Execution Version AMENDMENT NO. 2, dated as of July 1, 2024 (this “Amendment No. 2), to the Credit Agreement, dated as of August 10, 2021 (as amended by Amendment No. 1, dated as of October 4, 2022, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Original Credit Agreement”), by and among DORMAN PRODUCTS, INC., a Pennsylvania corporation (the “Borrower”), the REVOLVING CREDIT LENDERS and BANK OF AMERICA, N.A., a national banking association, as Administrative Agent (the “Administrative Agent”). WHEREAS, in accordance with Section 12.2 of the Original Credit Agreement, the Borrower has requested, and the Revolving Credit Lenders party hereto, constituting all Revolving Credit Lenders have agreed, to amend the Original Credit Agreement as set forth in Section 2 hereof. NOW, THEREFORE, in consideration of the promises and mutual agreements herein contained, the Borrower, the Revolving Credit Lenders party hereto, constituting all Revolving Credit Lenders and the Administrative Agent hereby agree as follows: SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement (as defined below). SECTION 2. Amendments. The Original Credit Agreement is, effective as of the Amendment No. 2 Effective Date, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto (the “Credit Agreement”). SECTION 3. Effectiveness of Amendment No. 2. The obligation of the Revolving Credit Lenders to consummate this Amendment No. 2 is subject to the satisfaction of each of the following conditions and this Amendment No. 2 shall become effective on the date on which each such condition is satisfied (the “Amendment No. 2 Effective Date”): (a) Executed Amendment. The Administrative Agent shall have received executed counterparts to this Amendment No. 2 from the Borrower and each of the Revolving Credit Lenders. (b) Payment at Closing. All fees and expenses due to the Administrative Agent and the Revolving Credit Lenders required to be paid on the Amendment No. 2 Effective Date (including the fees and expenses of counsel for the Administrative Agent) will have been or, substantially concurrently with the Amendment No. 2 Effective Date, will be, paid. SECTION 4. Representations and Warranties. The Borrower represents and warrants, as of the Amendment No. 2 Effective Date, to the Administrative Agent and each Revolving Credit Lender party hereto that: (A) The representations and warranties of each Credit Party set forth in the Credit Agreement and Loan Documents are, after giving effect to hereto, true and correct in all material respects on and as of the Amendment No. 2 Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties
-2- expressly relate to an earlier date in which case they shall be true and correct in all material respects as of such earlier date; provided, that, to the extent that any such representations and warranties are qualified by materiality, material adverse effect or similar language, such representations and warranties shall be true and correct in all respects. (B) After giving effect to this Amendment No. 2, no Default or Event of Default has occurred and is continuing. SECTION 5. Applicable Law; Waiver of Jury Trial. This Amendment No. 2 shall be governed by, and construed and interpreted in accordance with, the law of the State of New York. Section 12.5 and Section 12.6 of the Original Credit Agreement are incorporated herein by reference mutatis mutandis. SECTION 6. Headings. The Section headings used herein are for convenience of reference only, are not part of this Amendment No. 2 and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment No. 2. SECTION 7. Counterparts. This Amendment No. 2 and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Amendment No. 2 (each, a “Communication”), including Communications required to be in writing, may, if agreed by Bank of America, be in the form of an Electronic Record and may be executed using Electronic Signatures, including, without limitation, facsimile and/or .pdf. The Borrower agrees that any Electronic Signature (including, without limitation, facsimile or .pdf) on or associated with any Communication shall be valid and binding on the Borrower to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered to Bank of America. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by Bank of America of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. Bank of America may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of Bank of America’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, Bank of America is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by Bank of America pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent Bank of America has agreed to accept such Electronic Signature, Bank of America shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of the Borrower without further verification and (b) upon the request of Bank of America any Electronic Signature shall be promptly followed by a manually executed, original counterpart.
[Signature Page to Amendment No. 2] BMO BANK N.A., as a Revolving Credit Lender By: Name: Joshua Hovermale Title: Managing Director
[Signature Page to Amendment No. 2] The undersigned evidences its consent to the amendments reflected in this Amendment No. 2. TD BANK, N.A., as a Revolving Credit Lender By: Name: Richard A. Zimmerman Title: Managing Director
A-1 EXHIBIT A [See Attached]
Exhibit AMARKED VERSION REFLECTING CHANGESPURSUANT TO SECOND AMENDMENTADDED TEXT SHOWN UNDERSCOREDDELETED TEXT SHOWN STRIKETHROUGHPublished Deal CUSIP # 25827PAA0Revolver Facility CUSIP # 25827PAB8CREDIT AGREEMENTdated as of August 10, 2021(as amended by the Amendment No. 1, dated as of October 4, 2022, and Amendment No. 2, dated as ofJuly 1, 2024)by and amongDORMAN PRODUCTS, INC.,as Borrower,the Lenders referred to herein,as Lenders,andBANK OF AMERICA, N.A.,as Administrative Agent andSwingline LenderBANK OF AMERICA, N.A.,PNC CAPITAL MARKETS LLC andWELLS FARGO SECURITIES, LLC,as Joint Lead Arrangers, Joint Bookrunners and Issuing LendersPNC CAPITAL MARKETS LLC,WELLS FARGO BANK, N.A. andBMO CAPITAL MARKETS CORP.,as Co-Syndication AgentsTD BANK, N.A.,as Co-Documentation AgentBANK OF AMERICA, N.A.,PNC CAPITAL MARKETS LLC,WELLS FARGO SECURITIES, LLC andBMO CAPITAL MARKETS CORP.,as Amendment No. 1 Lead Arrangers
TABLE OF CONTENTS PageARTICLE I DEFINITIONS 1Section 1.1 Definitions 1Section 1.2 Other Definitions and Provisions 41Section 1.3 Accounting Terms. 41Section 1.4 UCC Terms 42Section 1.5 Rounding 42Section 1.6 References to Agreement and Laws 42Section 1.7 Times of Day 42Section 1.8 Guarantees/Earn-Outs 42Section 1.9 Covenant Compliance Generally 42Section 1.10 Limited Condition Acquisitions 43Section 1.11 [Reserved] 44Section 1.12 Divisions 44Section 1.13 Pro Forma Calculations 44Section 1.14 Letter of Credit Amounts 45Section 1.15 Delayed Draw Term Loans 45ARTICLE II CREDIT FACILITY 45Section 2.1 Revolving Credit Loans and Amendment No. 1 Term Loans 45Section 2.2 Swingline Loans. 46Section 2.3 Procedure for Advances of Revolving Credit Loans, Term Loans and SwinglineLoans. 47Section 2.4 Repayment and Prepayment of Loans. 4849Section 2.5 Permanent Reduction of the Revolving Credit Commitment. 4950Section 2.6 Termination of Revolving Credit Facility 50ARTICLE III LETTER OF CREDIT FACILITY 50Section 3.1 L/C Facility. 50ARTICLE IV TERM LOAN FACILITY 59Section 4.1 [Reserved] 59Section 4.2 [Reserved] 59Section 4.3 Repayment of Term Loans 59Section 4.4 Prepayments of Term Loans 59ARTICLE V GENERAL LOAN PROVISIONS 61Section 5.1 Interest. 61Section 5.2 Notice and Manner of Conversion or Continuation of Loans 62Section 5.3 Fees. 62Section 5.4 Manner of Payment 63Section 5.5 Evidence of Indebtedness. 63Section 5.6 Sharing of Payments by Lenders 64Section 5.7 Administrative Agent’s Clawback. 64Section 5.8 Changed Circumstances. 66Section 5.9 Indemnity 69Section 5.10 Increased Costs. 69Section 5.11 Taxes. 70i
Section 5.12 Mitigation Obligations; Replacement of Lenders. 73Section 5.13 Incremental Loans. 75Section 5.14 Cash Collateral 78Section 5.15 Defaulting Lenders. 79Section 5.16 Amend and Extend Transactions. 81Section 5.17 Refinancing Term Loans. 82Section 5.18 Replacement Revolving Commitments. 84ARTICLE VI CONDITIONS OF CLOSING AND BORROWING 85Section 6.1 Conditions to Closing and Initial Extensions of Credit 85Section 6.2 Conditions to All Extensions of Credit 89Section 6.3 [Reserved]. 89ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES 89Section 7.1 Organization; Power; Qualification 89Section 7.2 Ownership 90Section 7.3 Authorization; Enforceability 90Section 7.4 Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc 90Section 7.5 Compliance with Law; Governmental Approvals 91Section 7.6 Tax Returns and Payments 91Section 7.7 Intellectual Property Matters 91Section 7.8 Environmental Matters 91Section 7.9 Employee Benefit Matters. 92Section 7.10 Margin Stock 93Section 7.11 Government Regulation 93Section 7.12 [Reserved]. 93Section 7.13 [Reserved]. 93Section 7.14 Burdensome Provisions 93Section 7.15 Financial Statements 93Section 7.16 No Material Adverse Change 93Section 7.17 Solvency 93Section 7.18 Title to Properties 93Section 7.19 Litigation 94Section 7.20 Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions. 94Section 7.21 [Reserved]. 94Section 7.22 [Reserved]. 94Section 7.23 Disclosure 94ARTICLE VIII AFFIRMATIVE COVENANTS 95Section 8.1 Financial Statements and Budgets 95Section 8.2 Certificates; Other Reports 96Section 8.3 Notice of Litigation and Other Matters 97Section 8.4 Preservation of Corporate Existence and Related Matters 98Section 8.5 Maintenance of Property and Licenses. 98Section 8.6 Insurance 98Section 8.7 Accounting Methods and Financial Records 99Section 8.8 Payment of Taxes 99Section 8.9 Compliance with Laws and Approvals 99Section 8.10 Environmental Laws 99Section 8.11 Compliance with ERISA 99Section 8.12 Transactions with Affiliates 99ii
Section 8.13 Visits and Inspections 100Section 8.14 Additional Subsidiaries. 100Section 8.15 Use of Proceeds. 102Section 8.16 Compliance with Anti-Corruption Laws; Beneficial Ownership Regulation, Anti-Money Laundering Laws and Sanctions 102Section 8.17 Further Assurances 102Section 8.18 Lines of Business 103Section 8.19 Fiscal Year End 103Section 8.20 Collateral Reinstatement 103Section 8.21 Post-Closing Actions 103ARTICLE IX NEGATIVE COVENANTS 103Section 9.1 Indebtedness 103Section 9.2 Liens 107Section 9.3 Investments 109Section 9.4 Fundamental Changes 111Section 9.5 Asset Dispositions 112Section 9.6 Restricted Payments 113Section 9.7 [Reserved] 114Section 9.8 [Reserved]. 114Section 9.9 [Reserved]. 114Section 9.10 [Reserved]. 114Section 9.11 [Reserved]. 114Section 9.12 [Reserved]. 114Section 9.13 Financial Covenants 114ARTICLE X DEFAULT AND REMEDIES 114Section 10.1 Events of Default 114Section 10.2 Remedies 116Section 10.3 Rights and Remedies Cumulative; Non-Waiver; Etc. 117Section 10.4 Crediting of Payments and Proceeds 118Section 10.5 Administrative Agent May File Proofs of Claim 119Section 10.6 [Reserved]. 119Section 10.7 [Reserved]. 119ARTICLE XI THE ADMINISTRATIVE AGENT 119Section 11.1 Appointment and Authority. 119Section 11.2 Rights as a Lender 120Section 11.3 Exculpatory Provisions 120Section 11.4 Reliance by the Administrative Agent 121Section 11.5 Delegation of Duties 122Section 11.6 Resignation of Administrative Agent. 122Section 11.7 Non-Reliance on Administrative Agent, the Arranger and Other Lenders 123Section 11.8 No Other Duties, Etc 124Section 11.9 Administrative Agent May File Proofs of Claim; Credit Bidding 124Section 11.10 Collateral and Guaranty Matters 125Section 11.11 Secured Hedge Obligations and Secured Cash Management Obligations 126Section 11.12 Certain ERISA Matters. 126Section 11.13 Recovery of Erroneous Payments 127Section 11.14 Withholding Tax 128ARTICLE XII MISCELLANEOUS 128iii
Section 12.1 Notices. 128Section 12.2 Amendments, Waivers and Consents 131Section 12.3 Expenses; Indemnity. 134Section 12.4 Right of Setoff 136Section 12.5 Governing Law; Jurisdiction, Etc. 137Section 12.6 Waiver of Jury Trial 137138Section 12.7 Reversal of Payments 138Section 12.8 Injunctive Relief 138Section 12.9 Successors and Assigns; Participations. 138Section 12.10 Treatment of Certain Information; Confidentiality 143Section 12.11 Performance of Duties 144Section 12.12 All Powers Coupled with Interest 144Section 12.13 Survival. 144Section 12.14 Titles and Captions 144Section 12.15 Severability of Provisions 144Section 12.16 Counterparts; Integration; Effectiveness; Electronic Execution. 145Section 12.17 Term of Agreement 145Section 12.18 USA PATRIOT Act; Anti-Money Laundering Laws 145146Section 12.19 Independent Effect of Covenants 146Section 12.20 No Advisory or Fiduciary Responsibility. 146Section 12.21 [Reserved]. 147Section 12.22 Inconsistencies with Other Documents 147Section 12.23 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 147Section 12.24 Acknowledgement Regarding Any Supported QFCs 147iv
EXHIBITSExhibit A-1 Form of Revolving Credit NoteExhibit A-2 Form of Swingline NoteExhibit A-3 Form of Term Loan NoteExhibit B Form of Notice of BorrowingExhibit C Form of Notice of Account DesignationExhibit D Form of Notice of PrepaymentExhibit E Form of Notice of Conversion/ContinuationExhibit F Form of Officer’s Compliance CertificateExhibit G Form of Assignment and AssumptionExhibit H-1 Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Lenders)Exhibit H-2 Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Participants)Exhibit H-3 Form of U.S. Tax Compliance Certificate (Foreign Participant Partnerships)Exhibit H-4 Form of U.S. Tax Compliance Certificate (Foreign Lender Partnerships)SCHEDULESSchedule 1.1(a) Existing Letters of CreditSchedule 1.1(b) Commitments and Commitment PercentagesSchedule 7.2 Subsidiaries and CapitalizationSchedule 7.18 Real PropertySchedule 7.19 LitigationSchedule 8.12Schedule 8.21 Transactions with AffiliatesPost-Closing ActionsSchedule 9.1 Existing IndebtednessSchedule 9.2 Existing LiensSchedule 9.3 Existing Loans, Advances and Investmentsv
CREDIT AGREEMENT, dated as of August 10, 2021, by and among DORMAN PRODUCTS,INC., a Pennsylvania corporation, as Borrower, the lenders who are party to this Agreement and thelenders who may become a party to this Agreement pursuant to the terms hereof, as Lenders, and BANKOF AMERICA, N.A., a national banking association, as Administrative Agent for the Lenders.STATEMENT OF PURPOSEWHEREAS, pursuant to the Acquisition Agreement, Merger Sub will merge with and into theAcquired Company, with the Acquired Company surviving the merger as a direct wholly-ownedsubsidiary of the Borrower. Such transaction is referred to herein as the “DPL Acquisition”. In connectionwith the DPL Acquisition, and to provide a portion of the financing therefor, the Borrower has enteredinto this Agreement. The Borrower has requested, and subject to the terms and conditions set forth in thisAgreement, the Administrative Agent and the Lenders have agreed to extend, certain credit facilities tothe Borrower pursuant to the terms hereof.WHEREAS, in connection with the Super ATV Acquisition (as defined in Amendment No. 1),this Agreement is being amended pursuant to Amendment No. 1 in order to (i) establish the AmendmentNo. 1 Term Loans in an aggregate principal amount of $500,000,000, (ii) extend the maturity of theRevolving Credit Commitments and (iii) implement Term SOFR-based pricing in lieu of LIBOR-basedpricing. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of whichare hereby acknowledged by the parties hereto, such parties hereby agree as follows:ARTICLE IDEFINITIONSSection 1.1 Definitions. The following terms when used in this Agreement shall have themeanings assigned to them below:“Acquired Company” means DPL Holding Corporation, a Delaware corporation.“Acquisition” means any transaction, or any series of related transactions, consummated on orafter the date of this Agreement, by which any Credit Party or any of its Subsidiaries (a) acquires anybusiness or all or substantially all of the assets of any Person, or division thereof, whether through thepurchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as themost recent transaction in a series of transactions) at least a majority (in number of votes) of the securitiesof a corporation which have ordinary voting power for the election of members of the board of directorsor the equivalent governing body (other than securities having such power only by reason of thehappening of a contingency) or a majority (by percentage or voting power) of the outstanding ownershipinterests of a partnership or limited liability company.“Acquisition Agreement” means that certain Agreement and Plan of Merger, dated as of June 25,2021, by and among the Borrower, the Acquired Company, Merger Sub and SBF II Representative Corp.,solely in its capacity as the Equityholder Representative (as defined therein) (including all schedules andexhibits thereto).“Administrative Agent” means Bank of America, in its capacity as Administrative Agenthereunder, and any successor thereto appointed pursuant to Section 11.6.
