exhibit10b






EXECUTION COPY  PUBLISHED DEAL CUSIP: 574600AJ1  PUBLISHED TERM FACILITY CUSIP: 574600AK8  TERM LOAN CREDIT AGREEMENT  dated as of  April 26, 2022  among  MASCO CORPORATION  as Borrower  The Lenders Party Hereto  PNC BANK, NATIONAL ASSOCIATION  as Administrative Agentf^  PNC CAPITAL MARKETS LLC  as Sole Bookrunner and Sole Lead Arranger  Exhibit 10b 





 






    TABLE OF CONTENTS    Page      ARTICLE I Definitions ...................................................................................................................1  SECTION 1.01. Defined Terms .......................................................................................................1  SECTION 1.02. Classification of Loans and Borrowings .............................................................23  SECTION 1.03. Terms Generally ..................................................................................................23  SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations. .........................................23  SECTION 1.05. Interest Rates; Benchmark Notification. .............................................................25  SECTION 1.06. Divisions .............................................................................................................25  ARTICLE II The Credits ...............................................................................................................25  SECTION 2.01. Commitments ......................................................................................................25  SECTION 2.02. Term Loans and Borrowings ...............................................................................25  SECTION 2.03. Requests for Borrowings .....................................................................................26  SECTION 2.04. [Reserved] ...........................................................................................................27  SECTION 2.05. [Reserved] ...........................................................................................................27  SECTION 2.06. [Reserved] ...........................................................................................................27  SECTION 2.07. Funding of Borrowings .......................................................................................27  SECTION 2.08. Interest Elections for Borrowings .......................................................................27  SECTION 2.09. Termination and Reduction of Commitments; Termination of Facility .............28  SECTION 2.10. Repayment of Loans; Evidence of Debt .............................................................29  SECTION 2.11. Prepayment of Loans ..........................................................................................29  SECTION 2.12. Fees .....................................................................................................................30  SECTION 2.13. Interest .................................................................................................................30  SECTION 2.14. Alternate Rate of Interest ....................................................................................31  SECTION 2.15. Increased Costs ...................................................................................................33  SECTION 2.16. Break Funding Payments ....................................................................................34  SECTION 2.17. Taxes ...................................................................................................................35  SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs ..........................38  SECTION 2.19. Mitigation Obligations; Replacement of Lenders ...............................................39  SECTION 2.20. Defaulting Lenders ..............................................................................................40  ARTICLE III Representations and Warranties ..............................................................................41  SECTION 3.01. Corporate Existence and Power ..........................................................................41  SECTION 3.02. Corporate and Governmental Authorization; No Contravention ........................41  SECTION 3.03. Binding Effect .....................................................................................................41  SECTION 3.04. Financial Information ..........................................................................................41  SECTION 3.05. Litigation .............................................................................................................42  SECTION 3.06. Compliance with ERISA .....................................................................................42  SECTION 3.07. Environmental Matters ........................................................................................42  SECTION 3.08. Taxes ...................................................................................................................42  





 






    Table of Contents   (continued)   Page      ii  SECTION 3.09. Not an Investment Company ...............................................................................43  SECTION 3.10. Compliance with Laws ........................................................................................43  SECTION 3.11. Foreign Employee Benefit Matters .....................................................................43  SECTION 3.12. Properties ............................................................................................................43  SECTION 3.13. Disclosure ............................................................................................................43  SECTION 3.14. Federal Reserve Regulations ...............................................................................44  SECTION 3.15. No Default ...........................................................................................................44  SECTION 3.16. Anti-Corruption Laws and Sanctions ..................................................................44  SECTION 3.17. Affected Financial Institutions. ...........................................................................44  ARTICLE IV Conditions ...............................................................................................................44  SECTION 4.01. Effective Date .....................................................................................................44  SECTION 4.02. Each Borrowing ..................................................................................................45  ARTICLE V Covenants .................................................................................................................46  SECTION 5.01. Information ..........................................................................................................46  SECTION 5.02. Existence; Conduct of Business ..........................................................................47  SECTION 5.03. Compliance with Laws ........................................................................................47  SECTION 5.04. Use of Proceeds ...................................................................................................48  SECTION 5.05. Maintenance of Properties; Insurance .................................................................48  SECTION 5.06. Books and Records; Inspection ...........................................................................48  SECTION 5.07. Financial Covenants ............................................................................................48  SECTION 5.08. Limitations on Subsidiary Debt ..........................................................................49  SECTION 5.09. Negative Pledge ..................................................................................................49  SECTION 5.10. Consolidations, Mergers and Sale of Assets .......................................................50  ARTICLE VI Events of Default ....................................................................................................51  SECTION 6.01. Events of Default ................................................................................................51  SECTION 6.02. Application of Payments. ....................................................................................53  ARTICLE VII The Administrative Agent .....................................................................................54  ARTICLE VIII Miscellaneous .......................................................................................................59  SECTION 8.01. Notices ................................................................................................................59  SECTION 8.02. Waivers; Amendments ........................................................................................60  SECTION 8.03. Expenses; Indemnity; Damage Waiver ...............................................................61  SECTION 8.04. Successors and Assigns .......................................................................................63  SECTION 8.05. Survival ...............................................................................................................66  SECTION 8.06. Counterparts; Integration; Effectiveness .............................................................66  





 






    Table of Contents   (continued)   Page      iii  SECTION 8.07. Severability .........................................................................................................68  SECTION 8.08. Right of Setoff .....................................................................................................68  SECTION 8.09. Governing Law; Jurisdiction; Consent to Service of Process .............................68  SECTION 8.10. WAIVER OF JURY TRIAL ...............................................................................69  SECTION 8.11. Headings..............................................................................................................69  SECTION 8.12. Confidentiality ....................................................................................................69  SECTION 8.13. USA PATRIOT Act ............................................................................................70  SECTION 8.14. Interest Rate Limitation ......................................................................................70  SECTION 8.15. No Fiduciary Duty, etc.  . ....................................................................................70  SECTION 8.16. Material Non-Public Information. .......................................................................71  SECTION 8.17. Acknowledgment and Consent to Bail-In of Affected Financial Institutions. ....71      





 






        ii    SCHEDULES:    Schedule 2.01 --          Commitments      EXHIBITS:  Exhibit A  --  Form of Assignment and Assumption  Exhibit B  --  Reserved  Exhibit C  --  Reserved  Exhibit D  --  Reserved  Exhibit E  --  List of Closing Documents  Exhibit F-1  --  Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships)  Exhibit F-2  --  Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships)  Exhibit F-3  --  Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships)  Exhibit F-4  --  Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships)      





 






    TERM LOAN CREDIT AGREEMENT (this “Agreement”) dated as of April 26, 2022  among MASCO CORPORATION, the LENDERS from time to time party hereto, and PNC BANK,  NATIONAL ASSOCIATION, as Administrative Agent.  The parties hereto agree as follows:  ARTICLE I    Definitions  SECTION 1.01.  Defined Terms.  As used in this Agreement, the following terms have  the meanings specified below:  “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,  or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Alternate  Base Rate.  All ABR Loans shall be denominated in Dollars.  “Acquired Debt” means, with respect to any Person which previously became or  hereafter becomes a Subsidiary, Debt of such Person which was outstanding before such Person became a  Subsidiary and which was not created in contemplation of such Person becoming a Subsidiary; provided  that such Debt shall no longer constitute “Acquired Debt” at any time that is more than ninety days after  such Person becomes a Subsidiary.  “Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) Daily  Simple SOFR, plus (b) 0.10%; provided that if the Adjusted Daily Simple SOFR as so determined would  be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this  Agreement.   “Adjusted Term SOFR Rate” means, with respect to any Term Benchmark Borrowing for  any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period,  plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the  Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.  “Administrative Agent” means PNC Bank, National Association (including its branches  and affiliates), in its capacity as administrative agent for the Lenders hereunder.  “Administrative Questionnaire” means an Administrative Questionnaire in a form  supplied by the Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.   “Affiliate” means, with respect to a specified Person, another Person that directly, or  indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control  with the Person specified.  “Agent Indemnitee” has the meaning assigned to such term in Section 8.03.  





 






2   “Aggregate Commitment” means the aggregate of the Commitments of all of the  Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof.  As of the  Effective Date, the Aggregate Commitment is $500,000,000.  “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a)  the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1⁄2 of 1% and (c) the  Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities  Business Days prior to such day (or if such day is not a Business Day, the immediately preceding  Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate  for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on  such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME  Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Alternate  Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be  effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the  Adjusted Term SOFR Rate, respectively.  If the Alternate Base Rate is being used as an alternate rate of  interest pursuant to Section 2.14 (for the avoidance of doubt, only until the Benchmark  Replacement has been determined pursuant to Section 2.14(b)), then the Alternate Base Rate shall be  the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.   For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing  would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.  “Ancillary Document” has the meaning assigned to it in Section 8.06(b).  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction  applicable to the Company or any of its Subsidiaries from time to time concerning or relating to bribery  or corruption.  “Applicable Parties” has the meaning assigned to such term in Article VII.  “Applicable Percentage” means, with respect to any Lender, the percentage of the  Aggregate Commitment represented by such Lender’s Commitment; provided that, in the case of Section  2.20 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the  Aggregate Commitment (disregarding any Defaulting Lender’s Commitment) represented by such  Lender's Commitment.  If the Commitments have terminated or expired, the Applicable Percentages shall  be determined based upon the Commitments most recently in effect, giving effect to any assignments and  to any Lender’s status as a Defaulting Lender at the time of determination.  “Applicable Rate” means, for any day, with respect to any Term Benchmark Loan or  RFR Loan, 0.70%, and with respect to any ABR Loan, 0.0%.    “Approved Electronic Platform” has the meaning assigned to it in Article VII.  “Approved Fund” has the meaning assigned to such term in Section 8.04.  “Arranger” means PNC Capital Markets LLC, in its capacity as a sole bookrunner and  sole lead arranger hereunder.  “Assignment and Assumption” means an assignment and assumption agreement entered  into by a Lender and an assignee (with the consent of any party whose consent is required by Section  





 






    3  8.04), and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form  approved by the Administrative Agent.  “Availability Period” means the period from and including the Effective Date to but  excluding the earliest to occur of May 26, 2022 and the date of termination of the Commitments.   “Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment  period for interest calculated with reference to such Benchmark (or component thereof), as applicable,  that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for  determining any frequency of making payments of interest calculated pursuant to this Agreement as of  such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then- removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.14.   “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European  Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to  time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United  Kingdom,  Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other  law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing  banks, investment firms or other financial institutions or their affiliates (other than through liquidation,  administration or other insolvency proceedings).   “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject  of a voluntary or involuntary bankruptcy or insolvency proceeding, or has had a receiver, conservator,  trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the  reorganization or liquidation of its business appointed for it, or, in the good faith determination of the  Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or  acquiescence in, any such proceeding or appointment or has had any order for relief in such proceeding  entered in respect thereof, provided that a Bankruptcy Event shall not result solely by virtue of any  ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental  Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or  provide such Person 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 Person (or such  Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or  agreements made by such Person.  “Benchmark” means, initially, with respect to any (i) Term Benchmark Loan, the  Adjusted Term SOFR Rate or (ii) any RFR Loan, Adjusted Daily Simple SOFR; provided that if a  Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to  the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the  extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of  Section 2.14.   “Benchmark Replacement” means, 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:  





 






    4   (1) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement  Adjustment,  (2) the sum of: (a) the alternate benchmark rate that has been selected by the  Administrative Agent and the Company 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 syndicated  credit facilities denominated in Dollars at such time in the United States and (b) the related  Benchmark Replacement Adjustment.  If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would  be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this  Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment” means, 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, 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 Company for the applicable  Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread  adjustment, or method for calculating or determining such spread adjustment, for the replacement of such  Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body  on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market  convention for determining a spread adjustment, or method for calculating or determining such spread  adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark  Replacement for syndicated credit facilities denominated in Dollars at such time.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement and/or any Term Benchmark Loan, any technical, administrative or operational changes  (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day”,  the  definition of “U.S. Government Securities Business Day”, the definition of “Interest Period,” timing and  frequency of determining rates and making payments of interest, timing of borrowing requests or  prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage  provisions, and other technical, administrative or operational matters) that the Administrative Agent  decides (in consultation with the Company) may be appropriate to reflect the adoption and  implementation of such Benchmark 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 exists, in such other  manner of administration as the Administrative Agent decides is reasonably necessary (in consultation  with the Company) in connection with the administration of this Agreement and the other Loan  Documents).  “Benchmark Replacement Date” means, with respect to any Benchmark, the earlier to  occur of the following events with respect to such then-current Benchmark:     (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of  (a) the date of the public statement or publication of information referenced therein and (b) the date on  which the administrator of such Benchmark (or the published component used in the calculation thereof)  





 






    5  permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such  component thereof); or    (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on  which such Benchmark (or the published component used in the calculation thereof) has been determined  and announced by the regulatory supervisor for the administrator of such Benchmark (or such component  thereof) to be no longer representative; provided, that such non-representativeness will be determined by  reference to the most recent statement or publication referenced in such clause (3) and even if any  Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.    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” means, with respect to any Benchmark, the occurrence of  one or more of the following events with respect to such then-current Benchmark:     (1) a public statement or publication of information by or on behalf of the administrator of such  Benchmark (or the published component used in the calculation thereof) announcing that such  administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such  component thereof), permanently or indefinitely, provided that, at the time of such statement or  publication, there is no successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof);  (2) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof), the  Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, 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), in each case, or a court or an  entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such  component), in each case which states that the administrator of such Benchmark (or such component) has  ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof)  permanently or indefinitely; provided that, at the time of such statement or publication, there is no  successor administrator that will continue to provide any Available Tenor of such Benchmark (or such  component thereof); or  (3) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as  of a specified future date will no longer be, representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with  respect to any Benchmark if a public statement or publication of information set forth above has occurred  with respect to each then-current Available Tenor of such Benchmark (or the published component used  in the calculation thereof).  





 






    6  “Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if  any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that  definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current  Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14  and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for  all purposes hereunder and under any Loan Document in accordance with Section 2.14.   “Beneficial Ownership Certification” means a certification regarding beneficial  ownership or control as required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Arrangement” means at any time an employee benefit plan within the meaning  of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is sponsored,  maintained or otherwise contributed to (i) by the Company or any of its Subsidiaries or (ii) for the benefit  of the employees of the Company or any of its Subsidiaries.   “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that  is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code, or (c)  any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title  I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.   “Blocking Law” means (a) any provision of Council Regulation (EC) No 2271/1996 of  22 November (and any law or regulation implementing such Regulation in any member state of the  European Union or the United Kingdom), (b) section 7 of the German Trade Regulation  (Außenwirtschaftsverordnung), or (c) any similar blocking or anti-boycott law.  “Board” means the Board of Governors of the Federal Reserve System of the United  States of America.  “Borrower” means the Company.  “Borrowing” means Term Loans of the same Type, made, converted or continued on the  same date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.  “Borrowing Request” means a request by the Borrower for a Borrowing in accordance  with Section 2.03.  “Business Day” means any day (other than a Saturday or a Sunday) on which banks are  open for business in New York City or Chicago; provided that, when used in connection with an amount  that bears interest at a rate based on SOFR or any direct or indirect calculation or determination of SOFR,  the term “Business Day” means any such day that is also a U.S. Government Securities Business Day.  “Capital Lease Obligations” of any Person means the obligations of such Person to pay  rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal  property, or a combination thereof, which obligations are required to be classified and accounted for as  capital leases or financing leases on a balance sheet of such Person under GAAP, and the amount of such  obligations shall be the capitalized amount thereof determined in accordance with GAAP.  





 






    7  “Change in Law” means the occurrence, after the date of this Agreement (or with respect  to any Lender, if later, the date on which such Lender becomes a Lender), 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) compliance by any Lender (or, for purposes of Section 2.15(b), by any  lending office of such Lender or by such Lender’s holding company, if any) with any request, rules,  guideline, requirement or directive (whether or not having the force of law) by any Governmental  Authority; provided however, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank  Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and  directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests,  rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the  Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or  foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a  “Change in Law” regardless of the date enacted, adopted, issued or implemented.  “Charges” has the meaning assigned to it in Section 8.14.  “CME Term SOFR Administrator” means CME Group Benchmark Administration  Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a  successor administrator).   “Code” means the Internal Revenue Code of 1986, as amended.  “Commitment” means (a) with respect to each Lender, the commitment of such Lender to  make Term Loans during the Availability Period as set forth on Schedule 2.01 or in the most recent  Assignment and Assumption or other documentation contemplated hereby executed by such Lender and  (b) as to all Lenders, the Aggregate Commitment, as such commitment may be (a) reduced or terminated  from time to time pursuant to Section 2.09 or Article VI, or (b) reduced or increased from time to time  pursuant to assignments by or to such Lender pursuant to Section 8.04.  “Communications” has the meaning assigned to such term in Article VII.  “Company” means Masco Corporation, a Delaware corporation, and its successors.  “Connection Income Taxes” means Other Connection Taxes that are imposed on or  measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.  “Consolidated Debt” means at any date the Debt of the Company and its Consolidated  Subsidiaries determined on a consolidated basis as of such date minus the Debt Credit applicable to the  Company and its Consolidated Subsidiaries as of such date.  “Consolidated EBITDA” means, with reference to any period, Consolidated Net Income  plus, without duplication and to the extent deducted from revenues in determining such Consolidated Net  Income for such period, the sum of:  (i)  interest expense in accordance with GAAP,   (ii)  expense for income taxes paid or accrued,   (iii)  depreciation expense,   





 






    8  (iv)  amortization expense,   (v)  unusual or non-recurring non-cash expenses or losses (including any such loss  from discontinued operations),  (vi)  non-cash restructuring and rationalization charges and non-cash charges related  to impairment of long-lived assets, intangible assets and goodwill,  (vii)  non-cash charges related to impairment of financial investments as set forth in  the Fair Value of Financial Investments and Liabilities Note of the Company’s  quarterly and annual SEC filings,  (viii)  non-cash expenses related to stock based compensation (other than with respect  to phantom stock and stock appreciation rights), as set forth in the Stock-Based  Compensation Note of the Company’s quarterly and annual SEC filings,  (ix) other non-cash charges of any kind,   (x) cash restructuring and rationalization charges; provided that the aggregate  amount of any increase to Consolidated EBITDA pursuant to this clause (x), and  pursuant to clauses (i) or (ii) of the second sentence of Section 1.04(b) for the  applicable period shall not exceed 10% of Consolidated EBITDA in the absence  of the adjustments pursuant to this clause (x) and clauses (i) or (ii) of the second  sentence of Section 1.04(b),  (xi) cash fees and expenses incurred in connection with acquisitions, equity issuances  and debt incurrences that are not otherwise capitalized, and  (xii) cash fees, expenses, premiums and/or penalties incurred in connection with a  prepayment, redemption, purchase, repurchase or defeasance of any Debt prior to  the schedule maturity thereof, in an aggregate amount during the term of this  Agreement not to exceed $25,000,000,  minus, without duplication and to the extent included in determining such Consolidated Net  Income for such period, the sum of:  (a)  interest income,   (b)  income tax credits and refunds (to the extent not netted from tax expense),   (c)  any cash payments made during such period in respect of items described in  clauses (v) through (ix) above (other than cash payments made with respect to  phantom stock and stock appreciation rights) subsequent to the fiscal quarter in  which the relevant non-cash expenses or losses were incurred,    (d)  unusual or non-recurring non-cash income or gains realized, and  (e) any other non-cash items of income or gains.  Without duplication of the foregoing, Consolidated EBITDA shall be calculated for the Company and its  Subsidiaries in accordance with GAAP on a consolidated basis and computed without regard to the  





 






    9  cumulative effect of any changes in accounting principles, as shown on the Company’s consolidated  statement of income for such period.  For the purposes of calculating Consolidated EBITDA for any period of four consecutive  fiscal quarters (each, a “Reference Period”), (1) if at any time during such Reference Period the Company  or any Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for such  Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive)  attributable to the property that is the subject of such Material Disposition for such Reference Period or  increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such  Reference Period, and (2) if during such Reference Period the Company or any Subsidiary shall have  made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after  giving effect thereto on a Pro Forma Basis as if such Material Acquisition occurred on the first day of  such Reference Period.  As used in this definition, “Material Acquisition” means any acquisition of  property or series of related acquisitions of property that (a) constitutes (i) assets comprising all or  substantially all or any significant portion of a business or operating unit of a business, or (ii) all or  substantially all of the common stock or other Equity Interests of a Person, and (b) involves the payment  of consideration by the Company and its Subsidiaries in excess of $150,000,000; and “Material  Disposition” means any sale, transfer or disposition of property or series of related sales, transfers, or  dispositions of property that involves a disposition of assets having  fair market value, or yields gross  proceeds to the Company or any of its Subsidiaries, in excess of $150,000,000.  “Consolidated Interest Expense” means, with reference to any period, the interest  expense (including without limitation interest expense under Capital Lease Obligations that is treated as  interest in accordance with GAAP) of the Company and its Subsidiaries, net of interest income received  on cash on deposit or Permitted Cash Equivalent Investments, calculated on a consolidated basis for such  period with respect to (a) all outstanding Debt of the Company and its Subsidiaries allocable to such  period in accordance with GAAP and (b) Swap Agreements (including, without limitation, all  commissions, discounts and other fees and charges owed with respect to letters of credit and bankers  acceptance financing and net costs under interest rate Swap Agreements to the extent such net costs are  allocable to such period in accordance with GAAP).  Without duplication of the foregoing, Consolidated  Interest Expense shall be calculated for the Company and its Subsidiaries in accordance with GAAP on a  consolidated basis and computed without regard to the cumulative effect of any changes in accounting  principles, as shown on the Company’s consolidated statement of income for such period.  In the event  that the Company or any Subsidiary shall have completed a “Material Acquisition” or a “Material  Disposition” (each as defined in the definition of “Consolidated EBITDA”) since the beginning of the  relevant period, Consolidated Interest Expense shall be determined for such period on a Pro Forma Basis  as if such acquisition or disposition, and any related incurrence or repayment of Debt, had occurred at the  beginning of such period.    “Consolidated Net Income” means, with reference to any period, the net income (or loss)  of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated basis  (without duplication) for such period, without any adjustment for net income (or loss) attributable to  Equity Interests of a Subsidiary of the Company that are not owned by Company or one of its  Subsidiaries (i.e., non-controlling interests); provided that there shall be excluded any income (or loss) of  any Person other than the Company or a Subsidiary, but any such income so excluded may be included in  such period or any later period to the extent of any cash dividends or distributions actually paid in the  relevant period to the Company or any wholly-owned Subsidiary of the Company.   “Consolidated Subsidiary” means, at any date, any Subsidiary the accounts of which  would be consolidated with those of the Company in its consolidated financial statements in accordance  with GAAP as of such date.  





