liability company or other business entity duly organized, validly existing and,  in the case of a Domestic Subsidiary, in good standing under the laws of its jurisdiction of  incorporation or formation, as applicable; (ii) has the organizational power and authority to own,  lease and operate its Properties and carry on its business as now conducted in all material respects;  and (iii) is duly qualified, licensed to do business and in good standing as a foreign corporation,  partnership or limited liability company, as applicable, under the laws of each jurisdiction where  its ownership, lease or operation of Property or the conduct of its business requires such  qualification or license except where the failure to be so qualified or licensed individually or in the  aggregate could not reasonably be expected to have a Material Adverse Effect.  (b)  Authority.  The execution, delivery and performance by each Credit Party  of each Credit Document executed, or to be executed, by such Credit Party and the consummation  of the transactions contemplated thereby (i) are within the power of such Credit Party and (ii) have  been duly authorized by all necessary actions on the part of such Credit Party.   (c)  Enforceability.  Each Credit Document executed, or to be executed, by each  Credit Party has been, or will be, duly executed and delivered by such Credit Party and constitutes,  or will constitute, a legal, valid and binding obligation of such Credit Party, enforceable against  such Credit Party in accordance with its terms, except as limited by bankruptcy, insolvency or  other laws of general application relating to or affecting the enforcement of creditors’ rights  generally and general principles of equity.   (d)  Non-Contravention.  The execution and delivery by each Credit Party of the  Credit Documents executed by such Credit Party and the performance and consummation of the  transactions (including the use of Loan and Letter of Credit proceeds) contemplated thereby do  not (i) conflict with any Requirement of Law applicable to such Credit Party; (ii) conflict with any  provision of, or result in the breach or the acceleration of, or entitle any other Person to accelerate  (whether after the giving of notice or lapse of time or both), any Contractual Obligation of such  Credit Party under Material Contracts; (iii) with respect to the execution and delivery of the Credit  Documents by any Credit Party, result in the creation or imposition of any Lien (or the obligation  to create or impose any Lien) upon any Property, asset or revenue of such Credit Party (except  such Liens as may be created in favor of the Administrative Agent, for the benefit of the Lender  Parties, pursuant to this Agreement or the other Credit Documents), (iv) result in a revocation,  





 






DB1/ 120286909.9       -97-    termination or other material restriction on any Licenses material to the business, operations or  properties of the Credit Parties, or (v) conflict with any provision of any existing law, rule,  regulation, order, writ, injunction or decree of any court or Governmental Authority to which it is  subject, in each case, except where such action could not reasonably be expected to have a Material  Adverse Effect.  (e)  Approvals.  (i)  No consent, approval, order or authorization of, or registration,  declaration or filing with, any Governmental Authority or other Person (including, without  limitation, the equity holders of any Person) is required in connection with the borrowing of the  Loans, the granting of Liens under the Credit Documents, the execution and delivery of the  Credit Documents (or any documents executed in connection therewith) executed by any Credit  Party or the performance or consummation of the transactions contemplated hereby and thereby,  except for those which have been made or obtained and are in full force and effect and filings or  recordings contemplated in connection with this Agreement or any Security Document.  (ii)  All Governmental Authorizations required for the operations of the  Loan Parties have been duly obtained and are in full force and effect without any known conflict  with the rights of others and free from any unduly burdensome restrictions, except where any  such failure to obtain such Governmental Authorizations or any such conflict or restriction could  not reasonably be expected to have, either individually or in the aggregate, a Material Adverse  Effect.  No Loan Party has received any written notice or other written communications from  any Governmental Authority regarding (A) any revocation, withdrawal, suspension, termination  or modification of, or the imposition of any material conditions with respect to, any  Governmental Authorization, or (B) any other limitations on the conduct of business by any  Loan Party, except where any such revocation, withdrawal, suspension, termination,  modification, imposition or limitation could not reasonably be expected to have, either  individually or in the aggregate, a Material Adverse Effect.  (iii)  No Governmental Authorization is required for either (x) the pledge  or grant by any Credit Party as applicable of the Liens purported to be created in favor of the  Administrative Agent in connection herewith or any other Credit Document or (y) the exercise  by the Administrative Agent of any rights or remedies in respect of any Collateral (whether  specifically granted or created pursuant to any of the Security Documents or created or provided  for by any Governmental Rule), except for (1) such Governmental Authorizations that have been  obtained and are in full force and effect, and (2) filings or recordings contemplated in connection  with this Agreement or any Security Document.  (f)  No Violation or Default.  No Loan Party is in violation of or in default with  respect to any Requirement of Law applicable to such Person (including Regulations T, U and X,  the Investment Company Act and Anti-Terrorism Laws) where, in each case, such violation or  default could reasonably be expected to have a Material Adverse Effect.  No Default has occurred  and is continuing.   (g)  Litigation.  Except as set forth in Schedule 4.01(g) to the Disclosure Letter,  no actions (including derivative actions), suits, proceedings (including arbitration proceedings or  





 






DB1/ 120286909.9       -98-    mediation proceedings) or investigations are pending or threatened in writing against any Loan  Party at law or in equity in any court, arbitration proceeding or before any other Governmental  Authority which (i) could reasonably be expected to (alone or in the aggregate) have a Material  Adverse Effect or (ii) seek to enjoin, either directly or indirectly, the execution, delivery or  performance by any Loan Party of the Credit Documents or the transactions contemplated thereby  or any documents executed in connection therewith.   (h)  Property, Etc.    (i)   As of the Closing Date, all real property owned by the Credit Parties  with a value in excess of $1,000,000 is described in Schedule 4.01(h) to the Disclosure Letter.   The Loan Parties own and have good and marketable title, or a valid leasehold interest in, all  their respective material properties and assets as reflected in the most recent Financial Statements  of the Loan Parties delivered to the Administrative Agent (except those assets and properties  disposed of in the ordinary course of business or otherwise in compliance with this Agreement  since the date of such Financial Statements) and all respective material assets and properties  acquired by the Loan Parties since such date (except those disposed of in the ordinary course of  business or otherwise in compliance with this Agreement), except, in each case, such defects in  title that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.   Such assets and properties are subject to no Lien, except for Permitted Liens.    (ii)   No Loan Party (A) has violated any Environmental Laws, (B) has  any liability under any Environmental Laws or (C) has received notice or other written  communication of an investigation or is under investigation by any Governmental Authority  having authority to enforce Environmental Laws, where such violation, liability or investigation  could have, individually or in the aggregate, a Material Adverse Effect.  Each Loan Party’s use  and operation of its business properties are in compliance with all applicable Governmental  Rules, including all applicable land use and zoning laws, except to the extent that non- compliance could not reasonably be expected to have a Material Adverse Effect.  (i)  Financial Statements.  The Financial Statements of Holdings and its  Subsidiaries which have been delivered to the Administrative Agent, (i) are in accordance with the  books and records of Holdings, which have been maintained in accordance with good business  practice; (ii) except as indicated in the accountant’s report, have been prepared in conformity with  GAAP; and (iii) fairly present in all material respects the financial conditions and results of  operations of Holdings and its Subsidiaries as of the date thereof and for the period covered thereby  (except in the case of quarterly unaudited Financial Statements, for the lack of footnotes and being  subject to year-end audit adjustments and in the case of consolidating Financial Statements for the  lack of any presentation of information other than statements of operations and balance sheet).   None of Holdings and its Subsidiaries has any Contingent Obligations, liability for taxes or other  outstanding obligations which, in any such case, are material in the aggregate, except as disclosed  in the Financial Statements of the Loan Parties furnished to the Administrative Agent and the  Lenders pursuant to Section 3.01, or in the Financial Statements delivered to the Administrative  Agent pursuant to Section 5.01(a).    (j)  Creation, Perfection and Priority of Liens; Equity Securities.    





 






DB1/ 120286909.9       -99-    (i)  As of the Closing Date (or as of the date any Loan Party becomes  party to the Credit Documents after the Closing Date, as to such Loan Party), (x) the execution  and delivery of the Security Documents by the Loan Parties, together with the filing of any  Uniform Commercial Code financing statements and the recording of the U.S. Patent and  Trademark Office filings and U.S. Copyright Office filings delivered to the Administrative  Agent for filing and recording, are effective to create in favor of the Administrative Agent, as  security for the Obligations or the obligations of a Guarantor under the Credit Documents (as  applicable), a valid and perfected (to the extent such security interest may be perfected by the  filing a Uniform Commercial Code financing statement) first priority Lien on all of the Collateral  as of the Closing Date (or as of the date any Loan Party becomes party to the Credit Documents  after the Closing Date, as to such Loan Party) (subject only to Permitted Liens), and (y) all filings  and other actions necessary or desirable to perfect and maintain the perfection and first priority  status of such Liens have been duly made or taken and remain in full force and effect.  In the  case of accounts subject to a Control Agreement, when such Control Agreement has been duly  executed and delivered by the Borrower or applicable Guarantor, the Administrative Agent and  the applicable holder of such accounts, the Security Agreement (together with such Control  Agreements) shall constitute a fully perfected Lien on, and security interest in, all right, title and  interest of the Borrower or Guarantor in such Collateral, as security for the Obligations or the  obligations of a Guarantor under the Credit Documents (as applicable), in each case prior and  superior to the Lien of any other Person, except to the extent set forth in the applicable Control  Agreement.  (ii)   All outstanding Equity Securities of the Loan Parties are duly  authorized, validly issued, fully paid and non-assessable.  There are no outstanding subscriptions,  options, conversion rights, warrants or other agreements or commitments of any nature  whatsoever (firm or conditional) obligating the Loan Parties (other than Holdings) to issue,  deliver or sell, or cause to be issued, delivered or sold, any additional Equity Securities of such  Loan Parties, or obligating the Loan Parties to grant, extend or enter into any such agreement or  commitment.  All Equity Securities of the Loan Parties have been offered and sold in compliance  with all federal and state securities laws and all other Requirements of Law, except where any  failure to comply could not reasonably be expected to have a Material Adverse Effect.  (k)  Employee Benefit Plans.  Except as set forth on Schedule 4.01(k) to the  Disclosure Letter:  (i)  Based upon the actuarial assumptions specified for funding purposes  in the latest valuation of each Pension Plan that any Loan Party or any ERISA Affiliate maintains  or contributes to, or has any obligation under, no such Pension Plan has any Unfunded Pension  Liabilities.  Neither any Loan Party nor any ERISA Affiliate has any liability with respect to any  post-retirement benefit under any employee welfare plan (as defined in Section 3(1) of ERISA),  other than liability for health plan continuation coverage described in Part 6 of Title I(B) of  ERISA or similar state law.  (ii)  Each Employee Benefit Plan complies, in both form and operation,  in all material respects, with its terms, ERISA and the IRC, and no condition exists or event has  occurred with respect to any such Employee Benefit Plan which would result in the incurrence  by any Loan Party or any ERISA Affiliate of any material liability, fine or penalty.  Each  





 






DB1/ 120286909.9       -100-    Employee Benefit Plan, related trust agreement, arrangement and commitment of any Loan Party  or any ERISA Affiliate is legally valid and binding and in full force and effect.  No Employee  Benefit Plan is being audited or investigated by any government agency or is subject to any  pending or threatened claim or suit.  No Loan Party or ERISA Affiliate has engaged in a  prohibited transaction under Section 406 of ERISA or Section 4975 of the IRC with respect to  any Employee Benefit Plan which would result in the incurrence by any Loan Party or ERISA  Affiliate of any material liability.    (iii)  No Loan Party or ERISA Affiliate contributes to or has any material  contingent obligations to any Multiemployer Plan.  No Loan Party or ERISA Affiliate has  incurred any material liability (including secondary liability) to any Multiemployer Plan as a  result of a complete or partial withdrawal from such Multiemployer Plan under Section 4201 of  ERISA or as a result of a sale of assets described in Section 4204 of ERISA.  No Loan Party or  ERISA Affiliate has been notified that any Multiemployer Plan is in reorganization or insolvent  under and within the meaning of Section 4241 or Section 4245 of ERISA or that any  Multiemployer Plan intends to terminate or has been terminated under Section 4041A of ERISA.  (iv)  No Loan Party has (A) engaged in any transaction prohibited by any  Governmental Rule applicable to any Foreign Plan; (B) failed to make full payment when due  of all amounts due as contributions to any Foreign Plan; or (C) otherwise failed to comply with  the requirements of any Governmental Rule applicable to any Foreign Plan, where singly or  cumulatively, the above could have a Material Adverse Effect.    (l)  Margin Stock; Other Regulations.  No Credit Party owns any Margin Stock  which, in the aggregate, would constitute a substantial part of the assets of the Borrower or the  Credit Parties (taken as a whole), and not more than 25% of the value (as determined by any  reasonable method) of the assets of any Credit Party is represented by Margin Stock.  No proceeds  of any Loan or any Letter of Credit will be used, whether directly or indirectly, to purchase, acquire  or carry any Margin Stock or to extend credit, directly or indirectly, to any Person for the purpose  of purchasing or carrying any Margin Stock (other than for a Permitted Stock Repurchase  consummated in compliance with this Agreement and applicable Governmental Rules).  No Credit  Party is subject to regulation under the Investment Company Act of 1940, the Federal Power Act,  the Interstate Commerce Act, any state public utilities code or to any other Governmental Rule  limiting its ability to incur indebtedness.  (m)  Trademarks, Patents, Copyrights and Licenses.  The Loan Parties each  possess and either own, or have the right to use to the extent required, all necessary trademarks,  trade names, copyrights, patents, patent rights and licenses which are material to the conduct of  their respective businesses as now operated.  The Loan Parties each conduct their respective  businesses without infringement or, to the Borrower’s knowledge, claim of infringement of any  trademark, trade name, trade secret, service mark, patent, copyright, license or other intellectual  property rights of any other Person (which is not a Loan Party), except where such infringement  or claim of infringement could not have a Material Adverse Effect.  There is no infringement or,  to the Borrower’s knowledge, claim of infringement by others of any material trademark, trade  name, trade secret, service mark, patent, copyright, license or other intellectual property right of  the Borrower or any of the other Loan Parties, except where such infringement or claim of  infringement could not have a Material Adverse Effect.    





 






DB1/ 120286909.9       -101-    (n)  Governmental Charges.  The Loan Parties have filed or caused to be filed  with the appropriate taxing authorities all material Tax Returns which are required to be filed by  them.  Such material Tax Returns accurately reflected all liabilities for material Taxes of the Loan  Parties for the periods covered thereby.  The Loan Parties have paid, or made provision for the  payment of, all material Taxes and other Governmental Charges which have or may have become  due pursuant to said Tax Returns or otherwise, except such Governmental Charges, if any, which  are being contested in good faith by appropriate proceedings and as to which adequate reserves  (determined in accordance with GAAP) have been established.  All material Taxes which any Loan  Party was required by law to withhold or collect in connection with amounts paid or owing to any  employee, independent contractor, creditor, stockholder or other third party have been duly  withheld or collected, and have been timely paid over to the proper authorities to the extent due  and payable.  No Loan Party has executed or filed with the Internal Revenue Service or any other  Governmental Authority any agreement or other document extending, or having the effect of  extending, the period for assessment or collection of any taxes or Governmental Charges, if any  such extension is not otherwise permitted to be granted under applicable Law.  (o)  Subsidiaries, Etc.  As of the Closing Date, Schedule 4.01(o) to the  Disclosure Letter sets forth each of the Subsidiaries of each Loan Party, its jurisdiction of  organization, the classes of its Equity Securities, the number of Equity Securities of each such  class issued and outstanding, the percentages of Equity Securities of each such class owned directly  or indirectly by each Loan Party and whether such Loan Party owns such Equity Securities directly  or, if not, the Subsidiary of such Loan Party that owns such Equity Securities and the number of  Equity Securities and percentages of Equity Securities of each such class owned directly or  indirectly by such Loan Party.  As of the Closing Date, all of the outstanding Equity Securities of  each such Subsidiary indicated on Schedule 4.01(o) to the Disclosure Letter as owned by each  Loan Party are owned beneficially and of record by such Loan Party free and clear of all adverse  claims.    (p)  Solvency, Etc.  Holdings and its Subsidiaries on a consolidated basis are  Solvent (before and after giving effect to any transactions on each date this representation is made  or deemed made).  (q)  Labor Matters.  There are no disputes presently subject to grievance  procedure, arbitration or litigation under any of the collective bargaining agreements, employment  contracts or employee welfare or incentive plans to which any Loan Party is a party, and there are  no strikes, lockouts, work stoppages or slowdowns, or, to the knowledge of the Borrower,  jurisdictional disputes or organizing activities occurring or threatened which alone or in the  aggregate could, in each of the foregoing cases, reasonably be expected to have a Material Adverse  Effect.   (r)  Accuracy of Information Furnished; Material Documents.      (i)   The Credit Documents and the other certificates, written statements  and information (excluding projections) furnished by the Loan Parties to the Administrative  Agent and the Lenders in connection with the Credit Documents and the transactions  contemplated thereby, taken as a whole, do 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  





 






DB1/ 120286909.9       -102-    misleading in light of the circumstances under which they were made (after giving effect to all  supplements and updates thereto from time to time to the extent permitted by the Credit  Documents and provided prior to the date this representation and warranty is made, re-made,  affirmed or reaffirmed).  All projections furnished by the Loan Parties to the Administrative  Agent, the Lead Arranger and the Lenders in connection with the Credit Documents and the  transactions contemplated thereby have been prepared on a basis consistent with the historical  Financial Statements described above, in good faith based upon assumptions believed by the  Loan Parties to be reasonable at the time prepared and when delivered to the Administrative  Agent, it being understood that such projections are not to be viewed as facts and are subject to  significant uncertainties and contingencies many of which are beyond the control of the Loan  Parties, that no assurance can be given that any particular financial projections will be realized,  and that actual results may vary materially from the projections made available in connection  with the Credit Documents. It is understood and agreed that for purposes of this Agreement and  the other Credit Documents, neither the Borrower nor any other Loan Party shall have any  liability under this Section 4.01(r) or any other provision of the Credit Documents requiring the  delivery of Confidential Information to any “public-side” Lender who does not wish to receive  Confidential Information solely by virtue of such Lender’s electing to be treated as a “public- side” Lender.    (ii)   The copies of the Organizational Documents which have been  certified to the Administrative Agent on the Closing Date are true, correct and complete copies  of the respective originals thereof, as in effect on the Closing Date.     (iii)   Schedule 4.01(r)(iii) to the Disclosure Letter (as supplemented by  the Borrower in each quarterly Compliance Certificate) sets forth the Material Contracts existing  as of the Closing Date or as of the date of delivery of any such supplement.   (iv)   Unless the Administrative Agent has otherwise received the notice  contemplated by Section 5.01(a)(x), the Borrower is an entity that is organized under the laws of  the United States or of any State and at least 51% of whose common stock or analogous equity  interest is owned by a listed entity and is excluded on that basis from the definition of “Legal  Entity Customer” as defined in the Beneficial Ownership Regulation.  (s)  Brokerage Commissions.  No Loan Party is obligated to pay any brokerage  commission, finder’s fee or similar fee or payment in connection with the extensions of credit  contemplated by this Agreement as a result of any agreement entered into by any Loan Party.  No  brokerage or other fee, commission or compensation is to be paid by the Lenders with respect to  the extensions of credit contemplated hereby as a result of any agreement entered into by any Loan  Party, and the Borrower agrees to indemnify the Administrative Agent and the Lenders against  any such claims for brokerage fees or commissions and to pay all expenses including, without  limitation, attorney’s fees incurred by the Administrative Agent and the Lenders in connection  with the defense of any action or proceeding brought to collect any such brokerage fees or  commissions.    (t)  Policies of Insurance.  Schedule 4.01(t) to the Disclosure Letter sets forth a  true and complete listing of all insurance maintained by the Loan Parties as of the Closing Date.   Such insurance has not been terminated and is in full force and effect, and each of the Loan Parties  





 






DB1/ 120286909.9       -103-    has taken all action required to be taken as of the Closing Date to keep unimpaired its rights  thereunder.  (u)   Sanctions, Anti-Terrorism and Anti-Corruption.    (i)   Each Covered Entity (A) is not and will not become a Designated  Person; (B) is not and will not become controlled by a Designated Person; (C) has not received  and will not receive funds or other Property from a Designated Person; (D) is not on the Sectoral  Sanctions Identification List under Executive Order 13662; (E) has not and will not engage in  transaction or other activities prohibited under Sectoral Sanctions directives pursuant to  Executive Order 13662;  and (F) is not and will not become in breach of, or is not the subject of  any action or investigation under, any Anti-Terrorism Law.  Each Covered Entity does not  engage and will not engage in any dealings or transactions, and is not and will not be otherwise  associated, with any Designated Person.  Each Covered Entity is in compliance, in all respects,  with the Patriot Act.  Each Covered Entity has taken commercially reasonable measures to ensure  compliance with the Anti-Terrorism Laws including the requirement that (x) no Person who  owns any direct or indirect interest in such Covered Entity is a Designated Person and (y) funds  invested directly or indirectly in such Covered Entity are derived from legal sources.    (ii)   No portion of the proceeds of any Loan, L/C Credit Extension or  other credit made hereunder has been or will be used, directly or indirectly for, and no fee,  commission, rebate or other value has been or will (A) be paid to, or for the benefit of, any  governmental official, political party, official of a political party or any other Person acting in  an official capacity in violation of any applicable Governmental Rules, including the  U.S. Foreign Corrupt Practices Act of 1977 (collectively, with such Governmental Rules, “Anti- Corruption Laws”), as amended or (B) be used to violate any Anti-Terrorism Law.  (v)  Permitted Stock Repurchase(s).  The actions of the Loan Parties in  connection with any Permitted Stock Repurchase and any and all transactions entered into or  consummated by a Loan Party in connection with such Permitted Stock Repurchase (including the  purchase of the capital stock of Holdings) will be and have been consummated in accordance in  all material respects with applicable Governmental Rules (including, without limitation, the  General Corporation Law of the State of Delaware (or Holdings’ state of organization if no longer  Delaware) and the regulations of the Federal Reserve Board, including Regulations T, U and X).    4.02.   Reaffirmation.  The Borrower shall be deemed to have reaffirmed, for the benefit  of the Lenders and the Administrative Agent, each representation and warranty contained in  Article IV on and as of the date of each Credit Event, except for representations and warranties  expressly made as of a specified date, which shall be true as of such date.  ARTICLE V. COVENANTS.  5.01.  Affirmative Covenants.  So long as any Loan or L/C Obligation remains unpaid, or  any other Obligation remains unpaid (except in each case other than contingent indemnification  obligations to the extent no claim giving rise thereto has been asserted), or any portion of any  Commitment remains in force, the Borrower will comply, and will cause compliance by the other  





 