“Administrative Agent’s Office” means the office of the Administrative Agent specified in ordetermined in accordance with the provisions of Section 12.1(c).“Administrative Questionnaire” means an administrative questionnaire in a form supplied by theAdministrative Agent.“Affected Financial Institution” means (a) any EEA Financial Institution or (b) UK FinancialInstitution.“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectlythrough one or more intermediaries, Controls or is Controlled by or is under common Control with thePerson specified.“Agent Parties” has the meaning assigned thereto in Section 12.1(e).“Aggregate Commitments” means the Commitments of all the Lenders.“Agreement” means this Credit Agreement.“Amendment No. 1” means that certain Amendment No. 1 to the Credit Agreement dated as ofOctober 4, 2022 by and among the Borrower, the Subsidiary Guarantors party thereto, the AmendmentNo. 1 Term Loan Lenders party thereto, the Revolving Credit Lenders party thereto and theAdministrative Agent.“Amendment No. 1 Effective Date” means October 4, 2022.“Amendment No. 1 Lead Arranger” means Bank of America, N.A., PNC Capital Markets LLC,Wells Fargo Securities, LLC and BMO Capital Markets Corp. in their respective capacities, individually,as a joint bookrunner and a joint lead arranger in connection with Amendment No. 1.“Amendment No. 1 Term Loan” has the meaning assigned thereto to Section 2.1(b).“Amendment No. 1 Term Loan Commitment” means (a) as to any Lender, the obligation of suchLender to make an Amendment No. 1 Term Loan to the account of the Borrower hereunder on theAmendment No. 1 Effective Date in an aggregate principal amount equaling the amount set forth oppositesuch Lender’s name on Schedule 1.1(b), as such amount may be increased, reduced or otherwise modifiedat any time or from time to time pursuant to the terms hereof and (b) as to all Amendment No. 1 TermLoan Lenders, the Aggregate Commitments of all Amendment No. 1 Term Loan Lenders to make suchTerm Loans. The aggregate Amendment No. 1 Term Loan Commitment with respect to the AmendmentNo. 1 Term Loan of all Amendment No. 1 Term Loan Lenders on the Amendment No. 1 Effective Dateshall be $500,000,000. The Amendment No. 1 Term Loan Commitment of each Amendment No. 1 TermLoan Lender as of the Amendment No. 1 Effective Date is set forth opposite the name of suchAmendment No. 1 Term Loan Lender on Schedule 1.1(b).“Amendment No. 1 Term Loan Lender” means any Lender with Amendment No. 1 Term LoanCommitments and/or outstanding Amendment No. 1 Term Loans.“Amendment No. 1 Term Loan Maturity Date” means the first to occur of (a) the date that it isthe five-year anniversary of the Amendment No. 1 Effective Date and (b) the date of acceleration of theTerm Loans pursuant to Section 10.2(a). 2
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable tothe Borrower or its subsidiaries from time to time concerning or relating to bribery or corruption,including, without limitation, the United States Foreign Corrupt Practices Act of 1977 and the rules andregulations thereunder and the U.K. Bribery Act 2010 and the rules and regulations thereunder.“Anti-Money Laundering Laws” means any and all laws, statutes, regulations or obligatorygovernment orders, decrees, ordinances or rules applicable to a Credit Party, its subsidiaries or Affiliatesrelated to terrorism financing or money laundering, including any applicable provision of the Patriot Actand The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances,rules, treaties, regulations, permits, licenses, approvals, official administrative pronouncements,interpretations (having the force of law) and orders of Governmental Authorities and all orders anddecrees of all courts and arbitrators.“Applicable Margin” means the corresponding percentages per annum as set forth below basedon the Total Net Leverage Ratio:PricingLevel Total Net Leverage Ratio Applicable Marginfor Term SOFRLoans and Lettersof Credit ApplicableMargin for BaseRate Loans CommitmentFeeI Greater than or equal to 3.00 to 1.00 2.000% 1.000% 0.250%II Greater than or equal to 2.50 to 1.00but less than 3.00 to 1.00 1.750% 0.750% 0.225%III Greater than or equal to 2.00 to 1.00but less than 2.50 to 1.00 1.500% 0.500% 0.200%IV Greater than or equal to 1.50 to 1.00but less than 2.00 to 1.00 1.375% 0.375% 0.175%V Greater than or equal to 0.50 to 1.00but less than 1.50 to 1.00 1.250% 0.250% 0.150%VI Less than 0.50 to 1.00 1.000% 0.000% 0.125%The Applicable Margin shall be determined and adjusted quarterly on the date five (5) Business Daysafter the day on which the Borrower provides an Officer’s Compliance Certificate pursuant to Section8.2(a) for the most recently ended fiscal quarter of the Borrower (each such date, a “Calculation Date”);provided that (a) the Applicable Margin shall be based on Pricing Level III until the first Calculation Dateoccurring after the Amendment No. 1 Effective Date that is the end of the first fiscal quarter that began onor after the Amendment No. 1 Effective Date (the “First Calculation Date”) and, thereafter the PricingLevel shall be determined by reference to the Total Net Leverage Ratio as of the last day of the mostrecently ended fiscal quarter of the Borrower preceding such Calculation Date and adjusted on such fifthBusiness Day following the delivery of such Officer’s Compliance Certificate as referred to above. Theapplicable Pricing Level shall be effective from the Amendment No. 1 Effective Date until then FirstCalculation Date and then from one Calculation Date until the next Calculation Date. Any adjustment inthe Pricing Level shall be applicable to all Extensions of Credit then existing or subsequently made orissued.Notwithstanding the foregoing, in the event that any financial statement or Officer’s ComplianceCertificate delivered pursuant to Section 8.1 or 8.2(a) is shown to be inaccurate (regardless of whether (i)this Agreement is in effect, (ii) any Commitments are in effect, or (iii) any Extension of Credit is3
outstanding when such inaccuracy is discovered or such financial statement or Officer’s ComplianceCertificate was delivered), and such inaccuracy, if corrected, would have led to the application of a higherApplicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for suchApplicable Period, then (A) the Borrower shall immediately deliver to the Administrative Agent acorrected Officer’s Compliance Certificate for such Applicable Period, (B) the Applicable Margin forsuch Applicable Period shall be determined as if the Total Net Leverage Ratio in the corrected Officer’sCompliance Certificate were applicable for such Applicable Period, and (C) the Borrower shallimmediately and retroactively be obligated to pay to the Administrative Agent the accrued additionalinterest and fees owing as a result of such increased Applicable Margin for such Applicable Period, whichpayment shall be promptly applied by the Administrative Agent in accordance with Section 5.4. Nothingin this paragraph shall limit the rights of the Administrative Agent and Lenders with respect to Sections5.1(b) and 10.2 nor any of their other rights under this Agreement or any other Loan Document. TheBorrower’s obligations under this paragraph shall survive the termination of the Commitments and therepayment of all other Obligations hereunder.“Applicable Percentage” means in respect of the Revolving Credit Facility, with respect to anyRevolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of theRevolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitmentat such time, subject to adjustment as provided in Section 5.15. If the commitment of each RevolvingCredit Lender to make Revolving Credit Loans and the obligation of the Issuing Lenders to make L/CCredit Extensions have been terminated pursuant to Section 10.2, or if the Revolving CreditCommitments have expired, then the Applicable Percentage of each Revolving Credit Lender in respectof the Revolving Credit Facility shall be determined based on the Applicable Percentage of suchRevolving Credit Lender in respect of the Revolving Credit Facility most recently in effect, giving effectto any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time ofdetermination. The initial Applicable Percentage of each Lender in respect of each Credit Facility is setforth opposite the name of such Lender on Schedule 1.1(b) or in the Assignment and Assumptionpursuant to which such Lender becomes a party hereto, as applicable.“Applicable Revolving Credit Percentage” means with respect to any Revolving Credit Lender atany time, such Revolving Credit Lender’s Applicable Percentage in respect of the Revolving CreditFacility at such time.“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) anAffiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.“Arranger” means, (i) as of the Closing Date, each of Bank of America, N.A., PNC CapitalMarkets LLC and Wells Fargo Securities, LLC, in its capacity as joint lead arranger and joint bookrunner,and (ii) with respect to Amendment No. 1 and thereafter, each Amendment No. 1 Lead Arranger.“Asset Disposition” means the sale, transfer, exclusive license, lease or other disposition of anyProperty (including any disposition of Equity Interests and any disposition of Property in connection witha Sale Leaseback Transaction) by any Credit Party or any Subsidiary thereof, and any issuance of EquityInterests by any Subsidiary of the Borrower to any Person that is not a Credit Party or any Subsidiarythereof. “Assignment and Assumption” means an assignment and assumption entered into by a Lenderand an Eligible Assignee (with the consent of any party whose consent is required by Section 12.9), andaccepted by the Administrative Agent, in substantially the form attached as Exhibit G or any other form4
(including electronic documentation generated by use of an electronic platform) approved by theAdministrative Agent.“Attributable Indebtedness” means, on any date of determination, (a) in respect of any CapitalLease Obligation of any Person, the capitalized amount thereof that would appear on a balance sheet ofsuch Person prepared as of such date in accordance with GAAP, and (b) in respect of any SyntheticLease, the capitalized amount or principal amount of the remaining lease payments under the relevantlease that would appear on a balance sheet of such Person prepared as of such date in accordance withGAAP if such lease were accounted for as a Capital Lease Obligation.“ATV Refinancing” means the repayment in full and payments of all amounts outstanding under(i) that certain Third Amended and Restated Loan Agreement dated December 23, 2021 (as amendedthrough the Amendment No. 1 Effective Date) by and between Old National Bank and Super ATV, LLC,(ii) that certain Business Loan Agreement dated February 11, 2022 (as amended through the AmendmentNo. 1 Effective Date) by and among Old National Bank, Madison Commercial Properties, LLC and SuperATV, LLC and (iii) that certain Business Loan Agreement dated February 11, 2022 (as amended throughthe Amendment No. 1 Effective Date) by and among Old National Bank, Clifty Commercial Properties,LLC and Super ATV, LLC, and the payoff letters and Lien releases delivered in connection therewith.“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by theapplicable 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 Article55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, theimplementing law, regulation, rule or requirement for such EEA Member Country from time to timewhich 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).“Bank of America” means Bank of America, N.A..“Bankruptcy Code” means 11 U.S.C. §§ 101 et seq.“Base Rate” means at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus0.50% and (c) Term SOFR for an Interest Period of one (1) month plus one percent (1%); each change inthe Base Rate shall take effect simultaneously with the corresponding change or changes in the PrimeRate, the Federal Funds Rate or Term SOFR (provided that clause (c) shall not be applicable during anyperiod in which Term SOFR is unavailable or unascertainable). Notwithstanding the foregoing, in noevent shall the Base Rate be less than zero percent (0%).“Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate as providedin Section 5.1(a).“Beneficial Ownership Certification” means a certification regarding beneficial ownershiprequired by the Beneficial Ownership Regulation.“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.5
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subjectto Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Personwhose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISAor Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.“Borrower” means Dorman Products, Inc., a Pennsylvania corporation.“Borrower Materials” has the meaning assigned thereto in Section 8.2.“Borrowing” means a Revolving Credit Borrowing, a Borrowing of Swingline Loans, orBorrowing of Term Loans, as the context may require.“Business Day” means any day other than a Saturday, Sunday or other day on which commercialbanks are authorized to close under the Laws of, or are in fact closed in, the state where theAdministrative Agent’s Office is located.“Calculation Date” has the meaning assigned thereto in the definition of “Applicable Margin”.“Capital Expenditures” means, with respect to the Borrower and its Subsidiaries on aConsolidated basis, for any period, (a) the additions to property, plant and equipment and other capitalexpenditures that are (or would be) set forth in a consolidated statement of cash flows of such Person forsuch period prepared in accordance with GAAP and (b) Capital Lease Obligations during such period, butexcluding (i) expenditures for the restoration, repair or replacement of any fixed or capital asset whichwas destroyed or damaged, in whole or in part, to the extent financed by the proceeds of an insurancepolicy maintained by such Person and (ii) any expenditure to the extent constituting PermittedAcquisition Consideration.“Capital Lease Obligations” of any Person means, subject to Section 1.3(b), the obligations ofsuch Person to pay rent or other amounts under any lease of (or other arrangement conveying the right touse) real or personal property, or a combination thereof, which obligations are required to be classifiedand accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount ofsuch obligations shall be the capitalized amount thereof determined in accordance with GAAP.“Cash Collateralize” means, to deposit in a deposit account subject to sole dominion and controlof the Administrative Agent or to pledge and deposit with, or deliver to the Administrative Agent, ordirectly to the applicable Issuing Lender (with notice thereof to the Administrative Agent), for the benefitof one or more of the Issuing Lenders, the Swingline Lender or the Lenders, as collateral for L/CObligations or obligations of the Lenders to fund participations in respect of L/C Obligations orSwingline Loans, cash or deposit account balances or, if the Administrative Agent and the applicableIssuing Lender and the Swingline Lender shall agree, in their sole discretion, other credit support, in eachcase pursuant to documentation in form and substance satisfactory to the Administrative Agent, suchIssuing Lender and the Swingline Lender, as applicable. “Cash Collateral” shall have a meaningcorrelative to the foregoing and shall include the proceeds of such cash collateral and other credit support.“Cash Equivalents” means, collectively, (a) marketable direct obligations issued orunconditionally guaranteed by the United States or any agency thereof maturing within one hundredeighty (180) days from the date of acquisition thereof; (b) marketable direct obligations issued by anystate, commonwealth or territory of the United States or any political subdivision of any such state,commonwealth or territory, as applicable, maturing within one hundred eighty (180) days from the date ofacquisition thereof and having, at the time of the acquisition thereof, one of the two highest ratingsobtainable from either S&P, Moody’s or Fitch; (c) commercial paper maturing no more than one hundred6
eighty (180) days from the date of creation thereof and currently having a rating of at least A-1 fromS&P, P-1 from Moody’s or F1 from Fitch; (d) certificates of deposit maturing no more than one hundredeighty (180) days from the date of creation thereof issued by commercial banks incorporated under thelaws of the United States, each having combined capital, surplus and undivided profits of not less than$500,000,000 and having a rating of “A” or better by a nationally recognized rating agency; (e)repurchase agreements entered into by any Person with a commercial bank described in clause (d) above(including any of the Lenders) for direct obligations issued or fully guaranteed by the United States; (f)time deposits maturing no more than thirty (30) days from the date of creation thereof with commercialbanks or savings banks or savings and loan associations each having membership either in the FDIC orthe deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts ofinsurance thereunder; and (g) shares of any money market mutual fund that: (i) has at least ninety-fivepercent (95%) of its assets invested continuously in the types of investments referred to in clauses (a) and(b) above; (ii) has net assets of not less than $2,000,000,000; and (iii) has the highest rating obtainablefrom either S&P or Moody’s.“Cash Management Agreement” means any agreement to provide cash management services,including treasury, depository, overdraft, credit or debit card (including non-card electronic payables andpurchasing cards), electronic funds transfer and other cash management arrangements.“CFC” means a Foreign Subsidiary that is a “controlled foreign corporation” under Section 957of the Code.“CFC Holdco” means a Domestic Subsidiary that owns no material assets other than EquityInterests (or Equity Interests and Indebtedness) of one or more Foreign Subsidiaries that are CFCs.“Change in Control” means an event or series of events by which any “person” or “group” (assuch terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefitplan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent orother fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules13d-3 and 13d-5 under the Exchange Act, except that a “person” or “group” shall be deemed to have“beneficial ownership” of all Equity Interests that such “person” or “group” has the right to acquire,whether such right is exercisable immediately or only after the passage of time (such right, an “optionright”)), directly or indirectly, of more than thirty-five percent (35%) of the Equity Interests of theBorrower entitled to vote for members of the board of directors (or equivalent governing body) of theBorrower on a fully diluted basis (and taking into account all such securities that such “person” or“group” has the right to acquire pursuant to any option right).“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) theadoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulationor treaty or in the administration, interpretation, implementation or application thereof by anyGovernmental Authority or (c) the making or issuance of any request, rule, guideline or directive(whether or not having the force of law) by any Governmental Authority; provided that notwithstandinganything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act andall requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith and(ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, theBasel Committee on Banking Supervision (or any successor or similar authority) or the United States orforeign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a“Change in Law”, regardless of the date enacted, adopted, implemented or issued.“Class” means, when used in reference to any Loan, whether such Loan is a Revolving CreditLoan, Swingline Loan, Amendment No. 1 Term Loan or Incremental Term Loan and, when used in7