 






    10  “Consolidated Tangible Assets” means, as of the date of any determination thereof, (a)  the total assets of the Company and its Subsidiaries calculated in accordance with GAAP on a  consolidated basis as of such date minus (b) the aggregate amount of intangible assets of the Company  and its Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date,  including, without limitation, customer lists, acquired technology, goodwill, trademarks, patents,  copyrights, organization expenses, franchises, licenses, trade names, brand names, mailing lists, catalogs,  unamortized debt discount and capitalized research and development costs.  “Control” means the possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of a Person, whether through the ability to exercise voting power,  by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.  “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.   “Credit Party” means the Administrative Agent or any other Lender.  “Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal  to SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government Securities  Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such  SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the  U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as  such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website.  Any change  in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date  of such change in SOFR without notice to the Company.   “Debt” of any Person means at any date, without duplication, (i) all obligations of such  Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or  other similar instruments, (iii) all obligations of such Person to pay the deferred purchase price of  property or services, except trade accounts payable, (iv) all Capital Lease Obligations of such Person, (v)  all Debt of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by  such Person, (vi) all Debt of others for which such a Person is contingently liable (including pursuant to a  Guarantee) and (vii) obligations, contingent or otherwise, of such Person as an account party in respect of  letters of credit, letters of guaranty or bankers’ acceptances.  In calculating the amount of any Debt at any  date for purposes of this Agreement, (a) accrued interest shall be excluded to the extent that it would be  properly classified as a current liability for interest under the heading “Accrued liabilities” (and not under  the heading “Notes payable”) in a balance sheet prepared as of such date in accordance with the  accounting principles and practices used in preparing the balance sheet referred to in Section 3.04(a) and  the related footnotes thereto and (b) the Debt of any Person shall include the Debt of any other entity  (including any partnership in which such Person is a general partner) to the extent such Person is liable  therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to  the extent the terms of such Debt provide that such Person is not liable therefor.  “Debt Credit” for any Person means, at any date, the lesser of (i) the aggregate amount of  contingent obligations of such Person as an account party in respect of letters of credit, letters of guaranty  or bankers’ acceptances and (ii) $100,000,000.  “Default” means any event or condition which constitutes an Event of Default or which  upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.  





 






    11  “Defaulting Lender” means any Lender that (a) has failed, within three Business Days of  the date required to be funded or paid, to (i) fund any portion of its Loans, or (ii) pay over to any Credit  Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such  Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good  faith determination that a condition precedent to funding (specifically identified and including the  particular default, if any) has not been satisfied, (b) has notified the Company or any Credit Party in  writing, or has made a public statement to the effect, that it does not intend or expect to comply with any  of its funding obligations under this Agreement (unless such writing or public statement indicates that  such position is based on such Lender’s good faith determination that a condition precedent (specifically  identified and including the particular default, if any) to funding a loan under this Agreement cannot be  satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within  three Business Days after written request by the Administrative Agent, acting in good faith, to provide a  certification in writing from an authorized officer of such Lender that it will comply with its obligations  (and is financially able to meet such obligations) to fund prospective Loans under this Agreement (unless,  in the case of any such request with respect to the funding of prospective Loans, such certification  indicates that such Lender has made a good faith determination that a condition precedent (specifically  identified and including the particular default, if any) to funding a Loan under this Agreement cannot be  satisfied), provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon  the Administrative Agent’s receipt of such certification in form and substance satisfactory to it, or (d) has  become the subject of (i) a Bankruptcy Event or (ii) a Bail-In Action.  “Dollars” or “$” refers to lawful money of the United States of America.  “Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction  located in the United States of America.  “EEA Financial Institution” means (a) any credit institution or investment firm  established in any EEA Member Country which is subject to the supervision of an EEA Resolution  Authority, (b) any entity established in an EEA Member Country which is a parent of an institution  described in clause (a) of this definition, or (c) any financial institution established in an EEA Member  Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is  subject to consolidated supervision with its parent.  “EEA Member Country” means any of the member states of the European Union,  Iceland, Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any Person  entrusted with public administrative authority of any EEA Member Country (including any delegee)  having responsibility for the resolution of any EEA Financial Institution.  “Effective Date” means the date on which the conditions specified in Section 4.01 are  satisfied (or waived in accordance with Section 8.02).  “Electronic Signature” means an electronic sound, symbol, or process attached to, or  associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or  accept such contract or record.  “Environmental Laws” means any and all federal, state and local statutes, laws, judicial  decisions, regulations, ordinances, rules, judgments, orders, decrees, injunctions, permits, concessions,  grants, franchises, licenses, agreements and other governmental restrictions relating to the environment,  the effect of the environment on human health or to emissions, discharges or releases of pollutants,  





 






    12  contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances or  wastes into the environment including, without limitation, ambient air, surface water, ground water, or  land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal,  transport or handling of pollutants, contaminants, petroleum or petroleum products, chemicals or  industrial, toxic or hazardous substances or wastes or the clean-up or other remediation thereof.  “Environmental Liability” means any liability, contingent or otherwise (including any  liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the  Company or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any  Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any  Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any  Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement  pursuant to which liability is assumed or imposed with respect to any of the foregoing.  “Equity Interests” means shares of capital stock, partnership interests, membership  interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in  a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any  of the foregoing.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended  from time to time, and the rules and regulations promulgated thereunder.  “ERISA Group” means the Company, any Subsidiary and all members of a controlled  group of corporations and all trades or businesses (whether or not incorporated) under common control  which, together with the Company or any Subsidiary, are treated as a single employer under Section 414  of the Code or Section 4001(b) of ERISA.  “EU” means the European Union.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor Person), as in effect from time to time.  “Event of Default” has the meaning assigned to such term in Section 6.01.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to a  Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or  measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case,  (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office  or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax  (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender,  U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with  respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which  (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment  request by the Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office, except in  each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable  either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a  Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes  attributable to such Recipient’s failure to comply with Section 2.17(f), and (d) any U.S. federal  withholding Taxes imposed under FATCA.  





 






    13  “Existing Credit Agreement” means the Credit Agreement dated as of March 13, 2019 by  and among the Company, Masco Europe S.à r.l., a wholly-owned Subsidiary of the Company organized  under the laws of the Grand Duchy of Luxembourg, certain lenders party thereto and JPMorgan Chase  Bank, N.A., as administrative agent, as amended by that certain Amendment No. 1 dated as of December  22, 2021 and as otherwise amended, restated, supplemented or otherwise modified prior to the Effective  Date.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this  Agreement (or any amended or successor version that is substantively comparable and not materially  more onerous to comply with), any current or future regulations or official interpretations thereof, any  agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation,  rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among  Governmental Authorities and implementing such Sections of the Code.  “Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB  based on such day’s federal funds transactions by depositary institutions, as determined in such manner as  the NYFRB shall set forth on the NYFRB’s Website from time to time, and published on the next  succeeding Business Day by the NYFRB as the effective federal funds rate, provided that, if the Federal  Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for  the  purposes of this Agreement.  “Financial Officer” means the president, vice president of finance (or similar title), chief  financial officer, principal accounting officer or treasurer of the Company.  “Fiscal Quarter” means a fiscal quarter of the Company.  “Fiscal Year” means a fiscal year of the Company.  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as  of the execution of this Agreement, the modification, amendment or renewal of this Agreement or  otherwise) with respect to the Adjusted Term SOFR Rate or Daily Simple SOFR, as applicable. For the  avoidance of doubt, the initial Floor for the Adjusted Term SOFR Rate and Daily Simple SOFR shall be  0.0%.  “Foreign Employee Benefit Plan” means any employee benefit plan as defined in Section  3(3) of ERISA which is sponsored, maintained or contributed to (i) by the Company or any of its  Subsidiaries or (ii) for the benefit of the employees of the Company or any of its Subsidiaries, and, in  each case, is not covered by ERISA pursuant to ERISA Section 4(b)(4).  “Foreign Lender” means a Lender that is not a U.S. Person.  “Foreign Pension Plan” means any employee pension plan as described in Section 3(2) of  ERISA which is sponsored, maintained or otherwise contributed to (i)(A) by any member of the ERISA  Group or (B) for the benefit of the employees of any member of the ERISA Group, (ii) is not covered by  ERISA pursuant to Section 4(b)(4) of ERISA, and (iii) under applicable local law or terms of such  Foreign Pension Plan, is required to be funded through a trust (other than a trust maintained exclusively  by a Governmental Authority).  “Foreign Subsidiary” means any Subsidiary other than a Domestic Subsidiary.  





 






    14  “GAAP” means generally accepted accounting principles in the United States of  America.  “Governmental Authority” means the government of the United States of America, any  other nation or any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,  judicial, taxing, regulatory or administrative powers or functions of or pertaining to government  (including any supra-national bodies such as the European Union or the European Central Bank) and any  group or body charged with setting regulatory capital rules or standards (including, without limitation, the  Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or  similar authority to any of the foregoing).  “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or  otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Debt of any  other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any  obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the  purchase or payment of) such Debt or to purchase (or to advance or supply funds for the purchase of) any  security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of  assuring the owner of such Debt of the payment thereof, (c) to maintain working capital, equity capital or  any other financial statement condition or liquidity of the primary obligor so as to enable the primary  obligor to pay such Debt or (d) as an account party in respect of any letter of credit or letter of guaranty  issued to support such Debt; provided, that the term Guarantee shall not include endorsements for  collection or deposit in the ordinary course of business.  “Hazardous Materials” means all explosive or radioactive substances or wastes and all  hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates,  asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical  wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.  “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of the Borrower under any Loan  Document and (b) to the extent not otherwise described in clause (a), Other Taxes.  “Indemnitee” has the meaning assigned to such term in Section 8.03(b).   “Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of  the Company that is not guaranteed by any other Person or subject to any other credit enhancement.  “Ineligible Institution” has the meaning assigned to such term in Section 8.04(b).   “Information” has the meaning assigned to such term in Section 8.12.   “Interest Election Request” means a request by the Borrower to convert or continue a  Borrowing in accordance with Section 2.08.  “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each  March, June, September and December and the Maturity Date, (b) with respect to any Term Benchmark  Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in  the case of a Term Benchmark Borrowing with an Interest Period of more than three months’ duration,  each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration  after the first day of such Interest Period and the Maturity Date and (c) with respect to any RFR Loan  (1)  





 






    15  each date that is on the numerically corresponding day in each calendar month that is one month after the  Borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the  last day of such month) and (2) the Maturity Date.  “Interest Period” means, with respect to any Term Benchmark Borrowing, the period  commencing on the date of such Borrowing and ending on the numerically corresponding day in the  calendar month that is one, three or six months thereafter (in each case, subject to the availability for the  Benchmark applicable to the relevant Loan), as the Borrower may elect; provided, that (i) if any Interest  Period would end on a day other than a Business Day, such Interest Period shall be extended to the next  succeeding Business Day unless such next succeeding Business Day would fall in the next calendar  month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest  Period that commences on the last Business Day of a calendar month (or on a day for which there is no  numerically corresponding day in the last calendar month of such Interest Period) shall end on the last  Business Day of the last calendar month of such Interest Period and (iii) no tenor that has been removed  from this definition pursuant to Section 2.14(e) shall be available for specification in such Borrowing  Request or Interest Election Request.  For purposes hereof, the date of a Borrowing initially shall be the  date on which such Borrowing is made and thereafter shall be the effective date of the most recent  conversion or continuation of such Borrowing.  “IRS” means the United States Internal Revenue Service.  “Lender Parent” means, with respect to any Lender, any Person as to which such Lender  is, directly or indirectly, a subsidiary.  “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall  have become a Lender hereunder pursuant to an Assignment and Assumption or otherwise, other than any  such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or otherwise.    “Lender-Related Person” has the meaning assigned to it in Section 8.03(d)  “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,  hypothecation, encumbrance, charge or security interest in, on or of such asset, and (b) the interest of a  vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any  financing lease having substantially the same economic effect as any of the foregoing) relating to such  asset.  “Loan Documents” means this Agreement, any promissory notes issued pursuant to  Section 2.10(e), and any and all other agreements or instruments executed and delivered to, or in favor of,  the Administrative Agent or any Lenders in connection with the Agreement or the transactions  contemplated thereby.  “Loans” or “Term Loans” means the loans made by the Lenders to the Borrower pursuant  to Section 2.01 of  this Agreement.  “Material Adverse Change” means a material adverse change in (i) the business, assets,  operations or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole  from that reflected in the Company’s consolidated financial statements as of December 31, 2021, or (ii)  the validity or enforceability of this Agreement or any and all other Loan Documents or the rights or  remedies of the Administrative Agent and the Lenders thereunder.  





 






    16  “Material Adverse Effect” means a material adverse effect on (i) the business, assets,  operations or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole  from that reflected in the Company’s consolidated financial statements as of December 31, 2021, or (ii)  the validity or enforceability of this Agreement or any and all other Loan Documents or the rights or  remedies of the Administrative Agent and the Lenders thereunder.  “Material Foreign Pension Plan” has the meaning assigned to such term in Section  6.01(j).  “Material Obligations” means (a) Debt, Off-Balance Sheet Liabilities and/or obligations  under one or more Swap Agreements, in each case, of the Company and/or one or more of its  Subsidiaries, arising in one or more related or unrelated transactions, in an aggregate outstanding amount  exceeding $75,000,000, other than (i) the Loans and (ii) Debt owing to the Company or any of its  Subsidiaries and (b) Debt arising under the Revolving Credit Agreement.  For purposes of determining  Material Obligations, the amount of the obligations of the Company or any Subsidiary in respect of any  Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting  agreements) that the Company or such Subsidiary would be required to pay if such Swap Agreement were  terminated at such time.  “Material Plan” has the meaning assigned to such term in Section 6.01(j).  “Maturity Date” means April 26, 2023.  “Maximum Rate” has the meaning assigned to it in Section 8.14.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  “Multiemployer Plan” means at any time an employee pension benefit plan within the  meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or  required to make or, pursuant to an applicable collective bargaining agreement, accruing an obligation to  make contributions or has within the preceding five plan years made or been required to make  contributions, including for these purposes any Person which ceased to be a member of the ERISA Group  during such five year period.  “Net Consolidated Debt” means, as of any date of determination, (a) Consolidated Debt  minus (b) the positive amount (if any) by which the sum of (i) 100% of unrestricted cash and Permitted  Cash Equivalent Investments held by the Company or its Domestic Subsidiaries on such date and (ii)  100% of unrestricted cash and Permitted Cash Equivalent Investments held by Foreign Subsidiaries of the  Company on such date (net of related tax obligations, if any, for repatriation, withholding and transaction  costs and expenses related thereto, in each case, as determined by the Company in its reasonable  discretion), exceeds $25,000,000.  “NYFRB” means the Federal Reserve Bank of New York.  “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in  effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is  not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are  published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds  transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds  broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so  determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.  





 






    17  “NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org or  any successor source.  “Obligations” means all unpaid principal of and accrued and unpaid interest on the  Loans, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations  and indebtedness (including interest and fees accruing during the pendency of any bankruptcy,  insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such  proceeding), obligations and liabilities of any of the Company and its Subsidiaries to any of the Lenders,  the Administrative Agent or any indemnified party, individually or collectively, existing on the Effective  Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or  unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or  otherwise, arising or incurred under this Agreement or any of the other Loan Documents or in respect of  any of the Loans made or reimbursement or other obligations incurred.  “OFAC” means the Office of Foreign Assets Control of the United States Department of  the Treasury.  “Off-Balance Sheet Liabilities” of a Person means (a) any repurchase obligation or  liability of such Person with respect to accounts or notes receivable sold by such Person (including, the  principal amount of obligations or liabilities which (i) if structured as a secured lending agreement,  constitutes the principal amount thereof or (ii) if structured as a purchase arrangement, would be  outstanding at such time if the same were structured as a secured lending agreement rather than a  purchase agreement), (b) any indebtedness, liability or obligation under any sale and leaseback  transaction evidenced by a sale or other transfer of any property or asset by any Person with the intent to  lease such property or asset as lessee, which is not a Capital Lease Obligation or (c) any indebtedness,  liability or obligation under any so-called “synthetic lease” transaction entered into by such Person.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a  result of a present or former connection between such Recipient and the jurisdiction imposing such Tax  (other than connections arising from such Recipient having executed, delivered, become a party to,  performed its obligations under, received payments under, received or perfected a security interest under,  engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an  interest in any Loan or Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery,  performance, enforcement or registration of, from the receipt or perfection of a security interest under, or  otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes  imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19) .  “Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight  federal funds and overnight eurodollar transactions denominated in Dollars by U.S.–managed banking  offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth  on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the  NYFRB as an overnight bank funding rate.  “Participant” has the meaning assigned to such term in Section 8.04.  “Participant Register” has the meaning assigned to such term in Section 8.04.  “Patriot Act” has the meaning assigned to such term in Section 8.13.  





 






    18  “Payment” has the meaning assigned to it in Article VIII.  “Payment Notice” has the meaning assigned to it in Article VIII.   “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in  ERISA and any successor entity performing similar functions.   “Permitted Cash Equivalent Investments” means:  (a)  direct obligations of, or obligations the principal of and interest on which are  unconditionally guaranteed by, the United States of America (or by any agency thereof to the  extent such obligations are backed by the full faith and credit of the United States of America), in  each case maturing within one year from the date of acquisition thereof;  (b)  investments in commercial paper maturing within 270 days from the date of  acquisition thereof and having, at such date of acquisition, a credit rating obtainable from S&P of  A-1 or higher or from Moody’s of P-1 or higher;  (c)  investments in certificates of deposit, bankers’ acceptances and time deposits  maturing within 360 days from the date of acquisition thereof issued or guaranteed by or placed  with, and money market deposit accounts issued or offered by, any financial institution which has  a combined capital and surplus and undivided profits of not less than $500,000,000 and which has  a credit rating of A- or higher from S&P and A3 or higher from Moody’s (or, in the case of any  such financial institution located in a jurisdiction outside the United States of America which is  not so rated, which has comparable other credit ratings or, if none exist, is otherwise reasonably  acceptable to the Administrative Agent);  (d)  fully collateralized repurchase agreements with a term of not more than thirty (30)  days for securities described in clause (a) above and entered into with a financial institution  satisfying the criteria described in clause (c) above;   (e)  money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under  the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii)  have portfolio assets of at least $1,000,000,000;  (f)  [reserved]; and  (g)  foreign investments substantially comparable to any of the foregoing in connection  with managing cash of any Subsidiary having operations in a foreign country.  “Person” means any natural person, corporation, limited liability company, trust, joint  venture, association, company, partnership, Governmental Authority or other entity.  “Plan” means at any time an employee pension benefit plan within the meaning of  Section 3(2) of ERISA (other than a Multiemployer Plan) which is covered by Title IV of ERISA or  subject to the minimum funding standards under Section 412 of the Code and either (i) is sponsored,  maintained, or contributed to, (A) by any member of the ERISA Group or (B) for employees of any  member of the ERISA Group or (ii) has at any time within the preceding five years been sponsored,  maintained, or contributed to, by any Person which was at such time a member of the ERISA Group or  for employees of any Person which was at such time a member of the ERISA Group.  