DB1/ 120286909.9       -104-    Loan Parties, with the following affirmative covenants, unless the Required Lenders shall  otherwise consent in writing.    (a)  Financial Statements, Reports, etc.  The Borrower shall furnish to the  Administrative Agent (for distribution to the Lenders) the following, each in such form and such  detail as the Administrative Agent shall request:  (i)  As soon as available and in no event later than forty-five (45) days  after the last day of each fiscal quarter (commencing with the fiscal quarter ending March 31,  2021), copies of the Financial Statements of the Loan Parties (prepared on a consolidated basis)  for such fiscal quarter and for the fiscal year to date, which Financial Statements shall be  accompanied by a management discussion and analysis from management of Holdings, certified  by the president, chief executive officer, chief operating officer or chief financial officer of  Holdings to present fairly in all material respects the financial condition, results of operations, cash  flows and other information reflected therein and to have been prepared in accordance with GAAP  (subject to normal year-end audit adjustments and the absence of footnotes);   (ii)  As soon as available and in no event later than ninety (90) days after  the close of each fiscal year (commencing with the fiscal year ending December 31, 2021), copies  of the consolidated and consolidating Financial Statements of the Loan Parties for such year,  audited (as to the consolidated Financial Statements) and prepared, but unaudited as to  consolidating statement of operations and balance sheet, by an independent certified public  accountants of recognized national standing or otherwise reasonably acceptable to Administrative  Agent, which Financial Statements shall be accompanied by a management discussion and analysis  from management of Holdings and copies of the unqualified opinion of such accountants and, to  the extent delivered to a Loan Party, management letters delivered by such accountants in  connection with all such Financial Statements and prepared in accordance with GAAP;    (iii)  Contemporaneously with the Financial Statements for each fiscal  quarter and each fiscal year end required by the foregoing clauses (i) and (ii), a compliance  certificate of the president, chief executive officer, chief operating officer or chief financial officer  of the Borrower in substantially the form of Exhibit I (a “Compliance Certificate”);  (iv)   As soon as available, and in any event not later than ninety (90) days  after the commencement of each fiscal year (commencing with the 2022 fiscal year), the budget  and projected financial statements of the Loan Parties for such fiscal year (detailed on a quarterly  basis), including, in each case, projected balance sheets, statements of income and retained  earnings and statements of cash flow of the Loan Parties, all in reasonable detail and in any event  to include projected Capital Expenditures and quarterly projections of the Borrower’s compliance  with each of the covenants set forth in Section 5.03 of this Agreement;   (v)  As soon as possible and in no event later than five (5) Business Days  after any Loan Party knows of the occurrence or existence of (A) any ERISA Event, (B) any actual  or threatened in writing litigation, suits, claims, disputes or investigations against any Loan Party  involving stated claims against any Loan Party in excess of $5,000,000 or more (alone or in the  aggregate) or in which injunctive relief or similar relief is sought, which relief, if granted, could  have a Material Adverse Effect, (C) any other Material Adverse Effect, including (I) breach or  





 






DB1/ 120286909.9       -105-    non-performance of, or any default under, a Contractual Obligation of a Loan Party; (II) any  dispute, litigation, investigation, proceeding or suspension between a Loan Party and any  Governmental Authority; or (III) the commencement of, or any material development in, any  litigation or proceeding affecting a Loan Party, including pursuant to any applicable  Environmental Laws; or (D) any Default or default under any Subordinated Obligations, a  statement of a Responsible Officer of the Borrower setting forth details of such event, condition,  Default or default and the action which the Borrower or other applicable Loan Party proposes to  take with respect thereto.  Each notice pursuant to this Section 5.01(a)(v) shall describe with  particularity any and all provisions of this Agreement or other Credit Document that have been  breached;  (vi)  Promptly and in no event later than ten (10) Business Days after the  establishment or acquisition by a Loan Party of any new Subsidiary or the issuance of any new  Equity Securities of the Borrower, a Domestic Subsidiary or a First-Tier Foreign Subsidiary,  written notice of such event;  (vii)  As soon as possible and in no event later than five (5) Business Days  after the receipt thereof by a Loan Party, a copy of any notice, summons, citations or other written  communications concerning any actual, alleged in writing or threatened in writing material  violation of any Environmental Law, or any material liability of a Loan Party for Environmental  Damages;  (viii)   As soon as possible and in no event later than fifteen (15) Business  Days after any Loan Party knows of the termination of a Material Contract (other than expiry in  accordance with the terms of such Material Contract), notice of such event that identifies the  applicable Material Contract and describes the circumstances related to such termination;  (ix)   Promptly and in no event later than ten (10) Business Days after the  same are available, copies of each annual report, proxy or financial statement or other report or  communication sent to the stockholders of Holdings, and copies of all annual, regular, periodic  and special reports and registration statements which Holdings may file or be required to file with  the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national  securities exchange, and in any case not otherwise required to be delivered to the Administrative  Agent pursuant hereto; documents required to be delivered pursuant to this Section 5.01(a)(ix) (to  the extent any such documents are included in materials otherwise filed with the SEC) may be  delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i)  on which Holdings posts such documents, or provides a link thereto or other direction as to where  such information is posted (provided, that Holdings gives written notice to the Administrative  Agent of such posting on such date, which notice may be receipt of an automatically generated  email link that the Administrative Agent may subscribe to (and available at: http://ir.e-arc.com/);  or (ii) on which such documents are posted on Holdings’ behalf on an Internet or intranet website,  if any, to which the Administrative Agent and Lenders have access; provided that the Borrower  shall deliver paper copies of such documents to the Administrative Agent upon request;   (x)   (I) Promptly following any change that would result in a change to  the status of the Borrower as an excluded “Legal Entity Customer” under the Beneficial Ownership  Regulation, the Borrower shall execute and deliver to each Lender a Certification of Beneficial  





 






DB1/ 120286909.9       -106-    Owner(s) complying with the Beneficial Ownership Rule, in form and substance reasonably  acceptable to such Lender and (II) thereafter, promptly and in no event later than five (5) Business  Days after any such change or request, as applicable, (A) notify the Administrative Agent and each  Lender that previously received a Beneficial Ownership Certification (or a certification that the  applicable Loan Party qualifies for an express exclusion to the “legal entity customer” definition  under the Beneficial Ownership Regulation) of any change in the information provided in the  Beneficial Ownership Certification that would result in a change to the list of beneficial owners  identified therein (or, if applicable, the applicable Loan Party ceasing to fall within an express  exclusion to the definition of “legal entity customer” under the Beneficial Ownership Regulation)  and (B) if reasonably requested by the Administrative Agent or any Lender, provide the  Administrative Agent or directly to such Lender, as the case may be, any information or  documentation requested by it for purposes of complying with the Beneficial Ownership  Regulation; and  (xi)   Such other instruments, agreements, certificates, opinions,  statements, documents and information relating to the Properties, operations or condition (financial  or otherwise) of the Loan Parties, and compliance by the Borrower with the terms of this  Agreement and the other Credit Documents as the Administrative Agent or any Lender may from  time to time reasonably request.  Financial information required to be delivered pursuant to Section 5.01(a)(i) and  Section 5.01(a)(ii) (in each case, solely to the extent such financial information is included in  materials filed with the SEC or posted on the relevant website, as the case may be) shall be deemed  to have been delivered to the Administrative Agent on the date on which such information has  been posted on Holdings’ behalf on SyndTrak Online (or another relevant website identified by  the Borrower to the Administrative Agent and reasonably acceptable to the Administrative Agent)  or is available via the EDGAR system of the SEC on the Internet; provided that in each case the  Borrower shall (i) notify the Administrative Agent of the posting of any such information, which  notice may be receipt of an automatically generated email link that the Administrative Agent may  subscribe to (and available at: http://ir.e-arc.com/), (ii) to the extent such information is in lieu of  information required to be provided under Section 5.01(a)(ii), the Borrower separately delivers to  the Administrative Agent a report of independent certified public accountants of national  recognized standing or otherwise reasonably acceptable to the Administrative Agent in accordance  with Section 5.01(a)(ii), and (iii) deliver paper copies of any such documents to the Administrative  Agent if the Administrative Agent requests.  Each Lender shall be solely responsible for timely  accessing posted documents or requesting delivery of paper copies of such documents from the  Administrative Agent.  (b)  Books and Records.  The Loan Parties shall at all times keep proper books  of record and account in which full, true and correct entries will be made of their transactions in  accordance with GAAP.  (c)  Inspections.  Once each year (or more frequently if an Event of Default has  occurred and is continuing), the Loan Parties shall permit the Administrative Agent and each  Lender accompanying the Administrative Agent, or any agent or representative thereof, upon  reasonable notice and during normal business hours, to visit and inspect any of the properties and  offices of the Loan Parties, to examine and analyze the books and records of the Loan Parties and  





 






DB1/ 120286909.9       -107-    make copies thereof, and to discuss the affairs, finances and business of the Loan Parties with, and,  provided that the Borrower shall be afforded the opportunity to be present at any such meetings,  to be advised as to the same by, their officers, auditors and accountants, all at such times and  intervals as the Administrative Agent may request, all at the Borrower’s reasonable expense;  provided that (i) the Loan Parties shall not be required to disclose information subject to attorney  client privilege, third-party confidentiality, or non-financial proprietary information and trade  secrets and (ii) the Borrower shall be responsible for the reasonable expenses related thereto at any  time an Event of Default has occurred and is continuing.   (d)  Insurance.  The Loan Parties shall:  (i)  (A) Carry and maintain insurance during the term of this Agreement  of the types and in the amounts determined by the Loan Parties in accordance with their respective  prudent business judgment (and otherwise reasonably satisfactory to the Administrative Agent  including the issuer and provider of such insurance), and the Borrower shall deliver evidence of  insurance complying with the requirements of this Section 5.01(d), in each case for the business  and properties of the Loan Parties and that such policies state that such insurance shall not be  cancelled or revised in any material manner without 30 days (or 10 days in the case of cancellation  for non-payment) prior written notice by the insurer to the Administrative Agent, and (B) annually,  upon the expiration of current insurance coverage, the Borrower shall provide, or cause to be  provided, to the Administrative Agent, such evidence of insurance as required by the  Administrative Agent;  (ii)  Furnish to any Lender, upon written request, full information as to  the insurance carried; and  (iii)  In the case of the insurance maintained by Holdings, the Borrower  and any Domestic Subsidiaries, obtain and maintain endorsements acceptable to the  Administrative Agent for such insurance (including form 438BFU or equivalent) naming the  Administrative Agent as additional insured and the Administrative Agent as lender’s loss payee  and including lender’s loss payable endorsements;  provided, however, that if any Loan Party shall fail to maintain insurance in accordance with this  Section 5.01(d), or if any Loan Party shall fail to provide the required endorsements with respect  thereto, the Administrative Agent shall have the right (but shall be under no obligation) to procure  such insurance and the Borrower agrees to reimburse the Administrative Agent for all costs and  expenses of procuring such insurance.  (e)  Governmental Charges.  Each Loan Party shall promptly pay and discharge  when due all Taxes and other Governmental Charges, except such Taxes, Governmental Charges  as may in good faith be contested or disputed, or for which arrangements for deferred payment  have been made; provided that in each such case appropriate reserves are maintained in accordance  with GAAP and no material property of any Loan Party is at impending risk of being seized, levied  upon or forfeited.    (f)  Use of Proceeds.  The Borrower shall use the proceeds of the Revolving  Loans and Term Loans (i) to refinance certain existing Indebtedness of Holdings and its  





 






DB1/ 120286909.9       -108-    Subsidiaries, (ii) for the payment of fees and expenses incurred in connection with the refinancing  described in clause (i) and in connection with this Agreement and the Credit Documents, (iii) for  acquisitions, investments, restricted payments and other transactions permitted by this Agreement  and the Credit Documents, and (d) to finance ongoing working capital requirements, capital  expenditures and other general corporate purposes of Holdings and its Subsidiaries.  No part of the  proceeds of any Loan or any Letter of Credit shall be used, whether directly or indirectly, (A) to  purchase, acquire or carry any Margin Stock (other than for a Permitted Stock Repurchase), (B)  for any purpose that entails a violation of any of the regulations of the Federal Reserve Board,  including Regulations T, U, and X, (C) for payment to, or for the benefit of, any governmental  official, political party, official of a political party or any other Person acting in an official capacity  in violation of any applicable Anti-Corruption Laws, or (D) for the purpose of funding, financing  or facilitating any activities, business or transaction of or with any Designated Person, or (E)  in  any manner that would result in the violation of  any Anti-Terrorism Laws applicable to any party  hereto.    (g)  General Business Operations.  Each of the Loan Parties shall, except to the  extent permitted under Section 5.02(d), (i) preserve, renew and maintain in full force its corporate,  partnership or limited liability company existence and good standing under the Governmental  Rules of the jurisdiction of its organization and all of its rights, Licenses, leases, qualifications,  privileges franchises and other authority reasonably necessary to the conduct of its business,  (ii) conduct its business activities in compliance with all material Requirements of Law and  material Contractual Obligations applicable to such Person, (iii) keep all material property useful  and necessary in its business in good working order and condition, ordinary wear and tear excepted  and from time to time make, or cause to be made, all necessary and proper repairs, except, in each  case, where any failure, either individually or in the aggregate, could not reasonably be expected  to have a Material Adverse Effect, (iv) maintain, preserve and protect all of its rights to enjoy and  use material trademarks, trade names, service marks, patents, copyrights, Licenses, leases,  franchise agreements and franchise registrations that the Loan Parties in their respective reasonable  business judgment have determined are necessary for the conduct of their respective businesses  and (v) conduct its business in an orderly manner without voluntary interruption.  No Loan Party  shall change its jurisdiction of formation.   (h)  Compliance with Laws.  Each Loan Party shall comply with the  requirements of all applicable laws, rules, regulations and orders of any Governmental Authority  (including, without limitation, all Environmental Laws and ERISA, Anti-Terrorism Laws and  Anti-Corruption Laws), noncompliance with which could reasonably be expected to have,  individually or in the aggregate, a Material Adverse Effect (except as otherwise specifically set  forth herein with respect to Anti-Terrorism Laws and Anti-Corruption Laws) and the inventory  produced or manufactured, if any, by each domestic Loan Party shall comply with the Fair Labor  Standards Act.    (i)   New Subsidiaries.  The Borrower shall, at its own expense promptly, and in  any event within ten (10) Business Days (as such time period may be extended by the  Administrative Agent), after the capitalization of or as of the date of the acquisition of any  Subsidiary by any Credit Party or the creation of any Subsidiary pursuant to a Plan of Division, or  any Immaterial Subsidiary ceases to be an Immaterial Subsidiary, or, within thirty (30) days (as  such time period may be extended by the Administrative Agent), after any Foreign Subsidiary  





 






DB1/ 120286909.9       -109-    becomes a Material Foreign Subsidiary, (A) notify the Administrative Agent of such event in  writing (to the extent notice has not already been provided in accordance with  Section 5.01(a)(vii)), (B) if such Subsidiary is a Domestic Subsidiary (other than an Excluded  Non-Guarantor Entity), cause such Domestic Subsidiary to execute and deliver or otherwise  become a party to the Guaranty, the Security Agreement and each other applicable Security  Document, in each case in accordance with the terms thereof, and amend the Security Documents  as appropriate in light of such event to pledge to the Administrative Agent for the benefit of itself  and the Lenders (1) 100% of the Equity Securities of each such Person which becomes a Domestic  Subsidiary and (2) 100% of the non-voting Equity Securities (within the meaning of Treasury  Regulation Section 1.956-2(c)(2) promulgated under the IRC) and 65% (or such lesser percentage  as is owned by the Borrower or a Guarantor) of the voting Equity Securities (within the meaning  of Treasury Regulation Section 1.956-2(c)(2) promulgated under the IRC) of each such Person  which becomes a Foreign Subsidiary (if (and only if) (x) such Foreign Subsidiary is a Material  Foreign Subsidiary and (y) the Administrative Agent has so requested from the Borrower, then the  applicable Equity Securities of such Foreign Subsidiary shall be pledged pursuant to a pledge  agreement (or foreign equivalent thereof) governed by the laws of the jurisdiction of formation of  such Foreign Subsidiary in form and substance reasonably acceptable to the Administrative Agent)  and execute and deliver all documents or instruments required thereunder or appropriate to perfect  the security interest created thereby, (C) deliver (or cause the appropriate Person to deliver) to the  Administrative Agent all stock certificates and other instruments constituting Collateral thereunder  free and clear of all adverse claims, accompanied by undated stock powers or other instruments of  transfer executed in blank (and take such other steps as may be reasonably requested by the  Administrative Agent to perfect the Administrative Agent’s first priority Lien in such Collateral  consisting of Equity Securities in compliance with any applicable laws of jurisdictions outside of  the United States), (D) cause each document (including each Uniform Commercial Code financing  statement and each filing with respect to intellectual property owned by each new Domestic  Subsidiary) required by law or reasonably requested by the Administrative Agent or the  Administrative Agent to be filed, registered or recorded in order to create in favor of the  Administrative Agent, for the benefit of the Lender Parties, a valid, legal and perfected first- priority security interest in and Lien on the Collateral subject to the Security Documents to be so  filed, registered or recorded and evidence thereof delivered to the Administrative Agent,  (E) deliver (or cause the appropriate Person to deliver) the Organizational Documents, certificates,  resolutions and other documents that would have been required of such Subsidiary if such  Subsidiary had been a Guarantor on the Closing Date and (F) if requested by the Administrative  Agent, deliver an opinion of counsel in form and substance reasonably satisfactory to the  Administrative Agent with respect to each new Guarantor, the pledge of the Equity Securities of  each Subsidiary, and the other matters set forth in this Section 5.01(i).  In addition, the Borrower  shall, at its own expense promptly, and in any event within ten (10) Business Days (as such time  period may be extended by the Administrative Agent), after the formation of or as of the date of  the acquisition of any Subsidiary by any Loan Party cause such Subsidiary to become a party to  the Intercompany Subordination Agreement in accordance with the terms thereof.   Notwithstanding the foregoing, the Loan Parties shall not be required to provide the Administrative  Agent or the Lenders with any Excluded Foreign Credit Support.    (j)   On or prior to October 31, 2021 (or such later date as the Administrative  Agent may agree in its sole discretion), each Credit Party shall maintain its primary depository and  operating accounts with U.S. Bank and/or BMO Harris Bank N.A.   





 






DB1/ 120286909.9       -110-    (k) Post-Closing Covenant.    (A) No later than June 22, 2021 (as such deadline may be extended by the  Administrative Agent in its sole discretion), the Borrower shall deliver to the  Administrative Agent a fully-executed Control Agreement signed by the applicable  Credit Party, the Administrative Agent and the applicable depository bank with  respect to its account(s) at any financial institutions other than U.S. Bank other than  with respect to Excluded Accounts (as defined in the Security Agreement).    (B) No later than May 6, 2021 (as such deadline may be extended by the  Administrative Agent in its sole discretion), the Borrower shall deliver to the  Administrative Agent a certificate of good standing for SKYSITE Technologies,  Inc., certified as of a recent date on  or after the Closing Date by the Secretary of  State for the State of Delaware.  (C) No later than May 6, 2021 (as such deadline may be extended by the  Administrative Agent in its sole discretion), the Borrower shall deliver to the  Administrative Agent all original Pledged Collateral (as defined in the Security  Agreement) along with all necessary stock powers, endorsements, assignments or  other instruments of transfer in connection therewith in accordance with the  provisions of this Agreement and the Security Agreement.  5.02.  Negative Covenants.  So long as any Loan or L/C Obligation remains unpaid, or  any other Obligation remains unpaid (except in each case other than contingent indemnification  obligations to the extent no claim giving rise thereto has been asserted), or any portion of any  Commitment remains in force, the Borrower will comply, and will cause compliance by the other  Loan Parties or Loan Parties, as applicable, with the following negative covenants, unless the  Required Lenders shall otherwise consent in writing.    (a)  Indebtedness.  None of the Loan Parties shall create, incur, assume or permit  to exist any Indebtedness except for the following (“Permitted Indebtedness”):   (i)  Indebtedness of the Loan Parties under the Credit Documents and  any documents related to any Lender Bank Products;   (ii)  Indebtedness (excluding purchase money Indebtedness and Capital  Lease obligations) of the Loan Parties listed in Schedule 5.02(a) to the Disclosure Letter and  existing on the Closing Date and any Indebtedness of the Loan Parties under initial or successive  refinancings of any Indebtedness permitted by this Section 5.02(a)(ii); provided that (A) the  principal amount of any such refinancing does not exceed the principal amount of the  Indebtedness being refinanced, except by an amount equal to the unpaid accrued interest and  premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred,  in connection with such refinancing and by an amount equal to any existing commitments  utilized thereunder and (B) the material terms and provisions of any such refinancing (including  maturity, redemption, prepayment, default and subordination provisions), taken as a whole, are  no less favorable to the applicable Loan Party and the Lenders than the Indebtedness being  refinanced;  





 






DB1/ 120286909.9       -111-    (iii)  Indebtedness of the Loan Parties under (x) Lender Rate Contracts  and (y) other Rate Contracts entered into in the ordinary course of business with respect to  Indebtedness permitted by the other provisions of this Section 5.02(a); provided that (A) all such  other Rate Contracts are entered into in connection with (I) bona fide hedging operations and not  for speculation , or (II) in connection with any Permitted Stock Repurchase and (B) the aggregate  notional principal amount under all such other Rate Contracts does not exceed the principal  amount of the Indebtedness to which such other Rate Contracts relate;    (iv)  purchase money Indebtedness and Capital Lease obligations in an  aggregate principal amount not to exceed $65,000,000 at any one time outstanding;   (v)   secured or unsecured Indebtedness of Foreign Subsidiaries (for the  avoidance of doubt, excluding intercompany debt), in an aggregate principal amount not to  exceed $15,000,000 at any time outstanding; provided that an additional $8,000,000 of  Indebtedness may be incurred by Holdings or any of its Subsidiaries if such Indebtedness is  secured solely by cash and Cash Equivalents in China;  (vi)   Indebtedness assumed in connection with any Permitted  Acquisition, so long as such Indebtedness was not incurred by the Acquired Person in connection  with, or in anticipation or contemplation of, such person becoming a Loan Party or such  acquisition and which Indebtedness is without recourse to any Loan Party or to any of their  respective properties or assets other than the Person (or its successors) or the assets to which  such Indebtedness related prior to the time such person became a Subsidiary or the time of such  acquisition,  (vii)  Indebtedness of the Loan Parties with respect to surety, appeal,  indemnity, performance or other similar bonds in the ordinary course of business (including  surety or similar bonds issued in connection with the stay of a proceeding of the type described  in Section 6.01(h));  (viii)  Indebtedness in the form of earnouts payable in connection with  any Permitted Acquisition, which Indebtedness shall be subject to subordination terms  reasonably acceptable to the Administrative Agent;   (ix)   Guaranty Obligations and other Contingent Obligations of any Loan  Party in respect of Permitted Indebtedness of any other Loan Party;   (x)  Indebtedness owing to any other Loan Parties, subject to the terms  of the Intercompany Subordination Agreement; provided that the Investment constituting such  Indebtedness is permitted by Section 5.02(e)(iii);  (xi)  Indebtedness consisting of endorsement of instruments or other  payment items for deposit;   (xii)  Indebtedness incurred in respect of credit cards, credit processing  services, debit cards, stored value cards (including so-called “procurement cards” or “P-cards”),  or cash management services, in each case, incurred in the ordinary course of business; provided  that such Indebtedness shall be unsecured except for Liens permitted by Section 5.02(b)(xiii);  