reference to any Commitment, whether such Commitment is a Revolving Credit Commitment,Amendment No. 1 Term Loan Commitment or an Incremental Term Loan Commitment.“Closing Date” means August 10, 2021.“CME” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Funding Rate (SOFR) (or any successor administrator).“Co-Documentation Agents” means, (i) as of the Closing Date, each of BMO Harris Bank N.A.and TD Bank, N.A. and (ii) with respect to Amendment No. 1 and thereafter, TD Bank, N.A.“Co-Syndication Agents” means, (i) as of the Closing Date, each of PNC Capital Markets LLCand Wells Fargo Bank, N.A., in its capacity as co-syndication agent and (ii) with respect to AmendmentNo. 1 and thereafter, each of PNC Capital Markets LLC, Wells Fargo Bank, N.A. and BMO CapitalMarkets Corp., in its capacity as co-syndication agent.“Code” means the Internal Revenue Code of 1986, as amended.“Collateral” means the collateral security for the Secured Obligations pledged or granted pursuantto the Security Documents, including any and all property subject (or purported to be subject) to a Lienunder the Security Documents.“Collateral Agreement” means the collateral agreement, dated as of the Closing Date, executed bythe Credit Parties in favor of the Administrative Agent, for the benefit of the Secured Parties, as amended,restated, supplemented or otherwise modified from time to time.“Collateral Release” has the meaning assigned thereto in Section 11.10(ii).“Collateral Release Date” means any date after the Closing Date on which at least two of thefollowing ratings events shall have occurred: (a) Moody’s has in effect a corporate family rating of Baa3or higher with respect to the Borrower, (b) S&P has in effect a corporate credit rating of BBB- or higherwith respect to the Borrower and (c) Fitch has in effect a corporate credit rating of BBB- or higher withrespect to the Borrower.“Collateral Release Period” means any period after the Closing Date commencing on theoccurrence of a Collateral Release Date and ending on the Collateral Trigger Date, if any.“Collateral Trigger Date” means any date after a Collateral Release Period, on which at least twoof the following ratings events shall have occurred: (1) Moody’s has in effect a corporate family rating ofBa1 or lower with respect to the Borrower, (b) S&P has in effect a corporate credit rating of BB+ or lowerwith respect to the Borrower and (c) Fitch has in effect a corporate credit rating of BB+ or lower withrespect to the Borrower.“Commitment Fee” has the meaning assigned thereto in Section 5.3(a).“Commitment Percentage” means, as to any Lender, such Lender’s Revolving CreditCommitment Percentage or Term Loan Percentage, as applicable.“Commitments” means, collectively, as to all Lenders, the Revolving Credit Commitments andthe Amendment No. 1 Term Loan Commitments of such Lenders.8
“Committed Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) Term LoanBorrowing or (c) a conversion of Loans from one Class to the other, which shall be substantially in theform of Exhibit B or Exhibit E, as applicable, or such other form as may be approved by theAdministrative Agent (including any form on an electronic platform or electronic transmission system asshall be approved by the Administrative Agent), appropriately completed and signed by a ResponsibleOfficer of the Borrower.“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).“Communication” has the meaning assigned thereto in Section 12.16(b).“Company Group Material Adverse Effect” has the meaning assigned to the term “CompanyGroup Material Adverse Effect” in the Acquisition Agreement as in effect on June 25, 2021.“Conforming Changes” means, with respect to the use, administration of or any conventionsassociated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conformingchanges to the definitions of “Base Rate”, “SOFR”, “Term SOFR” and “Interest Period”, timing andfrequency of determining rates and making payments of interest and other technical, administrative oroperational matters (including, for the avoidance of doubt, the definition of “Business Day” and “U.S.Government Securities Business Day”, timing of borrowing requests or prepayment, conversion orcontinuation notices and length of lookback periods) as may be appropriate, in the discretion of theAdministrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permitthe administration thereof by the Administrative Agent in a manner substantially consistent with marketpractice (or, if the Administrative Agent determines that adoption of any portion of such market practiceis not administratively feasible or that no market practice for the administration of such rate exists, in suchother manner of administration as the Administrative Agent determines is reasonably necessary inconnection with the administration of this Agreement and any other Loan Document).“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured bynet income (however denominated) or that are franchise Taxes or branch profits Taxes.“Consolidated” means, when used with reference to financial statements or financial statementitems of any Person, such statements or items on a consolidated basis in accordance with applicableprinciples of consolidation under GAAP but, for the avoidance of doubt, excluding any UnrestrictedSubsidiaries.“Consolidated EBITDA” means for any period, the sum of the following determined on aConsolidated basis, without duplication, for the Borrower and its Subsidiaries in accordance with GAAP:(a) Consolidated Net Income for such period plus (b) the sum of the following, withoutduplication, to the extent deducted in determining Consolidated Net Income for such period (other than inrespect of clause (vii)): (i) income and franchise taxes, (ii) Consolidated Interest Expense, (iii)amortization, depreciation and other non-cash charges, expenses, losses or impairments (except to theextent that such non-cash charges are reserved for cash charges to be taken in the future), including,without limitation, those relating to stock based compensation, retirement plan expenses and LIFOreserve, (iv) Transaction Costs, (v) losses, expenses, write-offs or charges that are extraordinary, unusualor non-recurring, including, without limitation, losses on the sale of equipment or swap breakage costs,(vi) restructuring or similar charges, losses or expenses (including without limitation severance,integration, facility opening and closing costs, new contracts and business optimization), includingaccruals or reserves, (vii) Pro Forma Synergies for such period; provided that the aggregate amount addedto Consolidated EBITDA, excluding Pro Forma Synergies resulting from the DPL Acquisition and the9
Super ATV Acquisition, pursuant to the foregoing clause (vii) for any period shall not exceed twenty-fivepercent (25%) of Consolidated EBITDA for such period and (viii) net unrealized losses on HedgeAgreements less (c) the sum of the following, without duplication, to the extent included in determiningConsolidated Net Income for such period: (i) net unrealized gains on Hedge Agreements and (ii) unusualor non-recurring gains or non-cash income (including gains on sale of equipment or business) increasingConsolidated Net Income. For purposes of this Agreement, Consolidated EBITDA shall be determinedon a Pro Forma Basis.“Consolidated Funded Indebtedness” means, with respect to the Borrower and its Subsidiaries, asof any date of determination on a Consolidated basis without duplication, the sum of the aggregateprincipal amount of Indebtedness outstanding as of such date of the type described in clauses (a), (c), (f)(limited to the amounts thereunder that have been drawn and not reimbursed) and (i) (but only to theextent relating to the foregoing clauses) of the definition of “Indebtedness” of the Borrower and itsSubsidiaries.“Consolidated Interest Coverage Ratio” means, for any period ending as of any date, the ratio ofLTM EBITDA as of such date to Consolidated Interest Expense for the Reference Period that has mostrecently ended on or prior to the last day of such period.“Consolidated Interest Expense” shall be defined as consolidated interest expense, determined inaccordance with GAAP, of the Borrower and its Subsidiaries and paid in cash by the Borrower or any ofits Subsidiaries, excluding, for the avoidance of doubt, (x) amortization of deferred financing fees, debtissuance costs, commissions, fees and expenses, (y) any expensing of bridge, commitment and otherfinancing fees and (z) any non-cash interest expense attributable to the movement in the mark-to-marketvaluation of derivative instruments pursuant to GAAP or any other non-cash interest payments.“Consolidated Net Income” means, for any period, the net income (or loss) of the Borrower andits Subsidiaries for such period, determined on a Consolidated basis, without duplication, in accordancewith GAAP; provided that in calculating Consolidated Net Income of the Borrower and its Subsidiariesfor any period, there shall be excluded (a) the net income (or loss) of any Person (other than a Subsidiarywhich shall be subject to clause (c) below), in which the Borrower or any of its Subsidiaries has a jointinterest with a third party, except to the extent such net income is actually paid in cash to the Borrower orany of its Subsidiaries by dividend or other distribution during such period, (b) the net income (or loss) ofany Person accrued prior to the date it becomes a Subsidiary of the Borrower or any of its Subsidiaries oris merged into or consolidated with the Borrower or any of its Subsidiaries or that Person’s assets areacquired by the Borrower or any of its Subsidiaries except (i) to the extent included pursuant to theforegoing clause (a) or (ii) in connection with any calculation on a Pro Forma Basis, (c) the net income (ifpositive), of any Non-Guarantor Subsidiary to the extent that the declaration or payment of dividends orsimilar distributions by such Non-Guarantor Subsidiary to the Borrower or any Subsidiary Guarantors ofsuch net income (i) is not at the time permitted by operation of the terms of its charter or any agreement,instrument, judgment, decree, order, statute, rule or governmental regulation applicable to suchSubsidiary or (ii) would be subject to any taxes payable on such dividends or distributions, but in eachcase only to the extent of such prohibition or taxes, (d) the cumulative effect of a change in accountingprinciples during such period, (e) the net after-tax effect of extraordinary, non-recurring, unusual orexceptional gains, losses, charges and expenses during such period, including those related to claims orlitigation, (f) the net after-tax effect of gains, losses, charges and expenses during such period attributableto (x) Asset Dispositions or the sale of Equity Interests of any Person not in the ordinary course ofbusiness, (y) disposed, closed or discontinued operations (and the disposal thereof) and (z) the earlyextinguishment or conversion of Indebtedness, Permitted Receivables Facilities, Hedge Agreements orother derivatives (including write-offs of deferred financing expenses and premiums paid) during suchperiod, (g) the effects of adjustments related to purchase accounting during such period, (h) impairment10
and amortization charges, asset write offs and write downs during such period, (i) non-cash compensationcharges and expenses during such period, (j) non-cash losses, charges, expenses from earn-out obligationsduring such period, (k) net unrealized losses on Hedge Agreements, (l) net income or loss of UnrestrictedSubsidiaries or persons that are not Subsidiaries unless received in cash during such period and (m)charges, expenses, premiums and fees incurred during such period, including financial advisory,accounting, auditor, legal and other consulting and advisory fees and any or other filing fees andexpenses, or any amortization thereof, in connection with issuance of equity or debt (including the CreditFacility and any amendments, modifications or refinancing thereto, including those undertaken but notcompleted) and any Acquisitions, Investments or Asset Dispositions permitted under this Agreement,including those undertaken but not completed.“Consolidated Secured Indebtedness” means, with respect to the Borrower and its Subsidiaries, asof any date of determination on a Consolidated basis without duplication, the aggregate principal amountof all Consolidated Funded Indebtedness of the Borrower and its Subsidiaries outstanding as of such datethat is secured by Liens on any property or assets of the Borrower or any of its Subsidiaries.“Consolidated Total Assets” shall mean, as of any date of determination, the amount that would,in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on aconsolidated balance sheet of the Borrower as of such date of the most recently ended Reference Period.“Control” means the possession, directly or indirectly, of the power to direct or cause thedirection 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.“Credit Facility” means, collectively, the Revolving Credit Facility, the Term Loan Facility, theSwingline Facility and the L/C Facility.“Credit Parties” means, collectively, the Borrower and the Subsidiary Guarantors.“Cumulative Available Amount” means an amount equal to (A) the sum of (a) $25,000,000; plus(b) 100% of the Net Cash Proceeds from issuances of Qualified Equity Interests of the Borrower after theClosing Date (including conversions of Indebtedness to Qualified Equity Interests of the Borrower), to theextent such Net Cash Proceeds shall not have been relied upon to incur Indebtedness pursuant to Section9.1(o); plus (c) 50% of cumulative Consolidated Net Income (but not less than zero) beginning with thefiscal quarter in which the Closing Date occurs; plus (d) the amount of (i) all returns in cash from partialor total sales of Investments made in reliance on the Cumulative Available Amount pursuant to Section9.3(q) and (ii) returns, repayments, profits, dividends or interest received in cash resulting fromInvestments made in reliance on the Cumulative Available Amount pursuant to Section 9.3(q) less (B) thecumulative amount of Investments made using the Cumulative Available Amount pursuant to Section9.3(q). “Customary Intercreditor Agreement” means(i) with respect to any Indebtedness being secured on a pari passu basis to the Lienssecuring the Obligations, an intercreditor agreement the terms of which are consistent with market terms(as determined by the Borrower and the Administrative Agent in good faith) for pari passu intercreditoragreements governing rights and remedies with respect to collateral and control of remedies at the timethe relevant intercreditor agreement is proposed to be established in light of the type of Indebtednesssubject thereto; and 11