 






    19  “Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section  3(42) of ERISA.   “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the  “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum  interest rate published by the Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest  Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted  therein (as determined by the Administrative Agent) or any similar release by the Board (as determined  by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the  date such change is publicly announced or quoted as being effective.  “Prior Plan” means at any time (i) any Plan which at such time is no longer sponsored,  maintained or contributed to by any member of the ERISA Group or (ii) any Multiemployer Plan to  which no member of the ERISA Group is at such time any longer making contributions or, pursuant to an  applicable collective bargaining agreement, accruing an obligation to make contributions.  “Pro Forma Basis” means, with respect to any event, that the Company is in compliance  on a pro forma basis with the applicable covenant, calculation or requirement herein recomputed as if the  event with respect to which compliance on a pro forma basis is being tested had occurred on the first day  of the four fiscal quarter period most recently ended on or prior to such date in accordance with Section  1.04(b).  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.  “Recipient” means (a) the Administrative Agent, and (b) any Lender, as applicable.  “Reference Time” with respect to any setting of the then-current Benchmark means (1) if  such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two Business Days  preceding the date of such setting, (2) if, following a Benchmark Transition Event and Benchmark  Replacement Date with respect to the Term SOFR Rate, such Benchmark is Daily Simple SOFR, then  four Business Days prior to such setting, or (3) if such Benchmark is neither the Term SOFR Rate nor  Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable discretion.   “Refunding” has the meaning assigned to such term in Section 5.08(b).  “Refunding Debt” means any Debt of a Person that is deemed to be for the purpose of  Refunding other Debt of such Person, as further defined in Section 5.08(b).  “Register” has the meaning assigned to such term in Section 8.04.  “Related Parties” means, with respect to any specified Person, such Person’s Affiliates  and the respective directors, officers, employees, agents and advisors of such Person and such Person’s  Affiliates.  “Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB,  the CME Term SOFR Administrator, as applicable or a committee officially endorsed or convened by the  Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.   “Required Lenders” means, subject to Section 2.20, at any time, (a) prior to the date on  which the Term Loans are funded, Lenders having Commitments representing more than 50% of the sum  





 






    20  of all outstanding Commitments at such time, and (b) from and after the date on which the Term Loans  are funded, Lenders having outstanding Term Loans representing more than 50% of the sum of all  outstanding Term Loans at such time.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  “Responsible Officer” means a vice president or a Financial Officer of the Company.  “Revolving Credit Agreement” means the Credit Agreement dated as the Effective Date  by and among the Company, Masco Europe S.à r.l., certain lenders from time to time party thereto and  JPMorgan Chase Bank, N.A., as administrative agent, as amended, restated, amended and restated,  refinanced, replaced, supplemented or otherwise modified from time to time.   “RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such  Borrowing.  “RFR Loan” means a Loan that bears interest at a rate based on the Adjusted Daily  Simple SOFR.  “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial  Services LLC business and any successor thereto.  “Sanctioned Country” means, at any time, a country, region or territory which is itself the  subject or target of any Sanctions (at the time of this Agreement, the so-called Donetsk People’s  Republic, the so- called Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran, North  Korea and Syria).  “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related  list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations  Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the  United Kingdom or the Hong Kong Monetary Authority, (b) any Person operating, organized or resident  in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in  the foregoing clauses (a) or (b), or (d) any Person otherwise the subject of any Sanctions.  “Sanctions” means all economic or financial sanctions or trade embargoes imposed,  administered or enforced from time to time by (a) the U.S. government, including those administered by  OFAC or the U.S. Department of State, or (b) the United Nations Security Council, the European Union,  any European Union member state, Her Majesty’s Treasury of the United Kingdom, the Hong Kong  Monetary Authority or other relevant sanctions authority.  “SEC” means the United States Securities and Exchange Commission.  “Significant Subsidiaries” means any one or more Subsidiaries which, if considered in  the aggregate as a single Subsidiary, would be a “significant subsidiary” as defined in Rule 1-02 of  Regulation S-X under the Securities Exchange Act of 1934.    “SOFR” means a rate equal to the secured overnight financing rate as administered by the  SOFR Administrator.    





 






    21  “SOFR Administrator” means the NYFRB (or a successor administrator of the secured  overnight financing rate).    “SOFR Administrator’s Website” means the NYFRB’s Website, currently at  http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as  such by the SOFR Administrator from time to time.    “SOFR Determination Date” has the meaning specified in the definition of “Daily Simple  SOFR”.  “SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.  “subsidiary” means, with respect to any Person (the “parent”) at any date, any  corporation, limited liability company, partnership, association or other entity the accounts of which  would be consolidated with those of the parent in the parent’s consolidated financial statements if such  financial statements were prepared in accordance with GAAP as of such date, as well as any other  corporation, limited liability company, partnership, association or other entity of which securities or other  ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting  power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such  date, owned, controlled or held.  “Subsidiary” means any subsidiary of the Company.  “Swap Agreement” means any agreement with respect to any swap, forward, future or  derivative transaction or option or similar agreement involving, or settled by reference to, one or more  rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing  indices or measures of economic, financial or pricing risk or value or any similar transaction or any  combination of these transactions; provided that no phantom stock or similar plan providing for payments  only on account of services provided by current or former directors, officers, employees or consultants of  the Company or the Subsidiaries shall be a Swap Agreement.  “Swap Obligations” means any and all obligations of the Company or any Subsidiary,  whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired  (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any  and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender, and (b) any and  all cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement  transaction.  “Taxes” means all present or future taxes, levies, imposts, duties, deductions,  withholdings (including backup withholding), assessments, fees or other charges imposed by any  Governmental Authority, including any interest, additions to tax or penalties applicable thereto.  “Term Benchmark”, when used in reference to any Loan or Borrowing, refers to whether  such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by  reference to the Adjusted Term SOFR Rate.  “Term SOFR Determination Day” has the meaning assigned to it under the definition of  Term SOFR Reference Rate.  “Term SOFR Rate” means, with respect to any Term Benchmark Borrowing and for any  tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00  





 






    22  a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such  tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR  Administrator.  “Term SOFR Reference Rate”  means, for any day and time (such day, the “Term SOFR  Determination Day”), with respect to any Term Benchmark Borrowing and for any tenor comparable to  the applicable Interest Period, the rate per annum determined by the Administrative Agent as the forward- looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR  Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by  the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR  Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will  be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government  Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term  SOFR Administrator, so long as such first preceding Business Day is not more than five (5) Business  Days prior to such Term SOFR Determination Day.    “Transactions” means the execution, delivery and performance by the Borrower of this  Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions, and the  use of the proceeds thereof.  “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of  interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the  Adjusted Term SOFR Rate, the Alternate Base Rate or Adjusted Daily Simple SOFR.  “UK Financial Institutions” means any BRRD Undertaking (as such term is defined  under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from  time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain  credit institutions and investment firms, and certain affiliates of such credit institutions or investment  firms.  “UK Resolution Authority” means the Bank of England or any other public  administrative authority having responsibility for the resolution of any UK Financial Institution.   “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement  excluding the related Benchmark Replacement Adjustment.  “Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any)  by which (i) the value of all benefit liabilities under such Plan, determined on a plan termination basis  using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the  fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA (excluding any  accrued but unpaid contributions), all determined as of the then most recent valuation date for such Plan,  but only to the extent that such excess represents a potential liability of a member of the ERISA Group to  the Plan, the PBGC or any other Person under Title IV of ERISA.  “U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii)  a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends  that the fixed income departments of its members be closed for the entire day for purposes of trading in  United States government securities.  





 






    23  “U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)  of the Code.  “U.S. Special Resolution Regime” has the meaning assigned to it in Section 8.18.   “U.S. Tax Compliance Certificate” has the meaning assigned to such term in  Section 2.17(f)(ii)(B)(3).  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time  under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion  powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,   any powers of the applicable Resolution Authority  under the Bail-In Legislation to cancel, reduce,  modify or change the form of a liability of any UK Financial Institution  or any contract or instrument  under which that liability arises, to convert all or part of that liability into shares, securities or obligations  of that person or any other person, to provide that any such contract or instrument is to have effect as if a  right had been exercised under it or to suspend any obligation in respect of that liability or any of the  powers under that Bail-In Legislation that are related to or ancillary to any of those powers.   SECTION 1.02.  Classification of Loans and Borrowings.  For purposes of this  Agreement, Loans may be classified and referred to by Type (e.g., a “Term Benchmark Loan” or an  “ABR Loan”).  Borrowings also may be classified and referred to by Type (e.g., a “Term Benchmark  Borrowing” or an “ABR Borrowing”).  SECTION 1.03.  Terms Generally.  The definitions of terms herein shall apply equally to  the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall  include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and  “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be  construed to have the same meaning and effect as the word “shall”.  The word “law” shall be construed as  referring to all statutes, rules, regulations, codes and other laws (including official rulings and  interpretations thereunder having the force of law or with which affected Persons customarily comply),  and all judgments, orders and decrees, of all Governmental Authorities.  Unless the context requires  otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall  be construed as referring to such agreement, instrument or other document as from time to time amended,  restated, supplemented or otherwise modified (subject to any restrictions on such amendments,  restatements, supplements or modifications set forth herein), (b) any definition of or reference to any  statute, rule or regulation shall be construed as referring thereto as from time to time amended,  supplemented or otherwise modified (including by succession of comparable successor laws), (c) any  reference herein to any Person shall be construed to include such Person’s successors and assigns (subject  to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any  other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words  “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this  Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles,  Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and  Schedules to, this Agreement and (f) the words “asset” and “property” shall be construed to have the same  meaning and effect and to refer to any and all tangible and intangible assets and properties, including  cash, securities, accounts and contract rights.   SECTION 1.04.  Accounting Terms; GAAP; Pro Forma Calculations. (a)   Except as  otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in  accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the  





 






    24  Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the  effect of any change occurring after the date hereof in GAAP or in the application thereof on the  operation of such provision (or if the Administrative Agent notifies the Company that the Required  Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such  notice is given before or after such change in GAAP or in the application thereof, then such provision  shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall  have become effective until such notice shall have been withdrawn or such provision  amended in  accordance herewith.  Notwithstanding any other provision contained herein, all terms of an accounting or  financial nature used herein shall be construed, and all computations of amounts and ratios referred to  herein shall be made, (i) without giving effect to any election under Accounting Standards Codification  825-10-25  (or any other Accounting Standards Codification or Financial Accounting Standard having a  similar result or effect) to value any Debt or other liabilities of the Company or any Subsidiary at “fair  value”, as defined therein and (ii) without giving effect to any treatment of Debt in respect of convertible  debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards  Codification or Financial Accounting Standard having a similar result or effect) to value any such Debt in  a reduced or bifurcated manner as described therein, and such Debt shall at all times be valued at the full  stated principal amount thereof.  (b)  All pro forma computations required to be made hereunder giving effect to any  acquisition or disposition, or issuance, incurrence or assumption of Debt, or other transaction shall in each  case be calculated giving pro forma effect thereto (and, in the case of any pro forma computation made  hereunder to determine whether such acquisition or disposition, or issuance, incurrence or assumption of  Debt, or other transaction is permitted to be consummated hereunder, to any other such transaction  consummated since the first day of the period covered by any component of such pro forma computation  and on or prior to the date of such computation) as if such transaction had occurred on the first day of the  period of four consecutive fiscal quarters ending with the most recent fiscal quarter for which financial  statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of  any such financial statements, ending with the last fiscal quarter included in the financial statements  referred to in Section 3.04(a)), and, to the extent applicable, to the historical earnings and cash flows  associated with the assets acquired or disposed of and any related incurrence or reduction of Debt, all in  accordance with Article 11 of Regulation S-X of the SEC.  Such computations may give effect to (i) any  projected cost savings (net of continuing associated expenses) expected to be realized as a result of such  event to the extent such cost savings would be permitted to be reflected in financial statements prepared  in compliance with Article 11 of Regulation S-X of the SEC or (ii) any other cost savings (net of  continuing associated expenses) that are reasonably anticipated by the Company to be achieved in  connection with any such event and are attributable to actions started or occurring within the 12-month  period following the consummation of such event, which the Company, in its reasonable judgment,  determines are achievable; provided that if any cost savings included in any pro forma calculations  pursuant to this clause (ii) shall at any time cease to be achievable, in the Company’s reasonable  judgment, then on and after such time pro forma calculations to be made hereunder shall no longer reflect  such cost savings.  Notwithstanding the foregoing, (x) all adjustments pursuant to this paragraph will be  without duplication of any amounts that are otherwise included or added back in computing Consolidated  EBITDA in accordance with the definition of such term and (y) the aggregate amount of any increase in  Consolidated EBITDA pursuant to clauses (i) or (ii) of the preceding sentence, and pursuant to clause (x)  of the definition of “Consolidated EBITDA”, for any applicable period being tested shall not exceed 10%  of Consolidated EBITDA as a result of the relevant event in the absence of the adjustments pursuant to  clauses (i) or (ii) of the preceding sentence and clause (x) of the definition of “Consolidated EBITDA”.  If  any Debt bears a floating rate of interest and is being given pro forma effect, the interest on such Debt  shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the  entire period (taking into account any Swap Agreement applicable to such Debt).  





 






    25  (c)  Notwithstanding anything to the contrary contained herein and for all purposes  hereunder only those leases (assuming for purposes hereof that such leases were in existence on January  1, 2015) that would have constituted capital leases or financing leases in conformity with GAAP on  January 1, 2015, shall be considered capital leases or financing leases for all purposes hereunder, and all  calculations and deliverables under this Agreement or any other Loan Document shall be made or  delivered, as applicable, in accordance therewith.  SECTION 1.05.  Interest Rates; Benchmark Notification.  The interest rate on a Loan  may be derived from an interest rate benchmark that may be discontinued or is, or may in the future  become, the subject of regulatory reform.  Upon the occurrence of a Benchmark Transition Event, Section  2.14(b) provides a mechanism for determining an 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, performance or any other matter related to any interest rate used in this  Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof,  including without limitation, whether the composition or characteristics of any such alternative, successor  or replacement reference rate will be similar to, or produce the same value or economic equivalence of,  the existing interest rate being replaced or have the same volume or liquidity as did any existing interest  rate prior to its discontinuance or unavailability.  The Administrative Agent and its affiliates and/or other  related entities may engage in transactions that affect the calculation of any  interest rate used in this  Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement)  and/or any relevant adjustments thereto, in each case, in a manner adverse to the Company.  The  Administrative Agent may select information sources or services in its reasonable discretion to ascertain  any interest rate used in this Agreement, any component thereof, or rates referenced in the definition  thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Company,  any Lender or any other person or entity for damages of any kind, including direct or indirect, special,  punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or  otherwise and whether at law or in equity), for any error or calculation of any such rate (or component  thereof) provided by any such information source or service.  SECTION 1.06.  Divisions.  For all purposes under the Loan Documents, in connection  with any division or plan of division under Delaware law (or any comparable event under a different  jurisdiction’s laws):  (a) if any asset, right, obligation or liability of any Person becomes the asset, right,  obligation or liability of a different Person, then it shall be deemed to have been transferred from the  original Person to the subsequent Person, and (b) if any new Person comes into existence, such new  Person shall be deemed to have been organized and acquired on the first date of its existence by the  holders of its Equity Interests at such time.  ARTICLE II    The Credits  SECTION 2.01.  Commitments.  Subject to the terms and conditions set forth herein,  each Lender agrees to make Term Loans to the Borrower in a single draw during the Availability Period  in an amount not to exceed such Lender’s Commitment, by making immediately available funds available  to the Administrative Agent’s designated account, not later than the time specified by the Administrative  Agent.  For the avoidance of doubt, the Term Loans made pursuant to this Section 2.01 shall be borrowed  in a single advance.  Amounts repaid or prepaid in respect of the Term Loans may not be reborrowed.    SECTION 2.02.  Term Loans and Borrowings.  (a)   Each Term Loan shall be made as  part of a Borrowing consisting of Term Loans made by the Lenders ratably in accordance with their  





 






    26  respective Commitments.  The failure of any Lender to make any Loan required to be made by it shall not  relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are  several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.    (b)  Subject to Section 2.14, each Borrowing shall be comprised entirely of ABR Loans,  or Term Benchmark Loans as the Borrower may request in accordance herewith.  Each Lender at its  option may make any Term Loan by causing any domestic or foreign branch or Affiliate of such Lender  to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and 2.17  shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such  option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of  this Agreement.  (c)  At the commencement of each Interest Period for any Term Benchmark Borrowing,  such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less  than $10,000,000.  At the time that each ABR Borrowing is made, such Borrowing shall be in an  aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000.  Borrowings of  more than one Type may be outstanding at the same time.  (d)  Subject to payment of amounts owing under Section 2.16, the Borrower shall be  entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with  respect thereto would end after the Maturity Date.  SECTION 2.03.  Requests for Borrowings.  To request a Borrowing, the Borrower shall  notify the Administrative Agent of such request (a) by irrevocable written notice (via a written Borrowing  Request in a form approved by the Administrative Agent and signed by the Borrower, promptly followed  by telephonic confirmation of such request) (i) in the case of a Term Benchmark Borrowing, not later than  11:00 a.m., New York City Time, three (3) Business Days before the date of the proposed Borrowing, or  (b) by telephone in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one (1)  Business Day before the date of the proposed Borrowing.  Each such telephonic Borrowing Request  pursuant to clause (b) in the preceding sentence shall be irrevocable and shall be confirmed promptly by  hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved  by the Administrative Agent and signed by the Borrower.  Each such telephonic and written Borrowing  Request shall specify the following information in compliance with Section 2.02:   (i)  the aggregate principal amount of the requested Borrowing;  (ii)  the date of such Borrowing, which shall be a Business Day;  (iii)  whether such Borrowing is to be an ABR Borrowing or a Term Benchmark  Borrowing;  (iv)  in the case of a Term Benchmark Borrowing, the initial Interest Period to be  applicable thereto, which shall be a period contemplated by the definition of the term  “Interest Period”; and  (v)  the location and number of the Borrower’s account to which funds are to be  disbursed, which shall comply with the requirements of Section 2.07.  If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR  Borrowing.  If no Interest Period is specified with respect to any requested Term Benchmark Borrowing,  then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.  Promptly  





 






    27  following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall  advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of  the requested Borrowing. Notwithstanding the foregoing, in no event shall the Borrower be permitted to  request pursuant to this Section 2.03, a Daily Simple SOFR Loan (it being understood and agreed that  Daily Simple SOFR shall only apply to the extent provided in Sections 2.14(a) and 2.14(f)).  SECTION 2.04.  [Reserved].    SECTION 2.05.  [Reserved].  SECTION 2.06.  [Reserved].  SECTION 2.07.  Funding of Borrowings.  (a)   Each Lender shall make the Term Loan to  be made by it hereunder on the proposed date thereof in accordance with Section 2.01.  The  Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts  so received, in like funds, to an account of the Borrower maintained with the Administrative Agent in  New York City or Chicago and designated by the Borrower in the applicable Borrowing Request.  (b)  Unless the Administrative Agent shall have received notice from a Lender prior to  the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent  such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made  such share available on such date in accordance with paragraph (a) of this Section and may, in reliance  upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a  Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent,  then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith  on demand such corresponding amount with interest thereon, for each day from and including the date  such amount is made available to the Borrower to but excluding the date of payment to the Administrative  Agent, at (i) in the case of such Lender, the greater of the NYFRB Rate and a rate determined by the  Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the  case of the Borrower, the interest rate applicable to ABR Loans.  If such Lender pays such amount to the  Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.  SECTION 2.08.  Interest Elections for Borrowings.  (a)   Each Borrowing initially shall  be of the Type specified in the applicable Borrowing Request and, in the case of a Term Benchmark  Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the  Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in  the case of any such Term Benchmark Borrowing, may elect Interest Periods therefor, all as provided in  this Section.  The Borrower may elect different options with respect to different portions of the affected  Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the  Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a  separate Borrowing.    (b)  To make an election pursuant to this Section, the Borrower shall notify the  Administrative Agent of such election by telephone or irrevocable written notice by the time that a  Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of  the Type resulting from such election to be made on the effective date of such election.  Each such  telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand  delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved  by the Administrative Agent and signed by the Borrower.  Notwithstanding any contrary provision herein,  this Section shall not be construed to permit the Borrower to (i) elect an Interest Period for Term  





 






    28  Benchmark Loans that does not comply with Section 2.02(d) or (ii) convert any Borrowing to a  Borrowing of a Type that is not available.  (c)  Each telephonic and written Interest Election Request shall specify the following  information in compliance with Section 2.02:  (i)  the Borrowing to which such Interest Election Request applies and, if  different options are being elected with respect to different portions thereof, the portions  thereof to be allocated to each resulting Borrowing (in which case the information to be  specified pursuant to clauses (ii) and (iii) below shall be specified for each resulting  Borrowing);  (ii)  the effective date of the election made pursuant to such Interest Election  Request, which shall be a Business Day;  (iii)  whether the resulting Borrowing is to be an ABR Borrowing or a Term  Benchmark Borrowing; and  (iv)  if the resulting Borrowing is a Term Benchmark Borrowing, the Interest  Period to be applicable thereto after giving effect to such election, which Interest Period  shall be a period contemplated by the definition of the term “Interest Period”.  If any such Interest Election Request requests a Term Benchmark Borrowing but does not specify an  Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s  duration. Notwithstanding the foregoing, in no event shall the Borrower be permitted to request pursuant  to this Section 2.08(c) a Daily Simple SOFR Loan (it being understood and agreed that Daily Simple  SOFR shall only apply to the extent provided in Sections 2.14(a) and 2.14(f)).  (d)  Promptly following receipt of an Interest Election Request, the Administrative  Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting  Borrowing.  (e)  If the Borrower fails to deliver a timely Interest Election Request with respect to a  Term Benchmark Borrowing prior to the end of the Interest Period applicable thereto, then, unless such  Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be  converted to an ABR Borrowing.  Notwithstanding any contrary provision hereof, if an Event of Default  has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so  notifies the Company, then, so long as an Event of Default is continuing (i) no outstanding Borrowing  may be converted to or continued as a Term Benchmark Borrowing, and (ii) unless repaid, each Term  Benchmark Borrowing and RFR Borrowing shall be converted to an ABR Borrowing at the end of the  Interest Period applicable thereto.  SECTION 2.09.  Termination and Reduction of Commitments; Termination of Facility.   (a)   Unless previously terminated, the Commitments shall terminate immediately upon the initial funding  of the Term Loans, and in any event shall be automatically and permanently reduced to zero at 3:00 p.m.  (New York City time) on May 26, 2022.  (b)  The Company may at any time during the Availability Period terminate, or from  time to time during the Availability Period reduce, the Commitments; provided that each reduction of the  Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than  $5,000,000.   