 






DB1/ 120286909.9       -112-    (xiii)   Guaranty Obligations (or liabilities as a surety, endorser,  accommodation endorser or otherwise) in respect of performance, surety, statutory, appeal or  similar obligation otherwise permitted hereunder incurred in the ordinary course of business but  excluding guaranties with respect to any obligations for borrowed money;   (xiv)   Indebtedness composing Investments permitted by  Section 5.02(e);   (xv)  Preferred stock issued by any Loan Party so long as in each case the  terms of such preferred stock (i) does not constitute Disqualified Securities, (ii) do not require  cash payments of dividends prior to the date occurring 91 days following the last Maturity Date  and (iii) do not contain any financial performance “maintenance” covenants (whether stated as  a covenant, default or otherwise, although “incurrence based” financial tests may be included;   (xvi)   Until June 22, 2021 (or such later date as the Administrative Agent  may agree in its sole discretion) Indebtedness of the Loan Parties constituting “Existing Letter  of Credit Obligations” (as defined in that certain Payoff Letter, dated as of April 22, 2021 (the  “Wells Payoff Letter”), by and between the Credit Parties and Wells Fargo, National  Association, as in effect on the Closing Date); and   (xvii) Other unsecured Indebtedness in an aggregate principal amount not  to exceed $10,000,000 at any one time outstanding.    (b)  Liens.  No Loan Party shall create, incur, assume or permit to exist any Lien  or Negative Pledge on or with respect to any of its Property (excluding Margin Stock), whether  now owned or hereafter acquired, except for the following (“Permitted Liens”):    (i)  Liens in favor of the Administrative Agent or any Lender securing  the Obligations and Negative Pledges under the Credit Documents;   (ii)  Liens listed in Schedule 5.02(b) to the Disclosure Letter and existing  on the Closing Date and any replacement Liens (covering the same or a lesser scope of Property)  in respect of replacement Indebtedness permitted under Section 5.02(a)(ii);   (iii)  Liens incurred with respect to property acquired using the proceeds  of Indebtedness and Capital Leases permitted under Section 5.02(a)(iv), and Negative Pledges  incurred therewith with respect to such property;   (iv)   Liens for Taxes or other Governmental Charges not at the time  delinquent or thereafter payable without penalty or being contested in good faith by appropriate  proceedings and have not proceeded to judgment; provided that adequate reserves for the  payment thereof have been established in accordance with GAAP and no Property of any Loan  Party is subject to impending risk of loss or forfeiture by reason of nonpayment of the obligations  secured by such Liens;   (v)  statutory Liens, possessory liens of carriers and warehousemen,  materialmen Liens, mechanic’s Liens and landlord Liens, in each case arising in the ordinary  course of business with respect to obligations which are not delinquent or are being contested in  





 






DB1/ 120286909.9       -113-    good faith by appropriate proceedings, provided that, if delinquent, adequate reserves have been  set aside with respect thereto in accordance with GAAP and, by reason of nonpayment, no  Property of any Loan Party is subject to a material impending risk of loss or forfeiture;  (vi)  Deposits under workers’ compensation, unemployment insurance  and social security laws or to secure the performance of bids, tenders, contracts (other than for  the repayment of borrowed money) or leases, or to secure statutory obligations of surety, appeal  or customs bonds or to secure indemnity, performance or other similar bonds in the ordinary  course of business;  (vii)  Liens incurred in connection with the extension, renewal or  refinancing of the Indebtedness secured by the Liens described in Section 5.02(b)(ii) above;  provided that any extension, renewal or replacement Lien (A) is limited to the Property covered  by the existing Lien and (B) secures Indebtedness which is no greater in amount, except by an  amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts  paid, and fees and expenses reasonably incurred, in connection with such refinancing and (C)  has material terms (taken as a whole) no less favorable to the Lenders than the Indebtedness  secured by the existing Lien;   (viii)   leases or subleases and licenses or sublicenses granted to others (in  the ordinary course of business) not interfering in any material respect with the ordinary conduct  of the business or operations of any Loan Party;  (ix)  easements, rights-of-way, utility access, zoning or other restrictions,  minor defects, encroachments or irregularities in title and other similar charges or encumbrances  not interfering in any material respect with the ordinary conduct of the business of any Loan  Party;  (x)  deposits in the ordinary course of business to secure liabilities to  insurance carriers, lessor, utilities and other service providers;  (xi)  bankers liens and rights of setoff or offset with respect to customary  depository arrangements entered into in the ordinary course of business;   (xii)  Liens arising (A) by reason of security for surety or appeal bonds in  the ordinary course of business of any Loan Party and (B) in connection with judgments, orders,  decrees or awards not giving rise to an Event of Default hereunder or securing an appeal or other  surety bond related to any such judgment;   (xiii)   Liens in favor of credit card processors (including, Bank of  America and Axia) (“Credit Card Processors”) pursuant to the agreements with such parties,  consisting of (a) Deposit Accounts into which such Credit Card Processor makes payments and  any reserve Deposit Account required to be established by such Credit Card Processor, (b) the  transactions executed pursuant to the merchant services agreement with such Credit Card  Processor and the proceeds thereof; (c) the rights of the applicable Person under such merchant  services agreement, and (d) other assets in the possession of such Credit Card Processor,  provided, that (x) obligations secured by such Liens are incurred by such Persons in the ordinary  course of business for credit card processing services and not in connection with the borrowing  





 






DB1/ 120286909.9       -114-    of money, (y) such Liens only secure amounts not past due (except to the extent such amounts  are being diligently disputed in good faith and the applicable Credit Card Processor has not  exercised any of its rights with respect to the collateral for its obligations, and (z) all Deposit  Accounts subject to Liens in favor of the Credit Card Processors are subject to Control  Agreements unless any such Deposit Account is permitted to remain without a Control  Agreement pursuant to this Agreement or such Deposit Account is not owned by a Credit Party;    (xiv)   any Lien existing on any property prior to a Permitted Acquisition  or existing on any property of any Person that becomes a Loan Party after the Closing Date prior  to the time such Person becomes a Loan Party; provided that:  (x) such Lien is not created in  contemplation of or in connection with such Permitted Acquisition or such Person becoming a  Loan Party as otherwise permitted hereunder, as the case may be; (y) such Lien shall not apply  to any other property or assets of any other Loan Party; and (z) such Lien shall secure only those  obligations which it secures on the date of such Permitted Acquisition or the date such Person  becomes a Loan Party, as the case may be;   (xv)  Liens on property of a Foreign Subsidiary securing Indebtedness of  the Foreign Subsidiary permitted under Section 5.02(a)(v);  (xvi)  in the case of any non-wholly owned Subsidiary of a Loan Party or  any joint venture, any customary put and call arrangements or restrictions on disposition related  to its Equity Securities set forth in its organizational documents or any related joint venture or  similar agreement;  (xvii)  Liens solely on any cash earnest money deposits made by Loan  Party in connection with any letter of intent or purchase agreement with respect to a Permitted  Acquisition;   (xviii)  for so long as the Existing Letter of Credit Obligations remains  outstanding, Liens on (A) the “Cash Collateral” (as defined in the Wells Payoff Letter as in effect  on the date hereof) in an aggregate amount not to exceed $2,263,800 and (B) the deposit account  that holds such Cash Collateral (so long as no other cash of the Loan Parties are commingled  with the Cash Collateral in such deposit account);   (xix) (A) any interest of a lessor under any lease that does not constitute  Indebtedness and (B) any precautionary Uniform Commercial Code financing statement filed  regarding any such lease permitted under this Agreement; and  (xx) other Liens (other than any Lien imposed by ERISA) which do not  secure Indebtedness for borrowed money or letters of credit and as to which the aggregate  amount of the obligations secured thereby does not exceed $5,000,000;   provided, however, that the foregoing exceptions shall not permit any Lien on any Equity  Securities issued by any Loan Party (other than Holdings), except for Liens in favor of the  Administrative Agent securing the Obligations (or any guaranty thereof).  (c)  Asset Dispositions.  No Loan Party shall, directly or indirectly, sell, lease,  convey, transfer, allocate pursuant to a Plan of Division or otherwise dispose of any of its Property  





 






DB1/ 120286909.9       -115-    (via a Sale and Leaseback or otherwise), whether now owned or hereafter acquired, except for the  following:  (i)  sales and leases by the Loan Parties of inventory and equipment in  the ordinary course of their businesses;   (ii)  sales by the Loan Parties of damaged, worn-out, used, obsolete or  surplus equipment in the ordinary course of their businesses for not less than Fair Market Value;  (iii)  sales or other dispositions by any Loan Party of Investments  permitted by Section 5.02(e)(ii) for not less than Fair Market Value; provided that no Default  shall have occurred and be continuing and the proceeds of such sale or other disposition are  retained as working capital with such Loan Party;  (iv)  (x) sales, (y) except in the case of the Borrower under clause (A)  below, allocations pursuant to a Plan of Division or (z) other dispositions of assets and property  (A) by the Borrower to any Guarantor, (B) by any Guarantor to the Borrower, (C) by any  Guarantor to another Guarantor, (D) by any Loan Party that is not the Borrower or Guarantor  (other than a Pledged Foreign Subsidiary) to any other Loan Party, and (E) by any Pledged  Foreign Subsidiary to the Borrower, any Guarantor or any other Pledged Foreign Subsidiary;   (v)  the Loan Parties may sell Property (including Equity Securities of  any Subsidiary) if (I) the Loan Parties receive consideration at the time of the asset sale at least  equal to the Fair Market Value of the assets or Equity Securities issued or sold or otherwise  disposed of, and at least 75% of the consideration received in the assets or Equity Securities sold  by the Loan Parties is in the form of cash or Cash Equivalents, provided that all such amounts  are applied in accordance with Section 2.06(c), or (II) such asset sale is in respect of equipment  in connection with Sale and Leasebacks, provided that the proceeds of any such Sale and  Leaseback shall be entirely in cash and shall not be less than 100% of the Fair Market Value of  the equipment being sold (determined in good faith by the Borrower);   (vi)  the leasing or subleasing of assets in the ordinary course of business  not materially interfering with the conduct of the business of the Loan Parties taken as a whole;  (vii)  the sale or discount, in each case without recourse and forgiveness,  of accounts receivable arising in the ordinary course of business, but only in connection with the  compromise or collection thereof;    (viii)  the lapse of registered patents, trademarks, and other intellectual  property of any Loan Party to the extent not economically desirable in the conduct of their  business and so long as such lapse is not materially adverse to the interests of the Lenders;  (ix)  the contemporaneous exchange of equipment traded for credit  towards new equipment so long as such transaction is otherwise permitted by the terms of this  Agreement;  





 






DB1/ 120286909.9       -116-    (x)  any involuntary loss, damage or destruction of property or any  involuntary condemnation, seizure or taking, by the exercise of the power of eminent domain or  otherwise, or confiscation or requisition of use of property;  (xi)  the unwinding of any Rate Contract so long as the termination of  such Rate Contract does not result in an Event of Default;  (xii)  any disposition of Investments of in cash or Cash Equivalents in an  arms-length transaction with a third party;    (xiii)  dispositions of Investments in the minority interests of the Equity  Securities of another Person or in any Specified Entity (as defined in the Disclosure Letter), so  long as made in an arm’s length transaction at fair market value; provided that the Net Proceeds  therefrom are applied and/or reinvested as (and to the extent) required by Section 2.06(c)(iii);  and  (xiv)  transfers permitted by Section 5.02(b), Section 5.02(d),  Section 5.02(e), and Section 5.02(f);   (xv)  without limiting Section 5.02(p), sales or other dispositions of  Margin Stock;  (xvi)   dispositions of assets (other than accounts, intellectual property,  licenses, Equity Securities of Loan Parties) not otherwise permitted in clauses (i) through (xv)  above so long as made at fair market value and the aggregate fair market value of all assets  disposed of in all such dispositions since the Closing Date would not exceed $2,500,000.  To the extent the Required Lenders (or all of the Lenders, as the case may be) waive the provisions  of this Section 5.02(c) with respect to the sale of any Collateral, or any Collateral is sold as  permitted by this Section 5.02(c) (other than to another Loan Party), such Collateral shall be sold  free and clear of the Liens created by the Security Documents, and the Administrative Agent shall  take any actions in order to effect the foregoing, all at the Borrower’s reasonable expense.    (d)  Mergers, Acquisitions, Etc.  No Loan Party shall reorganize, recapitalize or  consolidate with or merge into any other Person or permit any other Person to merge into it, or  liquidate or dissolve or permit any of its Subsidiaries to liquidate or dissolve, or acquire any Person  as a new Subsidiary or acquire all or substantially all of the assets, or any identifiable business unit  or division, of any other Person, or divide into two or more Persons pursuant to a Plan of Division,  except for the following:  (i)  (x) the Borrower and the other Loan Parties may merge or  consolidate with and into, or be dissolved or liquidated into, each other; provided that (A) no  Default shall have occurred and be continuing or would result after giving effect to any such  transaction, (B) the Borrower and Holdings may not merge or consolidate with and into, or be  dissolved or liquidated into, each other, (C) in any such transaction involving the Borrower, the  Borrower is the surviving Person, (D) in any such transaction involving Holdings, Holdings is the  surviving Person, and (E) in any such transaction involving a Guarantor and another Loan Party  (other than the Borrower or Holdings), a Guarantor is the surviving Person, and (y) any Subsidiary  





 






DB1/ 120286909.9       -117-    may be divided into two or more Persons pursuant to a Plan of Division (provided that each Person  into which such Subsidiary is divided shall already be or become a Guarantor to the extent required  by Section 5.01(i) and the Borrower shall comply with Section 5.01(i) in connection therewith);   (ii)  Acquisitions by a Loan Party of all or substantially all the assets of,  or all the equity interests in, a Person or an identifiable business unit or a division or line of business  of any other Person (in each case, the “Proposed Target”); provided that:    (A)  No Event of Default has occurred and is continuing on the  date of, or will result after giving effect to, any such acquisition (actually and on a pro forma basis);  (B)  The Proposed Target is in the same, similar or related line of  business in which the Loan Parties are engaged as of the Closing Date;  (C)   The acquisition of the Proposed Target shall be completed  as a result of an arm’s length negotiation (i.e. on a non-hostile basis);  (D)  The acquisition of the Proposed Target shall be  consummated, in all material respects, in accordance with all applicable Governmental Rules;  (E)  Both immediately before and after giving effect to such  acquisition, the Total Leverage Ratio on a pro forma basis shall be no greater than the maximum  ratio permitted under Section 5.03(a) (provided that the Total Leverage Ratio as of the effective  date of such acquisition is calculated on a pro forma basis by using (1) Consolidated Adjusted  EBITDA for the four consecutive fiscal quarter period ending on the last day of the most recently  ended fiscal quarter of Holdings for which financial statements have been delivered hereunder,  and (2) Funded Indebtedness as of the last day of the most recently ended fiscal quarter of the  Borrower for which financial statements have been delivered hereunder, minus any repayments of  such Indebtedness made since the last day of such most recently ended fiscal quarter (including  simultaneously with the effectiveness of such acquisition), plus any additional Indebtedness  incurred by the Loan Parties since the last day of such most recently ended fiscal quarter (including  simultaneously with the effectiveness of such acquisition)), and the Borrower shall deliver to the  Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating  such compliance with this condition;  (F)   In the case of an acquisition of assets, the Administrative  Agent shall hold a perfected, first priority security interest in and Lien on all of the assets directly  or indirectly acquired by a Credit Party in such transaction (including but not limited to the assets  owned by the Proposed Target), subject to any Liens that would otherwise constitute Permitted  Liens,   (G)   In the case of an acquisition of all the equity interests in a  Person, if such Proposed Target remains a separate Subsidiary, all action required of such  Subsidiary and of the Loan Parties under Section 5.01(i) shall be completed by the time(s)  specified in Section 5.01(i); and  (H)   If the consideration to be delivered in connection with the  proposed acquisition includes any deferred consideration payable to any seller, such as payment  





 






DB1/ 120286909.9       -118-    under a seller note, Earn-Outs, or extraordinary payments under consulting, employment or lease  agreements with such seller or its Affiliates, such deferred consideration shall in all cases be  expressly subordinated to payment of the Obligations pursuant to a Seller Subordinated Note or a  subordination agreement substantially in the form of Exhibit O (or an agreement containing  substantially similar terms).  (e)  Investments.  None of the Loan Parties shall make any Investment except  for Investments in the following:    (i)  Investments by the Loan Parties in deposit accounts, securities  accounts or commodity accounts, cash and Cash Equivalents, provided that any such Investments  of any Loan Party are, to the extent required by Section 5.02(p) below, subject to a Control  Agreement;  (ii)  Investments listed in Schedule 5.02(e) to the Disclosure Letter  existing on the Closing Date;  (iii)  Investments by the Loan Parties in each other; provided that (x) no  such Investment may be made when an Event of Default described in Section 6.01(a), (f) or (g)  has occurred and is continuing, (y) if such Investment that constitutes Indebtedness is evidenced  by one or more intercompany promissory notes, it shall be subject to a first perfected security  interest in favor of the Administrative Agent and in the Administrative Agent’s possession to the  extent required by the Security Documents and (z) the aggregate amount of Investments made  after the Closing Date by the Loan Parties in Foreign Subsidiaries shall not exceed $20,000,000;  (iv)   Investments consisting of loans to employees, officers and directors  of the Loan Parties (x) in an aggregate principal amount which shall not exceed $2,500,000 in  the aggregate in any fiscal year (with no carryover to succeeding years) and (y) to employees  consisting of pay-day advances made in the ordinary course of business;   (v)  extensions of trade credit to customers of the Loan Parties or  Investments arising from transactions by any Loan Party with customers and suppliers, in each  case, in the ordinary course of business;  (vi)  Investments received in connection with the satisfaction or  enforcement of Indebtedness or claims due or owing to any Loan party or the settlement of a  bona fide dispute with another Person or as security for such Indebtedness or claims;  (vii)  Investments permitted by Section 5.02(d), and Guaranty  Obligations in respect thereof so long as such Guaranty Obligations are with respect to  obligations of a Loan Party purchaser under the applicable purchase agreement for a Permitted  Acquisition and not for obligations constituting Indebtedness;   (viii)   Investments in negotiable instruments deposited or to be deposited  for collection in the ordinary course of business;   (ix)   advances made in connection with purchases of goods or services in  the ordinary course of business;  





 






DB1/ 120286909.9       -119-    (x)   the formation of any direct or indirect Subsidiary so long as the  requirements of Section 5.01(i) are met, for the avoidance of doubt, all subject to  Section 5.02(e)(iii);    (xi)  Investments made for the benefit of employees of any Loan Party  for the purposes of deferred compensation;   (xii)  Investments that constitute Indebtedness permitted by  Section 5.02(a), for the avoidance of doubt, in the case of Investments by the Loan Parties in  each other, all subject to Section 5.02(e)(iii);   (xiii)   Investments consisting of repayments or other acquisitions of  Indebtedness of any Loan Party that are expressly permitted by Section 5.02(h); and  (xiv)   Other Investments not exceeding $15,000,000 in the aggregate in  any fiscal year (with no carryover to  succeeding years);  provided that in no event shall the Loan Parties make any Investments in Margin Stock (other than  pursuant to a Permitted Stock Repurchase).  For purposes of this Section 5.02(e), the amount of any Investment shall be the amount actually  invested, without adjustment for subsequent increases or decreases in the value of such Investment  (including any write-downs or write-offs thereof) but giving effect to any cash returns or cash  distributions received by such Person with respect thereto in an amount not to exceed the original  amount of such Investment.  (f)  Restricted Payments.  No Loan Party shall make any Restricted Payment or  set apart any sum for any such purpose except as follows:   (i)  any Subsidiary of Holdings may make Restricted Payments on its  Equity Securities to Holdings or any intervening Subsidiary; provided that a Subsidiary of  Holdings that is a Credit Party may only make Restricted Payments to another Credit Party;   (ii)  Holdings may declare and make other Restricted Payments with  respect to its Equity Securities payable solely in shares of Equity Securities (other than  Disqualified Securities);   (iii)  Holdings may make Restricted Payments (including Restricted  Payments to repurchase and redeem Equity Securities of Holdings (including repurchases of  fractional shares and purchases stock or stock options of Holdings from present or former officers,  directors or employees of any Loan Party)) so long as all the following conditions are met as of  the date of such Restricted Payment (including the incurrence of Indebtedness used to make such  Restricted Payment):  (A) in connection with any Credit Event related to such Restricted Payment,  the conditions precedent in Section 3.02 are satisfied, (B) the representations and warranties in  Section 4.01(v) are true and correct in all material respects as if made on such date, (C) no Default  would exist after giving effect to any such Restricted Payment, (D) the Total Leverage Ratio on a  pro forma basis would be no greater than the maximum ratio permitted under Section 5.03(a) after  giving effect to such Restricted Payment (provided that the Total Leverage Ratio as of such day is  





 






DB1/ 120286909.9       -120-    calculated on a pro forma basis by using (1) Consolidated Adjusted EBITDA for the four  consecutive fiscal quarter period ending on the last day of the most recently ended fiscal quarter  of Holdings for which financial statements have been delivered hereunder, and (2) Funded  Indebtedness as of the last day of the most recently ended fiscal quarter of the Borrower for which  financial statements have been delivered hereunder, minus any repayments of such Indebtedness  made since the last day of such most recently ended fiscal quarter, plus any additional Indebtedness  incurred by the Loan Parties since the last day of such most recently ended fiscal quarter), (E) the  Fixed Charge Coverage Ratio on a pro forma basis would be no less than the minimum ratio  required under Section 5.03(b) after giving effect to such Restricted Payment, (F) such Restricted  Payment does not and will not result in a violation of the General Corporation Law of the State of  Delaware (or Holdings’ state of organization if no longer Delaware) or any of the regulations of  the Federal Reserve Board, including Regulations T, U and X, (G) the aggregate amount of all  such Restricted Payments under this Section 5.02(f)(iii) shall not exceed $15,000,000 during any  twelve month period, and (H) the sum of the Unused Revolving Commitment and Unrestricted,  Unencumbered Liquid Assets on a pro forma basis would be no less than $10,000,000 after giving  effect to such Restricted Payment.  (g)  Change in Business.  No Loan Party shall engage, either directly or  indirectly through Affiliates, in any business different from the business of Holdings and its  Subsidiaries as of the Closing Date, any reasonable extensions thereof and any business reasonably  related to, necessary for, in support or anticipation of, ancillary or complementary to or in  preparation for any such business except for transactions permitted by Section 5.02(d) and  Section 5.02(e).    (h)   Payments of Subordinated Obligations.  No Loan Party shall:  (i)   pay or prepay any principal, premium, interest or any other amount  (including sinking fund payments) with respect to any Subordinated Obligation (except the Loan  Parties may make required payments with respect to Earn-Outs so long as no Event of Default  has occurred and is then continuing), or redeem purchase, defease, acquire or otherwise satisfy  (or offer to redeem, purchase, acquire or otherwise satisfy) any Subordinated Obligations (except  the Loan Parties may make required payments with respect to Earn-Outs so long as no Event of  Default has occurred and is then continuing); or make any payment or deposit any monies,  securities or other property with any trustee or other Person that has the effect of providing for  the satisfaction (or assurance of any satisfaction) of any Subordinated Obligations prior to the  date when due or otherwise to provide for the defeasance of any Subordinated Obligations,  except, in each case, to the extent permitted by the subordination and similar terms governing  such Subordinated Obligations; or   (ii)  directly or indirectly, supplement, modify, amend, restate, extend or  otherwise change the terms of any document, instrument or agreement evidencing or governing  any Subordinated Obligations except, in each case, to the extent permitted by the subordination  and similar terms governing such Subordinated Obligations.   (i)  ERISA.    