(ii) with respect to any Indebtedness being secured on a junior lien basis to the Liens securing theObligations an intercreditor agreement the terms of which are consistent with market terms (as determinedby the Borrower and the Administrative Agent in good faith) for intercreditor agreements governingsubordination of Liens and related intercreditor matters at the time the relevant intercreditor agreement isproposed to be established in light of the type of Indebtedness subject thereto.“Daily Simple SOFR” with respect to any applicable determination date means the securedovernight financing rate published on such date by the Federal Reserve Bank of New York, as theadministrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of NewYork’s website (or any successor source).“Debt Issuance” means the incurrence of any Indebtedness by any Credit Party or any of itsSubsidiaries (other than any incurrence of Indebtedness permitted to be incurred by such Credit Party orSubsidiary pursuant to Section 9.1).“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all otherliquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United Statesor other applicable jurisdictions from time to time in effect.“Default” means any of the events specified in Section 10.1 which with the passage of time, thegiving of notice or any other condition, would constitute an Event of Default.“Defaulting Lender” means, subject to Section 5.15(b), any Lender that (a) has failed to (i) fundall or any portion of its Loans required to be funded by it hereunder within two (2) Business Days of thedate such Loans or participations were required to be funded hereunder unless such Lender notifies theAdministrative Agent and the Borrower in writing that such failure is the result of such Lender’sdetermination that one or more conditions precedent to funding (each of which conditions precedent,together with any applicable default, shall be specifically identified in such writing) has not beensatisfied, or (ii) pay to the Administrative Agent, any Issuing Lender, the Swingline Lender or any otherLender any other amount required to be paid by it hereunder (including in respect of its participation inLetters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notifiedthe Borrower, the Administrative Agent, any Issuing Lender or the Swingline Lender in writing that itdoes not intend to comply with its funding obligations hereunder, or has made a public statement to thateffect (unless such writing or public statement relates to such Lender’s obligation to fund a Loanhereunder and states that such position is based on such Lender’s determination that a condition precedentto funding (which condition precedent, together with any applicable default, shall be specificallyidentified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3)Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing tothe Administrative Agent and the Borrower that it will comply with its prospective funding obligationshereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, orhas a direct or indirect parent company that has, (i) become the subject of a proceeding under any DebtorRelief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee forthe benefit of creditors or similar Person charged with reorganization or liquidation of its business orassets, including the FDIC or any other state or federal regulatory authority acting in such a capacity or(iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lendersolely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct orindirect parent company thereof by a Governmental Authority so long as such ownership interest does notresult in or provide such Lender with immunity from the jurisdiction of courts within the United States orfrom the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such12
Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements madewith such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lenderunder any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifesterror, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 5.15(b)) upondelivery of written notice of such determination to the Borrower, each Issuing Lender, the SwinglineLender and each Lender.“Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms ofany security or other Equity Interest into which they are convertible or for which they are exchangeable)or upon the happening of any event or condition, (a) mature or are mandatorily redeemable (other thansolely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as aresult of a change of control or asset sale so long as any rights of the holders thereof upon the occurrenceof a change of control or asset sale event shall be subject to the prior repayment in full of the Loans andall other Obligations that are accrued and payable and the termination of the Commitments), (b) areredeemable at the option of the holder thereof (other than solely for Qualified Equity Interests) (except asa result of a change of control or asset sale so long as any rights of the holders thereof upon theoccurrence of a change of control or asset sale event shall be subject to the prior repayment in full of theLoans and all other Obligations that are accrued and payable and the termination of the Commitments), inwhole or in part, (c) provide for the scheduled payment of dividends in cash or (d) are or becomeconvertible into or exchangeable for Indebtedness or any other Equity Interests that would constituteDisqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the LatestMaturity Date; provided that if such Equity Interests are issued pursuant to a plan for the benefit of theBorrower or its Subsidiaries or by any such plan to such officers or employees, such Equity Interests shallnot constitute Disqualified Equity Interests solely because they may be required to be repurchased by theBorrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.“Disqualified Institution” means any financial institution or other Person that (i) has beenspecified by Borrower to the Administrative Agent in writing on or prior to June 25, 2021, (ii) is acompetitor of the Borrower, the Acquired Company, Super ATV and Borrower’s, Acquired Company’sand Super ATV’s Subsidiaries specified by Borrower to the Administrative Agent in writing on or priorto June 25, 2021 (which list of competitors may be supplemented by Borrower after the Closing Date bymeans of a written notice to the Administrative Agent but which supplementation shall not becomeeffective until the next Business Day after the date such supplementation is provided), (iii) has beenposted for the Lenders on the Platform and (iv) in the case of each of clauses (i) and (ii) of this definition,any of their Affiliates (which, for the avoidance of doubt, shall not include any bona fide debt investmentfunds or commercial banks or similar financial institutions that are Affiliates of the persons referenced inclause (ii) of this definition above) that are either (a) identified in writing by Borrower to theAdministrative Agent from time to time (but which supplementation shall not become effective until thenext Business Day after the date such supplementation is provided) or (b) readily identifiable solely onthe basis of such Affiliate’s name; provided that, for the avoidance of doubt, any such additionalsupplementation referred to in clause (ii) or (iv) of this definition shall not apply retroactively to any priorassignment to or by any Lender permitted hereunder at the time of such assignment; provided, further,that “Disqualified Institutions” shall exclude any Person that the Borrower has designated as no longerbeing a “Disqualified Institution” by written notice delivered to the Administrative Agent and the Lendersfrom time to time. The Lenders may disclose, on a confidential basis, the Disqualified Institutions postedon the Platform to potential lenders in connection with a bona fide potential sale.“Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency of the UnitedStates. 13
“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States, anystate thereof or the District of Columbia.“DPL Acquisition” has the meaning assigned thereto in the Statement of Purpose.“EEA Financial Institution” means (a) any credit institution or investment firm established in anyEEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entityestablished in an EEA Member Country which is a parent of an institution described in clause (a) of thisdefinition, or (c) any financial institution established in an EEA Member Country which is a subsidiary ofan institution described in clause (a) or (b) of this definition and is subject to consolidated supervisionwith 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 entrustedwith public administrative authority of any EEA Member Country (including any delegee) havingresponsibility for the resolution of any credit institution or investment firm established in any EEAMember Country.“Electronic Record” has the meaning assigned to that term in, and shall be interpreted inaccordance with, 15 U.S.C. 7006.“Electronic Signature” has the meaning assigned to that term in, and shall be interpreted inaccordance with, 15 U.S.C. 7006.“Eligible Assignee” means any Person that meets the requirements to be an assignee underSection 12.9(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required underSection 12.9(b)(iii)); provided that, subject to the provisos set forth in the definition of “DisqualifiedInstitution”, in no event shall a Disqualified Institution constitute an Eligible Assignee.“Employee Benefit Plan” means (a) any employee benefit plan within the meaning of Section3(3) of ERISA that is maintained for employees of any Credit Party or (b) any Pension Plan orMultiemployer Plan that has at any time within the preceding six (6) years been maintained, funded oradministered for the employees of any Credit Party or any current or former ERISA Affiliate.“Environmental Laws” means any and all applicable federal, foreign, state, provincial and locallaws, statutes, ordinances, codes, rules, standards (having the force of law) and regulations, permits,licenses, approvals, interpretations (having the force of law) and orders of courts or GovernmentalAuthorities, relating to the protection of human health or the environment, including, but not limited to,requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal,transportation, handling, reporting, licensing, permitting, investigation or remediation of hazardous ortoxic materials.“Environmental Liability” means all liabilities, obligations, damages, losses, claims, actions,suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversightcosts, natural resource damages, monitoring and remediation costs and reasonable fees and expenses ofattorneys and consultants), whether contingent or otherwise, including those arising out of or relating to:(a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling,transportation, storage, treatment, recycling, disposal (or arrangement for such activities) of anyHazardous Materials, (c) exposure to any Hazardous Materials, (d) the presence, release or disposal of14
any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant towhich liability is assumed or imposed with respect to any of the foregoing.“Environmental Permits” means all permits, licenses, registrations, notifications and otherapprovals required under applicable Environmental Law.“Equity Interests” means (a) in the case of a corporation, capital stock, (b) in the case of anassociation or business entity, any and all shares, interests, participations, rights or other equivalents(however designated) of capital stock, (c) in the case of a partnership, partnership interests (whethergeneral or limited), (d) in the case of a limited liability company, membership interests, (e) any otherinterest or participation that confers on a Person the right to receive a share of the profits and losses of, ordistributions of assets of, the issuing Person and (f) any and all warrants, rights or options to purchase anyof the foregoing.“ERISA” means the Employee Retirement Income Security Act of 1974, and the rules andregulations thereunder.“ERISA Affiliate” means any Person who together with any Credit Party or any of its subsidiariesis treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code orSection 4001(b) of ERISA.“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by theLoan Market Association (or any successor thereto), as in effect from time to time.“Event of Default” means any of the events specified in Section 10.1; provided that anyrequirement for passage of time, giving of notice, or any other condition, has been satisfied.“Exchange Act” means the Securities Exchange Act of 1934.“Excluded Information” means information regarding the Borrower, the Subsidiaries or theirrespective affiliates not known to such Lender and that may be material to a decision by such Lender toparticipate in such applicable transaction (including Material Non-Public Information).“Excluded Subsidiary” means (a) [reserved], (b) any Domestic Subsidiary of a ForeignSubsidiary that is a CFC, (c) any CFC Holdco, (d) any Subsidiary that is prohibited by Applicable Law orby any contractual obligation existing on the Closing Date or existing at the time of acquisition of suchSubsidiary after the Closing Date (and not incurred in contemplation of such acquisition), in each casefrom Guaranteeing the Obligations, but only so long as such prohibition exists, (e) any UnrestrictedSubsidiary, (f) any Receivables Subsidiary, (g) any other Subsidiary with respect to which theAdministrative Agent and the Borrower mutually agree that the cost of providing a Guarantee would beexcessive in relation to the benefit to be afforded thereby, (h) each Immaterial Subsidiary and (i) eachSubsidiary that is not Wholly-Owned; provided, however, that no Subsidiary that ceases to be Wholly-Owned after the Closing Date shall be an Excluded Subsidiary pursuant to clause (i), unless suchSubsidiary ceased to be Wholly-Owned Subsidiary due to a sale, transfer or disposition of EquityInterests of such Subsidiary to a Person that is not an Affiliate of Borrower and such sale, transfer ordisposition was effectuated for a bona fide business purpose.“Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if,and to the extent that, all or a portion of the liability of such Credit Party for or the guarantee of suchCredit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (orany liability or guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule,15
regulation or order of the Commodity Futures Trading Commission (or the application or officialinterpretation of any thereof) by virtue of such Credit Party’s failure for any reason to constitute an“eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunderat the time the liability for or the guarantee of such Credit Party or the grant of such security interestbecomes effective with respect to such Swap Obligation (such determination being made after givingeffect to any applicable keepwell, support or other agreement for the benefit of the applicable CreditParty, including under the keepwell provisions in the Subsidiary Guaranty Agreement). If a SwapObligation arises under a master agreement governing more than one swap, such exclusion shall applyonly to the portion of such Swap Obligation that is attributable to swaps for which such guarantee orsecurity interest is or becomes illegal for the reasons identified in the immediately preceding sentence ofthis definition.“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient orrequired to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured bynet income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposedas a result of such Recipient being organized under the laws of, or having its principal office or, in thecase of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or anypolitical subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, UnitedStates federal withholding Taxes imposed on amounts payable to or for the account of such Lender withrespect 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 applicable Commitment, or if such Lender did not fund theapplicable Loan pursuant to a prior Commitment, on the date such Lender acquires the applicable interestin such Loan (other than, in each case, pursuant to an assignment request by the Borrower under Section5.12(b)) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant toSection 5.11, amounts with respect to such Taxes were payable either to such Lender’s assignorimmediately before such Lender acquired the applicable interest in the applicable Loan or Commitment orto such Lender immediately before it changed its Lending Office, (c) Taxes attributable to suchRecipient’s failure to comply with Section 5.11(g) and (d) any United States federal withholding Taxesimposed under FATCA.“Existing Letters of Credit” means those letters of credit existing on the Closing Date andidentified on Schedule 1.1(a).“Extended Revolving Credit Commitment” means any Class of Revolving Credit Commitmentsthe expiry of which shall have been extended pursuant to Section 5.16.“Extended Revolving Credit Lender” means any Lender with Extended Revolving CreditCommitments and/or outstanding Extended Revolving Credit Loans.“Extended Revolving Credit Loans” means any Revolving Credit Loans made pursuant to theExtended Revolving Credit Commitments.“Extended Term Loans” means any Class of Term Loans the maturity of which shall have beenextended pursuant to Section 5.16.“Extension” has the meaning assigned thereto in Section 5.16(a).“Extension Amendment” means an amendment to this Agreement (which may, at the option ofthe Administrative Agent and the Borrower, be in the form of an amendment and restatement of thisAgreement) among the Credit Parties, the applicable extending Lenders, the Administrative Agent and, to16
the extent required by Section 5.16, the Issuing Lender and/or the Swingline Lender implementing anExtension in accordance with Section 5.16.“Extension Offer” has the meaning assigned thereto in Section 5.16(a).“Extensions of Credit” means, as to any Lender at any time, (a) an amount equal to the sum of (i)the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding, (ii)such Lender’s Revolving Credit Commitment Percentage of the L/C Obligations then outstanding, (iii)such Lender’s Revolving Credit Commitment Percentage of the Swingline Loans then outstanding and(iv) the aggregate principal amount of Term Loans made by such Lender then outstanding, or (b) themaking of any Loan or participation in any Letter of Credit by such Lender, as the context requires.“FASB ASC” means the Accounting Standards Codification of the Financial AccountingStandards Board.“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (orany amended or successor version that is substantively comparable and not materially more onerous tocomply with), any current or future regulations thereunder or official interpretations thereof, anyagreements entered into pursuant to Section 1471(b)(1) of the Code as of the date of this Agreement (orany amended or successor version described above) and any intergovernmental agreements (and relatedlegislation, rules or official administrative guidance) implementing the foregoing.“FCA” means Financial Conduct Authority.“FDIC” means the Federal Deposit Insurance Corporation.“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal ReserveBank of New York based on such day’s federal funds transactions by depository institutions (asdetermined in such manner as the Federal Reserve Bank of New York shall set forth on its public websitefrom time to time) and published on the next succeeding Business Day by the Federal Reserve Bank ofNew York as the federal funds effective rate; provided that if the Federal Funds Rate as so determinedwould be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.“First Tier Foreign Subsidiary” means any Foreign Subsidiary, the Equity Interests of which areowned directly by any Credit Party.“Fiscal Year” means the fiscal year of the Borrower and its subsidiaries ending on (i) for all fiscalyears ended prior to 2022, the last Saturday of each December and (ii) for the 2022 fiscal year and allfiscal years thereafter, each December 31.“Fitch” means Fitch Ratings, Inc. and any successor thereto.“Foreign Lender” means a Lender that is not a U.S. Person.“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to anyIssuing Lender, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations otherthan L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocatedto other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to theSwingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than17
Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated toother Lenders in accordance with the terms hereof.“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit inthe ordinary course of its activities.“GAAP” means generally accepted accounting principles in the United States set forth in theopinions and pronouncements of the Accounting Principles Board and the American Institute of CertifiedPublic Accountants and statements and pronouncements of the Financial Accounting Standards Board orsuch other principles as may be approved by a significant segment of the accounting profession in theUnited States, that are applicable to the circumstances as of the date of determination, consistentlyapplied.“Governmental Approvals” means all authorizations, consents, approvals, permits, licenses andexemptions of, and all registrations and filings with or issued by, any Governmental Authorities.“Governmental Authority” means the government of the United States or any other nation, or ofany political subdivision thereof, whether state, local or otherwise, and any agency, authority,instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,judicial, taxing, regulatory or administrative powers or functions of or pertaining to government(including any supra-national bodies such as the European Union or the European Central Bank).“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise,of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or otherobligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, andincluding any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supplyfunds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advanceor supply funds for the purchase of) any security for the payment thereof, (b) to purchase or leaseproperty, securities or services for the purpose of assuring the owner of such Indebtedness or otherobligation of the payment thereof, (c) to maintain working capital, equity capital or any other financialstatement condition or liquidity of the primary obligor so as to enable the primary obligor to pay suchIndebtedness or other obligation, (d) as an account party in respect of any letter of credit or letter ofguaranty issued to support such Indebtedness or obligation or (e) for the purpose of assuring in any othermanner the obligee in respect of such Indebtedness or other obligation of the payment or performancethereof or to protect such obligee against loss in respect thereof (whether in whole or in part).“Hazardous Materials” means any substances or materials (a) which are or become defined ashazardous wastes, hazardous substances, pollutants, contaminants or toxic substances, or which areotherwise regulated, under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable,infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human health or theenvironment, (c) the presence of which require investigation or remediation under any EnvironmentalLaw or common law, (d) the discharge or emission or release of which requires a permit or license underany Environmental Law or Environmental Permit, (e) which are deemed by a Governmental Authority toconstitute a nuisance or a trespass which pose a health or safety hazard to Persons or neighboringproperties, or (f) which contain, without limitation, asbestos, polychlorinated biphenyls, ureaformaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude oil,nuclear fuel, natural gas or synthetic gas.“Hedge Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivativetransactions, forward rate transactions, commodity swaps, commodity options, forward commodity18
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options orforward bond or forward bond price or forward bond index transactions, interest rate options, forwardforeign exchange transactions, cap transactions, floor transactions, collar transactions, currency swaptransactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similartransactions or any combination of any of the foregoing (including any options to enter into any of theforegoing), whether or not any such transaction is governed by or subject to any master agreement, and(b) any and all transactions of any kind, and the related confirmations, which are subject to the terms andconditions of, or governed by, any form of master agreement published by the International Swaps andDerivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other masteragreement.“Hedge Termination Value” means, in respect of any one or more Hedge Agreements, aftertaking into account the effect of any legally enforceable netting agreement relating to such HedgeAgreements, (a) for any date on or after the date such Hedge Agreements have been closed out andtermination value(s) determined in accordance therewith, such termination value(s), and (b) for any dateprior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) forsuch Hedge Agreements, as determined based upon one or more mid-market or other readily availablequotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender orany Affiliate of a Lender).“Immaterial Subsidiary” means, as of the Closing Date and thereafter at any date ofdetermination, any Subsidiary of the Borrower (1) whose total assets as of the last day of the mostrecently-ended quarter (when taken together with the total assets of the Subsidiaries of such Subsidiary asof the last day of the most recently ended quarter) were equal to or less than 5.0% of the ConsolidatedTotal Assets at such date and (2) whose revenues for the four quarters most recently ended (when takentogether with the revenues of the Subsidiaries of such Subsidiary for the Reference Period) were equal toor less than 5.0% of the revenues of the Borrower and its Subsidiaries as a whole on a Consolidated basisfor such Reference Period, in each case determined in accordance with GAAP; provided that noSubsidiary shall be an Immaterial Subsidiary to the extent that as a result thereof (A) at the last day of themost recently-ended quarter the total assets of all Immaterial Subsidiaries were equal to or greater than10.0% of the Consolidated Total Assets at such date or (B) the revenues of all Immaterial Subsidiaries forthe Reference Period were equal to or greater than 10.0% of the revenues of the Borrower and itsSubsidiaries as a whole on a Consolidated basis for such Reference Period.“Increased Amount Date” has the meaning assigned thereto in Section 5.13(a).“Incremental Equivalent Debt” has the meaning assigned thereto in Section 9.1(n).“Incremental Facilities Limit” means, with respect to any proposed incurrence of additionalIndebtedness under Section 5.13 or Section 9.1(n), at any time of determination, an amount equal to thesum of (I) the greater of (x) $200,000,000 and (y) 100% of LTM EBITDA at such time (this clause (I),the “Incremental Dollar Amount”), minus the aggregate principal amount of any Incremental EquivalentDebt, Incremental Term Loan Commitments, Incremental Term Loans, Incremental Revolving CreditCommitments and Incremental Revolving Credit Increases incurred or established in reliance on clause (I)above, plus (II)(A) the Revolving Credit Commitments voluntarily reduced following the Closing Datepursuant to Section 2.5 and (B) the principal amount of voluntary prepayments by the Borrower of, orredemptions or repurchases by the Borrower of, any Incremental Equivalent Debt or Term Loans(including for the avoidance of doubt, the Amendment No. 1 Term Loans or Incremental Term Loans), ineach case under this clause (II) to the extent not financed with long-term Indebtedness but only to theextent the Incremental Equivalent Debt and such Incremental Term Loans so prepaid, redeemed orrepurchased were secured by the Collateral on a pari passu basis with the Obligations (this clause (II), the19
“Incremental Repayment Amount”) minus the aggregate principal amount of any Incremental EquivalentDebt, Incremental Term Loan Commitments, Incremental Term Loans, Incremental Revolving CreditCommitments and Incremental Revolving Credit Increase incurred or established in reliance on clause (II)above, plus (III) additional amounts such that, after giving effect (on a Pro Forma Basis) to (x) theincurrence of any Incremental Loans or any Incremental Equivalent Debt (without, in each case, nettingthe cash proceeds thereof), (y) the establishment of any Incremental Revolving Credit Commitments orIncremental Revolving Credit Increase (with such Incremental Revolving Credit Commitments andIncremental Revolving Credit Increase being deemed to be fully funded and drawn) and (z) any PermittedAcquisition consummated in connection therewith or other use of proceeds or Asset Disposition, theSecured Net Leverage Ratio would not exceed 2.75 to 1.00 (this clause (III), the “Incremental RatioAmount”); provided that all or any portion of any Incremental Term Loans or Incremental EquivalentDebt incurred in reliance on the Incremental Dollar Amount or the Incremental Repayment Amount shallbe reclassified as the Borrower may elect from time to time as incurred under the Incremental RatioAmount if the Secured Net Leverage Ratio would not have exceeded 2.75 to 1.00 on a Pro Forma Basis atthe time of such proposed reallocation, and if the Secured Net Leverage Ratio is 2.75 to 1.00 on a ProForma Basis as at the end of any subsequent fiscal quarter after initial incurrence of such IncrementalTerm Loans or Incremental Equivalent Debt, such reclassification shall be deemed to have automaticallyoccurred whether or not elected by the Borrower. When incurring or establishing Incremental Term LoanCommitments, Incremental Term Loans, Incremental Revolving Credit Commitments, IncrementalRevolving Credit Increases or Incremental Equivalent Debt, the Borrower shall notify the AdministrativeAgent in writing as to whether such Incremental Term Loan Commitments, Incremental Term Loans,Incremental Revolving Credit Commitments, Incremental Revolving Credit Increases or IncrementalEquivalent Debt has been incurred or established in reliance on clause (I), (II) or (III) of this definition (ora combination of such clauses (I), (II) and/or (III)).“Incremental Lender” has the meaning assigned thereto in Section 5.13(a).“Incremental Loan Commitments” has the meaning assigned thereto in Section 5.13(a)(ii).“Incremental Loans” has the meaning assigned thereto in Section 5.13(a)(ii).“Incremental Revolving Credit Commitment” has the meaning assigned thereto inSection 5.13(a)(ii).“Incremental Revolving Credit Increase” has the meaning assigned thereto in Section 5.13(a)(ii).“Incremental Term Loan” has the meaning assigned thereto in Section 5.13(a)(i).“Incremental Term Loan Commitment” has the meaning assigned thereto in Section 5.13(a)(i).“Incremental Term Loan Lender” means any Lender with an Incremental Term LoanCommitment and/or outstanding Incremental Term Loans.“Indebtedness” means, with respect to any Person at any date and without duplication, the sum ofthe following:(a) all liabilities, obligations and indebtedness for borrowed money including, but not limitedto, obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person;(b) all obligations to pay the deferred purchase price of property or services of any suchPerson, except: (i) Operating Leases, licenses, trade payables, and accrued liabilities, in each case arising20
in the ordinary course of business not more than one hundred twenty (120) days past due, or that arecurrently being contested in good faith by appropriate proceedings and with respect to which reserves inconformity with GAAP have been provided for on the books of such Person; (ii) deferred compensationpayable to directors, officers and employees of the Borrower or any Subsidiary so long as suchcompensation: (A) is incurred in the ordinary course of business and pursuant to any incentivecompensation plan adopted by the board of directors of the Borrower in the ordinary course of business;and (B) is not evidenced by a note or similar written instrument (other than such incentive compensationplan’s governing documentation or any grant notices issued thereunder); (iii) any purchase priceadjustment, earn-out, holdback or deferred payment of a similar nature incurred in connection with anAcquisition permitted under this Agreement so long as not evidenced by a note or similar writteninstrument (except to the extent that the amount payable pursuant to such purchase price adjustment, earn-out, holdback or deferred payment is reflected, or would otherwise be required to be reflected, on abalance sheet prepared in accordance with GAAP); and (iv) obligations in respect of non-competitionagreements or similar arrangements (except for such payments that are accounted for as acquisitionconsideration under GAAP);(c) the Attributable Indebtedness of such Person with respect to such Person’s Capital LeaseObligations and Synthetic Leases (regardless of whether accounted for as indebtedness under GAAP) andthe principal amount of all obligations and liabilities of such Person under Permitted ReceivablesFacilities to the extent accounted for as indebtedness under GAAP;(d) all obligations of such Person under conditional sale or other title retention agreementsrelating to property purchased by such Person to the extent of the value of such property (other thancustomary reservations or retentions of title under agreements with suppliers entered into in the ordinarycourse of business);(e) all Indebtedness of any other Person secured by a Lien on any asset owned or beingpurchased by such Person (including indebtedness arising under conditional sales or other title retentionagreements except trade payables arising in the ordinary course of business), whether or not suchindebtedness shall have been assumed by such Person or is limited in recourse;(f) all obligations, contingent or otherwise, of any such Person relative to the face amount ofletters of credit, whether or not drawn, including, without limitation, any Reimbursement Obligation, andbanker’s acceptances issued for the account of any such Person;(g) all obligations of any such Person in respect of Disqualified Equity Interests;(h) all net obligations of such Person under any Hedge Agreements; and(i) all Guarantees of any such Person with respect to any of the foregoing.For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of anypartnership or joint venture (other than a joint venture that is itself a corporation or limited liabilitycompany) in which such Person is a general partner or a joint venturer, unless such Indebtedness isexpressly made non-recourse to such Person. In respect of Indebtedness of another Person secured by aLien on the assets of the specified Person, the amount of such Indebtedness as of any date ofdetermination will be the lesser of (x) the fair market value of such assets as of such date and (y) theamount of such Indebtedness as of such date. 21
The amount of any net obligation under any Hedge Agreement on any date shall be deemed to bethe Hedge Termination Value thereof as of such date.“Indemnified Taxes” means all (a) Taxes, other than Excluded Taxes, imposed on or with respectto any payment made by or on account of any obligation of any Credit Party under any Loan Documentand (b) to the extent not otherwise described in clause (a), Other Taxes.“Indemnitee” has the meaning assigned thereto in Section 12.3(b).“Information” has the meaning assigned thereto in Section 12.10.“Initial Loans” means collectively, any Revolving Credit Loans or Swingline Loans made, or tobe made, on the Closing Date to the Borrower by the Revolving Credit Lenders or Swingline Lender, asapplicable, pursuant to Section 2.1 or 2.2, as applicable.“Insurance and Condemnation Event” means the receipt by any Credit Party or any of itsSubsidiaries of any cash insurance proceeds or condemnation award payable by reason of theft, loss,physical destruction or damage, taking or similar event with respect to any of their respective Property.“Interest Period” means, as to each Term SOFR Loan, the period commencing on the date suchTerm SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the dateone (1), three (3), or six (6) months thereafter, in each case as selected by the Borrower in its Notice ofBorrowing or Notice of Conversion/Continuation and subject to availability; provided that:(a) any Interest Period that would otherwise end on a day that is not a Business Day shall beextended to the next succeeding Business Day unless, in the case of a Term SOFR Loan, such BusinessDay falls in another calendar month, in which case such Interest Period shall end on the next precedingBusiness Day;(b) any Interest Period pertaining to a Term SOFR Loan that begins on the last Business Dayof a calendar month (or on a day for which there is no numerically corresponding day in the calendarmonth at the end of such Interest Period) shall end on the last Business Day of the calendar month at theend of such Interest Period;(c) no Interest Period shall extend beyond the Revolving Credit Maturity Date or theAmendment No. 1 Term Loan Maturity Date, as applicable; and(d) there shall be no more than ten (10) Interest Periods in effect at any time.“Investment” means, with respect to any Person, that such Person (a) purchases, owns, invests inor otherwise acquires (in one transaction or a series of transactions), directly or indirectly, any EquityInterests, interests in any partnership or joint venture (including, without limitation, the creation orcapitalization of any subsidiary), evidence of Indebtedness or other obligation or security, substantially allor a portion of the business or assets of any other Person or any other investment or interest whatsoever inany other Person, (b) makes any Acquisition or (c) makes or permits to exist, directly or indirectly, anyloans, advances or extensions of credit to, or any investment in cash or by delivery of Property in, anyPerson. “Investment Company Act” means the Investment Company Act of 1940 (15 U.S.C. § 80(a)(1),et seq.). 22