 






    29  (c)  The Company shall notify the Administrative Agent of any election to terminate or  reduce the Commitments under paragraph (b) of this Section at least three (3) Business Days prior to the  effective date of such termination or reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the  contents thereof. Each notice delivered by the Company pursuant to this Section shall be irrevocable;  provided that a notice of termination of the Commitments delivered by the Company may state that such  notice is conditioned upon the effectiveness of other credit facilities or debt financing, in which case such  notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified  effective date) if such condition is not satisfied. Any termination or reduction of the Commitments shall  be permanent. Each reduction of the Commitments shall be made ratably among the Lenders in  accordance with their respective Commitments.  (d)  Any such termination of the Commitments in full specifying termination of this  Agreement shall be accompanied by the payment in full in cash of all reimbursable expenses and other  Obligations (other than contingent indemnity obligations).  SECTION 2.10.  Repayment of Loans; Evidence of Debt.  (a)   The Borrower hereby  unconditionally promises to pay to the Administrative Agent for the account of each Lender the then  unpaid principal amount of the Term Loans on the Maturity Date, unless accelerated sooner pursuant to  Article VII.    (b)  Each Lender shall maintain in accordance with its usual practice an account or  accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by  such Lender, including the amounts of principal and interest payable and paid to such Lender from time to  time hereunder.  (c)  The Administrative Agent shall maintain accounts in which it shall record (i) the  amount of each Loan made hereunder and Type thereof and the Interest Period applicable thereto, (ii) the  amount of any principal or interest due and payable or to become due and payable from the Borrower to  each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder  for the account of the Lenders and each Lender’s share thereof.  (d)  The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this  Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein;  provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any  error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in  accordance with the terms of this Agreement.  (e)  Any Lender may request that Loans made by it to the Borrower be evidenced by a  promissory note.  In such event, the Borrower shall prepare, execute and deliver to such Lender a  promissory note payable to such Lender and its registered assigns and in a form approved by the  Administrative Agent.  Thereafter, the Loans evidenced by such promissory note and interest thereon  shall at all times (including after assignment pursuant to Section 8.04) be represented by one or more  promissory notes in such form payable to the payee named therein and its registered assigns.  SECTION 2.11.  Prepayment of Loans. The Borrower shall have the right at any time and  from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with  the provisions of this Section 2.11.  The Borrower shall notify the Administrative Agent by telephone  (confirmed by telecopy or electronic mail) of any prepayment hereunder (i) in the case of prepayment of a  Term Benchmark Borrowing, not later than 11:00 a.m., New York City Time, three (3) Business Days  before the date of prepayment, (ii) in the case of a prepayment of an RFR Borrowing, not later than 11:00  





 






30  a.m., New York City time, five (5) Business Days before the date of prepayment, or (iii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one (1) Business Day before the date of prepayment.  Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid.  Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02. Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.13 and (ii) break funding payments pursuant to Section 2.16. SECTION 2.12.  Fees.  (a)   The Company agrees to pay to the Administrative Agent and  the Arranger, for their own account, fees payable in the amounts and at the times separately agreed upon  between the Company and the Administrative Agent or the Arranger.  (b) All fees payable hereunder shall be paid on the dates due, in Dollars and immediately available funds, to the Administrative Agent.  Fees paid shall not be refundable under any  circumstances.  SECTION 2.13.  Interest. (a)   The Loans comprising each ABR Borrowing shall bear  interest at the Alternate Base Rate plus the Applicable Rate.    (b) The Loans comprising each Term Benchmark Borrowing shall bear interest at the Adjusted Term SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.  (c) The Loans comprising each RFR Borrowing shall bear interest at Adjusted Daily Simple SOFR plus the Applicable Rate.  (d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,  upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment,  at a rate per annum equal to (i) in the case of overdue principal and interest of any Loan, 2% plus the rate  otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the  case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this  Section.  (e) Accrued interest on each Term Loan shall be payable in arrears on each Interest Payment Date for such Term Loan and upon termination of the Commitments; provided that (i) interest  accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in the event of any  repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be  payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Term  Benchmark Term Loan prior to the end of the current Interest Period therefor, accrued interest on such  Loan shall be payable on the effective date of such conversion.  (f) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is  based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year),  and in each case shall be payable for the actual number of days elapsed (including the first day but  excluding the last day). The applicable Alternate Base Rate, Adjusted Term SOFR Rate, Term SOFR  Rate, Adjusted Daily Simple SOFR and Daily Simple SOFR shall be determined by the Administrative  Agent, and such determination shall be conclusive absent manifest error.  





 






31  SECTION 2.14.  Alternate Rate of Interest.    (a) Subject to clauses (b) (c), (d), (e) and (f) of this Section 2.14, if: (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior to the commencement of any Interest Period  for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for  ascertaining the Adjusted Term SOFR Rate or the Term SOFR Rate for such Interest  Period or (B) at any time, that adequate and reasonable means do not exist for  ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or   (ii) the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the  Adjusted Term SOFR Rate or the Term SOFR Rate for such Interest Period will not  adequately and fairly reflect the cost to such Lenders of making or maintaining their  Loans included in such Borrowing for such Interest Period or (B) at any time, the  applicable Adjusted Daily Simple SOFR or Daily Simple SOFR will not adequately and  fairly reflect the cost to such Lenders of making or maintaining their Loans included in  such Borrowing;  then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone,  telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent  notifies the Company and the Lenders that the circumstances giving rise to such notice no longer exist,  with respect to the relevant Benchmark and (y) the Company on behalf of such Borrower delivers a new  Interest Election Request in accordance with the terms of Section 2.08 or a new Borrowing Request in  accordance with the terms of Section 2.03, (A) any Interest Election Request that requests the conversion  of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing and any  Borrowing Request that requests a Term Benchmark Borrowing shall instead be deemed to be an Interest  Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the  Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR  Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above and  (B) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Company's receipt of the notice from the Administrative Agent referred to in this Section 2.14(a) with respect to the Benchmark applicable to such Term Benchmark Loan or RFR Loan, then until the Administrative Agent notifies the Company and the Lenders that the circumstances giving rise to such notice no longer exist, (1) with respect to any Term Benchmark Loan, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan. (b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark 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 (x) if a Benchmark  Replacement is determined in accordance with clause (1) of the definition of "Benchmark Replacement"  for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for  





 






32  all purposes hereunder and under any Loan Document in respect of such Benchmark setting and  subsequent Benchmark settings without any amendment to, or further action or consent of any other party  to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in  accordance with clause (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 any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New  York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is  provided to the Lenders without any amendment to, or further action or consent of any other party to, this  Agreement or any other Loan Document so long as the Administrative Agent has not received, by such  time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required  Lenders.   (c) Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from  time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any  amendments implementing such Benchmark Replacement Conforming Changes will become effective  without any further action or consent of any other party to this Agreement or any other Loan Document.   (d) The Administrative Agent will promptly notify the Company and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark  Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the  removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the  commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or  election that may be made by the Administrative Agent and/or the Company or, if applicable, any Lender  (or group of Lenders) pursuant to this Section 2.14, including any determination with respect to a tenor,  rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any  decision to take or refrain from taking any action or any selection, will be conclusive and binding absent  manifest error and may be made in its or their sole discretion and without consent from any other party to  this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this  Section 2.14.  (e) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then- current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor for such  Benchmark is not displayed on a screen or other information service that publishes such rate from time to  time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor  for the administrator of such Benchmark has provided a public statement or publication of information  announcing that any tenor for such Benchmark is or will be no longer representative, then the  Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or  after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was  removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information  service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an  announcement that it is or will no longer be representative for a Benchmark (including a Benchmark  Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all  Benchmark settings at or after such time to reinstate such previously removed tenor.  (f) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Company may revoke any request for a Term Benchmark Borrowing or RFR  Borrowing of, conversion to or continuation of Term Benchmark Loans or RFR Loans to be made,  converted or continued during any Benchmark Unavailability Period and, failing that, the Company will  be deemed to have converted any request for a Term Benchmark Borrowing into a request for a  





 






33  Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not  the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple  SOFR is the subject of a Benchmark Transition Event. 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 ABR  based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used  in any determination of ABR. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on  the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period  with respect to the Benchmark applicable to such Term Benchmark Loan or RFR Loan, then until such  time as a Benchmark Replacement is implemented pursuant to this Section 2.14, on the last day of the  Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business  Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, (x) an RFR  Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition  Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition  Event, on such day.  SECTION 2.15.  Increased Costs.  (a)   If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or  other assessment) against assets of, deposits with or for the account of, or credit extended  by, any Lender (except any such reserve requirement reflected in the Adjusted Term  SOFR Rate);   (ii) impose on any Lender or any applicable interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by  such Lender; or  (iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C)  Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or  other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;  and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient  of making, continuing, converting into or maintaining any Loan or of maintaining its obligation to make  any such Loan or to reduce the amount of any sum received or receivable by such Lender or such other  Recipient hereunder, whether of principal, interest or otherwise, then the Borrower will pay to such  Lender or such other Recipient, as the case may be, such additional amount or amounts as will  compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or  reduction suffered as reasonably determined by such Lender or such other Recipient (which determination  shall be made in good faith (and not on an arbitrary or capricious basis) and consistent with similarly  situated customers of the applicable Lender or such other Recipient under agreements having provisions  similar to this Section 2.15 after consideration of such factors as such Lender or such other Recipient then  reasonably determines to be relevant).  (b) If any Lender determines that any Change in Law 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 or the Loans made  by such Lender, to a level below that which such Lender or such Lender’s holding company could have  achieved but for such Change in 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  





 






34  or such Lender’s holding company for any such reduction suffered as reasonably determined by such  Lender or such other Recipient (which determination shall be made in good faith (and not on an arbitrary  or capricious basis) and consistent with similarly situated customers of the applicable Lender or such  other Recipient under agreements having provisions similar to this Section 2.15 after consideration of  such factors as such Lender or such other Recipient then reasonably determines to be relevant).  (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b)  of this Section shall be delivered to the Company and shall be conclusive absent manifest error.  The  Company shall pay, or cause any other Person obligated thereon to pay, such Lender the amount shown as  due on any such certificate within ten (10) days after receipt thereof.  (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that  the Company shall not be required to compensate a Lender pursuant to this Section for any increased  costs or reductions incurred more than 180 days prior to the date that such Lender, notifies the Company  of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to  claim compensation therefor; provided further that, if the Change in Law giving rise to such increased  costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include  the period of retroactive effect thereof.  SECTION 2.16.  Break Funding Payments. (a)   In the event of (w) the payment of any  principal of any Term Benchmark Loan other than on the last day of an Interest Period applicable thereto  (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.11),  (x) the conversion of any Term Benchmark Loan other than on the last day of the Interest Period applicable thereto, (y) the failure to borrow, convert, continue or prepay any Term Benchmark Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11 and is revoked in accordance therewith) or (z) the assignment of any Term Benchmark Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Company pursuant to Section 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event.  Such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted Term SOFR Rate that would have been applicable to such Loan (but excluding any margin), for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in the relevant currency of a comparable amount and period from other banks in the eurocurrency or other applicable market.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof. (b) With respect to RFR Loans, in the event of (i) the payment of any principal of any such Loan other than on the Interest Payment Date applicable thereto (including as a result of an Event of  Default or an optional or mandatory prepayment of Loans), or (ii) the assignment of any such Loan other  than on the Interest Payment Date applicable thereto as a result of a request by the Company pursuant to  Section 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and  expense attributable to such event.  A certificate of any Lender setting forth any amount or amounts that  such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be  





 






35  conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any  such certificate within 10 days after receipt thereof.  SECTION 2.17.  Taxes.  (a)   Payments Free of Taxes.  Any and all payments by or on  account of any obligation of the Borrower under any Loan Document shall be made without deduction or  withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in  the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any  Tax from any such payment by a withholding agent, then the applicable withholding agent shall be  entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld  to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an  Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such  deduction or withholding has been made (including such deductions and withholdings applicable to  additional sums payable under this Section 2.17) the applicable Recipient receives an amount equal to the  sum it would have received had no such deduction or withholding been made.  (b) Payment of Other Taxes by the Borrower.  The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the  Administrative Agent timely reimburse it for the payment of, Other Taxes.  (c) Evidence of Payments.  As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 2.17, the Borrower shall deliver to the  Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority  evidencing such payment, a copy of the return reporting such payment or other evidence of such payment  reasonably satisfactory to the Administrative Agent.  (d) Indemnification by the Borrower.  The Borrower shall indemnify each Recipient, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes (including  Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable  or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, in  each case, on account of any obligation of the Borrower under any Loan Document and any reasonable  expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly  or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of  such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative  Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive  absent manifest error.  (e) Indemnification by the Lenders.  Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to  such Lender (but only to the extent that the Borrower has not already indemnified the Administrative  Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any  Taxes attributable to such Lender’s failure to comply with the provisions of Section 8.04(c) relating to the  maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each  case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and  any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were  correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the  amount of such payment or liability delivered to any Lender by the Administrative Agent shall be  conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and  apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise  payable by the Administrative Agent to the Lender from any other source against any amount due to the  Administrative Agent under this paragraph (e).  





 






36  (f) Status of Credit Parties.  (i) Any Credit Party that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to  the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or  the Administrative Agent, such properly completed and executed documentation reasonably requested by  the Borrower or the Administrative Agent as will permit such payments to be made without withholding  or at a reduced rate of withholding.  In addition, any Credit Party, if reasonably requested by the  Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable  law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or  the Administrative Agent to determine whether or not such Credit Party is subject to backup withholding  or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two  sentences, the completion, execution and submission of such documentation (other than such  documentation set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the  Credit Party’s reasonable judgment such completion, execution or submission would subject such Credit  Party to any material unreimbursed cost or expense or would materially prejudice the legal or commercial  position of such Credit Party.  (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person:  (A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable; (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) executed copies of IRS Form W-8ECI; (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 





 






37  881(c)(3)(A) of the Code, a “10 percent shareholder” of the  Borrower within the meaning of Section 881(c)(3)(B) of the Code, or  a “controlled foreign corporation” described in Section 881(c)(3)(C)  of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed  copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or  (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Credit Party agrees that if any form or certification it previously delivered expires or  becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify  the Company and the Administrative Agent in writing of its legal inability to do so.  (g) Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified  





 






38  pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section  2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of  indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund),  net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other  than any interest paid by the relevant Governmental Authority with respect to such refund).  Such  indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the  amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by  the relevant Governmental Authority) in the event that such indemnified party is required to repay such  refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g),  in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to  this paragraph (g) the payment of which would place the indemnified party in a less favorable net after- Tax position than the indemnified party would have been in if the Tax subject to indemnification and  giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification  payments or additional amounts with respect to such Tax had never been paid.  This paragraph shall not  be construed to require any indemnified party to make available its Tax returns (or any other information  relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.  (h) Survival.  Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement  of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all  obligations under any Loan Document.  SECTION 2.18.  Payments Generally; Pro Rata Treatment; Sharing of Set-offs.    (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise)  prior 12:00 noon, New York City time on the date when due, in immediately available funds, without set- off or counterclaim.  Any amounts received after such time on any date may, in the discretion of the  Administrative Agent, be deemed to have been received on the next succeeding Business Day for  purposes of calculating interest thereon.  All such payments shall be made in Dollars to the  Administrative Agent at its offices at 500 First Avenue, Pittsburgh, Pennsylvania, 15219.  The  Administrative Agent shall distribute any such payments denominated in the same currency received by it  for the account of any other Person to the appropriate recipient promptly following receipt thereof.  If any  payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be  extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest  thereon shall be payable for the period of such extension.  (b) At any time that payments are not required to be applied in the manner required by Section 6.02, if at any time insufficient funds are received by and available to the Administrative Agent to  pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i)  first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto  in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards  payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the  amounts of principal then due to such parties.    (c) At the election of the Administrative Agent, all payments of principal, interest, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses  pursuant to Section 8.03), and other sums payable under the Loan Documents, may be paid from the  proceeds of Borrowings made hereunder whether made following a request by the Borrower pursuant to  Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit  account of the Borrower maintained with the Administrative Agent.  The Borrower hereby irrevocably  





 






39  authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of  principal, interest and fees as it becomes due hereunder or any other amount due under the Loan  Documents and agrees that all such amounts charged shall constitute Loans and that all such Borrowings  shall be deemed to have been requested pursuant to Section 2.03 and (ii) the Administrative Agent to  charge any deposit account of the Borrower maintained with the Administrative Agent for each payment  of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan  Documents.  (d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans resulting in such Lender  receiving payment of a greater proportion of the aggregate amount of its Term Loans and accrued interest  thereon than the proportion received by any other Lender, then the Lender receiving such greater  proportion shall purchase (for cash at face value) participations in the Term Loans of other Lenders to the  extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in  accordance with the aggregate amount of principal of and accrued interest on their respective Term  Loans; provided that (i) if any such participations are purchased and all or any portion of the payment  giving rise thereto is recovered,  such participations shall be rescinded and the purchase price restored to  the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be  construed to apply to any payment made by the Borrower pursuant to and in accordance with the express  terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or  sale of a participation in any of its Loans to any assignee or participant, other than to the Company or any  Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).  The Borrower  consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any  Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the  Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender  were a direct creditor of the Borrower in the amount of such participation.  (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders  hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the  Borrower has made such payment on such date in accordance herewith and may, in reliance upon such  assumption, distribute to the Lenders the amount due.  In such event, if the Borrower has not in fact made  such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith  on demand the amount so distributed to any such Lender with interest thereon, for each day from and  including the date such amount is distributed to it to but excluding the date of payment to the  Administrative Agent, at the greater of the NYFRB Rate (in the case of an amount denominated in  Dollars) and a rate determined by the Administrative Agent in accordance with banking industry rules on  interbank compensation.  SECTION 2.19.  Mitigation Obligations; Replacement of Lenders.  (a)   If any Lender  requests compensation under Section 2.15, or if the Borrower is required to pay Indemnified Taxes or any  additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant  to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for  funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its  offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)  would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the  future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not  otherwise be materially disadvantageous to such Lender.  The Company hereby agrees to pay all  reasonable costs and expenses incurred by any Lender in connection with any such designation or  assignment.   