 






DB1/ 120286909.9       -121-    (i)  No Loan Party or any ERISA Affiliate shall (A) adopt or institute  any Employee Benefit Plan; (B) take any action which will result in the partial or complete  withdrawal, within the meanings of Sections 4203 and 4205 of ERISA, from a Multiemployer  Plan; (C) engage or permit any Person to engage in any transaction prohibited by Section 406 of  ERISA or Section 4975 of the IRC involving any Employee Benefit Plan or Multiemployer Plan  which would subject a Loan Party or any ERISA Affiliate to any tax, penalty or other liability  including a liability to indemnify; (D) incur or allow to exist any accumulated funding deficiency  (within the meaning of Section 412 of the IRC or Section 302 of ERISA); (E) fail to make full  payment when due of all amounts due as contributions to any Employee Benefit Plan or  Multiemployer Plan; (F) fail to comply with the requirements of Section 4980B of the IRC or  Part 6 of Title I(B) of ERISA or any similar applicable state law; or (G) adopt any amendment  to any Pension Plan which would require the posting of security pursuant to Section 401(a)(29)  of the IRC.  (ii)   No Loan Party shall (A) engage in any transaction prohibited by any  Governmental Rule applicable to any Foreign Plan; (B) fail to make full payment when due of  all amounts due as contributions to any Foreign Plan; or (C) otherwise fail to comply with the  requirements of any Governmental Rule applicable to any Foreign Plan.  (j)   Transactions With Affiliates.  No Loan Party shall enter into or permit to  exist any Contractual Obligation with any Affiliate or engage in any other transaction with any  Affiliate, irrespective of whether in the ordinary course of business, other than (1) on fair and  reasonable terms substantially as favorable to the Borrower or other Loan Party as would be  obtainable by such Person at the time in a comparable arm’s-length transaction with a Person other  than an Affiliate, (2) employment arrangements, indemnification and fee arrangements with  officers and directors and other employment and related transactions approved by the board of  directors (or similar governing body) of such Loan Party or (3) transactions pursuant to agreement  in existence on the Closing Date and set forth on Schedule 5.02(j) to the Disclosure Letter or any  amendment thereto to the extent such amendment is not adverse to the Lenders in any material  respect; provided that the foregoing limitation shall not apply to transactions by and among or in  favor of the Credit Parties that are permitted by this Agreement (including under Section 5.02(a),  Section 5.02(b), Section 5.02(c) and Section 5.02(e)).    (k)  Accounting Changes.  No Loan Party shall change (i) its fiscal year  (currently January 1 through December 31) or (ii) its accounting practices or principles except as  required by GAAP.    (l)  Amendment of Organizational Documents.  No Loan Party shall agree to  amend, modify, supplement or replace any Organizational Document, in each case in a manner  which could reasonably be expected to materially and adversely affect the interests of the  Administrative Agent or the Lenders.    (m)  Restrictive Agreements.  No Loan Party shall, directly or indirectly, create  or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction  on the ability of any Loan Party to (a) make Distributions on its capital stock or any other interest  or participation in its profits owned by the Borrower or any Guarantor, or pay any Indebtedness  owed to the Borrower or any Guarantor, (b) make loans or advances to the Borrower or any  





 






DB1/ 120286909.9       -122-    Guarantor or (c) transfer any of its properties or assets to the Borrower or any Guarantor, except  for such encumbrances or restrictions existing under or by reason of (i) applicable law, (ii) this  Agreement and the other Credit Documents, (iii) any document or instrument governing  Indebtedness incurred pursuant to Section 5.02(a)(iv), provided that any such restriction contained  therein relates only to the asset or assets constructed or acquired in connection therewith, (iv) any  document or instrument governing Indebtedness incurred pursuant to Section 5.02(a)(ix) or  Section 5.02(a)(xvi), (v) customary provisions restricting subletting, subleasing, transferring,  assignment or transfer of any lease governing any leasehold interest of a Loan Party,  (vi) customary provisions restricting assignment of any licensing agreement or other contract  entered into by a Loan Party, (vii) restrictions on the transfer of any asset pending the close of the  sale of such asset, (viii) a Lien permitted by Section 5.02(b), provided that any such restricted  contained therein relates only to the asset or assets subject to such Permitted Lien, (ix) restrictions  or encumbrances with respect to a Loan Party imposed pursuant to an agreement that has been  entered into for the sale or disposition of all or substantially all of the Equity Securities or all or  substantially all of the assets of such Loan Party (other than Holdings and the Borrower), so long  as such sale or disposition is permitted under this Agreement and the other Credit Documents, (x)  restrictions and encumbrances in a contractual obligation which exist on the Closing Date and (to  the extent not otherwise permitted by this Section 5.02(m)) are listed on Schedule 5.02(m) to the  Disclosure Letter, and any modification, replacement, renewal, extension or refinancing of such  contractual obligation so long as such modification, replacement, renewal, extension or  refinancing is not (taken as a whole) materially less favorable to the Lenders or materially more  restrictive on the Loan Parties, (xi) restrictions and encumbrances binding on a Loan Party at the  time such entity first becomes a Loan Party pursuant to a Permitted Acquisition or an Investment  made under Section 5.02(e)(vii), so long as such restrictions and encumbrances were not created  (or made more restrictive) in connection with or in anticipation of the respective Permitted  Acquisition or Investment and do not apply to any Person other than the Loan Party so acquired,  (xii) customary provisions in joint venture agreements and other similar agreements applicable to  Joint Ventures permitted hereunder and applicable solely to such joint venture (and its assets or  Equity Securities issued by such Joint Venture) entered into in the ordinary course of business,  (xiii) restrictions and encumbrances on cash or other deposits or net worth imposed by customers  under contracts entered into in the ordinary course of business, (xiv) restrictions and encumbrances  that arise in connection with cash or other deposits permitted under Section 5.02(b) and  Section 5.02(e) and limited to such cash or deposits, (xv) restrictions on cash earnest money  deposits in favor of sellers in connection with Permitted Acquisitions and Investments permitted  under Section 5.02(e)(xiv), and (xvi) any document or instrument governing Indebtedness of a  Loan Party that is not a Credit Party which is permitted by Section 5.02(a) and which does not  apply to a Credit Party.  (n)   Accounts.  No Credit Party shall fail to execute and deliver to the  Administrative Agent Control Agreements in form and substance reasonably acceptable to the  Administrative Agent with respect to each account of the Credit Parties opened following the  Closing Date with any bank, savings association, financial institution, securities intermediary or  similar financial intermediary within 10 Business Days after opening such account; provided  (I) that a Control Agreement shall not be required for (x) zero-balance accounts or (y) accounts  whose individual and aggregate overnight balances do not exceed $1,000,000 and (II) if an account  or accounts cease to be excluded under clause (I), such account(s) shall be deemed to be “opened”  following the Closing Date for purposes of this Section 5.02(n) and the applicable Credit Parties  





 






DB1/ 120286909.9       -123-    shall provide a Control Agreement with respect to such account(s) as required above in this Section  5.02(n) within 10 Business Days after the date a Credit Party determines that such account(s) cease  to be excluded under clause (I); provided further, that, unless requested by the Administrative  Agent, no Control Agreement shall be required with accounts held at U.S. Bank (and, upon such  request, the applicable Credit Party shall execute and deliver to the Administrative Agent Control  Agreements in form and substance reasonably acceptable to the Administrative Agent with respect  to each such account within 30 days after the date of such request).     (o)  Sanctions, Anti-Terrorism and Anti-Corruption.    (i)   Each Covered Entity (A) will not become a Designated Person;  (B)  will not become controlled by a Designated Person; (C) will not receive funds or other  Property from a Designated Person; (D) is not on the Sectoral Sanctions Identification List under  Executive Order 13662; (E) has not and will not engage in transaction or other activities  prohibited under Sectoral Sanctions directives pursuant to Executive Order 13662; and (F) will  not become in breach of, or is not the subject of any action or investigation under, any Anti- Terrorism Law.  Each Covered Entity will not engage in any dealings or transactions, and is not  and will not be otherwise associated, with any Designated Person.  Each Covered Entity will  comply, in all material respects, with Anti-Terrorism Laws.  Each Covered Entity will take  commercially reasonable measures to ensure compliance with Anti-Corruption Laws and Anti- Terrorism Laws including the requirement that (x) no Person who owns any direct or indirect  interest in such Covered Entity is a Designated Person and (y) funds invested directly or  indirectly in such Covered Entity are derived from legal sources.    (ii)   The Borrower shall not permit any portion of the proceeds of any  Loan, L/C Credit Extension or other credit made hereunder to be used, directly or indirectly for,  and no fee, commission, rebate or other value to be paid (A) to, or for the benefit of, any  governmental official, political party, official of a political party or any other Person acting in  an official capacity in violation of any applicable Anti-Corruption Laws or (B) in any manner  that would result in the violation of  any Anti-Terrorism Laws applicable to any party hereto.  (p)   Margin Stock.  No Loan Party shall purchase, acquire or carry any Margin  Stock (other than pursuant to a Permitted Stock Repurchase).    5.03.  Financial Covenants.  So long as any Loan or L/C Obligation remains unpaid, or  any other Obligation remains unpaid (except in each case other than contingent indemnification  obligations to the extent no claim giving rise thereto has been asserted), or any portion of any  Commitment remains in force, the Borrower will comply, and will cause compliance, with the  following financial covenants, unless the Required Lenders shall otherwise consent in writing:    (a)   Total Leverage Ratio.  The Borrower shall not permit the Total Leverage  Ratio at any time (including during the fiscal quarter ended on March 31, 2021) to be greater  than 2.75:1.00.  (b)   Fixed Charge Coverage Ratio.  The Borrower shall not permit the Fixed  Charge Coverage Ratio as of the last day of any fiscal quarter (commencing with the fiscal quarter  ended on March 31, 2021) to be less than 1.15:1.00.     





 






DB1/ 120286909.9       -124-    ARTICLE VI. EVENTS OF DEFAULT.  6.01.  Events of Default.  The occurrence or existence of any one or more of the following  events set forth in this Section 6.01 shall constitute an “Event of Default” hereunder.    (a)  Non-Payment.  Any Loan Party shall (i) fail to pay when due any principal  of any Loan or any L/C Obligation (including any amount due in respect thereof under the  Guaranty) or (ii) fail to pay within three (3) Business Days after the same becomes due, any  interest, fees or other amounts payable under the terms of this Agreement or any of the other Credit  Documents (including, to the extent not included in clause (i), the Guaranty); or  (b)  Specific Defaults.  Any Loan Party shall fail to observe or perform any  covenant, obligation, condition or agreement applicable to such Loan Party set forth in  Section 5.01(a)(i)-(iv), Section 5.01(f), Section 5.01(g)(i), Section 5.01(h), Section 5.01(i),  Section 5.01(j), Section 5.01(k), Section 5.02 or Section 5.03; or   (c)  Other Defaults.  (i) Any Loan Party shall fail to observe or perform any  covenant, obligation, condition or agreement set forth in the Guaranty and such default shall  continue beyond any period of grace provided with respect thereto; or (ii) any Loan Party shall fail  to observe or perform any other covenant, obligation, condition or agreement contained in this  Agreement or any other Credit Document and such failure shall continue for thirty (30) days after  the date of such failure; or   (d)  Representations and Warranties.  Any representation, warranty, certificate,  information or other statement (financial or otherwise) made, deemed made, reaffirmed or  furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in or in  connection with this Agreement or any of the other Credit Documents, or as an inducement to the  Administrative Agent or any Lender to enter into this Agreement, shall be false, incorrect,  incomplete or misleading in any material respect (or with respect to Section 4.01(w) or if such  representation, warranty, certificate, information or other statement (financial or otherwise) is  qualified by materiality, in any respect) when made, deemed made, reaffirmed or furnished; or   (e)  Cross-Default.  (i) Any Loan Party shall fail to make any payment on  account of any Funded Indebtedness of such Person (other than under the Credit Documents) when  due (whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and  such failure shall continue beyond any period of grace provided with respect thereto, if the amount  of such Funded Indebtedness (including the Termination Value of Rate Contracts) exceeds  $5,000,000 or the effect of such failure is to cause, or permit the holder or holders thereof to cause,  Funded Indebtedness of any Loan Party (other than under the Credit Documents) in an aggregate  amount exceeding $5,000,000 to become redeemable, due, liquidated or otherwise payable  (whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and/or  to be secured by cash collateral or (ii) any Loan Party shall otherwise fail to observe or perform  any agreement, term or condition contained in any agreement or instrument relating to any Funded  Indebtedness of such Person (other than under the Credit Documents), or any other event shall  occur or condition shall exist, if the effect of such failure, event or condition is to cause, or permit  the holder or holders thereof to cause, Funded Indebtedness of any Loan Party (other than under  the Credit Documents) in an aggregate amount exceeding $5,000,000 to become redeemable, due,  





 






DB1/ 120286909.9       -125-    liquidated or otherwise payable (whether at scheduled maturity, by required prepayment, upon  acceleration or otherwise) and/or to be secured by cash collateral; or  (f)  Insolvency; Voluntary Proceedings.  Any Loan Party shall (i) apply for or  consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a  substantial part of its property, (ii) be unable, or admit in writing its inability, to pay its debts  generally as they mature, (iii) make a general assignment for the benefit of its or any of its  creditors, (iv) be dissolved or liquidated in full or in part, other than to the extent permitted under  Section 5.02(d)(i), (v) other than an Immaterial Subsidiary that is not a Credit Party, become  insolvent (as such term may be defined or interpreted under any applicable statute), or  (vi) commence a voluntary case or other proceeding seeking liquidation, reorganization or other  relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now  or hereafter in effect or consent to any such relief or to the appointment of or taking possession of  its property by any official in an involuntary case or other proceeding commenced against it, or,  in each case, any analogous procedure or step is taken in any jurisdiction; or   (g)  Involuntary Proceedings.  Proceedings for the appointment of a receiver,  trustee, liquidator or custodian of any Loan Party (other than an Immaterial Subsidiary that is not  a Credit Party) or of all or a substantial part of the property thereof, or an involuntary case or other  proceedings seeking liquidation, reorganization or other relief with respect to any Loan Party  (other than an Immaterial Subsidiary that is not a Credit Party) or the debts thereof under any  bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an  order for relief entered or such proceeding shall not be dismissed or discharged within sixty (60)  days of commencement, or, in each case, any analogous procedure or step is taken in any  jurisdiction; or   (h)  Judgments.  (i) One or more final judgments, orders, decrees or arbitration  awards requiring any Loan Party to pay an aggregate amount of $10,000,000 or more (exclusive  of amounts covered by insurance issued by an insurer not an Affiliate of Holdings and otherwise  satisfying the requirements set forth in Section 5.01(d)) shall be rendered against any Loan Party  in connection with any single or related series of transactions, incidents or circumstances and the  same shall not be satisfied, vacated or stayed for a period of twenty (20) consecutive days; or  (ii) any judgment, writ, assessment, warrant of attachment, Tax lien or execution or similar process  shall be issued or levied against a part of the property of any Loan Party with an aggregate value  in excess of $10,000,000 and the same shall not be released, stayed, vacated or otherwise dismissed  within thirty (30) days after issue or levy; or  (i)  Credit Documents.  Any Credit Document or any material term thereof shall  cease to be, or be asserted by any Loan Party not to be, a legal, valid and binding obligation of  such Loan Party enforceable in accordance with its terms or shall otherwise cease to be in full  force and effect; or  (j)  Security Documents.  Any Lien intended to be created by any Security  Document shall at any time be invalidated, subordinated or otherwise cease to be in full force and  effect, for whatever reason, or any security interest purported to be created by any Security  Document shall cease to be, or shall be asserted by any Loan Party not to be, a valid, first priority  (except as expressly otherwise provided in this Agreement or such Security Document) perfected  





 






DB1/ 120286909.9       -126-    Lien in the Collateral covered thereby, or any Loan Party shall issue, create or permit to be  outstanding any Equity Securities which shall not be subject to a first priority perfected Lien under  the Security Documents (other than Equity Securities not required to be pledged under the Credit  Documents); or  (k)  ERISA.    (i)  Any ERISA Event which has resulted or could reasonably be  expected to result in liability to any Loan Party or that could reasonably be expected to have a  Material Adverse Effect; or   (ii)   Any Reportable Event which the Administrative Agent reasonably  believes in good faith constitutes grounds for the termination of any Pension Plan by the PBGC or  for the appointment of a trustee by the PBGC to administer any Pension Plan shall occur and be  continuing for a period of thirty (30) days or more after notice thereof is provided to any Loan  Party by the Administrative Agent; or   (iii)   Any Pension Plan shall be terminated within the meaning of Title IV  of ERISA or a trustee shall be appointed by the PBGC to administer any Pension Plan; or  (l)  Change of Control.  Any Change of Control shall occur; or  (m)  Involuntary Dissolution or Split Up.  Any order, judgment or decree shall  be entered against any Loan Party decreeing its involuntary dissolution or split up and such order  shall remain undischarged and unstayed for a period in excess of sixty (60) days; or  (n)  Repudiation.  Any Guarantor shall repudiate or purport to revoke the  Guaranty; or any Loan Party repudiates or purports to revoke its obligations under any Credit  Document; or  (o)  Designated Person.  Any Loan Party shall become a Designated Person; or  (p)   Subordinated Obligations.  Any trustee for, or any holder of, any of the  Subordinated Obligations asserts in writing that any such Subordinated Obligations (or any portion  thereof) is not subordinated to the Obligations in accordance with its terms or the applicable  subordination agreement or a final judgment is entered by a court of competent jurisdiction that  any such Subordinated Obligations (or any portion thereof) is not subordinated in accordance with  its terms or the applicable subordination agreement (in the case of such other Subordinated  Obligations) to the Obligations.  6.02.  Remedies.  At any time after the occurrence and during the continuance of any  Event of Default (other than an Event of Default referred to in Section 6.01(f) or 6.01(g)), the  Administrative Agent may or shall, upon instructions from the Required Lenders, by written notice  to the Borrower, (a) terminate the Commitments, any obligation of the L/C Issuer to make  L/C Credit Extensions and the obligations of the Lenders to make Loans, (b) declare all or a portion  of the outstanding Obligations (other than in connection with Lender Rate Contracts or Lender  Bank Products) payable by the Borrower to be immediately due and payable and/or (c) require that  the Borrower Cash Collateralize the Obligations in an amount equal to 105% of the then Effective  





 






DB1/ 120286909.9       -127-    Amount of the L/C Obligations, in each case, without presentment, demand, protest or any other  notice of any kind, all of which are hereby expressly waived, anything contained herein or in the  Notes to the contrary notwithstanding.  Upon the occurrence or existence of any Event of Default  described in Section 6.01(f) or 6.01(g), immediately and without notice, (1) the Commitments, any  obligation of the L/C Issuer to make L/C Credit Extensions and the obligations of the Lenders to  make Loans shall automatically terminate, (2) the obligation of the Borrower to Cash Collateralize  the Obligations in an amount equal to 105% of the then Effective Amount of the L/C Obligations  shall automatically become effective, which amounts shall be immediately pledged and delivered  to the Administrative Agent as security for the Obligations and (3) all outstanding Obligations  payable by the Borrower hereunder shall automatically become immediately due and payable,  without presentment, demand, protest or any other notice of any kind, all of which are hereby  expressly waived, anything contained herein or in the Notes to the contrary notwithstanding.  In  addition to the foregoing remedies, upon the occurrence or existence of any Event of Default, the  Administrative Agent may exercise any other right, power or remedy available to it under any of  the Credit Documents or otherwise by law.  Notwithstanding anything to the contrary in the Credit  Documents, all Cash Collateral pledged by the Borrower as contemplated by Section 2.02 and  Section 2.16(c)(iii), shall first be applied to reimburse the L/C Issuer in respect of any amounts  that a Lender has failed to fund under Section 2.02(c), then to the remaining L/C Obligations and  then to the remaining Obligations in the manner set forth below:  The proceeds of any sale, disposition or other realization upon all or any part of the Collateral  (subject to the prior sentence with respect to Cash Collateral) and any payments received by the  Administrative Agent with respect to any Guaranty shall, in each case, be distributed by the  Administrative Agent in the following order of priorities:   First, to the Administrative Agent, in an amount sufficient to pay in  full the fees, costs and expenses of the Administrative Agent in connection  with such sale, disposition or other realization, including all fees, costs,  expenses, liabilities and advances incurred or made by the Administrative  Agent in connection therewith, including, without limitation, attorneys’ fees  and costs, and any and all other unpaid and unreimbursed liabilities,  obligations, losses, damages, penalties, actions, judgments, suits, costs,  fees, expenses or disbursements of the Administrative Agent;    Second, to the Lenders and Lender Rate Contract Counterparties in  an amount equal to accrued interest then due and payable on the Obligations  (including any net scheduled payments in respect of Lender Rate Contracts  but excluding any obligations in respect of Lender Bank Products and  excluding the Termination Value of any Lender Rate Contracts);   Third, pari passu and ratably, to (i) the Lenders in an amount equal  to the principal amount of the outstanding Loans and L/C Borrowings and  to Cash Collateralize the remaining L/C Obligations on a pro rata basis in  accordance with the then outstanding principal amount of the Loans and  L/C Obligations (with the portion allocated to the Revolving Loans, Swing  Line Loans and L/C Obligations to be applied first to repay the Swing Line  Loans in full, second to repay the Revolving Loans in full and then to Cash  





 