“IP Rights” has the meaning assigned thereto in Section 7.7.“IP Security Agreements” means the security agreements duly executed by the applicable CreditParties for all federally registered copyrights, exclusive licenses to registered U.S. copyrights, patents,patent applications, trademarks and trademark applications included in the Collateral, in each case as filedwith the U.S. Patent and Trademark Office or U.S. Copyright Office, as applicable.“IRS” means the United States Internal Revenue Service.“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps andDerivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, orany successor definitional booklet for interest rate derivatives published from time to time by theInternational Swaps and Derivatives Association, Inc. or such successor thereto.“ISP” means the International Standby Practices, International Chamber of CommercePublication No. 590 (or such later version thereof as may be in effect at the applicable time).“Issuer Documents” means with respect to any Letter of Credit, any Letter of Credit Application,and any other document, agreement and instrument entered into by any Issuing Lender and the Borrower(or any Subsidiary) or in favor of such Issuing Lender and relating to such Letter of Credit.“Issuing Lender” means (a) with respect to Letters of Credit issued hereunder on or after theClosing Date, (i) each Revolving Credit Lender as of the Closing Date and (ii) any other Revolving CreditLender to the extent it has agreed in its sole discretion to act as an “Issuing Lender” hereunder and thathas been approved in writing by the Borrower and the Administrative Agent (such approval by theAdministrative Agent not to be unreasonably delayed or withheld) as an “Issuing Lender” hereunder, ineach case in its capacity as issuer of any Letter of Credit and (b) with respect to the Existing Letters ofCredit, the banks or other financial institutions set forth on Schedule 1.1(a), in its capacity as issuerthereof. “Latest Maturity Date” means, as of any date of determination, the latest maturity date applicableto any Loans or Commitments.“LCA Test Date” has the meaning assigned thereto in Section 1.10(a).“L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding ofits participation in any L/C Borrowing in accordance with its Applicable Revolving Credit Percentage.“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter ofCredit which has not been reimbursed on the date when made or refinanced as a Revolving CreditBorrowing.“L/C Commitment” means, with respect to each Issuing Lender, the commitment of such IssuingLender to issue Letters of Credit hereunder. The initial amount of each Issuing Lender’s Letter of CreditCommitment is set forth on Schedule 1.1(b), or if an Issuing Lender has entered into an Assignment andAssumption or has otherwise assumed a Letter of Credit Commitment after the Closing Date, the amountset forth for such Issuing Lender as its Letter of Credit Commitment in the Register maintained by theAdministrative Agent. The Letter of Credit Commitment of an Issuing Lender may be modified from timeto time by agreement between such Issuing Lender and the Borrower, and notified to the AdministrativeAgent. 23
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof orextension of the expiry date thereof, or the increase of the amount thereof.“L/C Disbursement” shall mean a payment or disbursement made by an Issuing Lender pursuantto a Letter of Credit.“L/C Facility” means the letter of credit facility established pursuant to Article III.“L/C Obligations” means, as at any date of determination, the aggregate amount available to bedrawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, includingall L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter ofCredit, the amount of such Letter of Credit shall be determined in accordance with Section 1.14. For allpurposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms butany amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letterof Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.“L/C Participants” means, with respect to any Letter of Credit, the collective reference to all theRevolving Credit Lenders other than the applicable Issuing Lender.“L/C Sublimit” means the lesser of (a) $60,000,000 and (b) the Revolving Credit Commitment.The L/C Sublimit is part of, and not in addition to, the Revolving Credit Facility.“Lender” means each Person executing this Agreement as a Lender on the Closing Date and anyother Person that shall have become a party to this Agreement as a Lender pursuant to an Assignment andAssumption or pursuant to Section 5.13, other than any Person that ceases to be a party hereto as a Lenderpursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders”includes the Swingline Lender.“Lender Joinder Agreement” means a joinder agreement in form and substance reasonablysatisfactory to the Administrative Agent delivered in connection with Section 5.13.“Lending Office” means, with respect to any Lender, the office of such Lender maintaining suchLender’s Extensions of Credit.“Letter of Credit Application” means an application and agreement for the issuance oramendment of a Letter of Credit in the form from time to time in use by the applicable Issuing Lender.“Letter of Credit Availability Period” means the period from and including the Closing Date tothe earliest of (i) the fifth (5th) Business Day prior to the Revolving Credit Maturity Date, (ii) the date oftermination of the Revolving Credit Commitments pursuant to Section 2.5, and (iii) the date oftermination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and ofthe obligation of the Issuing Lenders to make L/C Credit Extensions pursuant to Section 10.2.“Letter of Credit Fee” has the meaning assigned thereto in Section 3.1(j).“Letter of Credit Report” has the meaning assigned thereto in Section 3.1(q).“Letters of Credit” means the collective reference to letters of credit issued pursuant to Section3.1 and the Existing Letters of Credit. 24
“Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge, charge,security interest, hypothecation or encumbrance of any kind in respect of such asset. For the purposes ofthis Agreement, a Person shall be deemed to own subject to a Lien any asset which it has acquired orholds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital LeaseObligation or other title retention agreement relating to such asset.“Limited Condition Acquisition” means any Acquisition that (a) is not prohibited hereunder, and(b) is financed in whole or in part with a substantially concurrent incurrence of Incremental Loans orIncremental Equivalent Debt, and (c) is not conditioned on the availability of, or on obtaining, third-partyfinancing.“Loan Documents” means, collectively, this Agreement (including Amendment No. 1), eachNote, the Letter of Credit Applications, the Security Documents (other than during a Collateral ReleasePeriod), the Subsidiary Guaranty Agreement, Amendment No. 1 and each other document, instrument,certificate and agreement executed and delivered by the Credit Parties or any of their respectivesubsidiaries in favor of or provided to the Administrative Agent or any Secured Party in connection withthis Agreement or otherwise referred to herein or contemplated hereby (excluding any Secured HedgeAgreement and any Secured Cash Management Agreement).“Loans” means the collective reference to the Revolving Credit Loans, the Amendment No. 1Term Loans, the Incremental Term Loans and the Swingline Loans, and “Loan” means any of suchLoans. “LTM EBITDA” means, at any time of determination, Consolidated EBITDA for the mostrecently completed Reference Period at such time.“Material Adverse Effect” means, with respect to the Borrower and its Subsidiaries, (a) a materialadverse effect on the operations, business, assets or financial condition of such Persons, taken as a whole,(b) a material impairment of the ability of any such Person to perform its payment obligations under theLoan Documents to which it is a party, (c) a material impairment of the rights and remedies of theAdministrative Agent, any Agent or any Lender under any Loan Document or (d) an impairment of thelegality, validity, binding effect or enforceability against any Credit Party of any Loan Document towhich it is a party.“Material Non-Public Information” means information which is (a) not publicly available (orcould not be derived from publicly available information) and (b) material (as reasonably determined bythe Borrower) with respect to the Borrower and its Subsidiaries or their respective securities for purposesof U.S. federal and state securities law and (c) of a type that would customarily be publicly disclosed (asreasonably determined by the Borrower) in connection with any issuance by the Borrower or any of itsSubsidiaries of any debt securities or equity securities issued pursuant to a public offering, Rule 144Aoffering or other private placement where assisted by a placement agent.“Material Subsidiary” means any Subsidiary of the Borrower that is not an ImmaterialSubsidiary.“Merger Sub” means Senators Merger Sub, Inc., a Delaware corporation and a wholly-ownedsubsidiary of the Borrower.“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consistingof cash or deposit account balances, an amount equal to 103% of the sum of (i) the Fronting Exposure ofthe Issuing Lender with respect to Letters of Credit issued and outstanding at such time and (ii) the25
Fronting Exposure of the Swingline Lender with respect to all Swingline Loans outstanding at such timeand (b) otherwise, an amount determined by the Administrative Agent and each of the applicable IssuingLenders that is entitled to Cash Collateral hereunder at such time in their sole discretion.“Moody’s” means Moody’s Investors Service, Inc.“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISAto which any Credit Party or any ERISA Affiliate is making, or is accruing an obligation to make, or hasaccrued an obligation to make contributions within the preceding six (6) years, or to which any CreditParty or any ERISA Affiliate has any liability (contingent or otherwise).“Net Cash Proceeds” means, as applicable, (a) with respect to any Asset Disposition or Insuranceand Condemnation Event, the excess, if any, of the sum of all cash and Cash Equivalents received by anyCredit Party or any of its Subsidiaries therefrom (including any deferred payment pursuant to, or bymonetization of, a note receivable or otherwise, as and when received, and with respect to an Insuranceand Condemnation Event, any insurance proceeds or condemnation awards in respect of the same actuallyreceived by or paid to or for the account of the Credit Party or any of its Subsidiaries) over the sum of (i)in the case of an Asset Disposition, all income taxes and other taxes assessed by, or reasonably estimatedto be payable to, a Governmental Authority as a result of such transaction (provided that if such estimatedtaxes exceed the amount of actual taxes required to be paid in cash in respect of such Asset Disposition,the amount of such excess shall constitute Net Cash Proceeds), (ii) all reasonable and customary out-of-pocket fees, costs and expenses incurred in connection with such transaction or event (including, withoutlimitation, attorneys’ fees, survey costs, title premiums, fees and charges, recording taxes, fees and costs,brokerage fees and commissions, investment banker fees and other customary fees, costs and expenses)and (iii) the principal amount of, premium, if any, and interest on any Indebtedness secured by a Lien onthe asset (or a portion thereof) disposed of that is pari passu to or senior in ranking to the Liens on suchasset created by the Loan Documents, which Indebtedness is required to be repaid in connection withsuch transaction or event and (b) with respect to any Debt Issuance or any issuance of Equity Interests,the gross cash proceeds received by any Credit Party or any of its Subsidiaries therefrom less allreasonable and customary out-of-pocket legal, underwriting and other fees and expenses incurred inconnection therewith.“New Security Documents” has the meaning assigned thereto in Section 8.20.“Non-Consenting Lender” means any Lender that does not approve any consent, waiver,amendment, modification or termination that (a) requires the approval of all Lenders or all affectedLenders in accordance with the terms of Section 12.2 and (b) has been approved by the Required Lenders.“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at suchtime. “Non-Guarantor Subsidiary” means any Subsidiary of the Borrower that is not a SubsidiaryGuarantor.“Notes” means the collective reference to the Revolving Credit Notes the Swingline Note and theTerm Loan Notes.“Notice of Account Designation” has the meaning assigned thereto in Section 2.3(b).“Notice of Borrowing” has the meaning assigned thereto in Section 2.3(a).26
“Notice of Conversion/Continuation” has the meaning assigned thereto in Section 5.2.“Notice of Prepayment” has the meaning assigned thereto in Section 2.4(c).“Obligations” means, in each case, whether now in existence or hereafter arising: (a) the principalof and interest on (including interest accruing after the commencement of any case or proceeding underDebtor Relief Laws) the Loans, (b) the L/C Obligations and (c) all other fees and commissions (includingattorneys’ fees), charges, indebtedness, loans, liabilities, financial accommodations, obligations,covenants and duties owing by the Credit Parties, in each case under any Loan Document, or otherwisewith respect to any Loan or Letter of Credit, of every kind, nature and description, direct or indirect,absolute or contingent, due or to become due, contractual or tortious, liquidated or unliquidated, andwhether or not evidenced by any note and including interest, fees and expenses that accrue after thecommencement by or against any Credit Party of any case or proceeding under any Debtor Relief Laws,naming such Person as the debtor in such proceeding, regardless of whether such interest, fees andexpenses are allowed claims in such proceeding.“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.“Officer’s Compliance Certificate” means a certificate of the chief financial officer, treasurer orcontroller of Borrower substantially in the form attached as Exhibit F.“Operating Lease” means, as to any Person as determined in accordance with GAAP, subject toSection 1.3(b), any lease of Property (whether real, personal or mixed) by such Person as lessee which isnot a capital lease.“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of apresent or former connection between such Recipient and the jurisdiction imposing such Tax (other thanconnections arising from such Recipient having executed, delivered, become a party to, performed itsobligations under, received payments under, received or perfected a security interest under, engaged inany other transaction pursuant to or enforced any Loan Document, or sold or assigned any interest in anyLoan, Letter of Credit or Loan Document).“Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filingor 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 otherwisewith respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposedwith respect to an assignment (other than an assignment made pursuant to Section 5.12).“Participant” has the meaning assigned thereto in Section 12.9(d).“Participant Register” has the meaning assigned thereto in Section 12.9(d).“PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into lawOctober 26, 2001)).“PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which issubject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is maintained,funded or administered for the employees of any Credit Party or any ERISA Affiliate or (b) has at any27