 






40  (b) If (i) any Lender requests compensation under Section 2.15 or (ii) the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental  Authority for the account of any Lender pursuant to Section 2.17 or (iii) any Lender becomes a Defaulting  Lender, then the Company may, at its sole expense and effort, upon notice to such Lender and the  Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with  and subject to the restrictions contained in Section 8.04), all its interests, rights (other than its existing  rights to payments pursuant to Sections 2.15 or 2.17) and obligations under the Loan Documents to an  assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts  such assignment); provided that (i) the Company shall have received the prior written consent of the  Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have  received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon,  accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such  outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts) and  (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments.  A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such  assignment and delegation cease to apply. SECTION 2.20.  Defaulting Lenders.  Notwithstanding any provision of this Agreement  to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for  so long as such Lender is a Defaulting Lender:  (a) 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 or otherwise) or received by the Administrative Agent from a  Defaulting Lender pursuant to Section 8.08 shall be applied at such time or times as may be determined  by the Administrative Agent as follows:  first, to the payment of any amounts owing by such Defaulting  Lender to the Administrative Agent hereunder; second, as the Company may request (so long as no  Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting  Lender has failed to fund its portion thereof as required by this Agreement, as determined by the  Administrative Agent; third, if so determined by the Administrative Agent and the Company, to be held  in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future  funding obligations with respect to Loans under this Agreement, in accordance with this Section; fourth,  to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent  jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting  Lender’s breach of its obligations under this Agreement or under any other Loan Document; fifth, so long  as no Default or Event of 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 or under any  other Loan Document; and sixth, 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 in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such  Loans were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such  payment shall be applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to  being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held  by the Lenders pro rata in accordance with the Commitments.  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 pursuant to this Section shall be deemed paid to and redirected by such Defaulting  Lender, and each Lender irrevocably consents hereto;  





 






41  (b) the Commitment and Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any  consent to any amendment, waiver or other modification pursuant to Section 8.02); provided, that, except  as otherwise provided in Section 8.02, this clause (b) shall not apply to the vote of a Defaulting Lender in  the case of an amendment, consent, waiver or other modification requiring the consent of “such Lender”  or each Lender directly affected thereby pursuant to clauses (i), (ii) or (iii) in the first proviso in Section  8.02(b).  In the event that the Administrative Agent and the Company each agrees that a  Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting  Lender, then on such date such Lender shall purchase at par such of the Loans of the other Lenders as the  Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in  accordance with its Applicable Percentage.  ARTICLE III  Representations and Warranties  The Company represents and warrants to the Lenders that:  SECTION 3.01.  Corporate Existence and Power.  The Company is duly organized,  validly existing and in good standing under the laws of its jurisdiction of formation, and has all requisite  powers and all material governmental licenses, authorizations, consents and approvals required to carry  on its business, considered as a whole, substantially as now conducted.  SECTION 3.02.  Corporate and Governmental Authorization; No Contravention. The  execution, delivery and performance by the Company of each Loan Document to which it is a party, are  within the Company’s corporate or other like powers, have been duly authorized by all necessary  corporate or other like action, require no action by or in respect of, or filing with, any Governmental  Authority (except filings under the Securities Exchange Act of 1934) and do not contravene, or constitute  a default under, any provision of applicable law or regulation or of the certificate of incorporation or by- laws or other constitutive documents of the Company or of (i) any material agreement, indenture or  instrument binding upon the Company (which, for the avoidance of doubt, shall be deemed to include any  agreement, indenture or instrument evidencing Material Obligations), or (ii) any material judgment,  injunction, order, decree or other instrument binding upon the Company, or result in the creation or  imposition of any Lien on any asset of the Company or any of its Subsidiaries.  SECTION 3.03.  Binding Effect.  The Loan Documents to which the Borrower is a party  have been duly executed and delivered by the Borrower and constitute legal, valid and binding obligations  of the Borrower enforceable against such party in accordance with their respective terms, except as the  same may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and  by general principles of equity.  SECTION 3.04.  Financial Information.  (a) The consolidated balance sheet of the Company and its Consolidated Subsidiaries as of December 31, 2021 and the related consolidated statements of income and cash flows for the Fiscal  Year then ended, reported on by PricewaterhouseCoopers LLP and set forth in the Company’s 2021 Form  10-K fairly present, in conformity with GAAP, the consolidated financial position of the Company and its 





 






42  Consolidated Subsidiaries as of such date and the consolidated results of their operations and their cash  flows for such Fiscal Year.  (b) Except as disclosed in the Company’s 2021 Form 10-K (but not including any general risk factors specified in such disclosure), no Material Adverse Change has occurred or is  continuing.  SECTION 3.05.  Litigation.  There is no action, suit or proceeding pending against, or to  the knowledge of the Company threatened against or affecting, the Company or any of its Subsidiaries  before any court or arbitrator or any Governmental Authority (i) which, except as disclosed in the  Company’s 2021 Form 10-K (but not including any general risk factors included in such disclosure), in  the reasonable opinion of the Company, has resulted in or is likely to result in a Material Adverse Change  or (ii) which in any manner draws into question the validity of any Loan Document.  SECTION 3.06.  Compliance with ERISA.  Each member of the ERISA Group (i) has  satisfied the minimum funding standards of Section 302(a) of ERISA and Section 412(a) of the Code with  respect to each Plan and (ii) is in compliance in all material respects with the presently applicable  provisions of ERISA and the Code with respect to each Plan.  Except as would not reasonably be  expected to result in a Material Adverse Effect, each Benefit Arrangement and each Plan which is  intended to be qualified under Section 401(a) of the Code as currently in effect has been determined to be  so qualified and, to the Company’s knowledge, no event has taken place which could reasonably be  expected to cause the loss of such qualified status.  No member of the ERISA Group has (x) sought a  waiver of the minimum funding standard under Section 412(c) of the Code in respect of any Plan, (y)  failed to make any contribution or payment to any Plan or Multiemployer Plan or in respect of any  Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has resulted or  could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the  Code, in each case securing an amount greater than $10,000,000 or (z) incurred any liability under Title  IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA which could  materially adversely affect the business, consolidated financial position or consolidated results of  operations of the Company and its Consolidated Subsidiaries, considered as a whole.  SECTION 3.07.  Environmental Matters.  In the ordinary course of its business, the  Company conducts appropriate reviews of the effect of Environmental Laws on the business, operations  and properties of the Company and its Subsidiaries, in the course of which it identifies and evaluates  pertinent liabilities and costs (including, without limitation, capital or operating expenditures required for  clean-up or closure of properties presently or previously owned or for the lawful operation of its current  facilities, required constraints or changes in operating activities, and evaluation of liabilities to third  parties, including employees, together with pertinent costs and expenses).  On the basis of this review, the  Company has reasonably concluded that Environmental Laws are not likely to have a Material Adverse  Effect.  SECTION 3.08.  Taxes.  The Company and its Subsidiaries have filed all United States  Federal income tax returns and all other material tax returns which are required to be filed by them and  have paid all taxes shown as due pursuant to such returns or pursuant to any assessment received by the  Company or any Subsidiary, except such taxes, if any, as are being contested in good faith and as to  which, in the opinion of the Company, adequate reserves have been provided in accordance with GAAP.    





 






43  SECTION 3.09.  Not an Investment Company.  The Company is not an “investment  company” or a company “controlled” by an “investment company” within the meaning of the Investment  Company Act of 1940, as amended.  SECTION 3.10.  Compliance with Laws.  The Company complies, and has caused each  Subsidiary to comply, in all material respects with all applicable laws, ordinances, rules, regulations, and  requirements of Governmental Authorities (including, without limitation, Environmental Laws and  ERISA and the rules and regulations thereunder), except where (i) the necessity of compliance therewith  is contested in good faith by appropriate proceedings, (ii) no officer of the Company is aware that the  Company or the relevant Subsidiary has failed to comply therewith or (iii) the Company has reasonably  concluded that failure to comply is not likely to have a Material Adverse Effect.    SECTION 3.11.  Foreign Employee Benefit Matters.  (a) Each Foreign Employee Benefit  Plan is in compliance with all laws, regulations and rules applicable thereto and the respective  requirements of the governing documents for such Plan; (b) there are no deficiencies in contributions,  payments or other funding required of the Company and its Subsidiaries by applicable law or the  governing plan documents with respect to any governmental or statutory Foreign Pension Plan, and the  present value of the aggregate accumulated benefit obligations under all other Foreign Pension Plans does  not exceed the current fair market value of the assets held in the trusts for such Plans; and (c) there are no  actions, suits or claims pending or, to the knowledge of the Company and its Subsidiaries, threatened  against the Company or any Subsidiary of it or any member of the ERISA Group with respect to any  Foreign Employee Benefit Plan, except in each case where such failure to comply, deficiencies, excess  obligations, absence of reserves, or actions, suits or claims would not individually or in the aggregate  have a Material Adverse Effect.  SECTION 3.12.  Properties.  (a)      Each of the Company and its Subsidiaries has good  title to, or valid leasehold interests in, all its real and personal property material to its business, except for  defects in title that do not interfere with its ability to conduct its business as currently conducted or to  utilize such properties for their intended purposes.  (b) Each of the Company and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof  by the Company and its Subsidiaries does not infringe upon the rights of any other Person, except for any  such infringements that, individually or in the aggregate, could not reasonably be expected to result in a  Material Adverse Effect.  SECTION 3.13.   Disclosure.  (a)    None of the reports, financial statements, certificates  or other written information furnished by or on behalf of the Company or any Subsidiary to the  Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered  hereunder (as modified or supplemented by other information so furnished), taken as a whole, contains  any material misstatement of fact or omits to state any material fact necessary to make the statements  therein, in the light of the circumstances under which they were made, not misleading as of the date when  furnished; provided that, with respect to projected financial information, the Company represents only  that such information was prepared in good faith based upon assumptions reasonably believed by the  Company to be reasonable at the time (it being recognized that actual results during the period or periods  covered by any such projections may differ from the projected results and the differences may be  material).  





 






44  (b) As of the Effective Date, to the knowledge of the Company, the information included in the Beneficial Ownership Certification provided on or prior to the Effective Date to any  Lender in connection with this Agreement is true and correct in all material respects.  SECTION 3.14.  Federal Reserve Regulations.  No part of the proceeds of any Loan have  been used or will be used, whether directly or indirectly, for any purpose that entails a violation of any of  the Regulations of the Board, including Regulations T, U and X.  SECTION 3.15.  No Default.  No Default or Event of Default has occurred and is  continuing.  SECTION 3.16.  Anti-Corruption Laws and Sanctions.  The Company has implemented  and maintains in effect policies and procedures reasonably designed to promote compliance by the  Company, its Subsidiaries and their respective directors, officers, employees and agents with Anti- Corruption Laws and applicable Sanctions, and the Company, its Subsidiaries and, to the knowledge of  the Company its directors, officers, employees and agents, are in compliance with Anti-Corruption Laws  and applicable Sanctions in all material respects.  None of (a) the Company, any Subsidiary or to the  knowledge of the Company or such Subsidiary any of their respective directors, officers or employees, or  (b) to the knowledge of the Company, any agent of the Company or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. Any provision of this Section 3.16 shall not apply to any Person if and to the extent that it is or would be unenforceable by or in respect of that Person by reason of breach of any applicable Blocking Law. SECTION 3.17.  Affected Financial Institutions.  The Borrower is not an Affected  Financial Institution.  ARTICLE IV  Conditions  SECTION 4.01.  Effective Date.  The obligations of the Lenders to make Loans  hereunder shall not become effective until the date on which each of the following conditions is satisfied  (or waived in accordance with Section 8.02):  (a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence  satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a  signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.  (b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) Kenneth G.  Cole, Vice President, General Counsel and Secretary of the Company, and (ii) Davis Polk & Wardwell  LLP, outside counsel for the Company, both of which shall be in form and covering such other matters  relating to the Company, the Loan Documents or the Transactions as the Administrative Agent shall  reasonably request.  The Company hereby requests such counsel to deliver such opinion.  (c) The Lenders shall have received (i) audited consolidated financial statements of the Company for the two most recent fiscal years ended prior to the Effective Date as to which such financial  statements are available, (ii) unaudited interim consolidated financial statements of the Company for each  quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to  





 






45  clause (i) of this paragraph and completed at least 45 days prior to the Effective Date and as to which such  financial statements are publicly available and (iii) financial statement projections through and including  the Company’s 2026 fiscal year, together with such information relating to such projections as the  Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed  description of the assumptions used in preparing such projections).  (d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and  good standing of the Borrower, the authorization of the Transactions and any other legal matters relating  to the Borrower, the Loan Documents or the Transactions, all in form and substance reasonably  satisfactory to the Administrative Agent and its counsel and as further described in the list of closing  documents attached as Exhibit E.   (e) The Administrative Agent and each requesting Lender shall have received, at least five days prior to the Effective Date and to the extent requested by any of the Lenders, (i) all  documentation and other information required by bank regulatory authorities under applicable “know- your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, and  (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the conditions set forth in this clause (e) shall be deemed to be satisfied). (f) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of the Company, confirming  compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.  (g) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced at least two (2) Business Days  prior to the Effective Date, reimbursement or payment of all out-of-pocket expenses required to be  reimbursed or paid by the Company hereunder.  The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such  notice shall be conclusive and binding.   SECTION 4.02.  Each Borrowing.  The obligation of each Lender to make a Loan on the  occasion of any Borrowing is subject to the satisfaction of the following conditions:  (a) The representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects (or, in the case of any such representation or warranty already  qualified by “Material Adverse Effect” or materiality, in all respects) on and as of the date of such  Borrowing, except for any representation and warranty made as of a specific date, in which case such  representation and warranty shall have been true and correct in all material respects (or, in the case of any  such representation or warranty already qualified by “Material Adverse Effect” or materiality, in all  respects) as of such date; provided that the representations and warranties set forth in Sections 3.04(b) and  3.05 shall only be made on the Effective Date.  (b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.  





 






46  Each Borrowing shall be deemed to constitute a representation and warranty by the Borrower on the date  thereof as to the matters specified in paragraphs (a) and (b) of this Section.  ARTICLE V  Covenants  Until the Commitments have expired or terminated and the principal of and interest on  each Loan and all fees  payable hereunder have been paid in full in cash, the Company covenants and  agrees with the Lenders that:  SECTION 5.01.  Information.  The Company will furnish to the Administrative Agent for  distribution to each of the Lenders (including, if so desired, by means of electronic communications in  accordance with Section 8.01):  (a) as soon as available and in any event within the earlier of (i) ninety-five (95) days after the end of each Fiscal Year and (ii) the date on which the following items are required to be  delivered to the SEC, a consolidated balance sheet of the Company and its Consolidated Subsidiaries as  of the end of such Fiscal Year and the related consolidated statements of income and cash flows for such  Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous  Fiscal Year, all reported on by PricewaterhouseCoopers LLP or other independent public accountants of  nationally recognized standing, whose report shall be without material qualification;  (b) as soon as available and in any event within the earlier of (i) fifty (50) days after the end of each of the first three quarters of each Fiscal Year and (ii) the date on which the following items  are required to be delivered to the SEC, a condensed consolidated balance sheet of the Company and its  Consolidated Subsidiaries as of the end of such quarter, the related condensed consolidated statement of  income for such quarter and the related condensed consolidated statements of income and cash flows for  the portion of such Fiscal Year ended at the end of such quarter, setting forth in each case in comparative  form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in  reasonable detail and certified, to the best of his or her knowledge (subject to normal year-end  adjustments), as to fairness of presentation, and consistency with GAAP (except for changes concurred in  by the Company’s independent public accountants) by a Financial Officer of the Company;  (c) simultaneously with the delivery of each set of financial statements referred to in subsections (a) and (b) above, a certificate of a Financial Officer of the Company (i) setting forth in  reasonable detail the calculations required to establish whether the Company was in compliance with the  requirements of Sections 5.07 to 5.09, inclusive, on the date of such financial statements, (ii) stating, to  the best of his or her knowledge, whether any Default exists on the date of such certificate and (iii) if any  Default then exists, setting forth the details thereof and the action which the Company is taking or  proposes to take with respect thereto;  (d) within ten (10) days after any officer of the Company becomes aware of the existence of any Default, unless such Default shall have been cured before the end of such ten (10) day  period, a certificate of a Financial Officer of the Company setting forth the details of such Default and the  action which the Company is taking or proposes to take with respect thereto;  (e) promptly upon the filing thereof, copies of all reports on Forms 10-K, 10-Q and 8-K and similar regular and periodic reports which the Company shall have filed with the SEC;  





 






47  (f) if and when any member of the ERISA Group (i) gives or is required to give notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan  which might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the  plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy  of the notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of  complete or partial withdrawal liability under Title IV of ERISA or notice that any Multiemployer Plan is  in “endangered” or “critical” status (within the meaning of Section 305 of ERISA), is insolvent or has  been terminated, a copy of such notice, (iii) receives notice from the PBGC under Title IV of ERISA of  an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect  of, or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver of the  minimum funding standard under Section 412(c) of the Code, a copy of such application; (v) gives notice  of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other  information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063  of ERISA, a copy of such notice; or (vii) fails to make any payment or contribution to any Plan or  Multiemployer Plan or in respect of any Benefit Arrangement or makes any amendment to any Plan or  Benefit Arrangement which has resulted or could result in the imposition of a Lien or the posting of a  bond or other security, a certificate of a Financial Officer of the Company setting forth details as to such  occurrence and action, if any, which the Company or applicable member of the ERISA Group is required  or proposes to take; provided that no such notice or certificate shall be required unless the aggregate  unpaid actual or potential liability of members of the ERISA Group involved in all events referred to in  clauses (i) through (vii) above of which officers of the Company have obtained knowledge and have not  previously reported under this subsection (f) exceeds $25,000,000; and  (g) from time to time (i) such additional information regarding the financial position or business of the Company as the Administrative Agent, at the request of any Lender, may reasonably  request and (2) information and documentation reasonably requested by the Administrative Agent or any  Lender for purposes of compliance with applicable “know your customer” and anti-money laundering  rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.  SECTION 5.02.  Existence; Conduct of Business.  The Borrower will do or cause to be  done all things necessary to preserve, renew and keep in full force and effect its legal existence (provided  that the foregoing shall not prohibit any merger or consolidation permitted under Section 5.10).  The  Borrower will do or cause to be done all things necessary to preserve, renew and keep in full force and  effect the rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations and  intellectual property rights material to the conduct of its business, and maintain all requisite authority to  conduct its business in each jurisdiction in which its business is conducted, except where the Company  has reasonably concluded that the failure to comply is not likely to have a Material Adverse Effect.  SECTION 5.03.  Compliance with Laws.  The Company will comply, and cause each  Subsidiary to comply, in all material respects with all applicable laws, ordinances, rules, regulations, and  requirements of Governmental Authorities (including, without limitation, Environmental Laws and  ERISA and the rules and regulations thereunder) except where (i) the necessity of compliance therewith is  contested in good faith by appropriate proceedings, (ii) no officer of the Company is aware that the  Company or any Subsidiary has failed to comply therewith or (iii) the Company has reasonably  concluded that failure to comply is not likely to have a Material Adverse Effect.  The Company will  maintain in effect policies and procedures reasonably designed to promote compliance by the Company,  its Subsidiaries and their respective directors, officers, employees and agents with  Anti-Corruption Laws  and applicable Sanctions. Any provision of this Section 5.03 shall not apply to any Person if and to the  extent that it is or would be unenforceable by or in respect of that Person by reason of breach of any  applicable Blocking Law.  