DB1/ 120286909.9       -128-    Collateralize the Obligations in an amount equal to 105% of the then  Effective Amount of all L/C Obligations), (ii) to the Lender Rate Contract  Counterparties in an amount equal to Obligations owed in connection with  any Lender Rate Contract the terms of which comply with this Agreement  (which amount, for the avoidance of doubt, shall include the Termination  Value), and (iii) to the Lender Bank Product Providers in an amount equal  to any Obligations related to Lender Bank Products which are then unpaid;   Fourth, to the Lenders in an amount equal to any other Obligations  which are then unpaid;    Finally, upon payment in full of all of the Obligations, to the  Person(s) legally entitled thereto.    No application of payments will cure any Event of Default, or prevent acceleration, or  continued acceleration, of amounts payable under the Credit Documents, or prevent the  exercise, or continued exercise, of rights or remedies of the Administrative Agent and the  Lenders hereunder or thereunder or at law or in equity.  ARTICLE VII. ADMINISTRATIVE AGENT AND RELATIONS AMONG LENDERS.  7.01.  Appointment, Powers and Immunities.  (a)  Each Lender (on its own behalf or on behalf of any Affiliate of such Lender  that is party to a Lender Rate Contract or providing Lender Bank Products) hereby appoints and  authorizes the Administrative Agent to act as its agent hereunder and under the other Credit  Documents with such powers as are expressly delegated to the Administrative Agent by the terms  of this Agreement and the other Credit Documents, together with such other powers as are  reasonably incidental thereto.  Each Lender (on its own behalf and on behalf of any Affiliate of  such Lender that is party to a Lender Rate Contract or providing Lender Bank Products) hereby  authorizes the Administrative Agent to take such action on its behalf under the provisions of this  Agreement and the other Credit Documents and to exercise such powers as are set forth herein or  therein, together with such other powers as are reasonably incidental thereto.  For the avoidance  of doubt, notwithstanding anything to the contrary herein or the other Credit Documents, the  Administrative Agent is acting as administrative agent for the Lenders only and the Administrative  Agent is not acting as administrative agent for any other Lender Parties; the Lender Parties (other  than the Lenders) that are receiving the benefit of the Collateral are receiving such benefit as an  accommodation from the Administrative Agent in its capacity as collateral agent for such Lender  Parties and the Administrative Agent shall have no liability whatsoever to such Lender Parties.   The Syndication Agent and the Lead Arranger shall not have any duties or responsibilities or any  liabilities under this Agreement or any other Credit Documents and any amendments, consents,  waivers or any other actions taken in connection with this Agreement or the other Credit  Documents shall not, except to the extent expressly set forth in Section 8.04(e), require the consent  of the Syndication Agent or Lead Arranger, in such capacity.  The Administrative Agent shall not  have any duties or responsibilities except those expressly set forth in this Agreement or in any  other Credit Document, be a trustee for any Lender (or any Affiliate of such Lender that is party  to a Lender Rate Contract or providing Lender Bank Products) or have any fiduciary duty to any  





 






DB1/ 120286909.9       -129-    Lender (or any Affiliate of such Lender that is party to a Lender Rate Contract or providing Lender  Bank Products).  Notwithstanding anything to the contrary contained herein the Administrative  Agent shall not be required to take any action which is contrary to this Agreement or any other  Credit Document or any applicable Governmental Rules.  Neither the Administrative Agent nor  any Lender shall be responsible to any other Lender for any recitals, statements, representations or  warranties made by any Loan Party contained in this Agreement or in any other Credit Document,  for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement  or any other Credit Document or for any failure by any Loan Party to perform its obligations  hereunder or thereunder.  The Administrative Agent may employ agents and attorneys-in-fact and  shall not be responsible to any Lender for the negligence or misconduct of any such agents or  attorneys-in-fact selected by it with reasonable care.  Neither the Administrative Agent nor any of  its directors, officers, employees, agents or advisors shall be responsible to any Lender for any  action taken or omitted to be taken by it or them hereunder or under any other Credit Document  or in connection herewith or therewith, except to the extent determined by a final, non-appealable  judgment of a court of competent jurisdiction to have arisen from its or their own gross negligence  or willful misconduct.  Except as otherwise provided under this Agreement, the Administrative  Agent shall take such action with respect to the Credit Documents as shall be directed by the  Required Lenders or in the absence of such direction, such action as the Administrative Agent in  good faith deems advisable under the circumstances.   (b)  Any co-agents, sub-agents and attorneys-in-fact appointed by the  Administrative Agent pursuant to Section 7.01(a) for purposes of holding or enforcing any Lien  on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising  any rights and remedies thereunder and hereunder at the direction of the Administrative Agent,  shall be entitled to the benefits of all provisions of this Article VII, Section 8.02 and Section 8.03  as if set forth in full herein with respect thereto.  (c)  The L/C Issuer shall act on behalf of the Revolving Lenders with respect to  any Letters of Credit issued by it and the documents associated therewith until such time (and  except for so long) as the Administrative Agent may agree at the request of the Required Lenders  to act for the L/C Issuer with respect thereto; provided, however, that the L/C Issuer shall have all  of the benefits and immunities (i) provided to the Administrative Agent in this Article VII with  respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of  Credit issued by it or proposed to be issued by it and the application and agreements for letters of  credit pertaining to the Letters of Credit as fully as if the term “Administrative Agent” as used in  this Article VII included the L/C Issuer with respect to such acts or omissions, and (ii) as  additionally provided herein with respect to the L/C Issuer.    7.02.  Reliance by the Administrative Agent, L/C Issuer and Swing Line Lender.  The  Administrative Agent, the L/C Issuer and the Swing Line Lender shall be entitled to rely upon any  certificate, notice or other document (including any facsimile or e-mail) believed by it in good  faith to be genuine and correct and to have been signed or sent by or on behalf of the proper Person  or Persons (including any certificate, notice or other document from a Loan Party that a sale,  transfer, or other disposition of Collateral is permitted by Section 5.02(c)), and upon advice and  statements of legal counsel, independent accountants and other experts selected by the  Administrative Agent with reasonable care.  As to any other matters not expressly provided for by  this Agreement, the Administrative Agent shall not be required to take any action or exercise any  





 






DB1/ 120286909.9       -130-    discretion, but shall be required to act or to refrain from acting upon instructions of the Required  Lenders and shall in all cases be fully protected by the Lenders in acting, or in refraining from  acting, hereunder or under any other Credit Document in accordance with the instructions of the  Required Lenders (or all Lenders if required by Section 8.04), and such instructions of the  Required Lenders (or all the Lenders as the case may be) and any action taken or failure to act  pursuant thereto shall be binding on all of the Lenders.  7.03.  Defaults.  The Administrative Agent shall not be deemed to have knowledge or  notice of the occurrence of any Default unless the Administrative Agent has received a written  notice from a Lender or the Borrower, referring to this Agreement, describing such Default and  stating that such notice is a “Notice of Default”.  If the Administrative Agent receives such a notice  of the occurrence of a Default, the Administrative Agent shall give prompt 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; provided, however, that 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 interest of the Lenders.  Notwithstanding anything to the contrary  contained herein, the order and manner in which the Lenders’ rights and remedies are to be  exercised (including, without limitation, the enforcement by any Lender of its Note) shall be  determined by the Required Lenders in their sole discretion.  7.04.  Lender Indemnification.  Without limiting the Obligations of the Borrower  hereunder, each Lender agrees to indemnify the Administrative Agent, ratably in accordance with  its aggregate Proportionate Share of all Obligations and Commitments, for any and all liabilities,  obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements  of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted  against the Administrative Agent in any way relating to or arising out of this Agreement or any  documents contemplated by or referred to herein or therein or the transactions contemplated hereby  or thereby or the enforcement of any of the terms hereof or thereof; provided, however, that no  Lender shall be liable for any of the foregoing to the extent determined by a final, non-appealable  judgment of a court of competent jurisdiction to have arisen from the Administrative Agent’s gross  negligence or willful misconduct.  The Administrative Agent shall be fully justified in refusing to  take or in continuing to take any action hereunder unless it shall first be indemnified to its  satisfaction by the Lenders against any and all liability and expense which may be incurred by it  by reason of taking or continuing to take any such action.  The obligations of each Lender under  this Section 7.04 shall survive the payment and performance of the Obligations, the termination of  this Agreement and any Lender ceasing to be a party to this Agreement (with respect to events  which occurred prior to the time such Lender ceased to be a Lender hereunder).   7.05.  Non-Reliance.  Each Lender acknowledges that it has, independently and without  reliance on the Administrative Agent or any other Lender, and based on such documents and  information as it has deemed appropriate, made its own appraisal of the business, prospects,  management, financial condition and affairs of the Loan Parties and its own decision to enter into  this Agreement and agrees that it will, independently and without reliance upon the Administrative  Agent or any other Lender, and based on such documents and information as it shall deem  appropriate at the time, continue to make its own appraisals and decisions in taking or not taking  action under this Agreement.  Neither the Administrative Agent nor any of its Affiliates, directors,  





 






DB1/ 120286909.9       -131-    officers, employees, agents or advisors shall (a) be required to keep any Lender informed as to the  performance or observance by any Loan Party of the obligations under this Agreement or any other  document referred to or provided for herein or to make inquiry of, or to inspect the properties or  books of any Loan Party; (b) have any duty or responsibility to disclose to or otherwise provide  any Lender, and shall not be liable for the failure to disclose or otherwise provide any Lender, with  any credit or other information concerning any Loan Party which may come into the possession of  the Administrative Agent or that is communicated to or obtained by the bank serving as  Administrative Agent or any of its Affiliates in any capacity, except for notices, reports and other  documents and information expressly required to be furnished to the Lenders by the Administrative  Agent hereunder or the other Credit Documents; or (c) be responsible to any Lender for (i) any  recital, statement, representation or warranty made by any Loan Party or any officer, employee or  agent of any Loan Party in this Agreement or in any of the other Credit Documents, (ii) the value,  validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any Credit  Document, (iii) the value or sufficiency of the Collateral or the validity or perfection of any of the  liens or security interests intended to be created by the Credit Documents, or (iv) any failure by  any Loan Party to perform its obligations under this Agreement or any other Credit Document.   7.06. Resignation of the Administrative Agent.  The Administrative Agent may resign at  any time by giving thirty (30) days prior written notice thereof to the Borrower and the Lenders.   Upon any such resignation, the Required Lenders shall have the right to appoint a successor  Administrative Agent, which successor Administrative Agent, if not a Lender, shall be reasonably  acceptable to the Borrower; provided, however, that the Borrower shall have no right to approve a  successor Administrative Agent if a Default has occurred and is continuing.  Upon the acceptance  of any appointment as the Administrative Agent hereunder by a successor Administrative Agent,  such successor Administrative Agent shall thereupon succeed to and become vested with all the  rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring  Administrative Agent shall be discharged from the duties and obligations thereafter arising  hereunder; provided that the retiring Administrative Agent shall be discharged from the duties and  obligations arising hereunder from and after the end of such thirty (30) day period even if no  successor has been appointed (except that in the case of any collateral security held by the  Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents,  the retiring Administrative Agent shall continue to hold such collateral security until such time as  a successor Administrative Agent is appointed).  If no such successor has been appointed, the  Required Lenders shall act as the Administrative Agent, hereunder and under the other Credit  Documents.  After any retiring Administrative Agent’s resignation hereunder as the  Administrative Agent, the provisions of this Article VII shall continue in effect for its benefit in  respect of any actions taken or omitted to be taken by it while it was acting as the Administrative  Agent.  The successor Administrative Agent (or if there is no successor, one of the Lenders  appointed by the Required Lenders that accepts such appointment) shall also simultaneously  replace the then existing Administrative Agent and the then existing Administrative Agent shall  be fully released as “L/C Issuer” and “Swing Line Lender” hereunder pursuant to documentation  in form and substance reasonably satisfactory to the then existing Administrative Agent, and any  successor Administrative Agent appointed pursuant to this Section 7.06 shall, upon its acceptance  of such appointment, become the successor “L/C Issuer” and “Swing Line Lender” for all purposes  hereunder.  7.07.  Collateral Matters and Guaranty Matters.    





 






DB1/ 120286909.9       -132-    (a)  The Administrative Agent is hereby authorized by each Lender (on its own  behalf and on behalf of any Affiliate of such Lender that is party to a Lender Rate Contract or  providing Lender Bank Products), without the necessity of any notice to or further consent from  any Lender (or any Affiliate of such Lender that is party to a Lender Rate Contract or providing  Lender Bank Products), and without the obligation to take any such action, to take any action with  respect to any Collateral or any Security Document which may from time to time be necessary to  perfect and maintain perfected the Liens of the Security Documents.  (b)  Each of the Lenders (on its own behalf and on behalf of any Affiliate of  such Lender that is party to a Lender Rate Contract or providing Lender Bank Products)  irrevocably authorize the Administrative Agent, at its option and in its discretion, to release (and  to execute and deliver such documents, instruments and agreements as the Administrative Agent  may deem necessary to release) any Lien granted to or held by the Administrative Agent upon any  Collateral (i) upon termination of the Commitments and the full Cash Collateralization of the then  outstanding L/C Obligations and the payment in full of all Loans and all other Obligations payable  under this Agreement and under the other Credit Documents (other than contingent  indemnification obligations and Obligations in respect of Lender Rate Contracts and Lender Bank  Products except to the extent the Administrative Agent has received prior written notice from the  applicable Lender Party of any such Lender Rate Contract or the existence of such Obligations in  respect of Lender Bank Products); (ii) constituting property of the Loan Parties which is sold,  transferred or otherwise disposed of in connection with any transaction not prohibited by this  Agreement or the Credit Documents; (iii) constituting property leased to the Loan Parties under  an operating lease which has expired or been terminated in a transaction not prohibited by this  Agreement or the Credit Documents or which will concurrently expire and which has not been and  is not intended by the Loan Parties to be, renewed or extended; (iv) consisting of an instrument, if  the Indebtedness evidenced thereby has been paid in full; or (v) if approved or consented to by  those of the Lenders required by Section 8.04.  In the case of clause (ii) above involving a sale of  a Guarantor, the Lenders also irrevocably authorize the Administrative Agent to release such  Guarantor from the applicable guaranty.  Upon request by the Administrative Agent, the Lenders  will (and will cause their Affiliates that are party to Lender Rate Contracts or provided Lender  Bank Products to) confirm in writing the Administrative Agent’s authority to release particular  types or items of Collateral pursuant to this Section 7.07.   (c)   Unless all the Lenders otherwise consent in writing, any and all cash  collateral for the Obligations shall be released to the Borrower, to the extent not applied to the  Obligations, only if (i) the Commitments have been terminated (ii) all Obligations (other than  contingent indemnification obligations and Obligations in respect of Lender Rate Contracts and  Lender Bank Products except to the extent the Administrative Agent has received prior written  notice from the applicable Lender Party of any such Lender Rate Contract or the existence of such  Obligations in respect of Lender Bank Products) have been paid in full and are no longer  outstanding, including, without limitation, any L/C Obligations or any other contingent  obligations.   7.08.  Performance of Conditions.  For the purpose of determining fulfillment by the  Borrower and the other Loan Parties of conditions precedent specified in Sections 3.01 and 3.02  only, each Lender shall be deemed to have consented to, and approved or accepted, or to be  satisfied with each document or other matter sent by the Administrative Agent to such Lender for  





 






DB1/ 120286909.9       -133-    consent, approval, acceptance or satisfaction, or required under Article III to be consented to, or  approved by or acceptable or satisfactory to, that Lender, unless an officer of the Administrative  Agent who is responsible for the transactions contemplated by the Credit Documents shall have  received written notice from that Lender prior to the making of the requested Loan or the issuance  of the requested Letter of Credit specifying its objection thereto and either (i) such objection shall  not have been withdrawn by written notice to the Administrative Agent or (ii) in the case of any  condition to the making of a Loan, that Lender shall not have made available to the Administrative  Agent that Lender’s Revolving Proportionate Share of such Loan or Letter of Credit.    7.09.  The Administrative Agent in its Individual Capacity; Other Relationships.  The  Administrative Agent and its affiliates may make loans to, issue letters of credit for the account  of, accept deposits from and generally engage in any kind of banking or other business with any  Loan Party and its Affiliates as though the Administrative Agent were not the Administrative  Agent, the L/C Issuer or Swing Line Lender hereunder.  With respect to Loans, if any, made by  the Administrative Agent in its capacity as a Lender, the Administrative Agent in its capacity as a  Lender shall have the same rights and powers under this Agreement and the other Credit  Documents as any other Lender and may exercise the same as though it were not the  Administrative Agent, L/C Issuer or Swing Line Lender, and the terms “Lender” or “Lenders”  shall include the Administrative Agent in its capacity as a Lender.  The Administrative Agent shall  not be deemed to hold a fiduciary, trust or other special relationship with any Lender and no  implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into  this Agreement or otherwise exist against the Administrative Agent.    7.10.  Collateral Matters/Lender Rate Contracts/Lender Bank Products.  Each Lender on  its own behalf on behalf of its Affiliates understands and agrees that (a) counterparties to Lender  Rate Contracts and Lender Bank Products will have the benefits of the Collateral as set forth in  the Credit Documents so long as such counterparty is a Lender or an Affiliate of a Person that is a  Lender and (b) if the Obligations (excluding Obligations in respect of Lender Rate Contracts and  Lender Bank Products except to the extent the Administrative Agent has received prior written  notice from the applicable Lender Party of any such Lender Rate Contract or such Obligations in  respect of Lender Bank Products) are repaid as described in Section 7.07, the Collateral will be  released as described in Section 7.07 and such Lender and its Affiliates will no longer have the  benefits of the Collateral.    7.11.  Administrative Agent May File Proofs of Claim.  In case of the pendency of any  proceeding under any Debtor Relief Law or any other judicial proceeding relative to the Borrower,  the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation  shall then be due and payable as herein expressed or by declaration or otherwise and irrespective  of whether the Administrative Agent shall have made any demand on the Borrower) shall be  entitled and empowered, by intervention in such proceeding or otherwise:  (a)  to file and prove a claim for the whole amount of the principal and interest  owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing  and unpaid and to file such other documents as may be necessary or advisable in order to have the  claims of the Lenders and the Administrative Agent (including any claim for the reasonable  compensation, and out-of-pocket expenses, disbursements and advances of the Lenders and the  Administrative Agent and their respective agents and counsel in connection with the foregoing and  





 






DB1/ 120286909.9       -134-    all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections  2.02(i), 2.02(j), 2.05, 8.02 and 8.03) allowed in such judicial proceeding; and  (b)  to collect and receive any monies or other property payable or deliverable  on any such claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in  any such judicial proceeding is hereby authorized by each Lender to make such payments to the  Administrative Agent and, in the event that the Administrative Agent shall consent to the making  of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for  the reasonable compensation, and out-of-pocket expenses, disbursements and advances of the  Administrative Agent and its agents and counsel in connection with the foregoing, and any other  amounts due the Administrative Agent under Sections 2.05, 8.02 and 8.03.  Nothing contained  herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept  or adopt on behalf of any Lender or L/C Issuer any plan of reorganization, arrangement, adjustment  or composition affecting the Obligations or the rights of any Lender or L/C Issuer to authorize the  Administrative Agent to vote in respect of the claim of any Lender or L/C Issuer in any such  proceeding.    7.12.  Erroneous Payments.  (a) If the Administrative Agent notifies a Lender Party or other holder of any  Obligations (each, a “Lender Recipient”), or any Person who has received funds on behalf  of a Lender Recipient (any such Lender Recipient or other recipient, a “Payment  Recipient”), that the Administrative Agent has determined in its sole discretion (whether  or not after receipt of any notice under immediately succeeding clause (b)) that any funds  received by such Payment Recipient from the Administrative Agent or any of its Affiliates  were erroneously transmitted to, or otherwise erroneously received by, such Payment  Recipient (whether or not such error is known to any Payment Recipient) (any such funds,  whether received as a payment, prepayment or repayment of principal, interest, fees,  distribution or otherwise, individually and collectively, an “Erroneous Payment”) and  demands the return of such Erroneous Payment (or a portion thereof), such Erroneous  Payment shall at all times remain the property of the Administrative Agent and shall be  segregated by the Payment Recipient and held in trust for the benefit of the Administrative  Agent, and such Payment Recipient shall promptly, but in no event later than one Business  Day thereafter, return to the Administrative Agent the amount of any such Erroneous  Payment (or portion thereof) as to which such a demand was made, in same day funds (in  the currency so received), together with interest thereon in respect of each day from and  including the date such Erroneous Payment (or portion thereof) was received by such  Payment Recipient to the date such amount is repaid to the Administrative Agent in same  day funds at the greater of the Federal Funds Rate and a rate determined by the  Administrative Agent in accordance with banking industry rules on interbank  compensation from time to time in effect. A notice of the Administrative Agent to any  Payment Recipient under this clause (a) shall be conclusive, absent manifest error.  