time within the preceding six (6) years been maintained, funded or administered for the employees of anyCredit Party or any current or former ERISA Affiliates.“Permitted Acquisition” means any Acquisition that meets all of the following requirements,which in the case of a Limited Condition Acquisition shall be subject to Section 1.10:(a) the Person or business to be acquired shall be in a line of business that is a PermittedBusiness or, in the case of an Acquisition of assets, the assets acquired are useful in the business of theBorrower and its Subsidiaries as conducted immediately prior to such Acquisition;(b) the Borrower shall be in compliance with Section 9.13 on a Pro Forma Basis after givingeffect to such Acquisition and the incurrence of any Indebtedness in connection therewith;(c) no Specified Event of Default shall have occurred and be continuing both before andafter giving effect to such Acquisition and any Indebtedness incurred in connection therewith; and(d) the Permitted Acquisition Consideration furnished by Credit Parties for Acquisitions ofPersons that will be Non-Guarantor Subsidiaries or of assets that shall be held by Non-GuarantorSubsidiaries shall not exceed the greater of (x) $100,000,000 and (y) 50.00% of LTM EBITDA in theaggregate for all such Acquisitions since the Closing Date.“Permitted Acquisition Consideration” means the aggregate amount of the purchase price,including, but not limited to, any assumed debt, earn-outs (valued at the maximum amount payablethereunder), deferred payments, or Equity Interests of the Borrower, to be paid on a singular basis inconnection with any applicable Permitted Acquisition as set forth in the applicable Permitted AcquisitionDocuments executed by the Borrower or any of its Subsidiaries in order to consummate the applicablePermitted Acquisition.“Permitted Acquisition Documents” means with respect to any Acquisition proposed by theBorrower or any Subsidiary Guarantor, final copies or substantially final drafts if not executed at therequired time of delivery of the purchase agreement, sale agreement, merger agreement or otheragreement evidencing such Acquisition, including, without limitation, all legal opinions and each otherdocument executed, delivered, contemplated by or prepared in connection therewith and any amendment,modification or supplement to any of the foregoing.“Permitted Business” has the meaning assigned thereto in Section 8.18.“Permitted Liens” means the Liens permitted pursuant to Section 9.2.“Permitted Receivables Facility” means one or more accounts receivable factoring orsecuritization facilities or arrangements established by the Borrower or one or more of its Subsidiaries (orestablished at the direction of a customer of the Borrower or a Subsidiary of Borrower) or by aReceivables Subsidiary, whereby:(a) the Borrower or one or more of its Subsidiaries shall (i) sell, assign or otherwise transferaccounts receivable of the Borrower or its Subsidiaries directly to one or more buyers or purchasers inexchange for cash and other appropriate consideration or (ii) sell, assign, contribute or otherwise transferaccounts receivables of the Borrower or its Subsidiaries to such Receivables Subsidiary in exchange forcash, subordinated indebtedness of the Receivables Subsidiary, the issuance of letters of credit and otherappropriate consideration, and the Receivables Subsidiary in turn shall sell, assign, pledge or otherwise28
transfer such accounts receivable (or undivided fractional interests therein) to buyers, purchasers orlenders (or shall otherwise borrow against such accounts receivable);(b) except as set forth in clause (c) of this definition, no portion of the Indebtedness or anyother obligation (contingent or otherwise) under such Permitted Receivables Facility shall be guaranteedby the Borrower or any of its Subsidiaries (other than the Receivables Subsidiary, if applicable);(c) there shall be no recourse to the Borrower or any of its Subsidiaries (other than theReceivables Subsidiary, if applicable) whatsoever other than pursuant to representations, warranties,covenants, indemnities and performance guarantees or undertakings (which shall exclude any guaranteesof payment by the obligors on the accounts receivable) entered into in connection with such PermittedReceivables Facility that in the reasonable opinion of the Borrower are customary for non-recoursefactoring and securitization transactions; and(d) none of the Borrower nor any of its Subsidiaries (other than the Receivables Subsidiary,if applicable) shall have provided, either directly or indirectly, any other credit support of any kind inconnection with such Permitted Receivables Facility, except as set forth in clause (c) of this definition.“Permitted Refinancing Indebtedness” means any Indebtedness (the “Refinancing Indebtedness”),the proceeds of which are used to refinance, refund, renew, extend or replace outstanding Indebtedness(such outstanding Indebtedness, the “Refinanced Indebtedness”); provided that (a) the principal amount(or accreted value, if applicable) of such Refinancing Indebtedness (including any unused commitmentsthereunder) is not greater than the principal amount (or accreted value, if applicable) of the RefinancedIndebtedness at the time of such refinancing, refunding, renewal, extension or replacement, except by anamount equal to any original issue discount thereon and the amount of unpaid accrued interest andpremium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, inconnection with such refinancing, refunding, renewal, extension or replacement, and by an amount equalto any existing commitments thereunder that have not been utilized at the time of such refinancing,refunding, renewal, extension or replacement; (b) the final stated maturity and Weighted Average Life toMaturity of such Refinancing Indebtedness shall not be prior to or shorter than that applicable to theRefinanced Indebtedness; (c) such Refinancing Indebtedness shall not be secured by (i) Liens on assetsother than assets securing the Refinanced Indebtedness at the time of such refinancing, refunding,renewal, extension or replacement or (ii) Liens having a higher priority than the Liens, if any, securingthe Refinanced Indebtedness at the time of such refinancing, refunding, renewal, extension orreplacement; (d) such Refinancing Indebtedness shall not be guaranteed by or otherwise recourse to anyPerson other than the Person(s) to whom the Refinanced Indebtedness is recourse or by whom it isguaranteed, in each case as of the time of such refinancing, refunding, renewal, extension or replacement;(e) to the extent such Refinanced Indebtedness is subordinated in right of payment to the Obligations (orthe Liens securing such Indebtedness were originally contractually subordinated to the Liens securing theCollateral pursuant to the Security Documents), such refinancing, refunding, renewal, extension orreplacement is subordinated in right of payment to the Obligations (or the Liens securing suchIndebtedness shall be subordinated to the Liens securing the Collateral pursuant to the SecurityDocuments) on terms at least as favorable to the Lenders as those contained in the documentationgoverning such Refinanced Indebtedness or otherwise reasonably acceptable to the Administrative Agent;(f) in the event that the Refinancing Indebtedness is unsecured Indebtedness, such RefinancingIndebtedness does not include cross-defaults (but may include cross-payment defaults and cross-defaultsat the final stated maturity thereof and cross-acceleration); and (g) no Default or Event of Default shallhave occurred and be continuing at the time of, or would result from, such refinancing, refunding,renewal, extension or replacement. 29
“Person” means any natural person, corporation, limited liability company, trust, joint venture,association, company, partnership, Governmental Authority or other entity.“Platform” means Debt Domain, Intralinks, SyndTrak or a substantially similar electronictransmission system.“Prime Rate” means, at any time, the rate of interest per annum publicly announced from time totime by the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as ofthe opening of business on the day such change in such prime rate occurs. The parties heretoacknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index orbase rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.“Pro Forma Basis” means, for purposes of calculating Consolidated EBITDA for any periodduring which one or more Specified Transactions occurs, that such Specified Transaction (and all otherSpecified Transactions that have been consummated during the applicable period) shall be deemed tohave occurred as of the first day of the applicable period of measurement and:(a) all income statement items (whether positive or negative) attributable to the Property orPerson disposed of in a Specified Disposition shall be excluded and all income statement items (whetherpositive or negative) attributable to the Property or Person acquired in a Permitted Acquisition shall beincluded (provided that such income statement items to be included are based upon reasonableassumptions and calculations which are expected to have a continuous impact); and(b) in the event that any Credit Party or any Subsidiary thereof incurs (including byassumption or guarantees) or repays (including by redemption, repayment, retirement, discharge,defeasance or extinguishment) any Indebtedness included in the calculations of any financial ratio or test(in each case, other than Indebtedness incurred or repaid under any revolving credit facility in theordinary course of business for working capital purposes), (i) during the applicable measurement periodor (ii) subsequent to the end of the applicable measurement period and prior to or simultaneously with theevent for which the calculation of any such ratio is made, then such financial ratio or test shall becalculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extentrequired, as if the same had occurred on the first day of the applicable measurement period and any suchIndebtedness that is incurred (including by assumption or guarantee) that has a floating or formula rate ofinterest shall have an implied rate of interest for the applicable period determined by utilizing the ratewhich is or would be in effect with respect to such Indebtedness as of the relevant date of determination.“Pro Forma Synergies” means, without duplication, with respect to any four-quarter period, thenet reduction in costs and other operating improvements or synergies that have been realized or arereasonably anticipated in good faith to be realized with respect to any Acquisition, operational change,business optimization action, new contract, restructuring activity, disposition or other strategic cost savinginitiative taken or expected to be taken within eighteen (18) months of the date of such Acquisition,operational change, business optimization action, new contract, restructuring activity, disposition or otherstrategic cost saving initiative, so long as, in each case, such net reduction in costs and other operatingimprovements or synergies are reasonably identifiable and factually supportable, as if all such reductionsin costs, operating improvements or synergies had been effected as of the beginning of such four-quarterperiod; provided that (A) the net reduction in costs and other operating improvements or synergiesdescribed in heretofore described in this definition shall be detailed in a certificate delivered to theAdministrative Agent from the Borrower’s chief financial officer that outlines the specific actions takenor to be taken and the net cost reductions and other operating improvements or synergies achieved or tobe achieved from each such action and certifies that such cost reductions and other operatingimprovements or synergies meet the criteria set forth heretofore in this definition, (B) no cost savings or30
operating expense reductions shall be added pursuant to this defined term to the extent duplicative of anyexpense or charges otherwise added to or included in Consolidated EBITDA or LTM EBITDA, whether apro forma adjustment or otherwise, for such four-quarter period and (C) projected amounts (and not yetrealized) may no longer be added in calculating Consolidated EBITDA or LTM EBITDA pursuant to thisdefinition to the extent occurring more than eighteen (18) months after the specified action taken in orderto realize such projected cost savings and operating expense reductions.“Property” means any right or interest in or to property of any kind whatsoever, whether real,personal or mixed and whether tangible or intangible, including, without limitation, Equity Interests.“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor,as any such exemption may be amended from time to time.“Public Lenders” has the meaning assigned thereto in Section 8.2.“Qualified Acquisition” means any Acquisition consummated after the Closing Date, in each casesubject to Section 1.10, that (a) involves the payment of consideration in excess of $100,000,000 and (b)has been designated by the Borrower as a “Qualified Acquisition” by written notice to the AdministrativeAgent; provided that, except with respect to the first designation of a Qualified Acquisition, the Borrowermay not designate an Acquisition as a “Qualified Acquisition” unless the required Total Net LeverageRatio as of the end of the most recent fiscal quarter ended immediately prior to such designation thenapplicable pursuant to the terms of Section 9.13(b) was less than 4.00 to 1.00.“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.“Receivables Related Assets” means, collectively, accounts receivable, instruments, chattel paper,obligations, general intangibles and other similar assets, in each case relating to receivables sold,transferred or otherwise disposed of in accordance with this Agreement, including interests inmerchandise or goods, the sale or lease of which gave rise to such receivables, related contractual rights,guarantees, insurance proceeds, collections and proceeds of all of the foregoing.“Receivables Subsidiary” means a Wholly-Owned subsidiary of the Borrower that has beenestablished as a “bankruptcy remote” subsidiary for the sole purpose of acquiring Receivables RelatedAssets under a Permitted Receivables Facility and that shall not engage in any activities other than inconnection with a Permitted Receivables Facility. In jurisdictions where trusts or other funding vehiclesare used to purchase Receivables Related Assets in connection with receivables securitizationtransactions, “Receivables Subsidiary” shall include such trusts or other funding vehicles.“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Lender, asapplicable.“Reference Period” subject to Section 1.13, means, for any determination under this Agreement,the four (4) consecutive fiscal quarters of the Borrower then most recently ended for which (or at the endof which) financial statements under Section 8.1(a) or 8.1(b) have been delivered (or were required to bedelivered).“Refinancing” means the repayment of certain existing Indebtedness of the Borrower and itssubsidiaries, including the Borrower’s existing credit agreement dated December 7, 2017 with WellsFargo Bank, National Association. 31
“Refinancing Effective Date” has the meaning assigned thereto in Section 5.17(b).“Refinancing Term Loan Amendment” has the meaning assigned thereto in Section 5.17(c).“Refinancing Term Loans” has the meaning assigned thereto in Section 5.17(a).“Register” has the meaning assigned thereto in Section 12.9(c).“Reimbursement Obligation” means the obligation of the Borrower to reimburse any IssuingLender pursuant to Section 5.9 for amounts drawn under Letters of Credit issued by such Issuing Lender.“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives ofsuch Person and of such Person’s Affiliates.“Removal Effective Date” has the meaning assigned thereto in Section 11.6(b).“Replaced Revolving Commitments” has the meaning assigned thereto in Section 5.18(a).“Replacement Revolving Commitments” has the meaning assigned thereto in Section 5.18(a).“Replacement Revolving Commitments Amendment” has the meaning assigned thereto inSection 5.18(c).“Replacement Revolving Lender” has the meaning assigned thereto in Section 5.18(b).“Required Lenders” means, at any date, Lenders having Total Credit Exposure representing morethan fifty percent (50%) of the Total Credit Exposure of all Lenders. The Total Credit Exposure of anyDefaulting Lender shall be disregarded in determining Required Lenders at any time.“Required Revolving Credit Lenders” means, at any time, Revolving Credit Lenders havingunused Revolving Credit Commitments and Revolving Credit Exposure representing more than fiftypercent (50%) of the aggregate unused Revolving Credit Commitments and Revolving Credit Exposure ofall Revolving Credit Lenders. The unused Revolving Credit Commitment of, and Revolving CreditExposure held or deemed held by, any Defaulting Lender shall be disregarded in determining RequiredRevolving Credit Lenders at any time.“Required Revolving/TLA Lenders” means, at any time, the holders of more than 50% of the sumof (i) the aggregate unused Revolving Credit Commitments and Revolving Credit Exposure of allRevolving Credit Lenders and (ii) the aggregate unpaid principal amount of the Amendment No. 1 TermLoans outstanding. The Loans of, unused Revolving Credit Commitment of, and Revolving CreditExposure held or deemed held by, any Defaulting Lender shall be disregarded in determining RequiredRevolving/TLA Lenders at any time.“Rescindable Amount” has the meaning as defined in Section 5.7(b).“Resignation Effective Date” has the meaning assigned thereto in Section 11.6(a).“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK FinancialInstitution, a UK Resolution Authority. 32