 






48  SECTION 5.04.  Use of Proceeds.  The Borrower shall use the proceeds of the Loans to  provide funds for general corporate purposes, including, but not limited to, acquisitions and working  capital purposes.  None of the proceeds of the Loans made under this Agreement will be used in violation  of any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board).  Margin stock (as defined under Regulation U) does not and will not constitute more than 25% of the value  of the consolidated assets of the Company and its Consolidated Subsidiaries.  The Borrower will not  request any Borrowing, and shall not use directly, or knowingly indirectly, the proceeds of any Borrowing  (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, to the extent such activities, businesses or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States or in a European Union member state or (iii) in any manner that would result in the violation of  any Sanctions applicable by any Person party hereto or otherwise participating in the Loans, whether as Administrative Agent, Arranger, Lender, underwriter, advisor, investor or otherwise. SECTION 5.05.  Maintenance of Properties; Insurance.  (a)   The Company will, and will  cause each of its Subsidiaries to, keep and maintain all property material to the conduct of its business in  good working order and condition, ordinary wear and tear excepted, except where the Company has  reasonably concluded that failure to comply is not likely to have a Material Adverse Effect.  (b) The Company and its Consolidated Subsidiaries considered as a whole will maintain with financially sound and reputable insurance companies insurance in such amounts and covering such  risks as is consistent with sound business practice, and the Company will furnish to the Administrative  Agent upon request full information as to the insurance carried; provided, that the Company and its  Subsidiaries may self-insure to the extent the Company reasonably determines that such self insurance is  consistent with prudent business practice.  SECTION 5.06.  Books and Records; Inspection.  The Company will, and will cause each  of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries, in  all material respects, are made of all material dealings and transactions in relation to its business and  activities.  The Company will, and will cause each Subsidiary to, permit the Administrative Agent, on  behalf of itself or any requesting Lender, by its representatives and agents, to inspect any of the property,  books and financial records of the Company and each Subsidiary, to examine and make copies of the  books of accounts and other financial records of the Company and each Subsidiary, and to discuss the  affairs, finances and accounts of the Company and each Subsidiary with, and to be advised as to the same  by, their respective officers at such times and intervals, having due regard for the ongoing business of the  Company and its Subsidiaries, as the Administrative Agent, on behalf of itself or any requesting Lender,  may reasonably request; provided, however, that if no Event of Default has occurred and is continuing no  more than one such inspection per calendar year shall be conducted.  SECTION 5.07.  Financial Covenants.   (a) Minimum Interest Coverage Ratio.  The Company will not permit the ratio, determined as of the end of each of its Fiscal Quarters, of (i) Consolidated EBITDA to (ii) Consolidated  Interest Expense, in each case for the period of four (4) consecutive Fiscal Quarters ending with the end  of such Fiscal Quarter, to be less than 2.50 to 1.00.  (b) Maximum Net Leverage Ratio.  The Company will not permit the ratio, determined as of the end of each of its Fiscal Quarters, of (i) Net Consolidated Debt as of the last day of such Fiscal  





 






49  Quarter to (ii) Consolidated EBITDA for the period of four (4) consecutive Fiscal Quarters ending with  the end of such Fiscal Quarter to exceed 4.00 to 1.00.  SECTION 5.08.  Limitations on Subsidiary Debt.    (a) The Company will not at any time permit any Consolidated Subsidiary to create, incur, issue, guarantee, assume or suffer to exist any Debt if, immediately after giving effect thereto, the  aggregate outstanding amount of Debt (determined at that time) of all Consolidated Subsidiaries (other  than Debt owed to the Company or one or more other Consolidated Subsidiaries) would exceed the  greater of (i) 12.5% of Consolidated Tangible Assets (calculated as of the last day of the most recently  ended Fiscal Quarter) and (ii) $500,000,000.  (b) Subsection (a) above shall not prevent (i) a Consolidated Subsidiary from creating, incurring, issuing, guaranteeing or assuming Debt for the purpose of extending, renewing or Refunding an  equal or greater principal amount of Debt then outstanding of such Consolidated Subsidiary; provided,  that subsection (a) shall apply to the extent that the aggregate principal amount of any such extending,  renewing or Refunding Debt exceeds the aggregate principal amount of the Debt being extended, renewed  or refunded, (ii) the creation, incurrence, issuance, guarantee or assumption of Debt owed to or owned by  the Company or a Consolidated Subsidiary or (iii) Masco Europe S.à r.l. from creating, incurring, issuing,  guaranteeing, assuming or suffering to exist Debt (including Debt in form of letters of credit (or similar  obligations)) under the Revolving Credit Agreement.  For purposes of 5.08, Debt of a Person (herein  defined as “Refunding Debt”) is deemed to be for the purpose of “Refunding” other Debt of such Person  if and to the extent that (i) no later than five (5) Business Days after the Refunding Debt is incurred, the  Company delivers to the Administrative Agent written notice stating that the purpose of such Debt is to  refund outstanding Debt and specifying the Debt to be refunded, (ii) the proceeds of such Refunding Debt  are held in the form of cash or Permitted Cash Equivalent Investments (free of any Lien except a Lien  securing the specified Debt to be refunded) until such specified Debt is repaid and (iii) such specified  Debt to be refunded is repaid within one hundred fifty (150) days after the Refunding Debt is incurred; it  being understood and agreed that to the extent that the specified Debt is not so repaid within one hundred  fifty (150) days after the Refunding Debt is originally incurred, the Refunding Debt shall be deemed to be  incurred as Debt for the purposes of Section 5.08(a) on the one hundred fifty-first (151st) day after such  original incurrence.  SECTION 5.09.  Negative Pledge.  Neither the Company nor any Consolidated  Subsidiary will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired  by it, except:  (a) any Lien on any property or asset of the Company or any Subsidiary existing on the date hereof provided that the aggregate amount of Debt or other obligations secured thereby does not  exceed $50,000,000;  (b) any Lien existing on any asset of any entity at the time such entity becomes a Consolidated Subsidiary and not created in contemplation of such event; provided that the obligations  secured by such Lien are not increased and are not secured by any additional assets;  (c) any Lien on any asset securing Debt incurred or assumed solely for the purpose of financing all or any part of the cost of acquiring such asset (or acquiring a corporation or other entity  which owned such asset); provided that such Lien attaches to such asset concurrently with or within  ninety (90) days after such acquisition;  





 






    50  (d)  any Lien on any asset of any entity existing at the time such entity is merged or  consolidated with or into the Company or a Consolidated Subsidiary and not created in contemplation of  such event; provided that the obligations secured by such Lien are not increased and are not secured by  any additional assets;  (e)  any Lien existing on any asset prior to the acquisition thereof by the Company or a  Consolidated Subsidiary and not created in contemplation of such acquisition; provided that the  obligations secured by such Lien are not increased and are not secured by any additional assets;  (f)  any Lien arising out of the refinancing, extension, renewal or refunding of any Debt  secured by any Lien permitted by any of the foregoing subsections of this Section; provided that such  Debt is not increased and is not secured by any additional assets;  (g)  any Lien in favor of the holder of indebtedness (or any Person or entity acting for or  on behalf of such holder) arising pursuant to any order of attachment, distraint or similar legal process  arising in connection with court proceedings so long as the execution or other enforcement thereof is  effectively stayed and the claims secured thereby are being contested in good faith by appropriate  proceedings and no Default under Section 6.01(k) shall have occurred and is continuing in connection  therewith;  (h)  Liens incidental to the normal conduct of its business or the ownership of its assets  which (i) do not secure Debt, (ii) do not secure any obligation in an amount exceeding $150,000,000 and  (iii) do not in the aggregate materially detract from the value of the assets of the Company and its  Consolidated Subsidiaries taken as a whole or in the aggregate materially impair the use thereof in the  operation of the business of the Company and its Consolidated Subsidiaries taken as a whole;  (i)  Liens incurred to cash collateralize letter of credit exposure under and to the extent  required by the Revolving Credit Agreement; and  (j)  Liens securing Debt which are not otherwise permitted by the foregoing subsections  of this Section; provided that the aggregate outstanding principal amount of Debt secured by all such  Liens shall not at any time exceed the greater of (i) 5% of Consolidated Tangible Assets (calculated as of  the last day of the most recently ended Fiscal Quarter) and (ii) $200,000,000.  SECTION 5.10.  Consolidations, Mergers and Sale of Assets.    (a)  The Company will not directly or indirectly sell, lease, transfer or otherwise dispose  of all or substantially all of its assets, or merge or consolidate with any other Person, or acquire any other  Person through purchase of assets or capital stock, unless either (i) the Company shall be the continuing  or surviving corporation or (ii) the successor or acquiring corporation (if other than the Company) shall be  a corporation organized under the laws of (x) one of the States of the United States of America, and shall  assume, by a writing reasonably satisfactory in form and substance to the Required Lenders, all of the  obligations of the Company under this Agreement, including all covenants herein and therein contained,  in which case such successor or acquiring corporation shall succeed to and be substituted for the  Company with the same effect as if it had been named herein as a party hereto.   (b)  No disposition of assets, merger, consolidation or acquisition referred to in  subsection (a) of this Section shall be permitted if, immediately after giving effect thereto, any Default  would exist under any of the terms or provisions of this Agreement.  





 






    51  ARTICLE VI    Events of Default  SECTION 6.01.  Events of Default.  If any of the following events (“Events of Default”)  shall occur:  (a)  the Borrower shall fail to pay (i) when due any principal of any Loan or (ii) within  five (5) days of the due date thereof, any interest, fees or other amounts payable under this Agreement;  (b)  the Company shall fail to observe or perform any covenant contained in the first  sentence of Section 5.02, Section 5.04 or Sections 5.07 to 5.10, inclusive;  (c)  [Reserved];   (d)  the Company shall fail to observe or perform (i) any covenant in Section 5.01(d) for  five (5) days after written notice thereof has been given to the Company by the Administrative Agent at  the request of any Lender or (ii) any covenant or agreement contained in this Agreement or any other  Loan Document (other than those covered by subsection (a) or (b) above or clause (i) of this subsection  (d)) for thirty (30) days after written notice thereof has been given to the Company by the Administrative  Agent at the request of any Lender;  (e)  any representation, warranty, certification or statement made by the Company in this  Agreement or any amendment hereof or in any other Loan Document shall prove to have been incorrect  in any material respect when made or deemed to have been made; provided that, if any representation and  warranty deemed to have been made by the Company pursuant to the last sentence of Article IV as to the  satisfaction of the condition of borrowing set forth in Section 4.02(b) shall have been incorrect solely by  reason of the existence of a Default of which the Company was not aware when such representation and  warranty was deemed to have been made and which was cured before or promptly after the Company  became aware thereof, then such representation and warranty shall be deemed not to have been incorrect  in any material respect;  (f)  the Company or any of its Consolidated Subsidiaries shall fail to make one or more  payments in respect of any Material Obligations (other than Acquired Debt in an aggregate outstanding  principal amount not exceeding $150,000,000) when due or within any applicable grace period, and such  failure has not been waived;  (g)  any event or condition occurs, or the Company or any Consolidated Subsidiary shall  fail to observe or perform any term, covenant or agreement contained in any instrument or agreement  (other than this Agreement) by which it is bound relating to Debt, obligations under Swap Agreements  and/or Off-Balance Sheet Liabilities (other than Acquired Debt in an aggregate outstanding principal  amount not exceeding $150,000,000), and the effect of all such failures, events and conditions is to cause  the maturity of any Material Obligations to be accelerated or to permit (any applicable period of grace  having expired and any required notice having been given) the holder or holders of any Material  Obligations (or any Person acting on their behalf) to accelerate the maturity thereof, or to require the  prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that  this clause (g) shall not apply to Debt that becomes due as a result of the voluntary sale or transfer of any  property or assets;  (h)  the Company or any Significant Subsidiary shall commence a voluntary case or  other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under  





 






52  any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a  trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property  under any such law, or shall consent to any such relief or to the appointment of or taking possession by  any such official in an involuntary case or other proceeding commenced against it under any such law, or  shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they  become due, or a resolution shall be adopted by either the shareholders or the board of directors of such  corporation to authorize any of the foregoing;  (i) an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary in any United States Federal court or other court of competent jurisdiction  seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy,  insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee,  receiver, liquidator, custodian or other similar official of it or any substantial part of its property under  any such law, and in each case such involuntary case or other proceeding shall remain undismissed and  unstayed for a period of sixty (60) days; or an order for relief shall be entered against the Company or any  Significant Subsidiary as debtors under the federal bankruptcy laws as now or hereafter in effect;  (j) any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating in excess of $3,000,000 which it shall have become liable to pay to the PBGC or to a Plan  under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded  Liabilities in excess of $75,000,000 (collectively, a “Material Plan”) shall be filed under Title IV of  ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing;  or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other  than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed under  Section 4042 of ERISA to administer any Material Plan; or a condition shall exist by reason of which the  PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or  there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section  4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more  members of the ERISA Group to incur a current payment obligation or obligations in excess of  $75,000,000 or; the institution by the PBGC or any similar foreign Governmental Authority of  proceedings to terminate a Foreign Pension Plan which could reasonably be expected to subject the  Company and its Subsidiaries, taken as a whole, to liability in excess of $75,000,000 (a “Material Foreign  Pension Plan”); or a foreign Governmental Authority shall appoint or institute proceedings to appoint a  trustee to administer any Material Foreign Pension Plan in place of the existing administrator in  connection with a plan termination; provided that no Event of Default shall exist under this subsection (j)  with respect to any Prior Plan unless it is reasonably likely that one or more members of the ERISA  Group is liable with respect to the relevant Unfunded Liabilities or current payment obligation or  obligations, as the case may be;  (k) a judgment or order for the payment of money in excess of $150,000,000 shall be rendered against the Company or any Subsidiary and such judgment or order shall continue unsatisfied  and unstayed for a period of forty-five (45) days;   (l) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the  meaning of Rule 13d-3 promulgated by the SEC under said Act) of 30% or more of the outstanding  shares of common stock of the Company; or during any period of 12 consecutive months, occupation of a  majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who  were neither (i) members of the board of directors on the first day of such period, (ii) nominated,  appointed or approved for election by persons referred to in clause (i)  constituting at the time of such  nomination, appointment or approval at least a majority of such board nor (iii) nominated, appointed or  





 






53  approved for election by directors referred to in clauses (i) and (ii) constituting at the time of such  nomination, election or approval at least a majority of such board; or  (m) any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or the Company or any Subsidiary shall challenge  the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction  based on any such assertion, that any provision of any of the Loan Documents has ceased to be or  otherwise is not valid, binding and enforceable in accordance with its terms);   then, and in every such event (other than an event with respect to the Company described in clause (h) or  (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Company, take either or both of the following actions, at the same or different times:  (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrower accrued hereunder and under the other Loan Documents, shall become  due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to the Company described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.  Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity. SECTION 6.02.  Application of Payments.  Notwithstanding anything herein to the  contrary, following the occurrence and during the continuance of an Event of Default, and notice thereof  to the Administrative Agent by the Company or the Required Lenders all payments received on account  of the Obligations shall, subject to Section 2.20, be applied by the Administrative Agent as follows:  (i) first, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts payable to the Administrative Agent (including  fees and disbursements and other charges of counsel to the Administrative Agent payable  under Section 8.03 and amounts pursuant to Section 2.12 payable to the Administrative  Agent in its capacity as such);  (ii) second, to payment of that portion of the Obligations constituting fees, expenses, indemnities and other amounts (other than principal and interest) payable to the  Lenders (including fees and disbursements and other charges of counsel to the Lenders  payable under Section 8.03) arising under the Loan Documents, ratably among them in  proportion to the respective amounts described in this clause (ii) payable to them;  (iii) third, to payment of that portion of the Obligations constituting accrued and unpaid charges and interest on the Loans, ratably among the Lenders in proportion to the  respective amounts described in this clause (iii) payable to them;  





 






54  (iv) fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion to the respective amounts  described in this clause (iv) payable to them;  (v) fifth, to the payment in full of all other Obligations, in each case ratably among the Administrative Agent and the Lenders based upon the respective aggregate  amounts of all such Obligations owing to them in accordance with the respective amounts  thereof then due and payable; and  (vi) finally, the balance, if any, after all Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by law.  ARTICLE VII  The Administrative Agent  Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent  and authorizes the Administrative Agent to take such actions on its behalf, including  execution of the  other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the  terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.  The bank serving as the Administrative Agent hereunder shall have the same rights and  powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not  the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and  generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as  if it were not the Administrative Agent hereunder.  The Administrative Agent shall not have any duties or obligations except those expressly  set forth in the Loan Documents.  Without limiting the generality of the foregoing, (a) the Administrative  Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has  occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary  action or exercise any discretionary powers, except discretionary rights and powers expressly  contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as  directed by the Required Lenders (or such other number or percentage of the Lenders as shall be  necessary under the circumstances as provided in Section 8.02), and (c) except as expressly set forth in  the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable  for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is  communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any  capacity.  The Administrative Agent shall not be liable for any action taken or not taken by it with the  consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as  shall be necessary under the circumstances as provided in Section 8.02) or in the absence of its own gross  negligence or willful misconduct.  The Administrative Agent shall be deemed not to have knowledge of  any Default unless and until written notice thereof is given to the Administrative Agent by the Company  or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or  inquire into (i) any statement, warranty or representation made in or in connection with any Loan  Document, (ii) the contents of any certificate, report or other document delivered hereunder or in  connection with any Loan Document, (iii) the performance or observance of any of the covenants,  agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability,  effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or  





 






55  (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or its counsel. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability  for relying upon, any notice, request, certificate, consent, statement, instrument, document or other  writing believed by it to be genuine and to have been signed or sent by the proper Person.  The  Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by  it to be made by the proper Person, and shall not incur any liability for relying thereon.  The  Administrative Agent may consult with legal counsel (who may be counsel for the Company),  independent accountants and other experts selected by it, and shall not be liable for any action taken or  not taken by it in accordance with the advice of any such counsel, accountants or experts.  The Administrative Agent may perform any and all of its duties and exercise its rights  and powers by or through any one or more sub-agents appointed by the Administrative Agent.  The  Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights  and powers through their respective Related Parties.  The exculpatory provisions of the preceding  paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and  any such sub-agent, and shall apply to their respective activities in connection with the syndication of the  credit facilities provided for herein as well as activities as Administrative Agent.  Subject to the appointment and acceptance of a successor Administrative Agent as  provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and  the Company.  Upon any such resignation, the Required Lenders shall have the right, in consultation with  the Company (provided that no consultation with the Company shall be required if an Event of Default  has occurred and is continuing), to appoint a successor.  If no successor shall have been so appointed by  the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring  Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on  behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in  New York, New York, or an Affiliate of any such bank.  Upon the acceptance of its appointment as  Administrative Agent hereunder by a successor, such successor shall 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 its duties and obligations hereunder.  The fees payable by  the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor  unless otherwise agreed between the Borrower and such successor.  After the Administrative Agent’s  resignation hereunder, the provisions of this Article and Section 8.03 shall continue in effect for the  benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect  of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.  Each Lender acknowledges and agrees that the extensions of credit made hereunder are  commercial loans and letters of credit and not investments in a business enterprise or securities.  Each  Lender further represents that it is engaged in making, acquiring or holding commercial loans in the  ordinary course of its business and  has, independently and without reliance upon the Administrative  Agent or any other Lender and based on such documents and information as it has deemed appropriate,  made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire  or hold Loans hereunder.  Each Lender shall, independently and without reliance upon the Administrative  Agent or any other Lender and based on such documents and information (which may contain material,  non-public information within the meaning of the United States securities laws concerning the Company  and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in  taking or not taking action under or based upon this Agreement, any related agreement or any document  furnished hereunder or thereunder and in deciding whether or the extent to which it will continue as a  lender or assign or otherwise transfer its rights, interests and obligations hereunder.  