 






DB1/ 120286909.9       -135-    (b) Without limiting immediately preceding clause (a), if any Payment  Recipient receives a payment, prepayment or repayment (whether received as a payment,  prepayment or repayment of principal, interest, fees, distribution or otherwise) from the  Administrative Agent (or any of its Affiliates) that (x) is in a different amount than, or on  a different date from, that specified in a notice of payment, prepayment or repayment sent  by the Administrative Agent (or any of its Affiliates) with respect to such payment,  prepayment or repayment, (y) was not preceded or accompanied by a notice of payment,  prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or  (z) such Payment Recipient otherwise becomes aware was transmitted, or received, in error  (in whole or in part):    (i) (A) in the case of immediately preceding clause (x) or (y), an error  shall be presumed to have been made (absent written confirmation from the  Administrative Agent to the contrary) or (B) in the case of immediately preceding  clause (z), an error has been made, in each case, with respect to such payment,  prepayment or repayment; and    (ii) such Payment Recipient shall promptly (and, in all events, within  one Business Day of its knowledge of such error) notify the Administrative Agent  of its receipt of such payment, prepayment or repayment, the details thereof (in  reasonable detail) and that it is so notifying the Administrative Agent pursuant to  this Section 7.12(b).    (c) Each Lender Recipient hereby authorizes the Administrative Agent to set  off, net and apply any and all amounts at any time owing to such Lender Recipient under  any Credit Document, or otherwise payable or distributable by the Administrative Agent  to such Lender Recipient from any source, against any amount due to the Administrative  Agent under immediately preceding clause (a) or under the indemnification provisions of  this Agreement.    (d) An Erroneous Payment shall not pay, prepay, repay, discharge or otherwise  satisfy any Obligation owed by the Borrower or any other Credit Party, except, in each  case, to the extent such Erroneous Payment is, and solely with respect to the amount of  such Erroneous Payment that is, comprised of funds paid or otherwise transferred by the  Borrower or any other Credit Party (or the Borrower or any Credit Party shall authorize the  same) to the Administrative Agent from the Borrower or any other Credit Party for the  purpose of making such Erroneous Payment (including, for the avoidance of doubt, the  proceeds of any financing or contribution incurred or obtained by the Borrower or any  other Credit Party).  (e) To the extent permitted by applicable law, each Payment Recipient hereby  agrees not to assert any right or claim to an Erroneous Payment, and hereby waives, and is  deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment,  including without limitation any defense based on “discharge for value” or any similar  





 






DB1/ 120286909.9       -136-    doctrine, with respect to any demand, claim or counterclaim by the Administrative Agent  for the return of any Erroneous Payment.  Each party’s agreements under this Section 7.12 shall survive the resignation or replacement of  the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender  or L/C Issuer, the termination of the Commitments, or the repayment, satisfaction or discharge of  any or all Obligations.  ARTICLE VIII. MISCELLANEOUS.  8.01.  Notices.   (a)  Except as otherwise provided herein, all notices, requests, demands,  consents, instructions or other communications to or upon the Borrower, any Lender or the  Administrative Agent under this Agreement or the other Credit Documents shall be in writing and  faxed, mailed, e-mailed or delivered, if to the Borrower or to the Administrative Agent, the  L/C Issuer or the Swing Line Lender, at its respective facsimile number, e-mail address or address  set forth below or, if to any Lender, at the address or facsimile number specified for such Lender  in Part B of Schedule I (or to such other facsimile number or address for any party as indicated in  any notice given by that party to the other parties).  All such notices and communications shall be  effective (i) when sent by an overnight courier service of recognized standing, on the second  Business Day following the deposit with such service; (ii) when mailed, first-class postage prepaid  and addressed as aforesaid through the United States Postal Service, upon receipt; (iii) when  delivered by hand, upon delivery; and (iv) when sent by facsimile transmission or e-mail, upon  confirmation of receipt; provided, however, that any notice delivered to the Administrative Agent,  the L/C Issuer or the Swing Line Lender under Article II shall not be effective until actually  received by such Person.   The Administrative Agent  and the L/C Issuer and the   Swing Line Lender:  U.S. Bank National Association   800 Nicollet Mall   Minneapolis, MN 55402   Attention:  Esther Herliana   Tel. No.  (503) 464-4863    Fax No.  (612) 303-3851   Email: agencyserviceslcmshared@usbank.com     The Borrower:  c/o ARC Document Solutions, Inc.  12657 Alcosta Blvd, Suite 200  San Ramon, CA 94583  Attention:  Chief Financial Officer  Tel. No.  (925) 949-5100   Fax No.  (925) 949-5101   E-mail: jorge.avalos@e-arc.com   





 






DB1/ 120286909.9       -137-      Each Notice of Borrowing, Notice of Conversion and Notice of Interest Period Selection shall be  given by the Borrower to the Administrative Agent’s office located at the address referred to above  during the Administrative Agent’s normal business hours; provided, however, that any such notice  received by the Administrative Agent after 11:00 a.m. on any Business Day shall be deemed  received by the Administrative Agent on the next Business Day.  In any case where this Agreement  authorizes notices, requests, demands or other communications by the Borrower to the  Administrative Agent or any Lender to be made by telephone or facsimile, the Administrative  Agent or any Lender may conclusively presume that anyone purporting to be a person designated  in any incumbency certificate or other similar document received by the Administrative Agent or  a Lender is such a person.  (b)  The Borrower agrees that the Administrative Agent may make any material  delivered by the Borrower to the Administrative Agent, as well as any amendments, waivers,  consents, and other written information, documents, instruments and other materials relating to the  Borrower or any other Loan Party, or any other materials or matters relating to this Agreement,  the other Credit Documents or any of the transactions contemplated hereby (collectively, the  “Communications”) available to the Lenders by posting such notices on an electronic delivery  system (which may be provided by the Administrative Agent, an Affiliate of the Administrative  Agent, or any Person that is not an Affiliate of the Administrative Agent), such as The Debt  Exchange, Inc., SyndTrak Online or a substantially similar electronic system (the “Platform”).   The Borrower acknowledges that (i) the distribution of material through an electronic medium is  not necessarily secure and that there are confidentiality and other risks associated with such  distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the  Administrative Agent nor any of its Affiliates warrants the accuracy, completeness, timeliness,  sufficiency, or sequencing of the Communications posted on the Platform.  The Administrative  Agent and its Affiliates expressly disclaim with respect to the Platform any liability for errors in  transmission, incorrect or incomplete downloading, delays in posting or delivery, or problems  accessing the Communications posted on the Platform and any liability for any losses, costs,  expenses or liabilities that may be suffered or incurred in connection with the Platform except for  liability determined by a final, non-appealable judgment of a court of competent jurisdiction to be  due to the Administrative Agent’s gross negligence or willful misconduct.  No warranty of any  kind, express, implied or statutory, including, without limitation, any warranty of merchantability,  fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or  other code defects, is made by the Administrative Agent or any of its Affiliates in connection with  the Platform.  Each Lender agrees that notice to it (as provided in the next sentence) (a “Notice”)  specifying that any Communication has been posted to the Platform shall for purposes of this  Agreement constitute effective delivery to such Lender of such information, documents or other  materials comprising such Communication.  Each Lender agrees (i) to notify, on or before the date  such Lender becomes a party to this Agreement, the Administrative Agent in writing of such  Lender’s e-mail address to which a Notice may be sent (and from time to time thereafter to ensure  that the Administrative Agent has on record an effective e-mail address for such Lender) and (ii)  that any Notice may be sent to such e-mail address.    8.02.  Expenses.  The Borrower shall pay within 30 days of written demand therefor  (accompanied by reasonable supporting documentation), whether or not any Credit Event occurs  hereunder, (a) all reasonable out-of-pocket fees and expenses, including syndication expenses,  





 






DB1/ 120286909.9       -138-    travel expenses, consultants’ and experts’ fees and expenses and all reasonable out-of-pocket fees  and expenses of one primary counsel, and, if reasonably necessary, one local counsel in each  relevant jurisdiction for the Administrative Agent and U.S. Bank taken as a whole, in each case,  incurred by the Administrative Agent and U.S. Bank in connection with the syndication of the  facilities provided hereunder, due diligence, the preparation, negotiation, execution and delivery  of, and the exercise of its duties under, this Agreement and the other Credit Documents, and the  preparation, negotiation, execution and delivery of amendments, waivers, consents, modifications  and supplements related to the Credit Documents, (b) all reasonable out-of-pocket fees and  expenses of the Administrative Agent and U.S. Bank in connection with the use of any Platform,  (c) any and all excise, sales or other similar taxes and (d) all reasonable out-of-pocket fees and  expenses, including travel expenses, consultants’ and experts’ fees and expenses and all reasonable  out-of-pocket fees and expenses of one primary counsel, and, if reasonably necessary, one local  counsel in each relevant jurisdiction for the Administrative Agent and the Lenders taken as a  whole, and in the case of an actual or perceived conflict of interest, one additional counsel in each  relevant jurisdiction to each affected party, in each case, incurred by the Administrative Agent and  the Lenders in the enforcement or attempted enforcement of any of the Obligations or Credit  Documents or in preserving any of the Administrative Agent’s or the Lenders’ rights and remedies  (including, without limitation, all such fees and expenses incurred in connection with any  “workout” or restructuring affecting the Credit Documents or the Obligations or any bankruptcy  or similar proceeding involving any Loan Party).  The obligations of the Borrower under this  Section 8.02 shall survive the payment and performance of the Obligations and the termination of  this Agreement.    8.03.  Indemnification.  To the fullest extent permitted by law, and in addition to any other  indemnity set forth in the Credit Documents, the Borrower agrees to (a) protect, indemnify, defend  and hold harmless the Administrative Agent, the Lead Arranger, the Syndication Agent, the  Lenders (including without limitation the L/C Issuer and the Swing Line Lender) and their  Affiliates and their respective directors, officers, employees, partners, attorneys, agents, trustees  and advisors (collectively, “Indemnitees”) from and against any and all liabilities, obligations,  losses, damages, penalties, judgments, costs, disbursements, or expenses of any kind or nature and  from any actions, suits, claims or demands (including in respect of or for all reasonable out-of- pocket fees and expenses of one primary counsel, and, if reasonably necessary, one local counsel  in each relevant jurisdiction for the Administrative Agent and the Lenders taken as a whole, and  in the case of an actual or perceived conflict of interest, one additional counsel in each relevant  jurisdiction to each affected Indemnitee) arising on account of or in connection with any matter or  thing or action or failure to act by Indemnitees, or any of them, arising out of or relating to (i) the  Credit Documents or any transaction contemplated thereby or related thereto, including the making  of any Loans, the funding of any Unreimbursed Amounts and any use by the Borrower of any  proceeds of the Loans or the Letters of Credit, (ii) any Environmental Damages, (iii) any claims  for brokerage fees or commissions in connection with the Credit Documents or any transaction  contemplated thereby or in connection with the Borrower’s failure to conclude any other financing,  and to reimburse each Indemnitee on demand for all legal and other expenses incurred in  connection with investigating or defending any of the foregoing, (iv) the use of any Platform or  (v) any and all excise, sales or other similar taxes which may be payable or determined to be  payable with respect to any of the Collateral or in connection with any of the transactions  contemplated by this Security Documents, including any penalties, claims or other losses resulting  from any delay in paying such excise, sales or other similar taxes and (b) reimburse each  





 






DB1/ 120286909.9       -139-    Indemnitee for all reasonable out-of-pocket fees and expenses of one primary counsel, and, if  reasonably necessary, one local counsel in each relevant jurisdiction for the Administrative Agent  and the Lenders taken as a whole, and in the case of an actual or perceived conflict of interest, one  additional counsel in each relevant jurisdiction to each affected Indemnitee in connection with  such Indemnitee’s investigation or defense of any of the foregoing; provided, however, that  nothing contained in this Section 8.03 shall obligate the Borrower to protect, indemnify, defend or  hold harmless any Indemnitee against any such liabilities, obligations, losses, damages, penalties,  judgments, costs, disbursements, or expenses to the extent determined by a final, non-appealable  judgment of a court of competent jurisdiction to have arisen out of (i) such Indemnitee’s own gross  negligence or willful misconduct, (ii) a material breach in bad faith of the obligations of such  Indemnitee under the Credit Documents or (iii) any dispute solely among Indemnitees, other than  any claims against the Administrative Agent or U.S. Bank in its respective capacity or in fulfilling  its role as Administrative Agent or Lead Arranger or any similar role under the Credit Documents,  and other than any claims arising out of any act or omission on the part of any Loan Party or any  Affiliate thereof.  In the case of any investigation, litigation or proceeding to which the indemnity  set forth in this Section 8.03 applies, such indemnity shall be effective whether or not such  investigation, litigation or proceeding is brought by the Borrower, a Loan Party, the holders of the  Borrower’s or any Loan Party’s Equity Securities, any creditor of the Borrower or another Loan  Party, an Indemnitee or any other Person and whether or not an Indemnitee is otherwise a party  thereto.  Upon receiving knowledge of any action, suit, claim or demand asserted by a third party  that the Administrative Agent, the Lead Arranger, the Syndication Agent or any Lender believes  is covered by this indemnity, the Administrative Agent, the Lead Arranger, the Syndication Agent  or such Lender, as applicable, shall give the Borrower notice of the matter with reasonable  promptness; provided, however, that the failure, or any delay, of the Administrative Agent, the  Lead Arranger, the Syndication Agent or such Lender to so notify the Borrower shall not relieve  the Borrower from its obligations under this Section 8.03 or result in any liability of the  Administrative Agent, the Lead Arrangers, the Syndication Agent or the Lenders.  In connection  with any such action, suit, claim or demand, the Administrative Agent may select one primary  counsel, and, if reasonably necessary, one local counsel in each relevant jurisdiction for the  Indemnitees taken as a whole, and in the case of an actual or perceived conflict of interest, one  additional counsel in each relevant jurisdiction to each affected Indemnitee, or request that the  Borrower defend such action, suit, claim or demand, with legal counsel satisfactory to the  Administrative Agent, in each case, at the Borrower’s sole cost and expense; provided, however,  that  the Administrative Agent, the Lead Arranger, the Syndication Agent or such Lender shall  have the right to defend, at the Borrower’s sole cost and expense, any such matter that is in  connection with a formal proceeding instituted by any Governmental Authority having authority  to regulate or oversee any aspect of the Administrative Agent’s, the Lead Arranger’s, the  Syndication Agent’s or such Lender’s business or that of its Affiliates.  The Administrative Agent,  the Lead Arranger, the Syndication Agent or such Lender may also require the Borrower to defend  the matter.  In the event an Indemnitee (or any of its officers, directors or employees) appears as a  witness in any action or proceeding brought against the Borrower in which an Indemnitee is not  named as a defendant, the Borrower agrees to reimburse such Indemnitee for all out-of-pocket  expenses incurred by it (including reasonable out-of-pocket fees and expenses of counsel) in  connection with its appearing as a witness.  No Indemnitee shall be liable for any damages arising  from the use by others of any information or other materials distributed to such unintended  recipients by such Indemnitee through telecommunications, electronic or other information  





 






DB1/ 120286909.9       -140-    transmission systems in connection with this Agreement or the other Credit Documents or the  transactions contemplated hereby or thereby.  The Borrower shall not, without the prior written  consent of each Indemnitee affected thereby (which consent will not be unreasonably withheld),  settle any threatened or pending claim or action that would give rise to the right of any Indemnitee  to claim indemnification hereunder unless such settlement (x) includes a full and unconditional  release of all liabilities arising out of such claim or action against such Indemnitee and (y) does  not include any statement as to or an admission of fault, culpability or failure to act by or on behalf  of any Indemnitee.  The Borrower agrees that no Indemnitee shall have any liability (whether direct  or indirect, in contract or tort, or otherwise) to the Borrower or its Affiliates or to their respective  equity holders or creditors arising out of, related to or in connection with any aspect of the  transactions contemplated hereby, except to the extent such liability is determined in a final,  nonappealable judgment by a court of competent jurisdiction to have resulted from such  Indemnitee’s own gross negligence or willful misconduct or a material breach in bad faith of the  obligations such Indemnitee under the Credit Documents.  All payment from the Borrower under  this Section 8.03 shall be due and payable within 30 days of written demand therefor (accompanied  by reasonable supporting documentation).  The obligations of the Borrower under this Section 8.03  shall survive the payment and performance of the Obligations and the termination of this  Agreement.    8.04.  Waivers; Amendments.  Any term, covenant, agreement or condition of this  Agreement or any other Credit Document may be amended or waived, and any consent under this  Agreement or any other Credit Document may be given, if such amendment, waiver or consent is  in writing and is signed by the Borrower and the Required Lenders (or the Administrative Agent  on behalf of the Required Lenders with the written approval of the Required Lenders) or all of the  Lenders if expressly required herein; provided, however, that:  (a)  Any amendment, waiver or consent which would (i) amend the definition  of “Required Lenders” or “Required Revolving Lenders”, or modify in any other manner the  number or percentage of the Lenders required to make any determinations or to waive any rights  under, or to modify any provision of, this Agreement (other than “Required Lenders” or “Required  Revolving Lenders”), (ii) increase the Total Revolving Loan Commitment (except as contemplated  by Section 2.17), the Total Term Loan Commitment or the Incremental Term Loan Commitment  of any Lender, (iii) extend any Maturity Date, (iv) reduce the principal of or interest on any Loan  or L/C Borrowing or any fees or other amounts payable for the account of the Lenders hereunder,  (v) extend any date fixed for any payment of the principal of or interest on any Loans or any fees  or other amounts payable for the account of the Lenders, (vi) amend this Section 8.04 or  Section 2.10 or (vii) increase the dollar amounts in Section 2.17, must be in writing and signed or  approved in writing by all of the Lenders directly adversely affected thereby.  (b)   Any amendment, waiver or consent which releases any Credit Party or all  or substantially all of the Collateral must be in writing and signed or approved in writing by all  Lenders and, to the extent not included therein, all Lender Rate Contract Counterparties that have  provided the Administrative Agent with prior written notice of their status as such, except that  (i) any such release in connection with a sale or other disposition of Collateral authorized by  Section 5.02(c) may be executed by the Administrative Agent and shall not require the approval  of any Lenders and (ii) any amendment, waiver or consent which modifies the terms of  





 






DB1/ 120286909.9       -141-    Section 5.02(c) (including any modification relating to the prepayment of proceeds from any such  sale or other disposition) shall require the consent of the Required Lenders;   (c)  Any amendment, waiver or consent which increases or decreases the  “Revolving Proportionate Share of any Lender must be in writing and signed by such Lender (other  than any such document that implements the provisions of Section 2.17);   (d)  Any amendment, waiver or consent which affects the rights or duties of the  Swing Line Lender under this Agreement must be in writing and signed by the Swing Line Lender;  (e)  Any amendment, waiver or consent which affects the rights of U.S. Bank  under Section 8.02 must be in writing and signed by U.S. Bank; and any amendment, waiver or  consent which affects the rights of the Lead Arranger or the Syndication Agent under Section 8.03  or this Section 8.04 must be in writing and signed by the Lead Arranger or the Syndication Agent,  as applicable;  (f)  Any amendment, waiver or consent which would amend the application of  proceeds set forth in Section 6.02 must be in writing and signed or approved in writing by all  Lenders and, to the extent not included therein, all Lender Rate Contract Counterparties that have  provided the Administrative Agent with prior written notice of their status as such;  (g)   Any amendment, waiver or consent which affects the rights or duties of the  L/C Issuer under this Agreement or any Letter of Credit Application relating to any Letter of Credit  issued or to be issued by it must be in writing and signed by the L/C Issuer; and  (h)   Any amendment, waiver or consent which affects the rights or obligations  of the Administrative Agent must be in writing and signed by the Administrative Agent;   Any amendment, modification, supplement, termination, waiver or consent pursuant to this  Section 8.04 shall apply equally to, and shall be binding upon, each of the Administrative Agent,  and the Lenders.    Notwithstanding anything to the contrary herein, any Defaulting Lender shall not have any right  to approve or disapprove any amendment, waiver or consent hereunder, except that the  (i) Revolving Proportionate Share of such Defaulting Lender may not be increased, (ii) the  Maturity Date of any Loans of such Defaulting Lender, as applicable, may not be extended, and  (iii) principal and interest owing to such Defaulting Lender may not be reduced, in each case  without the consent of such Defaulting Lender.  This paragraph is referred to as the “Defaulting  Lender Amendment Paragraph.”  except that (a) the consent of each Lender shall be required with respect to (i) the waiver of certain  conditions precedent to the initial credit extension under the Senior Credit Facility, (ii) the  amendment of certain of the pro rata sharing provisions, (iii) the amendment of the voting  percentages of the Lenders, (iv) the release of all or substantially all of the collateral securing the  Senior Credit Facility, and (v) the release of all or substantially all of the value of the guaranties  of the Borrower’s obligations made by the Guarantors, and (b) the consent of each Lender affected  thereby shall be required with respect to (i) increases or extensions in the commitment of such  





 






DB1/ 120286909.9       -142-    Lender, (ii) reductions of principal, interest or fees, and (iii) extensions of scheduled maturities or  times for payment.  For the avoidance of doubt, the application of the provisions of Section 2.01(b) of the Guaranty or  any similar provisions in any other Credit Document: (1) is automatic to the extent applicable, (2)  is not an amendment or modification of the Guaranty or any other Credit Document and (3) does  not require the consent or approval of any Person.  In addition, notwithstanding the foregoing, (w) any Incremental Term Loan Amendment may,  without the consent of any Lenders other than the Incremental Term Lenders (if any) and New  Lenders (if any) advancing the Incremental Term Loans subject thereto, effect such amendments  to this Agreement and the other Credit Documents as may be necessary or appropriate, in the  reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of the  Incremental Term Loans (subject to the requirements and limitations set forth in Section 2.17),  (x) each of the Fee Letters may only be amended, modified or changed, or rights or privileges  thereunder waived, only by the parties thereto in accordance with the respective provisions thereof  and (y) each Lender Rate Contract and agreement with respect to Lender Bank Products may only  be amended, modified or changed, or rights or privileges thereunder waived, only by the parties  thereto in accordance with the respective provisions thereof.  Notwithstanding the foregoing, if the Administrative Agent and the Borrower shall have jointly  identified an obvious error, or any error or omission of a purely technical nature, in the Credit  Documents, then the Administrative Agent and the Borrower shall be permitted to amend such  provision without further action or consent of any other party if the same is not objected to in  writing by the Required Lenders to the Administrative Agent within five (5) Business Days  following receipt of notice thereof.  No failure or delay by the Administrative Agent or any Lender in exercising any right under this  Agreement or any other Credit Document shall operate as a waiver thereof or of any other right  hereunder or thereunder nor shall any single or partial exercise of any such right preclude any other  further exercise thereof or of any other right hereunder or thereunder.  Unless otherwise specified  in such waiver or consent, a waiver or consent given hereunder shall be effective only in the  specific instance and for the specific purpose for which given.  The Lenders may condition the  giving or making of any amendment, waiver or consent of any term, covenant, agreement or  condition of this Agreement or any other Credit Document on payment of a fee by the Borrower  (which may be payable only to the Lenders that consent to such matters within specified periods).  Notwithstanding anything to the contrary contained herein or in any other Credit Document, the  authority to enforce rights and remedies hereunder and under the other Credit Documents against  the Borrower shall be vested exclusively in, and all actions and proceedings at law in connection  with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent  in accordance with Section 6.02 for the benefit of all the Lenders; provided, however, that the  foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the  rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent)  hereunder and under the other Credit Documents, (b) the L/C Issuer from exercising the rights and  remedies that inure to its benefit (solely in its capacity as L/C Issuer) hereunder and under the other  Credit Documents or (c) any Lender from exercising setoff or offset rights in accordance with  





 






DB1/ 120286909.9       -143-    Section 8.06 (subject to the terms of Section 2.10); and provided, further, that if at any time there  is no Person acting as Administrative Agent hereunder and under the other Credit Documents, then  (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent  pursuant to Section 6.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the  preceding proviso and subject to Section 2.10, any Lender may, with the consent of the Required  Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.     8.05.  Successors and Assigns.  (a)  Binding Effect.  This Agreement and the other Credit Documents shall be  binding upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, all  future holders of the Obligations and their respective successors and permitted assigns, except that  no Loan Party may assign or transfer any of its rights or obligations under any Credit Document   (except in connection with a merger or consolidation permitted by Section 5.02(d)) without the  prior written consent of the Administrative Agent and each Lender.  Any purported assignment or  transfer by a Loan Party in violation of the foregoing shall be null and void.  (b)  Participations.  Any Lender may, without notice to or consent of the  Borrower, at any time sell to one or more banks or other financial institutions (“Participants”)  participating interests in all or a portion of any Loan owing to such Lender, any Note held by such  Lender, any Commitment of such Lender or any other interest of such Lender under this  Agreement and the other Credit Documents (including for purposes of this Section 8.05(b),  participations in L/C Obligations and in Swing Line Loans); provided that notwithstanding the  foregoing, no Participant shall be a Loan Party or an Affiliate of a Loan Party.  In the event of any  such sale by a Lender of participating interests, such Lender’s obligations under this Agreement  shall remain unchanged, such Lender shall remain solely responsible for the performance thereof,  such Lender shall remain the holder of its Notes for all purposes under this Agreement and the  Borrower 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.  Any agreement  pursuant to which any such sale is effected may require the selling Lender to obtain the consent of  the Participant in order for such Lender to agree in writing to any amendment, waiver or consent  of a type specified in Section 8.04(a)(i)-(v) or Section 8.04(b) but may not otherwise require the  selling Lender to obtain the consent of such Participant to any other amendment, waiver or consent  hereunder.  The Borrower agrees that if amounts outstanding under this Agreement and the other  Credit Documents are not paid when due (whether upon acceleration or otherwise), each  Participant shall, to the fullest extent permitted by law, be deemed to have the rights of setoff and  offset in respect of its participating interest in amounts owing under this Agreement and any other  Credit Documents to the same extent as if the amount of its participating interest were owing  directly to it as a Lender under this Agreement or any other Credit Documents; provided, however,  that (i) no Participant shall exercise any rights under this sentence without the consent of the  Administrative Agent, (ii) no Participant shall have any rights under this sentence which are  greater than those of the selling Lender and (iii) such rights of setoff and offset shall be subject to  the obligation of such Participant to share the payment so obtained with all of the Lenders as  provided in Section 2.10(b).  The Borrower also agrees that any Lender which has sold any  participating interest in its Commitments or Loans in accordance with this Section 8.05(b) shall,  notwithstanding any such sale, be entitled to the full benefits accorded such Lender under Sections  2.11, 2.12 and 2.13, as if such Lender had not made such sale, but such Lender shall not be entitled  





 






DB1/ 120286909.9       -144-    to any greater payment under such Sections than it would have been entitled to receive had it not  sold such participation.  Each Lender that sells a participation shall, acting solely for this purpose  as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and  address of each Participant and the principal amounts (and stated interest) of each Participant’s  interest in the Loans or other obligations under the Credit Documents (the “Participant Register”);  provided that no Lender shall have any obligation to disclose all or any portion of the Participant  Register (including the identity of any Participant or any information relating to a Participant's  interest in any commitments, loans, letters of credit or its other obligations under any Credit  Document) to any Person except to the extent that such disclosure is necessary to establish that  such commitment, loan, letter of credit or other obligation is in registered form under Section  5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall  be conclusive absent manifest error, and such Lender shall treat each Person whose name is  recorded in the Participant Register as the owner of such participation for all purposes of this  Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the  Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for  maintaining a Participant Register.  (c)  Assignments.  Any Lender may, at any time, sell and assign to any Lender  (other than a Defaulting Lender) or any Eligible Assignee (individually, an “Assignee Lender”) all  or a portion of its rights and obligations under this Agreement and the other Credit Documents  (including for purposes of this Section 8.05(c), participations in L/C Obligations and in Swing  Line Loans) (such a sale and assignment to be referred to herein as an “Assignment”) pursuant to  an assignment agreement in substantially the form of Exhibit H (an “Assignment Agreement”),  executed by each Assignee Lender and such assignor Lender (an “Assignor Lender”) and delivered  to the Administrative Agent for its acceptance and recording in the Register; provided, however,  that:    (i)  Each Assignee Lender that is a Revolving Lender shall assume, as a  condition to the effectiveness of such assignment, any continuing obligation to purchase  participation interests in any L/C Obligations or any Swing Line Loans then outstanding;  (ii)  If no Event of Default has occurred and is continuing, without the  written consent of the Borrower (which consent shall not be unreasonably withheld or delayed),  no Lender may make any Assignment of Term Loans, Revolving Loan Commitments, Revolving  Loans, L/C Advances or Swing Line Loans to any Assignee Lender which is not, immediately  prior to such Assignment, a Lender hereunder or an Affiliate or Approved Fund as to such Lender;  provided that the Borrower shall be deemed to have consented to any such assignment unless the  Borrower shall object thereto by written notice to the Administrative Agent within five (5)  Business Days after having received notice thereof;    (iii)  Without the written consent of the Administrative Agent, the  L/C Issuer and the Swing Line Lender (which consent shall not be unreasonably withheld or  delayed), no Lender may make any Assignment of Revolving Loan Commitments, Revolving  Loans, L/C Advances or Swing Line Loans to any Assignee Lender which is not, immediately  prior to such Assignment, a Revolving Lender hereunder or an Affiliate thereof or an Approved  Fund as to such Revolving Lender;   





 






DB1/ 120286909.9       -145-    (iv)  Without the written consent of the Administrative Agent (which  consent shall not be unreasonably withheld or delayed), no Lender may make any Assignment of  an unfunded portion of any Term Loan Commitment to any Assignee Lender which is not,  immediately prior to such Assignment, a Term Lender with an unfunded portion of any Term Loan  Commitment or an Affiliate thereof or an Approved Fund as to such Lender;   (v)   Without the written consent of the Administrative Agent (which  consent shall not be unreasonably withheld or delayed), no Lender may make any Assignment of  Term Loans or Incremental Term Loans to any Assignee Lender which is not, immediately prior  to such Assignment, a Lender hereunder or an Affiliate thereof or an Approved Fund as to such  Lender;   (vi)  Reserved; and  (vii)   Without the written consent of (1) the Administrative Agent and (2)  if no Event of Default has occurred and is continuing, the Borrower, no Lender may make any  Assignment to any Assignee Lender (I) with respect to any Assignment of Revolving Loans or a  Revolving Loan Commitment, that is less than Five Million Dollars ($5,000,000) in the aggregate,  (II) with respect to any Assignment of Term Loans, that is less than One Million Dollars  ($1,000,000) in the aggregate, (II) with respect to any Assignment of Incremental Term Loans,  that is less than One Million Dollars ($1,000,000) in the aggregate, or (IV) if, after giving effect  to such Assignment, the Revolving Loan Commitment of such Lender or such Assignee Lender  would be less than Five Million Dollars ($5,000,000) or the Term Loans of such Lender or such  Assignee Lender would be less than One Million Dollars ($1,000,000) or the Incremental Term  Loans of such Lender or such Assignee Lender would be less than One Million Dollars  ($1,000,000) (except that, in each case, a Lender may make an Assignment which reduces its  Revolving Loan Commitment, Term Loans or Incremental Term Loans to zero without the written  consent of the Borrower and the Administrative Agent except to the extent such written consent is  required by Section 8.05(c)(ii), (iii), (iv), (v) or (vi) above).  Upon such execution, delivery, acceptance and recording of each Assignment Agreement, from  and after the Assignment Effective Date determined pursuant to such Assignment Agreement,  (A) each Assignee Lender thereunder shall be a Lender hereunder with a Revolving Loan  Commitment and Loans as set forth on Attachment 1 to such Assignment Agreement and shall  have the rights, duties and obligations of such a Lender under this Agreement and the other Credit  Documents, and (B) the Assignor Lender thereunder shall be a Lender with a Revolving Loan  Commitment and Loans as set forth on Attachment 1 to such Assignment Agreement or, if the  Revolving Loan Commitment and Loans of the Assignor Lender have been reduced to $0, the  Assignor Lender shall cease to be a Lender and to have any obligation to make any Loan; provided,  however, that any such Assignor Lender which ceases to be a Lender shall continue to be entitled  to the benefits of any provision of this Agreement which by its terms survives the termination of  this Agreement; provided further, that except to the extent otherwise expressly agreed by the  affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any  claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  Each  Assignment Agreement shall be deemed to amend Schedule I to the extent, and only to the extent,  necessary to reflect the addition of each Assignee Lender, the deletion of each Assignor Lender  which reduces its Revolving Loan Commitment and Loans to $0 and the resulting adjustment of  





 






DB1/ 120286909.9       -146-    Revolving Loan Commitment and Loans arising from the purchase by each Assignee Lender of  all or a portion of the rights and obligations of an Assignor Lender under this Agreement and the  other Credit Documents.  On or prior to the Assignment Effective Date determined pursuant to  each Assignment Agreement, the Borrower, at its own expense, shall execute and deliver to the  Administrative Agent, in exchange for the surrendered Revolving Loan Note or Term Loan Note,  if any, of the Assignor Lender thereunder, a new Revolving Loan Note or Term Loan Note to each  Assignee Lender thereunder that requests such a note (with each new Revolving Loan Note to be  in an amount equal to the Revolving Loan Commitment assumed by such Assignee Lender and  each new Term Loan Note to be in the original principal amount of each Term Loan then held by  such Assignee Lender) and, if the Assignor Lender is continuing as a Lender hereunder, a new  Revolving Loan Note or Term Loan Note to the Assignor Lender if so requested by such Assignor  Lender (with the new Revolving Loan Note to be in an amount equal to the Revolving Loan  Commitment retained by it and the new Term Loan Note to be in the original principal amount of  the Term Loan retained by it.  Each such new Revolving Loan Note and Term Loan Note shall be  dated the Closing Date (or such other date acceptable to the applicable Lender), and each such new  Note shall otherwise be in the form of the Note replaced thereby.  The Notes surrendered by the  Assignor Lender shall be returned by the Administrative Agent to the Borrower marked  “Replaced”.  Each Assignee Lender which was not previously a Lender hereunder and which is  not organized under the laws of the United States or a state thereof shall, within three (3) Business  Days of becoming a Lender, deliver to the Borrower and the Administrative Agent (A) two duly  completed copies of United States Internal Revenue Service Form W-8BEN, Form W-8BEN-E or  Form W-8ECI (or successor applicable form), as the case may be, certifying in each case that such  Lender is entitled to receive payments under this Agreement without deduction or withholding of  any United States federal income taxes or (B) in the case of a Lender that is a Non-Bank Lender,  (i) a Non-Bank Certificate and (ii) two accurate and complete original signed copies of United  States Internal Revenue Service Form W-8BEN or Form W-8BEN-E (with respect to the portfolio  interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to  a complete exemption from United States withholding tax with respect to payments of interest to  be made under this Agreement, but only if and to the extent such Lender is legally entitled to do  so.    Notwithstanding anything to the contrary contained herein, if at any time U.S. Bank assigns all of  its Commitments and Loans pursuant to Section 8.05(c) above, U.S. Bank may, upon 30 days’  notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon five Business Days’  notice to the Borrower, terminate the Swing Line.  In the event of any such resignation as  L/C Issuer or termination of the Swing Line, the Borrower shall be entitled to appoint from among  the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no  failure by the Borrower to appoint any such successor shall affect the resignation of U.S. Bank as  L/C Issuer or the termination of the Swing Line, as the case may be.  U.S. Bank shall retain all the  rights and obligations of the L/C Issuer hereunder with respect to all Letters of Credit outstanding  as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto  (including the right to require the Lenders to make Base Rate Loans or fund participations in  Unreimbursed Amounts pursuant to Section 2.02(c)). If U.S. Bank terminates the Swing Line, it  shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing  Line Loans made by it and outstanding as of the effective date of such termination, including the  right to require the Lenders to make Base Rate Loans or fund participations in outstanding Swing  Line Loans pursuant to Section 2.03(c).   





 






DB1/ 120286909.9       -147-    In connection with any assignment of rights and obligations of any Defaulting Lender hereunder,  no such assignment shall be effective unless and until, in addition to the other conditions thereto  set forth herein, the parties to the assignment shall make such additional payments to the  Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate  (which may be outright payment, purchases by the assignee of participations or subparticipations,  or other compensating actions, including funding, with the consent of the Borrower and the  Administrative Agent, the applicable pro rata share of Loans previously requested but not funded  by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably  consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender  to the Administrative Agent or any Lender hereunder (and interest accrued thereon), and (y)  acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of  Credit and Swing Line Loans in accordance with its Revolving Proportionate Share.   Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any  Defaulting Lender hereunder shall become effective under Governmental Rules without  compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed  to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.  (d)  Register.  The Administrative Agent (the “Agent”), shall use commercially  reasonable efforts to maintain a register at its address referred to in Section 8.01 (the “Register”)  on which it will record the Commitments from time to time of each of the Lenders, the Loans made  by, and Letters of Credit of, each of the Lenders and each repayment in respect of the principal  amount of, and interest payable with respect to, the Loans and Letters of Credit of each Lender.   Failure to make any such recordation, or any error in such recordation shall not affect the  Borrower’s obligations in respect of such Loans or Letters of Credit.  With respect to any Lender,  the transfer of the Commitment of such Lender and the rights to the principal of, and interest on,  any Loan or Letter of Credit made pursuant to such Commitment shall not be effective until such  transfer is recorded on the Register maintained by the Agent.  The ownership of such Commitment,  Loans and Letters of Credit prior to such recordation and all amounts owing to the transferor with  respect to such Commitment, Loans and Letters of Credit shall remain owing to the transferor.  In  addition, the Administrative Agent shall maintain on the Register information regarding the  designation and revocation of designation, of any Lender as a Defaulting Lender.  The registration  of an assignment or transfer of all or part of any Commitment, Loan or Letter of Credit shall be  recorded by the Agent on the Register only upon the acceptance by the Agent of a properly  executed and delivered Assignment Agreement pursuant to Section 8.05(c).  Coincident with the  delivery of such an Assignment Agreement to the Agent for acceptance and registration of  assignment or transfer of all or part of a Loan, or as soon thereafter as practicable, the assigning or  transferor Lender shall surrender the Note evidencing such Loan, and thereupon one or more new  Notes in the same aggregate principal amount shall be issued to assigning or transferor Lender.   The Register shall be available for inspection by the Borrower or any Lender during the regular  business hours of the Administrative Agent after reasonable notice from the Borrower or such  Lender, and after receiving such notice the Administrative Agent may, at its option, send the  Borrower or such Lender a copy of the Register in lieu of such inspection.   (e)  Registration.  Upon its receipt of an Assignment Agreement executed by an  Assignor Lender and an Assignee Lender (and, to the extent required by Section 8.05(c), by the  Borrower and the Administrative Agent) together with payment to the Administrative Agent by  Assignor Lender of a registration and processing fee of $3,500, the Administrative Agent shall  





 






DB1/ 120286909.9       -148-    (i) promptly accept such Assignment Agreement and (ii) on the Assignment Effective Date  determined pursuant thereto record the information contained therein in the Register and give  notice of such acceptance and recordation to the Lenders and the Borrower.  The Administrative  Agent may, from time to time at its election, prepare and deliver to the Lenders and the Borrower  a revised Schedule I reflecting the names, addresses and respective Commitments or Loans of all  Lenders then parties hereto (and in any event Schedule I shall be deemed amended to reflect any  assignment consummated pursuant to the terms of this Agreement or upon any Lender becoming  a party to this Agreement by any other means (including pursuant to a joinder as contemplated by  Section 2.17).     (f)  Confidentiality.  Subject to Section 8.10, the Administrative Agent and the  Lenders may disclose the Credit Documents and any financial or other information relating to the  Loan Parties to each other or to any potential Participant or Assignee Lender.   (g)  Pledges to Federal Reserve Banks; Other Pledges of Notes.   Notwithstanding any other provision of this Agreement, any Lender may at any time assign all or  a portion of its rights under this Agreement and the other Credit Documents to a Federal Reserve  Bank.  No such assignment shall relieve the assigning Lender from its obligations under this  Agreement and the other Credit Documents.  In the case of any Lender that is a Fund, such Lender  may (i) assign or pledge all or any portion of the Loans held by it (and Notes evidencing such  Loans) to the trustee under any indenture to which such Lender is a party in support of its  obligations to the trustee for the benefit of the applicable trust beneficiaries, or (ii) pledge all or  any portion of the Loans held by it (and Notes evidencing such Loans) to its lenders for collateral  security purpose; provided, however, no such pledgee under clause (i) or (ii) shall become a Lender  hereunder (by foreclosure, transfer in lieu of foreclosure or otherwise) unless and until it complies  with the assignment provisions of this Agreement to become a Lender hereunder and has received  all consents required hereunder.  (h)  True Sale.  All participations in the Obligations or any portion thereof,  whether pursuant to provisions hereof or otherwise, are intended to be “true sales” for purposes of  financial reporting in accordance with Statement of Financial Accounting Standards No. 140.   Accordingly, the L/C Issuer or any Lender that sells or is deemed to have sold a participation in  the Obligations (including any participations in Letters of Credit and/or Loans, any participations  described in Section 8.05(b) above and any participations under Section 2.10(b)) (each a  “Participation Seller”) hereby agrees that if such Participation Seller receives any payment in  respect of the Obligations to which such participation relates through the exercise of setoff or offset  by such Participation Seller against the Borrower or any other obligor, then such Participation  Seller agrees to promptly pay to the participating party in such participation such participant’s pro  rata share of such setoff or offset (after giving effect to any sharing with the Lenders under  Section 2.10(b) hereof).  (i)  Additional Forms.  If required by applicable Governmental Rules or  otherwise deemed prudent by the Administrative Agent, the Borrower and each Lender shall  prepare, execute and deliver a completed Form U-1 (or Form G-3, as applicable) for each Lender  (and, if applicable, for each Participant, in which case the applicable Lender shall cause its  Participant to satisfy the requirements of this Section).  





 






DB1/ 120286909.9       -149-    8.06.  Setoff; Security Interest.  (a)  Setoffs By Lenders.  In addition to any rights and remedies of the Lenders  provided by law, each Lender shall have the right, with the prior consent of the Administrative  Agent but without prior notice to or consent of the Borrower, any such notice and consent being  expressly waived by the Borrower to the extent permitted by applicable Governmental Rules, upon  the occurrence and during the continuance of an Event of Default, to setoff or offset and apply  against the Obligations any amount owing from such Lender to the Borrower; provided, however,  that in the event that any Defaulting Lender shall exercise any such right of setoff or offset, (i) all  amounts so setoff or offset shall be paid over immediately to the Administrative Agent for further  application in accordance with the provisions of Section 2.16 and, pending such payment, shall be  segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit  of the Administrative Agent and the Lenders, and (ii) the Defaulting Lender shall provide promptly  to the Administrative Agent a statement describing in reasonable detail the Obligations owing to  such Defaulting Lender as to which it exercised such right of setoff or offset.  The aforesaid right  of setoff or offset may be exercised by such Lender against the Borrower or against any trustee in  bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver or execution,  judgment or attachment creditor of the Borrower or against anyone else claiming through or  against the Borrower or such trustee in bankruptcy, debtor in possession, assignee for the benefit  of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that  such right of setoff or offset may not have been exercised by such Lender at any prior time.  Each  Lender agrees promptly to notify the Borrower after any such setoff or offset and application made  by such Lender; provided, that the failure to give such notice shall not affect the validity of such  setoff or offset and application.    (b)   Security Interest.  As security for the Obligations, the Borrower hereby  grants to the Administrative Agent and each Lender, for the benefit of the Administrative Agent  and the Lenders, a continuing security interest in any and all deposit accounts or moneys of the  Borrower now or hereafter maintained with such Lender.  Each Lender shall have all of the rights  of a secured party with respect to such security interest.  8.07.  No Third Party Rights.  Nothing expressed in or to be implied from this Agreement  is intended to give, or shall be construed to give, any Person, other than the parties hereto and their  permitted successors and assigns hereunder, any benefit or legal or equitable right, remedy or claim  under or by virtue of this Agreement or under or by virtue of any provision herein.   8.08.  Partial Invalidity.  If at any time any provision of this Agreement is or becomes  illegal, invalid or unenforceable in any respect under the law or any jurisdiction, neither the  legality, validity or enforceability of the remaining provisions of this Agreement nor the legality,  validity or enforceability of such provision under the law of any other jurisdiction shall in any way  be affected or impaired thereby.   8.09.  Jury Trial.  EACH OF THE BORROWER, THE LENDERS AND THE  ADMINISTRATIVE AGENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE  GOVERNMENTAL RULES, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL  BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR  





 






DB1/ 120286909.9       -150-    COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY  OTHER CREDIT DOCUMENT.   8.10.  Confidentiality.  None of the Administrative Agent, the Lead Arranger, the  Syndication Agent or any Lender shall disclose to any Person any Confidential Information, except  that the Administrative Agent, the Lead Arranger, the Syndication Agent and any Lender may  disclose any such information (a) to its own directors, officers, employees, auditors, counsel and  other advisors and to its Affiliates, provided such Person shall be subject to the confidentiality  obligations of (or confidentiality obligations substantially similar to) this Section 8.10; (b) to the  Administrative Agent, the Lead Arranger, the Syndication Agent or any other Lender; (c) which  is otherwise known or available to the public or which is otherwise known to the receiving party  prior to the time such Confidential Information was delivered to the Administrative Agent, the  Lead Arranger, the Syndication Agent or any Lender, other than by virtue of a breach of this  Section 8.10; (d) if required or appropriate in any report, statement or testimony submitted to any  Governmental Authority having or claiming to have jurisdiction over the Administrative Agent,  the Lead Arranger, the Syndication Agent or such Lender (including as required in connection  with pledges and assignments permitted under Section 8.05 (g)); (e) if required in response to any  summons or subpoena; (f) in connection with any enforcement by the Administrative Agent, the  Lead Arranger, the Syndication Agent or the Lenders of their rights under this Agreement or the  other Credit Documents or any litigation among the parties relating to the Credit Documents or  the transactions contemplated thereby; (g) to comply with any Requirement of Law applicable to  the Administrative Agent, the Lead Arranger, the Syndication Agent or such Lender; (h) to any  Assignee Lender or Participant or any prospective Assignee Lender or Participant; provided that  such Assignee Lender or Participant or prospective Assignee Lender or Participant agrees to be  bound by the provisions of (or provisions substantially similar to) this Section 8.10; or (i)  otherwise with the prior consent of such Loan Party; provided, however, that in the case of  disclosure pursuant to clauses (e), (f) and (g), the Administrative Agent, the Lead Arranger, the  Syndication Agent or such Lender, as applicable, shall (so long as not in contravention of any  Requirements of Law or any directive of a Governmental Authority) use commercially reasonable  efforts to notify the Borrower prior to any such disclosure; and provided, further, that any failure  to provide such notice and any disclosure made in violation of this Agreement shall not affect the  obligations of the Loan Parties under this Agreement and the other Credit Documents.  Nothing in  this Section 8.10 shall limit the use of any Platform as described in Section 8.01(b).    8.11.  Counterparts.  This Agreement may be executed in any number of identical  counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a  complete, executed original for all purposes.  Transmission by facsimile, “pdf” or similar  electronic copy of an executed counterpart of this Agreement shall be deemed to constitute due  and sufficient delivery of such counterpart.  Any party hereto may request an original counterpart  of any party delivering such electronic counterpart.  The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or  relating to this Agreement or any  document to be signed in connection with this Agreement and  the transactions contemplated hereby shall be deemed to include electronic signatures, deliveries  or the keeping of records in electronic form, each of which shall be of the same legal effect, validity  or enforceability as a manually executed signature, physical delivery thereof or the use of a paper- based recordkeeping system, as the case may be, to the extent and as provided for in any applicable  