 






56  Except with respect to the exercise of setoff rights of any Lender, in accordance with  Section 8.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees  that it will not take any action, nor institute any actions or proceedings, against the Borrower or with  respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be  provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent.  The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or  omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to  act for, any other Lender.  The Administrative Agent shall have the exclusive right on behalf of the  Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal  or interest has become due and payable pursuant to the terms of this Agreement.    Each Lender (x) represents and warrants, as of the date such Person became a Lender  party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date  such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and its  respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any  other Borrower, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans or the Commitments,   (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset  managers), PTE 95-60 (a class exemption for certain transactions involving insurance company  general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance  company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions  involving bank collective investment funds) or PTE 96-23 (a class exemption for certain  transactions determined by in-house asset managers), is applicable with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the Commitments  and this Agreement,   (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified  Professional Asset Manager made the investment decision on behalf of such Lender to enter into,  participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the  entrance into, participation in, administration of and performance of the Loans, the Commitments  and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84- 14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of  PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in,  administration of and performance of the Loans, the Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.  In addition, unless the immediately preceding clause (i) is true with respect to a Lender or such Lender  has not provided another representation, warranty and covenant as provided in the immediately preceding  clause (iv), such Lender further (x) represents and warrants, as of the date such Person became a Lender  party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date  such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and its  respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower that none of  the Administrative Agent or any of their respective Affiliates is a fiduciary with respect to the assets of  





 






57  such Lender (including in connection with the reservation or exercise of any rights by the Administrative  Agent under this Agreement, any Loan Document or any documents related hereto or thereto).  The Administrative Agent hereby informs the Lenders that each such Person is not  undertaking to provide investment advice or to give advice in a fiduciary capacity, in connection with the  transactions contemplated hereby, and that such Person has a financial interest in the transactions  contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments  with respect to the Loans, the Commitments, this Agreement and any other Loan Documents (ii) may  recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being  paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other  payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise,  including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting  fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum  usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees,  processing fees, term out premiums, bankers’ acceptance fees, breakage or other early termination fees or  fees similar to the foregoing.  The Borrower agrees that the Administrative Agent may, but shall not be obligated to,  make any Communications available to the Lenders by posting the Communications on IntraLinksTM,  DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to  be its electronic transmission system (the “Approved Electronic Platform”).  Although the Approved Electronic Platform and its primary web portal are secured with  generally-applicable security procedures and policies implemented or modified by the Administrative  Agent from time to time (including, as of the Effective Date, a user ID/password authorization system)  and the Approved Electronic Platform is secured through a per-deal authorization method whereby each  user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and  the Borrower acknowledges and agrees that the distribution of material through an electronic medium is  not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the  representatives or contacts of any Lender that are added to the Approved Electronic Platform, and that  there may be confidentiality and other risks associated with such distribution. Each of the Lenders and the  Borrower hereby approves distribution of the Communications through the Approved Electronic Platform  and understands and assumes the risks of such distribution.  THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS  ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED  BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE  COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM  AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED  ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND,  EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF  THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE  BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE  APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT  OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE  PARTIES”) HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER, ANY ISSUING BANK  OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT  OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR  EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE  





 






58  BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS  THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.   “Communications” means, collectively, any notice, demand, communication, information, document or  other material provided by or on behalf of the Borrower pursuant to any Loan Document or the  transactions contemplated therein which is distributed by the Administrative Agent or any Lender by  means of electronic communications pursuant to this Section, including through an Approved Electronic  Platform.  Each Lender agrees that notice to it (as provided in the next sentence) specifying that  Communications have been posted to the Approved Electronic Platform shall constitute effective delivery  of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (i) to  notify the Administrative Agent in writing (which could be in the form of electronic communication)  from time to time of such Lender’s (as applicable) email address to which the foregoing notice may be  sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.  Each of the Lenders and the Borrower agrees that the Administrative Agent may, but  (except as may be required by applicable law) shall not be obligated to, store the Communications on the  Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable  document retention procedures and policies.  Nothing herein shall prejudice the right of the Administrative Agent or any Lender to  give any notice or other communication pursuant to any Loan Document in any other manner specified in  such Loan Document.  Each of the Lenders and the Borrower hereby agree as follows regarding certain  erroneous payments:  (i) Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than two (2) Business Days thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under the last four paragraphs of this Article VII shall be conclusive, absent manifest error. (ii) Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) 





 






    59  with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or  accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has  been made with respect to such Payment.  Each Lender agrees that, in each such case, or if it  otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such  Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand  from the Administrative Agent, it shall promptly, but in no event later than one Business Day  thereafter, return to the Administrative Agent the amount of any such Payment (or portion  thereof) as to which such a demand was made in same day funds, together with interest thereon  in respect of each day from and including the date such Payment (or portion thereof) was  received by such Lender to the date such amount is repaid to the Administrative Agent at the  greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance  with banking industry rules on interbank compensation from time to time in effect.  (iii) Each party hereto hereby agrees that (x) in the event an erroneous Payment (or portion  thereof) are not recovered from any Lender that has received such Payment (or portion thereof)  for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender  with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay,  discharge or otherwise satisfy any Obligations owed by the Borrower; provided, that this  Section shall not be interpreted to increase (or accelerate the due date for), or have the effect of  increasing (or accelerating the due date for), the obligations of the Borrower relative to the  amount (and/or timing for payment) of the obligations that would have been payable had such  erroneous Payment not been made by the Administrative Agent; provided, further, that for the  avoidance of doubt, the immediately preceding clauses (x) and (y) shall not apply to the extent  any such erroneous Payment is, and solely with respect to the amount of such erroneous  Payment that is, comprised of funds received by the Administrative Agent from the Borrower  for the purpose of making a payment.  (iv) Each party’s obligations under the three immediately preceding paragraphs of this Article  VII shall survive the resignation or replacement of the Administrative Agent or any transfer of  rights or obligations by, or the replacement of, a Lender, the termination of the Commitments  or the repayment, satisfaction or discharge of all Obligations under any Loan Document.    ARTICLE VIII    Miscellaneous  SECTION 8.01.  Notices.  (a)   Except in the case of notices and other communications  expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other  communications provided for herein shall be in writing and shall be delivered by hand or overnight  courier service, mailed by certified or registered mail or sent by telecopy, as follows:  (i)  if to the Borrower, to the Borrower at 17450 College Parkway, Livonia, MI  48152, Attention of John G. Sznewajs (Telecopy No. (313) 792-6798; Telephone No.  (313) 792-6044; e-mail: john_sznewajs@mascohq.com);   (ii)  if to the Administrative Agent, to PNC Bank, National Association, Agency  Services, PNC Firstside Center, 4th Floor, Attention Brian Hays (e-mail:  brian.hays@pnc.com); and  





 






    60  (iii)  if to any other Lender, to it at its address (or telecopy number) set forth in its  Administrative Questionnaire.  Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be  deemed to have been given when received; notices sent by facsimile shall be deemed to have been given  when sent (except that, if not given during normal business hours for the recipient, shall be deemed to  have been given at the opening of business on the next business day for the recipient).  Notices delivered  through Approved Electronic Platforms, to the extent provided in paragraph (b) below, shall be effective  as provided in said paragraph (b).  (b)  Notices and other communications to the Lenders hereunder may be delivered or  furnished by using Approved Electronic Platforms pursuant to procedures approved by the Administrative  Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise  agreed by the Administrative Agent and the applicable Lender.  The Administrative Agent or the  Company may, in its discretion, agree to accept notices and other communications to it hereunder by  electronic communications pursuant to procedures approved by it; provided that approval of such  procedures may be limited to particular notices or communications.  Unless the Administrative Agent otherwise prescribes, (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an  acknowledgement from the intended recipient (such as by the “return receipt requested” function, as  available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to  an Internet or intranet website shall be deemed received upon the deemed receipt by the intended  recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or  communication is available and identifying the website address therefor; provided that, for both  clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal  business hours of the recipient, such notice or communication shall be deemed to have been sent at the  opening of business on the next business day for the recipient.  (c)  Any party hereto may change its address or telecopy number for notices and other  communications hereunder by notice to the other parties hereto.  All notices and other communications  given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have  been given on the date of receipt.  SECTION 8.02.  Waivers; Amendments.  (a)   No failure or delay by the Administrative  Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall  operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any  abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further  exercise thereof or the exercise of any other right or power.  The rights and remedies of the  Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative and  are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision  of any Loan Document or consent to any departure by the Borrower therefrom shall in any event be  effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or  consent shall be effective only in the specific instance and for the purpose for which given.  Without  limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any  Default, regardless of whether the Administrative Agent or any Lender may have had notice or  knowledge of such Default at the time.  (b)  Subject to clauses (b) and (c) of Section 2.14, neither this Agreement nor any  provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in  writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative  





 






    61  Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase  the  Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount  of any Loan or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the  written consent of each Lender directly affected thereby, (iii) postpone the scheduled date of payment of  the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the  amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any  Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section  2.18(b) or (d), or Section 6.02, in a manner that would alter the pro rata sharing or priority of payments  required thereby, without the written consent of each Lender adversely affected thereby, or (v) change  any of the provisions of this Section or the definition of “Required Lenders” or any other provision hereof  specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder  or make any determination or grant any consent hereunder, without the written consent of each Lender;  provided further (x) that no such agreement shall amend, modify or otherwise affect the rights or duties of  the Administrative Agent hereunder without the prior written consent of the Administrative Agent and (y)  any amendment to Section 2.20 shall require the consent of the Administrative Agent.  (c)  Notwithstanding the foregoing, this Agreement and any other Loan Document may  be amended (or amended and restated) with the written consent of the Required Lenders, the  Administrative Agent and the Borrower (x) to add one or more credit facilities to this Agreement and to  permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in  respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the  Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the  Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.  (d)  If, in connection with any proposed amendment, waiver or consent  requiring the  consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders  is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is  necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Company  may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that,  concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to  the Company and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans  and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and  to become a Lender for all purposes under this Agreement and to assume all obligations of the Non- Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of  Section 8.04, (ii) such other bank or other entity shall consent to such proposed amendment, waiver or  consent and (iii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of  such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting  Lender by the Borrower hereunder to and including the date of termination, including without limitation  payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any,  equal to the payment which would have been due to such Lender on the day of such replacement under  Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to  the replacement Lender.  (e)  Notwithstanding anything to the contrary herein the Administrative Agent may, with  the consent of the Borrower only, amend, modify or supplement this Agreement or any of the other Loan  Documents to cure any ambiguity, omission, mistake, defect or inconsistency.  Both before and promptly  after the execution thereof, the Administrative Agent shall furnish a copy of such amendment,  modification or supplement to each Lender.  SECTION 8.03.  Expenses; Indemnity; Damage Waiver.  (a)   The Company shall pay (i)  all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including  





 






62  the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection  with the syndication and distribution (including, without limitation, via the internet or through a service  such as IntraLinksTM) of the credit facilities provided for herein, the preparation and administration of this  Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions  hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated),  and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender, including the  fees, charges and disbursements of any counsel for the Administrative Agent or any Lender, in connection  with the enforcement or protection of its rights in connection with this Agreement and any other Loan  Document, including its rights under this Section, or in connection with the Loans made hereunder,  including all such out-of-pocket expenses incurred during  any workout, restructuring or negotiations in  connection therewith in respect of such Loans.  (b) The Company shall indemnify the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against,  and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related  expenses, including the fees, charges and disbursements of a single firm of counsel for all such  Indemnitees, taken as a whole and, if necessary, of a single firm of local counsel in each appropriate  jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all  such Indemnitees, taken as a whole (and, solely in the case of an actual or perceived conflict of interest  where the indemnified person affected by such conflict notifies you of the existence of such conflict and  thereafter retains its own counsel, of one other firm of counsel for each such affected Indemnitee),  incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the  execution or delivery of any Loan Document or any agreement or instrument contemplated thereby, the  performance by the parties hereto of their respective obligations thereunder or the consummation of the  Transactions or any other transactions contemplated hereby, (ii) any Loan or the use of the proceeds  therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property  owned or operated by the Company or any of its Subsidiaries, or any Environmental Liability related in  any way to the Company or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,  investigation or proceeding relating to any of the foregoing, whether or not such claim, litigation,  investigation or proceeding is brought by the Borrower or its respective equity holders, Affiliates,  Creditors or any other third Person and whether based on contract, tort or any other theory and regardless  of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any  Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x)  are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted  from the gross negligence or willful misconduct of, or the material breach of any express material  obligation of, such Indemnitee or (y) arise from any proceeding not involving any act or omission by the  Company or its Affiliates and that is brought by any Indemnitee against any other Indemnitee (other than  any proceeding brought against an Indemnitee in its capacity as an agent, an arranger, a bookrunner or  any similar role under the Loan Documents).  This Section 8.03(b) shall not apply with respect to Taxes  other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.  (c) Each Lender severally agrees to pay any amount required to be paid by the Company under paragraph (a) or (b) of this Section 8.03 to the Administrative Agent, and each Related  Party of any of the foregoing Persons (each, an “Agent Indemnitee”) (to the extent not reimbursed by the  Company and without limiting the obligation of the Company to do so), ratably according to their  respective Applicable Percentage in effect on the date on which indemnification is sought under this  Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated  and the Loans shall have been paid in full, ratably in accordance with such Applicable Percentage  immediately prior to such date), from and against any and all losses, claims, damages, liabilities and  related expenses, including the fees, charges and disbursements of any kind whatsoever that may at any  time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against  





 






63  such Agent Indemnitee in any way relating to or arising out of the Commitments, this Agreement, any of  the other Loan Documents or any documents contemplated by or referred to herein or therein or the  transactions contemplated hereby or thereby or any action taken or omitted by such Agent Indemnitee  under or in connection with any of the foregoing; provided that the unreimbursed expense or indemnified  loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against  such Agent Indemnitee in its capacity as such; provided further that no Lender shall be liable for the  payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,  suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of  competent jurisdiction to have resulted from such Agent Indemnitee’s gross negligence or willful  misconduct.  The agreements in this Section shall survive the termination of this Agreement and the  payment of the Loans and all other amounts payable hereunder.  (d) To the extent permitted by applicable law, Borrower shall not assert, and the Borrower hereby waives, any claim against the Administrative Agent, the Arranger and any Lender, and  any Related Party of any of the foregoing Persons (each such Person being called a “Lender-Related  Person”) for any losses, claims (including intraparty claims), demands, damages or liabilities of any kind  (i) for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), except to the extent found by a final non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Lender-Related Person, or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof. (e) All amounts due under this Section shall be payable not later than fifteen (15) days after written demand therefor.  SECTION 8.04.  Successors and Assigns.  (a)   The provisions of this Agreement shall be  binding upon and inure to the benefit of the parties hereto and their respective successors and assigns  permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or  obligations hereunder without the prior written consent of each Lender (and any attempted assignment or  transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or  otherwise transfer its rights or obligations hereunder except in accordance with this Section.  Nothing in  this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties  hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in  paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of  each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or  by reason of this Agreement.  (b) (i)    Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement  (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written  consent (such consent not to be unreasonably withheld or delayed) of:  (A) the Company, (provided that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the  Administrative Agent within ten (10) Business Days after having received notice  thereof); provided, further, that no consent of the Company shall be required for an  assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of  Default has occurred and is continuing, any other assignee; and  





 






64  (B) the Administrative Agent; provided, that no consent of the Administrative Agent shall be required for an assignment to a Lender, an Affiliate of a Lender, or an  Approved Fund.  (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning  Lender’s Commitment or Loans, the amount of the Commitment or Loans of the  assigning Lender subject to each such assignment (determined as of the date the  Assignment and Assumption with respect to such assignment is delivered to the  Administrative Agent) shall not be less than $10,000,000 unless each of the Company  and the Administrative Agent otherwise consent, provided that no such consent of the  Company shall be required if an Event of Default has occurred and is continuing;  (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;  (C) the parties to each assignment shall execute and deliver to the Administrative Agent (x) an Assignment and Assumption or (y) to the extent applicable, an agreement  incorporating an Assignment and Assumption by reference pursuant to an Approved  Electronic Platform as to which the Administrative Agent and the parties to the  Assignment and Assumption are participants, together with a processing and recordation  fee of $3,500, such fee to be paid by either the assigning Lender or the assignee Lender  or shared between such Lenders; provided, that the Company shall pay such assignment  fee in connection with a replacement of any Lender requested by the Company pursuant  to Section 2.19(b) or 8.02(d) of this Agreement;  (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more  credit contacts to whom all syndicate-level information (which may contain material non- public information about the Company and its Affiliates and their Related Parties or their  respective securities) will be made available and who may receive such information in  accordance with the assignee’s compliance procedures and applicable laws, including  Federal and state securities laws; and  (E) no assignment shall be made to an Ineligible Institution. For the purposes of this Section 8.04(b), the terms “Approved Fund” and “Ineligible  Institution” have the following meanings:  “Approved Fund” means any Person (other than a natural person) that is engaged in  making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary  course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or  (c) an entity or an Affiliate of an entity that administers or manages a Lender. “Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or its Lender  Parent, (c) the Company, any of its Subsidiaries or any of its Affiliates, or (d) a company, investment  vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s)  thereof.  





 






65  (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee  thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and  Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender  thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released  from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering  all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a  party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 8.03).  Any  assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply  with this Section 8.04 shall be treated for purposes of this Agreement as a sale by such Lender of a  participation in such rights and obligations in accordance with paragraph (c) of this Section.  (iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it  and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and  principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof  from time to time (the “Register”).  The entries in the Register shall be conclusive, and the Borrower, the  Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register  pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding  notice to the contrary.  The Register shall be available for inspection by the Company and any Lender, at  any reasonable time and from time to time upon reasonable prior notice.  (v) Upon its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the extent applicable, an agreement incorporating an  Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the  Administrative Agent and the parties to the Assignment and Assumption are participants, the assignee’s  completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the  processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such  assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such  Assignment and Assumption and record the information contained therein in the Register; provided that if  either the assigning Lender or the assignee shall have failed to make any payment required to be made by  it pursuant to Section 2.07(b), 2.18(e) or 8.03(c), the Administrative Agent shall have no obligation to  accept such Assignment and Assumption and record the information therein in the Register unless and  until such payment shall have been made in full, together with all accrued interest thereon.  No  assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as  provided in this paragraph.  (c) Any Lender may, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to one or more banks or other entities other than an Ineligible  Institution (a “Participant”) in all or a portion of such Lender’s rights and obligations under this  Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A)  such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain  solely responsible to the other parties hereto for the performance of such obligations and (C) the  Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with  such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any  agreement or instrument pursuant to which a Lender sells such a participation shall provide that such  Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification  or waiver of any provision of this Agreement; provided that such agreement or instrument may provide  that such Lender will not, without the consent of the Participant, agree to any amendment, modification or  waiver described in the first proviso to Section 8.02(b) that affects such Participant.  The Borrower agrees  that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the  





 






    66  requirements and limitations therein, including the requirements under Section 2.17(f) (it being  understood that the documentation required under Section 2.17(f) shall be delivered to the participating  Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to  paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of  Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be  entitled to receive any greater payment under Sections 2.15 or 2.17, with respect to any participation, than  its participating Lender would have been entitled to receive, except to the extent such entitlement to  receive a greater payment results from a Change in Law that occurs after the Participant acquired the  applicable participation.  To the extent permitted by law, each Participant also shall be entitled to the  benefits of Section 8.08 as though it were a Lender, provided such Participant agrees to be subject to  Section 2.18(d) as though it were a Lender.  Each Lender that sells a participation shall, acting solely for  this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and  address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in  the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no  Lender shall have any obligation to disclose all or any portion of the Participant Register (including the  identity of any Participant or any information relating to a Participant’s interest in any Commitments,  Loans or its other obligations under any Loan Document) to any Person except to the extent that such  disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form  under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant  Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is  recorded in the Participant Register as the owner of such participation for all purposes of this Agreement  notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its  capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.  (d)  Any Lender may at any time pledge or assign a security interest in all or any portion  of its rights under this Agreement to secure obligations of such Lender, including without limitation any  pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to  any such pledge or assignment of a security interest; provided that no such pledge or assignment of a  security interest shall release a Lender from any of its obligations hereunder or substitute any such  pledgee or assignee for such Lender as a party hereto. Notwithstanding any assignment, transfer and/or  novation permitted under, and made in accordance with the provisions of this Agreement, any Lien and/or  guarantees given under or in connection with the Loan Documents shall be preserved.  SECTION 8.05.  Survival.  All covenants, agreements, representations and warranties  made by the Borrower in the Loan Documents and in the certificates or other instruments delivered in  connection with or pursuant to this Agreement or any other Loan Document shall be considered to have  been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan  Documents and the making of any Loans, regardless of any investigation made by any such other party or  on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or  knowledge of any Default or incorrect representation or warranty at the time any credit is extended  hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on  any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is  outstanding and unpaid and so long as the Commitments have not expired or terminated.  The provisions  of Sections 2.15, 2.16, 2.17 and 8.03 and Article VII shall survive and remain in full force and effect  regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the  expiration or termination of the Commitments or the termination of this Agreement or any other Loan  Document or any provision hereof or thereof.  SECTION 8.06.  Counterparts; Integration; Effectiveness.    





 






67  (a) This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together  shall constitute a single contract.  This Agreement, the other Loan Documents and any separate letter  agreements with respect to fees payable to the Administrative Agent constitute the entire contract among  the parties relating to the subject matter hereof and supersede any and all previous agreements and  understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01,  this Agreement shall become effective when it shall have been executed by the Administrative Agent and  when the Administrative Agent shall have received counterparts hereof which, when taken together, bear  the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the  benefit of the parties hereto and their respective successors and assigns.    (b) Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z) any document, amendment, approval, consent, information, notice  (including, for the avoidance of doubt, any notice delivered pursuant to Section 8.01), certificate, request,  statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the  transactions contemplated hereby and/or thereby (each an “Ancillary Document”) by telecopy, e-mailed  .pdf or any other electronic means that reproduces an image of the actual executed signature page shall be  effective as delivery of a manually executed counterpart of this Agreement.  The words “execution,”  “signed,” “signature,” “delivery,” and words of like import in or relating to 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 law, the Federal Electronic Signatures in Global and National Commerce  Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on  the Uniform Electronic Transactions Act; provided that nothing herein shall require the Administrative  Agent to accept Electronic Signatures in any form or format without its prior written consent; provided,  further that without limiting the foregoing, (i)  to the extent the Administrative Agent has agreed to accept  any Electronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on  such Electronic Signature purportedly given by or on behalf of the Borrower without further verification  thereof and without any obligation to review the appearance or form of any such Electronic signature and  (ii) upon the request of the Administrative Agent or any Lender, any Electronic Signature  shall be promptly followed by a manually executed counterpart.  Without limiting the generality of the foregoing, the Borrower hereby  agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders and the Borrower, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement,  any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original,  the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record),  waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and  waives any claim against any Lender-Related Person for any losses, claims (including intraparty claims), demands, damages or liabilities of any kind arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means 





 






68  that reproduces an image of an actual executed signature page, including any losses, claims (including  intraparty claims), demands, damages or liabilities of any kind arising as a result of the failure of the  Borrower to use any available security measures in connection with the execution, delivery or  transmission of any Electronic Signature.  SECTION 8.07.  Severability.  Any provision of any Loan Document held to be invalid,  illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of  such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of  the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction  shall not invalidate such provision in any other jurisdiction.  SECTION 8.08.  Right of Setoff.  If (i) a payment Event of Default under Section 6.01(a)  shall have occurred and be continuing, or (ii) any other Event of Default shall have occurred and be  continuing and the Required Lenders have consented to the following, each Lender and each of its  Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to  set off and apply any and all deposits (general or special, time or demand, provisional or final and in  whatever currency denominated) at any time held and other obligations at any time owing by such Lender  or Affiliate to or for the credit or the account of the Borrower against any of and all of the Obligations  held by such Lender, irrespective of whether or not such Lender shall have made any demand under the  Loan Documents and although such obligations may be unmatured.  The rights of each Lender under this  Section are in addition to other rights and remedies (including other rights of setoff) which such Lender  may have.  SECTION 8.09.  Governing Law; Jurisdiction; Consent to Service of Process.  (a)   This  Agreement shall be construed in accordance with and governed by the law of the State of New York.  (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New  York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme  Court of the State of New York sitting in the Borough of Manhattan), and any appellate court from any  thereof, in any action or proceeding arising out of or relating to any Loan Document or the transactions  relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the parties  hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or  proceeding may (and any such claims, cross claims or third party claims brought against the  Administrative Agent or any of its Related Parties may only) be heard and determined in such Federal (to  the extent permitted by law) or New York State court.  Each of the parties hereto agrees, to the fullest  extent permitted by law, that a final judgment in any such action or proceeding shall be conclusive and  may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative  Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or  any other Loan Document against the Borrower or its properties in the courts of any jurisdiction.  (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of  venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan  Document in any court referred to in paragraph (b) of this Section.  Each of the parties hereto hereby  irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the  maintenance of such action or proceeding in any such court.  





 






    69  (d)  Each party to this Agreement irrevocably consents to service of process in the  manner provided for notices in Section 8.01.  Nothing in this Agreement or any other Loan Document  will affect the right of any party to this Agreement to serve process in any other manner permitted by law.  SECTION 8.10.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY  WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT  MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY  ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR  THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON  CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT  NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,  EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF  LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES  THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS  AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS  IN THIS SECTION.  SECTION 8.11.  Headings.  Article and Section headings and the Table of Contents used  herein are for convenience of reference only, are not part of this Agreement and shall not affect the  construction of, or be taken into consideration in interpreting, this Agreement.  SECTION 8.12.  Confidentiality.  Each of the Administrative Agent and the Lenders  agrees to maintain the confidentiality of the Information (as defined below), except that Information may  be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants,  legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made  will be informed of the confidential nature of such Information and instructed to keep such Information  confidential), (b) to the extent requested by any regulatory authority (including any self-regulatory  authority, such as the National Association of Insurance Commissioners), (c) to the extent required by  applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this  Agreement, (e) in connection with the exercise of any remedies under this Agreement or any other Loan  Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the  enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions  substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective  assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or  prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower  and its obligations, (g) with the consent of the Company or (h) to the extent such Information (i) becomes  publicly available other than as a result of a breach of this Section or (ii) becomes available to the  Administrative Agent or any Lender on a nonconfidential basis from a source other than the Company  (other than a Person if and to the extent that the Administrative Agent or such Lender has actual  knowledge that such Person is acting in violation of an obligation to maintain such information as  confidential).  For the purposes of this Section, “Information” means all information received from the  Company relating to the Company or its business, other than any such information that is available to the  Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Company and  other than information pertaining to this Agreement routinely provided by arrangers to data service  providers, including league table providers, that serve the lending industry; provided that, in the case of  information received from the Company after the date hereof, such information is clearly identified at the  time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as  provided in this Section shall be considered to have complied with its obligation to do so if such Person  has exercised the same degree of care to maintain the confidentiality of such Information as such Person  would accord to its own confidential information.  





 






70  SECTION 8.13.  USA PATRIOT Act.  Each Lender that is subject to the requirements of  the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot  Act”) hereby notifies the Borrower that pursuant to the requirements of the Patriot Act, it is required to  obtain, verify and record information that identifies the Borrower, which information includes the name  and address of the Borrower and other information that will allow such Lender to identify the Borrower in  accordance with the Patriot Act. The Borrower shall, promptly following a request by the Administrative  Agent or any Lender, provide all documentation and other information that the Administrative Agent or  such Lender requests in order to comply with its ongoing obligations under applicable “know your  customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial  Ownership Regulation.  SECTION 8.14.  Interest Rate Limitation.  Notwithstanding anything herein to the  contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other  amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”),  shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged,  taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate  of interest payable in respect of such Loan hereunder, together with all Charges payable in respect  thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that  would have been payable in respect of such Loan but were not payable as a result of the operation of this  Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans  or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount,  together with interest thereon to the date of repayment at the NYFRB Rate.  SECTION 8.15.  No Fiduciary Duty, etc.  (a)   The Borrower acknowledges and agrees,  and acknowledges its Subsidiaries’ understanding, that no Credit Party will have any obligations except  those obligations expressly set forth herein and in the other Loan Documents and each Credit Party is  acting solely in the capacity of an arm’s length contractual counterparty to the Borrower with respect to  the Loan Documents and the transactions contemplated herein and therein and not as a financial advisor  or a fiduciary to, or an agent of, the Borrower or any other person.  The Borrower agrees that it will not  assert any claim against any Credit Party based on an alleged breach of fiduciary duty by such Credit  Party in connection with this Agreement and the transactions contemplated hereby.  Additionally, the  Borrower acknowledges and agrees that no Credit Party is advising the Borrower as to any legal, tax,  investment, accounting, regulatory or any other matters in any jurisdiction.  The Borrower shall consult  with its own advisors concerning such matters and shall be responsible for making its own independent  investigation and appraisal of the transactions contemplated herein or in the other Loan Documents, and  the Credit Parties shall have no responsibility or liability to the Borrower with respect thereto.  (b) The Borrower further acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that each Credit Party, together with its Affiliates, is a full service securities or banking  firm engaged in securities trading and brokerage activities as well as providing investment banking and  other financial services.  In the ordinary course of business, any Credit Party may provide investment  banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts  of customers, equity, debt and other securities and financial instruments (including bank loans and other  obligations) of, the Borrower and other companies with which it may have commercial or other  relationships.  With respect to any securities and/or financial instruments so held by any Credit Party or  any of its customers, all rights in respect of such securities and financial instruments, including any voting  rights, will be exercised by the holder of the rights, in its sole discretion.  (c) In addition, the Borrower acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that each Credit Party and its affiliates may be providing debt financing,  equity capital or other services (including financial advisory services) to other companies in respect of  





 






    71  which the Borrower or its Subsidiaries may have conflicting interests regarding the transactions described  herein and otherwise.  No Credit Party will use confidential information obtained from the Borrower by  virtue of the transactions contemplated by the Loan Documents or its other relationships with the  Borrower in connection with the performance by such Credit Party of services for other companies, and  no Credit Party will furnish any such information to other companies.  The Borrower also acknowledges  that no Credit Party has any obligation to use in connection with the transactions contemplated by the  Loan Documents, or to furnish to the Borrower, confidential information obtained from other companies.  SECTION 8.16.  Material Non-Public Information.  (a)   EACH LENDER  ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 8.12 FURNISHED TO  IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC  INFORMATION CONCERNING THE COMPANY AND  ITS RELATED PARTIES OR THEIR  RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE  PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND  THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN  ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING  FEDERAL AND STATE SECURITIES LAWS.  (b)  ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND  AMENDMENTS, FURNISHED BY THE COMPANY OR THE ADMINISTRATIVE AGENT  PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE  SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC  INFORMATION ABOUT THE COMPANY, THE OTHER BORROWER AND THEIR RELATED  PARTIES OR THEIR RESPECTIVE SECURITIES.  ACCORDINGLY, EACH LENDER  REPRESENTS TO THE COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS  IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY  RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN  ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.  SECTION 8.17.  Acknowledgment and Consent to Bail-In of Affected Financial  Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any liability  of any Affected Financial Institution arising under any Loan Document may be subject to the Write- Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and  acknowledges and agrees to be bound by:  (a)  the application of any Write-Down and Conversion Powers by an applicable  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party  hereto that is an Affected Financial Institution; and  (b)  the effects of any Bail-In Action on any such liability, including, if applicable:  (i)  a reduction in full or in part or cancellation of any such liability;  (ii)  a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent entity, or a  bridge institution that may be issued to it or otherwise conferred on it, and that such  shares or other instruments of ownership will be accepted by it in lieu of any rights with  respect to any such liability under this Agreement or any other Loan Document; or  





 






72  (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.  [Rest of Page Left Intentionally Blank] 





 






Signature Page to Term Loan Credit Agreement  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly  executed by their respective authorized signatories as of the day and year first above written.  MASCO CORPORATION, as the Company  By _________/s/David Chaika_______  Name: David A. Chaika  Title: Vice President, Treasurer and Investor  Relations  





 






Signature Page to Term Loan Credit Agreement  PNC BANK, NATIONAL ASSOCIATION,   individually as a Lender and as Administrative Agent  By ______/s/ Scott Neiderheide______  Name: Scott Neiderheide  Title:   Senior Vice President  





 






Signature Page to Term Loan Credit Agreement  BANK OF AMERICA, N.A.,   as a Lender  By ______/s/ Marc Maslanka______  Name: Marc Maslanka  Title:   Director  





 






Signature Page to Term Loan Credit Agreement  WELLS FARGO BANK, NATIONAL ASSOCIATION,   as a Lender  By ______/s/ Kay Reedy______  Name: Kay Reedy  Title:   Managing Director  





 






Signature Page to Term Loan Credit Agreement  U.S. BANK NATIONAL ASSOCIATION,  as a Lender  By ______/s/ James N. DeVries______  Name: James N. DeVries  Title:   Senior Vice President 





 






SCHEDULE 2.01  COMMITMENTS  Name of Lender Commitment  PNC Bank, National Association $200,000,000  Bank of America, N.A. $100,000,000  U.S. Bank National Association $100,000,000  Wells Fargo Bank, National Association $100,000,000  Total Commitments: $500,000,000  





 






EXHIBIT A  [FORM OF]  ASSIGNMENT AND ASSUMPTION  This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the  Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the  “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined  herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the  “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard  Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein  by reference and made a part of this Assignment and Assumption as if set forth herein in full.  For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the  Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and  in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date  inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and  obligations in its capacity as a Lender under the Credit Agreement and any other documents or  instruments delivered pursuant thereto to the extent related to the amount and percentage interest  identified below of all of such outstanding rights and obligations of the Assignor under the respective  facilities identified below (including any letters of credit, guarantees, and swingline loans included in  such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits,  causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person,  whether known or unknown, arising under or in connection with the Credit Agreement, any other  documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any  way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims,  statutory claims and all other claims at law or in equity related to the rights and obligations sold and  assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i)  and (ii) above being referred to herein collectively as the “Assigned Interest”).  Such sale and assignment  is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption,  without representation or warranty by the Assignor.  Notwithstanding any assignment, transfer and/or novation permitted under, and made in  accordance with the provisions of this Agreement, any Lien and/or guarantees given under or in  connection with the Loan Documents shall be preserved.  1. Assignor: 2. Assignee: [and is an Affiliate/Approved Fund of [identify Lender]1]  3. Borrower: Masco Corporation  4. Administrative Agent: PNC Bank, National Association, as the administrative agent under the  Credit Agreement  1 Select as applicable.  





 






5. Credit Agreement: The Term Loan Credit Agreement dated as of April [__], 2022 among  Masco Corporation, the Lenders party thereto, PNC Bank, National  Association, as Administrative Agent, and the other agents party thereto  6. Assigned Interest: Aggregate Amount of  Commitment/Loans for all  Lenders  Amount of  Commitment/  Loans Assigned  Percentage Assigned  of  Commitment/Loans2  $ $ % $ $ % $ $ % Effective Date:  _____________ ___, 20___ [TO BE INSERTED BY THE ADMINISTRATIVE  AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN  THE REGISTER THEREFOR.]  The terms set forth in this Assignment and Assumption are hereby agreed to:  ASSIGNOR [NAME OF ASSIGNOR]  By: Title: ASSIGNEE [NAME OF ASSIGNEE]  By: Title: Consented to and Accepted:  PNC BANK, NATIONAL ASSOCIATION., as  Administrative Agent  By:   Title: [Consented to:]3 MASCO CORPORATION  By:   Title: 2 Set forth, so at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.  3 To be added only if the consent of the Company is required by the terms of the Credit Agreement.  





 






ANNEX I  STANDARD TERMS AND CONDITIONS FOR  ASSIGNMENT AND ASSUMPTION  1. Representations and Warranties. 1.1  Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and  beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien,  encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action  necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions  contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or  representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the  execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or  any collateral thereunder, (iii) the financial condition of the Company, any of its Subsidiaries or Affiliates  or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by  the Company, any of its Subsidiaries or Affiliates or any other Person of any of their respective  obligations under any Loan Document.  1.2.  Assignee.  The Assignee (a) represents and warrants that (i) it has full power and  authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and  to consummate the transactions contemplated hereby and to become a Lender under the Credit  Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to  be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the  Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to  the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a  copy of the Credit Agreement, together with copies of the most recent financial statements delivered  pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it has  deemed appropriate to make its own credit analysis and decision to enter into this Assignment and  Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and  decision independently and without reliance on the Administrative Agent or any other Lender, and (v) if it  is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be  delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the  Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent,  the Assignor or any other Lender, and based on such documents and information as it shall deem  appropriate at the time, continue to make its own credit decisions in taking or not taking action under the  Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by  the terms of the Loan Documents are required to be performed by it as a Lender.  2. Payments.  From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other  amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the  Assignee for amounts which have accrued from and after the Effective Date.  3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment  and Assumption may be executed in any number of counterparts, which together shall constitute one  instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption  by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and  Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with,  the law of the State of New York.  





 






Notwithstanding any assignment, transfer and/or novation permitted under, and made in  accordance with the provisions of this Agreement, any Lien and/or guarantees given under or in  connection with the Loan Documents shall be preserved.  





 






EXHIBIT B  [RESERVED]  





 






EXHIBIT C  [RESERVED]  





 






EXHIBIT D  [RESERVED]  





 






EXHIBIT E  LIST OF CLOSING DOCUMENTS  MASCO CORPORATION  TERM LOAN FACILITY  April [__], 2022  LIST OF CLOSING DOCUMENTS1  A. LOAN DOCUMENTS 1. Term Loan Credit Agreement (the “Credit Agreement”) by and among Masco Corporation, a Delaware corporation (the “Company”), the institutions from time to time parties thereto as Lenders (the “Lenders”), PNC Bank, National Association, in its capacity as Administrative Agent for itself and the other Lenders (the “Administrative Agent”) and the other agents parties thereto, evidencing a term loan credit facility to the Company from the Lenders in an initial aggregate principal amount of $500,000,000. SCHEDULES  Schedule 2.01 -- Commitments  EXHIBITS  Exhibit A --  Form of Assignment and Assumption  Exhibit B --  Reserved  Exhibit C --  Reserved  Exhibit D --  Reserved  Exhibit E --  List of Closing Documents  Exhibit F-1 -- Form of U.S. Tax Certificate (Foreign Lenders That Are Not  Partnerships)  Exhibit F-2 -- Form of U.S. Tax Certificate (Foreign Participants That Are Not  Partnerships)  Exhibit F-3 -- Form of U.S. Tax Certificate (Foreign Participants That Are  Partnerships)  Exhibit F-4 --  Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships)  2. Notes executed by the Company in favor of each of the Lenders, if any, which has requested a note pursuant to Section 2.10(e) of the Credit Agreement. B. CORPORATE DOCUMENTS 1 Each capitalized term used herein and not defined herein shall have the meaning assigned to such term in the  above-defined Credit Agreement.    





 






3. Certificate of the Secretary of the Company certifying (i) resolutions of the Board of Directors of the Company approving and authorizing the execution, delivery and performance of the Credit Agreement, (ii) that there have been no changes in the Certificate of Incorporation (attached thereto) of the Company since the date of the most recent certification thereof by the Secretary of State of Delaware delivered to the Administrative Agent, (iii) the names and true signatures of the incumbent officers of the Company authorized to sign the Credit Agreement, and (iv) the By-laws (attached thereto) of the Company as in effect on the date of such certification. 4. Good Standing Certificates for the Company from the offices of the Secretaries of State of Delaware and Michigan. C. OPINION LETTERS 5. Opinions of counsel to the Company: (a) Davis Polk & Wardwell LLP. (b) Kenneth G. Cole, Vice President, General Counsel and Secretary of the Company. D. CLOSING CERTIFICATES AND MISCELLANEOUS 6. A Certificate, dated as of the Effective Date and signed by the President, a Vice President or a Financial Officer of the Company, certifying the following: (i) all of the representations and warranties of the Company set forth in the Credit Agreement are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by “Material Adverse Effect” or materiality, in all respects) and (ii) no Default has occurred and is then continuing. 





 






EXHIBIT F-1  [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Term Loan Credit Agreement dated as of April [_], 2022  (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among  Masco Corporation (the “Borrower”), the Lenders from time to time party thereto, PNC Bank, National  Association, as administrative agent (in such capacity, the “Administrative Agent”) and the other agents  party thereto.   Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s)  evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the  meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of any Borrower  within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation  related to any Borrower as described in Section 881(c)(3)(C) of the Code.  The undersigned has furnished the Administrative Agent and the Borrower with a  certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E.  By executing  this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the  undersigned shall promptly so inform the Borrower and the Administrative Agent and (2) the undersigned  shall have at all times furnished the Borrower and the Administrative Agent with a properly completed  and currently effective certificate in either the calendar year in which each payment is to be made to the  undersigned, or in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]  By:______________________________________  Name:  Title:  Date:  __________, 20[__] 





 






EXHIBIT F-2  [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Term Loan Credit Agreement dated as of April [_], 2022  (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among  Masco Corporation (the “Borrower”), the Lenders from time to time party thereto, PNC Bank, National  Association, as administrative agent (in such capacity, the “Administrative Agent”) and the other agents  party thereto.  Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it  is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,  (iii) it is not a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with a certificate of its non-U.S.  Person status on IRS Form W-8BEN or IRS Form W-8BEN-E.  By executing this certificate, the  undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall  promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such  Lender with a properly completed and currently effective certificate in either the calendar year in which  each payment is to be made to the undersigned, or in either of the two calendar years preceding such  payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]  By:______________________________________  Name:  Title:  Date:  __________, 20[__]  





 






EXHIBIT F-3  [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Term Loan Credit Agreement dated as of April [_], 2022  (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among  Masco Corporation (the “Borrower”), the Lenders from time to time party thereto, PNC Bank, National  Association, as administrative agent (in such capacity, the “Administrative Agent”) and the other agents  party thereto.  Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing  this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such  participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect  partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary  course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its  direct or indirect partners/members is a ten percent shareholder of any Borrower within the meaning of  Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled  foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.  The undersigned has furnished its participating Lender with IRS Form W-8IMY  accompanied by one of the following forms from each of its partners/members that is claiming the  portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W- 8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such  partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the  undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times  furnished such Lender with a properly completed and currently effective certificate in either the calendar  year in which each payment is to be made to the undersigned, or in either of the two calendar years  preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]  By:______________________________________  Name:  Title:  Date:  __________, 20[__]  





 






EXHIBIT F-4  [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)  Reference is hereby made to the Term Loan Credit Agreement dated as of April [_], 2022  (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among  Masco Corporation (the “Borrower”), the Lenders from time to time party thereto, PNC Bank, National  Association, as administrative agent (in such capacity, the “Administrative Agent”) and the other agents  party thereto.  Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such  Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are  the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with  respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document, neither  the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a  loan agreement entered into in the ordinary course of its trade or business within the meaning of Section  881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder  of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or  indirect partners/members is a controlled foreign corporation related to any Borrower as described in  Section 881(c)(3)(C) of the Code.  The undersigned has furnished the Administrative Agent and the Borrower with IRS  Form W-8IMY accompanied by one of the following forms from each of its partners/members that is  claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an  IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such  partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the  undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the  undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly  completed and currently effective certificate in either the calendar year in which each payment is to be  made to the undersigned, or in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]  By:______________________________________  Name:  Title:  Date:  __________, 20[__]