 






DB1/ 120286909.9       -151-    law, including the federal Electronic Signatures in Global and National Commerce Act, the New  York State Electronic Signatures and Records Act, or any other state laws based on the Uniform  Electronic Transactions Act, and the parties to this Agreement consent to conduct the transactions  contemplated hereunder by electronic means.  8.12.  Consent to Jurisdiction.  Each of the parties to this Agreement irrevocably submits  to the non-exclusive jurisdiction of the courts of the State of New York and the courts of the United  States located in New York, New York and agrees that any legal action, suit or proceeding arising  out of or relating to this Agreement or any of the other Credit Documents may be brought against  such party in any such courts.  Final judgment against any party in any such action, suit or  proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the  judgment, a certified or exemplified copy of which shall be conclusive evidence of the judgment,  or in any other manner provided by law.  Nothing in this Section 8.12 shall affect the right of any  party to commence legal proceedings or otherwise sue any other party in any other appropriate  jurisdiction, or concurrently in more than one jurisdiction, or to serve process, pleadings and other  papers upon any other party in any manner authorized by the laws of any such jurisdiction.  The  Borrower agrees that process served either personally or by registered mail shall, to the extent  permitted by law, constitutes adequate service of process in any such suit.  Each of the parties to  this Agreement irrevocably waives to the fullest extent permitted by applicable Governmental  Rules (a) any objection which it may have now or in the future to the laying of the venue of any  such action, suit or proceeding in any court referred to in the first sentence above; (b) any claim  that any such action, suit or proceeding has been brought in an inconvenient forum; (c) its right of  removal of any matter commenced by any other party in the courts of the State of New York or to  any court of the United States; (d) any immunity which it or its assets may have in respect of its  obligations under this Agreement or any other Credit Document from any suit, execution,  attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or  other legal process; and (e) any right it may have to require the moving party in any suit, action or  proceeding brought in any of the courts referred to above arising out of or in connection with this  Agreement or any other Credit Document to post security for the costs of any party or to post a  bond or to take similar action.  8.13.  Relationship of Parties.  The relationship between the Borrower, on the one hand,  and the Lenders and the Administrative Agent, on the other, is, and at all times shall remain, solely  that of borrower and lenders.  Neither the Lenders nor the Administrative Agent shall under any  circumstances be construed to be partners or joint venturers of the Borrower or any of its Affiliates;  nor shall the Lenders nor the Administrative Agent under any circumstances be deemed to be in a  relationship of confidence or trust or a fiduciary relationship with the Borrower or any of its  Affiliates, or to owe any fiduciary duty to the Borrower or any of its Affiliates.  The Lenders and  the Administrative Agent do not undertake or assume any responsibility or duty to the Borrower  or any of its Affiliates to select, review, inspect, supervise, pass judgment upon or otherwise inform  the Borrower or any of its Affiliates of any matter in connection with its or their property, any  security held by the Administrative Agent or any Lender or the operations of the Borrower or any  of its Affiliates.  The Borrower and each of its Affiliates shall rely entirely on their own judgment  with respect to such matters, and any review, inspection, supervision, exercise of judgment or  supply of information undertaken or assumed by any Lender or the Administrative Agent in  connection with such matters is solely for the protection of such Lender or the Administrative  Agent and neither the Borrower nor any of its Affiliates is entitled to rely thereon.  





 






DB1/ 120286909.9       -152-    8.14.   Time.  Time is of the essence as to each term or provision of this Agreement and  each of the other Credit Documents.  8.15.   Waiver of Punitive Damages.  Notwithstanding anything to the contrary contained  in this Agreement, the Borrower hereby agrees that it shall not seek from the Administrative Agent,  the Lead Arranger, the Syndication Agent or the Lenders any punitive, exemplary, special, indirect  or consequential damages under any theory of liability.  8.16.  USA PATRIOT Act.  Each Lender hereby notifies the Borrower and its subsidiaries  that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record  information that identifies the Borrower and its subsidiaries, which information includes the name,  address and tax identification number of the Borrower and its subsidiaries and other information  that will allow such Lender to identify the Borrower and its subsidiaries in accordance with the  Patriot Act.  8.17.  Clarification.  Notwithstanding anything to the contrary, the parties hereto  understand and agree that U.S. Bank is acting in various capacities under this Agreement and the  other Credit Documents and therefore shall be permitted to fulfill its roles and manage its various  duties hereunder, as between itself, in such manner as U.S. Bank sees fit and, for the avoidance of  doubt, in lieu of sending notices to itself when acting in different capacities U.S. Bank may keep  internal records regarding all such communications, notices and actions related to this Agreement  and the other Credit Documents in accordance with its past practice.   8.18.   Acknowledgement and Consent to Bail-In of Affected Financial Institutions.   Notwithstanding anything to the contrary in any Credit 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 Credit Document, to the extent  such liability is unsecured, may be subject to the write-down and conversion powers of the  applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be  bound by:  (a)   the application of any Write-Down and Conversion Powers by the  applicable Resolution Authority to any such liabilities arising hereunder that may be payable to it  by any party hereto that is an Affected Financial Institution; and  (b)   the effects of any Bail-In Action on any such liability, including, if  applicable:  (i)   a reduction in full or in part or cancellation of any such liability;  (ii)   a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent undertaking, or a  bridge institution that may be issued to it or otherwise conferred on it, and that such shares or  other instruments of ownership will be accepted by it in lieu of any rights with respect to any  such liability under this Agreement or any other Loan Document; or  (iii)  the variation of the terms of such liability in connection with the  exercise of the write-down and conversion powers of the applicable Resolution Authority.  





 






DB1/ 120286909.9       -153-    8.19.   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, the Lead Arranger and their respective Affiliates, and not, for the avoidance  of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the  following is and will be true:  (i)   such Lender is not using “plan assets” (within the meaning of  Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the Letters of  Credit or the Commitments;  (ii)  the transaction exemption set forth in one or more PTEs, such as  PTE 84-14 (a class exemption for certain transactions determined by independent qualified  professional asset managers), PTE 95-60 (a class exemption for certain transactions involving  insurance company general accounts), PTE 90-1 (a class exemption for certain transactions  involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for  certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption  for certain transactions determined by in-house asset managers), is applicable with respect to  such Lender’s entrance into, participation in, administration of and performance of the Loans,  the Letters of Credit, the Commitments and this Agreement;  (iii)  (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified  Professional Asset Manager made the investment decision on behalf of such Lender to enter into,  participate in, administer and perform the Loans, the Letters of Credit, the Commitments and  this Agreement, (C) the entrance into, participation in, administration of and performance of the  Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of  sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender,  the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such  Lender’s entrance into, participation in, administration of and performance of the Loans, the  Letters of Credit, the Commitments and this Agreement; or  (iv)  such other representation, warranty and covenant as may be agreed  in writing between the Administrative Agent, in its sole discretion, and such Lender.  (b)  In addition, unless either (1) sub-clause (i) in the immediately preceding  clause (a) is true with respect to a Lender or (2) a Lender has provided another representation,  warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a),  such Lender further (x) represents and warrants, as of the date such Person became a Lender party  hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date  such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the  Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the  benefit of the Borrower or any other Loan Party, that none of the Administrative Agent, the Lead  Arranger and their respective Affiliates is a fiduciary with respect to the assets of such Lender  





 






DB1/ 120286909.9       -154-    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  Credit Document or any documents related hereto or thereto).    8.20.   Acknowledgement Regarding Any Supported QFCs.  To the extent that the Credit  Documents provide support, through a guarantee or otherwise, for Rate Contracts 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 Credit Documents and any Supported QFC may in fact be stated to be governed by the  laws of the State of New York and/or of the United States or any other state of the United States):   (a)  In the event a Covered Entity that is party to a Supported QFC (each, a  “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the  transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and  obligation in or under such Supported QFC and such QFC Credit Support, and any rights in  property securing such Supported QFC or such QFC Credit Support) from such Covered Party will  be effective to the same extent as the transfer would be effective under the U.S. Special Resolution  Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and  rights in property) were governed by the laws of the United States or a state of the United States.  In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a  proceeding under a U.S. Special Resolution Regime, Default Rights under the Credit 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 Credit Documents were governed by the laws of the United States or a state of the United  States.   (b)   As used in this Section 8.20, the following terms have the following  meanings:   “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.   “Covered Entity” shall mean any of the following: (i) a “covered entity” as that term is  defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that  term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI”  as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).   “Default Right” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.   





 






DB1/ 120286909.9       -155-    “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).    [The first signature page follows.]  





 






  Signature Page to Credit Agreement   DB1/ 120286909.9    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly  executed as of the date first above written.  ARC DOCUMENT SOLUTIONS, LLC    By: /s/ Jorge Avalos     Name: Jorge Avalos  Title: Chief Financial Officer      





 






  Signature Page to Credit Agreement   DB1/ 120286909.9      U.S. BANK NATIONAL ASSOCIATION, as  Administrative Agent, Swing Line Lender, L/C  Issuer and a Lender        By: /s/ Julie Lin    Name:  Julie Lin   Title:  Vice President            





 






  Signature Page to Credit Agreement   DB1/ 120286909.9      BMO HARRIS BANK N.A., as a Lender        By: /s/ Jason Deegan    Name: Jason Deegan  Title:   Director        





 






   DB1/ 120286909.9    SCHEDULE I  THE LENDERS  Part A  Name of Lender Revolving Loan  Commitment  Revolving  Proportionate  Share  Closing Date  Term Loan  Commitment  Closing Date  Term  Proportionate  Share  U.S. Bank  National  Association  $45,000,000 64.28571429% $0 N/A    BMO Harris  Bank N.A.  $25,000,000 35.71428571% $0 N/A  Total $70,000,000 100.00% $0 N/A        





 






DB1/ 120286909.9        Part B  U.S. BANK NATIONAL ASSOCIATION  as a Lender    Notices: Domestic and Euro-Dollar Lending Office:  U.S. Bank National Association  800 Nicollet Mall  Minneapolis, MN 55402  Attention:  Esther Herliana  Tel. No.  (503) 464-4863  Fax No.  (612) 303-3851  Email:  agencyserviceslcmshared@usbank.com    U.S. Bank National Association  800 Nicollet Mall  Minneapolis, MN 55402  Attention:  Esther Herliana  Tel. No.  (503) 464-4863  Fax No.  (612) 303-3851  Email:  agencyserviceslcmshared@usbank.com      BMO HARRIS BANK N.A.  as a Lender    Notices: Domestic and Euro-Dollar Lending Office:    BMO Harris Bank N.A.  115 S. LaSalle St., 19W  Chicago, IL 60603  Attention: Brian Doyle  Tel. No.  (312) 461-5506  Fax No.  (312) 293-5283  E-mail: Brianj.doyle@bmo.com      BMO Harris Bank N.A.  115 S. LaSalle St., 19W   Chicago, IL 60603  Attention: Ivan Lizalde  Tel. No.  (312) 461-2182  Fax No.  (312) 293-5283  E-mail: GFS.CSgroupC@bmo.com        





 






   DB1/ 120286909.9    SCHEDULE 3.01  Conditions Precedent to Closing  The occurrence of the initial Credit Event under the Credit Agreement is subject to: (i) in the case  of all conditions listed below which can be satisfied by the delivery of documentation or other  items by the Borrower, receipt by the Administrative Agent of such documentation or other items,  each, except as otherwise noted below, in form and substance reasonably satisfactory to the  Administrative Agent and each Lender and with sufficient copies for the Administrative Agent  (and, where expressly indicated, each Lender) and (ii) in the case of all other conditions listed  below, the Administrative Agent’s determination that such conditions have been reasonably  satisfied or waived.  (a)  Principal Credit Documents.  (i)  This Agreement, duly executed by the Borrower, each Lender and  the Administrative Agent;  (ii)  A Revolving Loan Note payable to each Revolving Lender  requesting a Revolving Loan Note, each duly executed by the Borrower;   (iii)  A Swing Line Note payable to the Swing Line Lender in the  principal amount of the Swing Line Sublimit, duly executed by the Borrower;  (iv)  The Guaranty, duly executed by the Guarantors;  (v)  The Security Agreement, in form and substance satisfactory to the  Administrative Agent, duly executed by the Borrower and the Guarantors, together with  (A) the Pledged Intercompany Notes, if any; (B) all other collateral listed on Schedule I of the  Security Agreement and (C) the original certificates (if any) representing all of the outstanding  Equity Securities of the Borrower and each Subsidiary of Holdings that are required to be pledged  to the Administrative Agent pursuant to the Security Agreement (or any other Security Document);   (vi)   The Disclosure Letter, duly executed by the Borrower; and  (vii)   The Intercompany Subordination Agreement, duly executed by the  Loan Parties.  (b)  Borrower’s Organizational Documents.  (i)  The certificate of formation of the Borrower, certified as of a recent  date prior to the Closing Date by the Secretary of State (or comparable official) of the State of  Texas;  (ii)  A certificate of the Secretary or an Assistant Secretary of the  Borrower, dated the Closing Date, certifying that (A) attached thereto is a true and correct copy of  the certificate of formation and limited liability company agreement of the Borrower as in effect  on the Closing Date; (B) attached thereto are true and correct copies of resolutions duly adopted  





 






DB1/ 120286909.9        by the board of directors or other governing body of the Borrower (or other comparable enabling  action) and continuing in effect, which authorize the execution, delivery and performance by the  Borrower of this Agreement and the other Credit Documents executed or to be executed by the  Borrower and the consummation of the transactions contemplated hereby and thereby; (C) there  are no proceedings for the dissolution or liquidation of the Borrower; and (D) the incumbency,  signatures and authority of the officers of the Borrower authorized to execute, deliver and perform  this Agreement, the other Credit Documents and all other documents, instruments or agreements  related thereto executed or to be executed by the Borrower; and   (iii)  Certificates of good standing (or comparable certificates) for the  Borrower, certified as of a recent date prior to the Closing Date by the Secretary of State (or  comparable official) of Texas and California.  (c)   Guarantor Organizational Documents.    (i)   The certificate of incorporation of each Guarantor, certified as of a  recent date prior to the Closing Date by the Secretary of State (or comparable official) of the State  of such Guarantor’s formation;  (ii)    A certificate of the Secretary or an Assistant Secretary (or  comparable officer) of each Guarantor, dated the Closing Date, certifying that (A) attached thereto  is a true and correct copies of the Organizational Documents of such Guarantor as in effect on the  Closing Date; (B) attached thereto are true and correct copies of resolutions duly adopted by the  board of directors or other governing body of such Guarantor (or other comparable enabling action)  and continuing in effect, which authorize the execution, delivery and performance by such  Guarantor of the Credit Documents to be executed by such Guarantor and the consummation of  the transactions contemplated thereby; (C) there are no proceedings for the dissolution or  liquidation of such Guarantor; and (D) certifying the incumbency, signatures and authority of the  officers of such Guarantor authorized to execute, deliver and perform the Credit Documents to be  executed by such Guarantor; and  (iii)   Certificates of good standing (or comparable certificates) for each  Guarantor, certified as of a recent date prior to the Closing Date by the Secretary of State (or  comparable official) of each the following states for such Guarantor:   Holdings:       Delaware   American Reprographics Company, L.L.C.:  California   ARC Acquisition Corporation:  California   Licensing Services International, LLC:   California   Reprographics Fort Worth, Inc.:    Delaware  





 






DB1/ 120286909.9        (d)  Financial Statements, Financial Condition, Etc.  (i)  Copies of audited consolidated Financial Statements for Holdings  and its Subsidiaries for 2018, 2019 and 2020.   (ii)  A copy of projections prepared by management of balance sheets,  income statements and cashflow statements of Holdings and its Subsidiaries, which will be  quarterly for the first year after the Closing Date and annually thereafter through December 31,  2025, all in reasonable detail.    (iii)  Such other financial, business and other information regarding the  Borrower or any other Loan Party as the Administrative Agent, the L/C Issuer, the Swing Line  Lender or any Lender may request.   (e)  Collateral Documents.  (i)  Evidence that upon the filing of appropriate financing statements the  Administrative Agent will have a valid, perfected first priority Lien on all Collateral as to which a  security interest can be perfected by filing a financing statement, subject to Permitted Liens;   (ii)  Uniform Commercial Code search certificates from the jurisdictions  in which Uniform Commercial Code financing statements are to be filed pursuant to  subsection (e)(i) above reflecting no other financing statements or filings which evidence Liens of  other Persons in the Collateral which are prior to the Liens granted to the Administrative Agent in  this Agreement, the Security Documents and the other Credit Documents, except for any such prior  Liens which are expressly permitted by this Agreement to be prior;   (iii)   Appropriate documents for filing with the United States Patent and  Trademark Office, the United States Copyright Office and all other filings necessary to perfect the  security interests granted to the Administrative Agent by the Security Documents, all appropriately  completed and duly executed by the Borrower;   (iv)  A Power of Attorney in the form attached to the Security  Agreement, dated the Closing Date and otherwise appropriately completed, duly executed by the  Borrower and notarized;  (v)  Such other documents, instruments and agreements as the  Administrative Agent may request to establish and perfect the Liens granted to the Administrative  Agent or any Lender in this Agreement, the Security Documents and the other Credit Documents;  and   (vi)  Such other evidence as the Administrative Agent may request to  establish that the Liens granted to the Administrative Agent or any Lender Party in this Agreement,  the Security Documents and the other Credit Documents are or upon the proper filings shall be  perfected and prior to the Liens of other Persons in the Collateral, except for any such Liens which  are expressly permitted by this Agreement to be prior.   (f)  Opinion.    





 






DB1/ 120286909.9        (i)   Favorable written opinion from Pillsbury Winthrop Shaw Pittman  LLP, special counsel for the Borrower, dated the Closing Date, addressed to the Administrative  Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as  the Administrative Agent may request and otherwise in form and substance satisfactory to the  Administrative Agent; and   (g)  Other Items.  (i)  A duly completed and timely delivered Notice of Loan Borrowing  for Revolving Loans;  (ii)  Due diligence satisfactory to the Administrative Agent and the  Lenders shall have been completed (including, without limitation, corporate/company  documentation, ownership and organizational structure);  (iii)  The capital and ownership structure (including operating  agreements, company agreements, articles of incorporation and by-laws), stockholders agreements  and management of the Loan Parties shall be reasonably satisfactory to Administrative Agent and  the Lenders;  (iv)   Certificates of insurance, loss payable and/or additional insured  endorsements naming the Administrative Agent as loss payee or additional insured, as required by  Section 5.01(d) of this Agreement;  (v)  Evidence that all existing Indebtedness of the Loan Parties has been  or substantially concurrently with the Closing Date is being repaid in full (other than Permitted  Indebtedness) and all commitments (if any) in respect thereof shall have been terminated and all  guaranties therefor and security therefor shall have been discharged and released (including  customary payoff letters or the equivalent thereof);   (vi)  A certificate of the chief financial officer or comparable officer of  the Borrower, addressed to the Administrative Agent and dated the Closing Date, certifying that:  (A)  The representations and warranties set forth in Article IV  and in the other Credit Documents are true and correct in all material respects as of such date  (except to the extent that such representation and warranty is qualified by materiality, in which  case such representation and warranty must be true in all respects) as if made on such date (except  for representations and warranties expressly made as of a specified date, which shall be true and  correct in all material respects (except to the extent that such representation and warranty is  qualified by materiality, in which case such representation and warranty must be true in all  respects) as of such date);  (B)  Holdings and its Subsidiaries on a consolidated basis are  Solvent and, after the execution and delivery of the Credit Documents and the consummation of  transactions contemplated hereby and thereby, will be Solvent;  





 






DB1/ 120286909.9        (C)   Since December 31, 2020, no event has occurred and no  condition exists which, either individually or in the aggregate, could reasonably be expected to  have a Material Adverse Effect;   (D)   No material adverse change in the business, assets,  liabilities, operations, performance or condition (financial or otherwise) of the Borrower  individually or the Credit Parties (taken as a whole) has occurred since December 31, 2020.  (E)   No Default has occurred and is continuing as of such date;  (F)  Each Loan Party has obtained all Governmental  Authorizations and all consents of other Persons, in each case that are necessary or advisable to  have been obtained prior to the Closing Date in connection with the transactions herein and the  continued operation of the business conducted by the Loan Parties in substantially the same  manner as conducted prior to the Closing Date.  Each such Governmental Authorization or consent  is in full force and effect, except in a case where the failure to obtain or maintain a Governmental  Authorization or consent, either individually or in the aggregate, could not have a Material Adverse  Effect.  All applicable waiting periods have expired without any action being taken or threatened  by any competent authority that would restrain, prevent or otherwise impose adverse conditions  on the transactions contemplated by the Credit Documents.  No action, request for stay, petition  for review or rehearing, reconsideration, or appeal with respect to any of the foregoing is pending,  and the time for any applicable Governmental Authority to take action to set aside its consent on  its own motion has expired; and  (G)   No temporary restraining order, preliminary or permanent  injunction or other order preventing the Borrower and the Guarantors, the Administrative Agent  or any Lender Party from entering into this Agreement or the other Credit Documents or  consummating the transactions contemplated hereby or thereby shall have been issued by any court  of competent jurisdiction or other Governmental Authority having authority over any such Person  and remains in effect, and no applicable Governmental Rules shall be enacted or deemed  applicable to the Credit Documents by a Governmental Authority having authority over any such  Person that makes the closing of the Credit Documents or any extensions of credit thereunder  illegal.  (vii)  at least five (5) business days prior to the Closing Date, (a) the  Administrative Agent and each Lender shall have received all documentation and other  information about the Credit Parties as has been reasonably requested by the Administrative Agent  or such Lender at least ten (10) business days prior to the Closing Date that is required by  regulatory authorities under applicable “know your customer” and anti-money laundering rules  and regulations, including the PATRIOT Act, and (b) if the Borrower qualifies as a “legal entity  customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to the  Administrative Agent and each Lender requesting the same at least ten (10) business days prior to  the Closing Date, a Beneficial Ownership Certification;  (viii)  All fees and expenses payable to the Administrative Agent, the  Lenders and the Lead Arranger on or prior to the Closing Date;   





 






DB1/ 120286909.9        (ix)  All fees and expenses of counsel to the Administrative Agent  invoiced through the Closing Date;  (x)  The absence of any action, suit, investigation or proceeding pending  or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or  Governmental Authority that could reasonably be expected to have a Material Adverse Effect; and  (xi)   Such other evidence as the Administrative Agent or any Lender may  request to establish the accuracy and completeness of the representations and warranties and the  compliance with the terms and conditions contained in this Agreement and the other Credit  Documents.