“Responsible Officer” means, as to any Person, the chief executive officer, president, chieffinancial officer, controller, treasurer or assistant treasurer of such Person or any other officer of suchPerson designated in writing by the Borrower or such Person and reasonably acceptable to theAdministrative Agent; provided that, to the extent requested thereby, the Administrative Agent shall havereceived a certificate of such Person certifying as to the incumbency and genuineness of the signature ofeach such officer. Any document delivered hereunder or under any other Loan Document that is signedby a Responsible Officer of a Person shall be conclusively presumed to have been authorized by allnecessary corporate, limited liability company, partnership and/or other action on the part of such Personand such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person. “Restricted Payment” means any dividend on, or the making of any payment or other distributionon account of, or the purchase, redemption, retirement or other acquisition (directly or indirectly) of, orthe setting apart assets for a sinking or other analogous fund for the purchase, redemption, retirement orother acquisition of, any class of Equity Interests of any Credit Party or any Subsidiary thereof or themaking of any distribution of cash, property or assets to the holders of any Equity Interests of any CreditParty or any Subsidiary thereof on account of such Equity Interests.“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving CreditLoans of the same Class made by each of the Revolving Credit Lenders pursuant to Section 2.1.“Revolving Credit Commitment” means (a) as to any Lender, the obligation of such Lender tomake Revolving Credit Loans to, and to purchase participations in L/C Obligations and Swingline Loansfor the account of, the Borrower hereunder in an aggregate principal amount at any time outstanding notto exceed the amount set forth opposite such Lender’s name on the Register, as such amount may bemodified at any time or from time to time pursuant to the terms hereof (including, without limitation,Section 5.13) and (b) as to all Revolving Credit Lenders, the Aggregate Commitments of all RevolvingCredit Lenders to make Revolving Credit Loans, as such amount may be modified at any time or fromtime to time pursuant to the terms hereof, (including without limitation, Section 5.13). The aggregateRevolving Credit Commitment of all the Lenders on the Closing Date shall be $600,000,000. TheRevolving Credit Commitment of each Revolving Credit Lender on the Closing Date is set forth oppositethe name of such Lender on Schedule 1.1(b).“Revolving Credit Commitment Percentage” means, with respect to any Revolving Credit Lenderat any time, the percentage of the total Revolving Credit Commitments of all the Revolving CreditLenders represented by such Revolving Credit Lender’s Revolving Credit Commitment. If the RevolvingCredit Commitments have terminated or expired, the Revolving Credit Commitment Percentages shall bedetermined based upon the Revolving Credit Commitments most recently in effect, giving effect to anyassignments.“Revolving Credit Exposure” means, as to any Revolving Credit Lender at any time, theaggregate principal amount at such time of its outstanding Revolving Credit Loans and such RevolvingCredit Lender’s participation in L/C Obligations and Swingline Loans at such time.“Revolving Credit Facility” means the revolving credit facility established pursuant to Article II(including any increase to such revolving credit facility pursuant to Section 5.13).“Revolving Credit Lenders” means, collectively, all of the Lenders with a Revolving CreditCommitment or if the Revolving Credit Commitment has been terminated, all Lenders having RevolvingCredit Exposure. 33
“Revolving Credit Loan” means any revolving loan made to the Borrower pursuant to Section2.1, and all such revolving loans collectively as the context requires.“Revolving Credit Maturity Date” means the earliest to occur of (a) the five-year anniversary ofthe Amendment No. 1 Effective Date, (b) the date of termination of the entire Revolving CreditCommitment by the Borrower pursuant to Section 2.5, and (c) the date of termination of the RevolvingCredit Commitment pursuant to Section 10.2(a).“Revolving Credit Note” means a promissory note made by the Borrower in favor of a RevolvingCredit Lender evidencing the Revolving Credit Loans made by such Revolving Credit Lender,substantially in the form attached as Exhibit A-1, and any substitutes therefor, and any replacements,restatements, renewals or extension thereof, in whole or in part.“Revolving Credit Outstandings” means the sum of (a) with respect to Revolving Credit Loansand Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effectto any borrowings and prepayments or repayments of Revolving Credit Loans and Swingline Loans, asthe case may be, occurring on such date; plus (b) with respect to any L/C Obligations on any date, theaggregate outstanding amount thereof on such date after giving effect to any Extensions of Creditoccurring on such date and any other changes in the aggregate amount of the L/C Obligations as of suchdate, including as a result of any reimbursements of outstanding unpaid drawings under any Letters ofCredit or any reductions in the maximum amount available for drawing under Letters of Credit takingeffect on such date.“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., andany successor thereto.“Sale Leaseback Transaction” means any arrangement providing for the leasing by the Borroweror any Subsidiary of any real property which is being sold, transferred or disposed of by the Borrower orsuch Subsidiary to a Person that is not the Borrower or an Affiliate of the Borrower.“Sanctioned Country” means at any time, a country, region or territory which is itself the subjector target of any comprehensive Sanctions broadly restricting or prohibiting commercial activity with suchcountry, region or territory (including, as of the Closing Date, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and the Crimea regions ofUkraine).“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list ofdesignated Persons maintained by, or otherwise the subject of sanctions administered or enforced by,OFAC (including, without limitation, OFAC’s Specially Designated Nationals and Blocked Persons Listand OFAC’s Consolidated Non-SDN List), the U.S. Department of State, the United Nations SecurityCouncil, the European Union, any European member state, HM Treasury, or other relevant sanctionsauthority, (b) any Person located, organized or resident in a Sanctioned Country, (c) any Person owned orcontrolled by, directly or indirectly, any such Person or Persons described in clauses (a) and (b), includinga Person that is deemed by OFAC to be a Sanctions target based on the ownership of such legal entity bySanctioned Person(s) or (d) any Person with whom dealings are otherwise restricted or prohibitedpursuant to applicable Sanctions.“Sanctions” means any and all economic or financial sanctions, sectoral sanctions, secondarysanctions, trade embargoes and restrictions and anti-terrorism laws, including but not limited to thoseimposed, administered or enforced from time to time by the U.S. government (including thoseadministered by OFAC or the U.S. Department of State), the United Nations Security Council, the34
European Union, any European member state, HM Treasury, the government of Canada (including thoseadministered by the Office of the Superintendent of Financial Institutions), or other relevant sanctionsauthority in any jurisdiction in which (a) the Borrower or any of its Subsidiaries or Affiliates is located orconducts business, (b) in which any of the proceeds of the Extensions of Credit will be used, or (c) fromwhich repayment of the Extensions of Credit will be derived.“SEC” means the U.S. Securities and Exchange Commission, or any Governmental Authoritysucceeding to any of its principal functions.“Secured Cash Management Agreement” means (a) any Cash Management Agreement in effecton the Closing Date between or among any Credit Party or any of its Subsidiaries (excluding anyReceivables Subsidiary) and a counterparty that is (i) a Lender, (ii) the Administrative Agent or (iii) anAffiliate of a Lender or the Administrative Agent, in each case as determined as of the Closing Date or (b)any Cash Management Agreement entered into after the Closing Date between or among any Credit Partyor any of its Subsidiaries (excluding any Receivables Subsidiary) and a counterparty that is (i) a Lender,(ii) the Administrative Agent or (iii) an Affiliate of a Lender or the Administrative Agent, in each case asdetermined at the time such Cash Management Agreement is entered into.“Secured Cash Management Obligations” means all existing or future payment and otherobligations owing by any Credit Party or any of its Subsidiaries (excluding any Receivables Subsidiary)under any Secured Cash Management Agreement.“Secured Hedge Agreement” means (a) any Hedge Agreement in effect on the Closing Datebetween or among any Credit Party or any of its Subsidiaries (excluding any Receivables Subsidiary) anda counterparty that is (i) a Lender, (ii) the Administrative Agent or (iii) an Affiliate of a Lender or theAdministrative Agent, in each case as determined as of the Closing Date or (b) any Hedge Agreemententered into after the Closing Date between or among any Credit Party or any of its Subsidiaries(excluding any Receivables Subsidiary) and a counterparty that is (i) a Lender, (ii) the AdministrativeAgent or (iii) an Affiliate of a Lender or the Administrative Agent, in each case as determined at the timesuch Hedge Agreement is entered into.“Secured Hedge Obligations” means all existing or future payment and other obligations owingby any Credit Party or any of its Subsidiaries (excluding any Receivables Subsidiary) under any SecuredHedge Agreement; provided that the “Secured Hedge Obligations” of a Credit Party shall exclude anyExcluded Swap Obligations with respect to such Credit Party.“Secured Net Leverage Ratio” means, as of any date of determination, the ratio of (a)(i)Consolidated Secured Indebtedness on such date minus (ii) the lesser of (x) all Unrestricted Cash andCash Equivalents on such date and (y) $150,000,000 to (b) LTM EBITDA.“Secured Obligations” means, collectively, (a) the Obligations, (b) any Secured HedgeObligations and (c) any Secured Cash Management Obligations.“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the IssuingLenders, the holders of any Secured Hedge Obligations, the holders of any Secured Cash ManagementObligations, each co-agent or sub-agent appointed by the Administrative Agent from time to timepursuant to Section 11.5, any other holder from time to time of any of any Secured Obligations and, ineach case, their respective successors and permitted assigns.“Securities Act” means the Securities Act of 1933 (15 U.S.C. § 77 et seq.).35
“Security Documents” means the collective reference to the Collateral Agreement, the IP SecurityAgreements and each other agreement or writing pursuant to which any Credit Party pledges or grants asecurity interest in any Property or assets securing the Secured Obligations, and, after the CollateralTrigger Date, including the New Security Documents.“SOFR” means with respect to any applicable determination date the Secured OvernightFinancing Rate published on the fifth U.S. Government Securities Business Day preceding such date bythe SOFR Administrator on the Federal Reserve Bank of New York’s website (or any successor source);provided, however, that if such determination date is not a U.S. Government Securities Business Day,then SOFR means such rate that applied on the first U.S. Government Securities Business Dayimmediately prior thereto.“SOFR Adjustment” means, 0.10% (10 basis points).“SOFR Administrator” means the Federal Reserve Bank of New York, as the administrator ofSOFR, or any successor administrator of SOFR designated by the Federal Reserve Bank of NewYork or other Person acting as the SOFR Administrator at such time that is satisfactory to theAdministrative Agent.“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that onsuch date (a) the fair value of the property of such Person is greater than the total amount of liabilities,including contingent liabilities, of such Person, (b) the present fair salable value of the assets of suchPerson is not less than the amount that will be required to pay the probable liability of such Person on itsdebts as they become absolute and matured, (c) such Person does not intend to, and does not believe thatit will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as theymature, (d) such Person is not engaged in business or a transaction, and is not about to engage in businessor a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e)such Person is able to pay its debts and liabilities, contingent obligations and other commitments as theymature in the ordinary course of business. The amount of contingent liabilities at any time shall becomputed as the amount that, in the light of all the facts and circumstances existing at such time,represents the amount that can reasonably be expected to become an actual or matured liability.“Specified Acquisition Agreement Representations” means the representations and warrantiesmade by the Acquired Company, its Subsidiaries or Affiliates or with respect to the Acquired Company,its Subsidiaries or its businesses in the Acquisition Agreement as are material to the interests of theLenders (in their capacities as such), but only to the extent that the Borrower or its Affiliates have theright to terminate its or their obligations under the Acquisition Agreement or otherwise decline to closethe DPL Acquisition as a result of a breach of any such representation or any such representation andwarranty not being accurate (in each case, determined without regard to any notice requirement).“Specified ATV Acquisition Agreement Representations” means the representations andwarranties made by Super ATV, its Subsidiaries or Affiliates or with respect to Super ATV, itsSubsidiaries or its businesses in the Super ATV Acquisition Agreement as are material to the interests ofthe Lenders (in their capacities as such), but only to the extent that the Borrower or its Affiliates have theright to terminate its or their respective obligations under the Super ATV Acquisition Agreement orotherwise decline to close the Super ATV Acquisition as a result of a breach of any such representation orany such representation and warranty not being accurate (in each case, determined without regard to anynotice requirement). 36
“Specified Disposition” means any Asset Disposition having gross sales proceeds in excess of theThreshold Amount.“Specified Event of Default” means an Event of Default under any of Section 10.1(a), 10.1(b),10.1(i) or 10.1(j).“Specified Representations” means the representations and warranties made by the Borrower and,to the extent applicable, the other Credit Parties, set forth in Sections 7.1(a) (solely with respect to theCredit Parties), 7.1(b) (solely with respect to the Credit Parties), 7.3 (solely with respect to the CreditParties), 7.4(b) (solely with respect to the Credit Parties) and (c) (solely with respect to the CreditParties), 7.10, 7.11 (solely with respect to the Credit Parties and the Investment Company Act), 7.17 and7.20 (solely with respect to the use of proceeds of any Revolving Credit Loan on the Closing Date) heretoand Section 3.4 of the Collateral Agreement.“Specified Transactions” means (a) any Specified Disposition, (b) any Permitted Acquisition, (c)any designation of a Subsidiary as an Unrestricted Subsidiary and (d) the Transactions.“subsidiary” means as to any Person, any corporation, partnership, limited liability company orother entity of which more than fifty percent (50%) of the outstanding Equity Interests having ordinaryvoting power to elect a majority of the board of directors (or equivalent governing body) or othermanagers of such corporation, partnership, limited liability company or other entity is at the time ownedby (directly or indirectly) or the management is otherwise controlled by (directly or indirectly) suchPerson (irrespective of whether, at the time, Equity Interests of any other class or classes of suchcorporation, partnership, limited liability company or other entity shall have or might have voting powerby reason of the happening of any contingency). Unless otherwise qualified, references to “subsidiary” or“subsidiaries” herein shall refer to those of the Borrower, including any Unrestricted Subsidiaries.“Subsidiary” means any subsidiary of the Borrower; provided, however, that UnrestrictedSubsidiaries (whether or not Wholly-Owned subsidiaries of the Borrower) shall be deemed not to beSubsidiaries for any purpose of this Agreement or the other Loan Documents.“Subsidiary Guarantors” means, collectively, each Domestic Subsidiary that executes anddelivers the Subsidiary Guaranty Agreement on the Closing Date (which shall include each DomesticSubsidiary in existence on the Closing Date other than Excluded Subsidiaries) and each DomesticSubsidiary which becomes a party to the Subsidiary Guaranty Agreement pursuant to Section 8.14.“Subsidiary Guaranty Agreement” means the unconditional guaranty agreement, dated as of theClosing Date, executed by the Subsidiary Guarantors in favor of the Administrative Agent, for the benefitof the Secured Parties, as amended, restated, supplemented or otherwise modified from time to time.“Super ATV” has the meaning specified in Amendment No. 1.“Super ATV Acquisition” has the meaning specified in Amendment No. 1.“Super ATV Acquisition Agreement” has the meaning specified in Amendment No. 1.“Swap Obligation” means, with respect to any Credit Party, any obligation to pay or performunder any agreement, contract or transaction that constitutes a “swap” within the meaning of Section1a(47) of the Commodity Exchange Act. 37
“Swingline Commitment” means the lesser of (a) $60,000,000 and (b) the Revolving CreditCommitment. The Swingline Commitment is part of, and not in addition to, the Revolving CreditCommitment.“Swingline Facility” means the swingline facility established pursuant to Section 2.2.“Swingline Lender” means Bank of America in its capacity as swingline lender hereunder or anysuccessor thereto.“Swingline Loan” means any swingline loan made by the Swingline Lender to the Borrowerpursuant to Section 2.2, and all such swingline loans collectively as the context requires.“Swingline Note” means a promissory note made by the Borrower in favor of the SwinglineLender evidencing the Swingline Loans made by the Swingline Lender, substantially in the form attachedas Exhibit A-2, and any substitutes therefor, and any replacements, restatements, renewals or extensionthereof, in whole or in part.“Swingline Participation Amount” has the meaning assigned thereto in Section 2.2(b)(iii).“Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loanor similar off-balance sheet financing product where such transaction is considered borrowed moneyindebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP.“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings(including backup withholding), assessments, fees or other charges imposed by any GovernmentalAuthority, including any interest, fines, additions to tax or penalties applicable thereto.“Term Loan” means any Amendment No. 1 Term Loan and, if applicable, the Incremental TermLoans and the Extended Term Loans and “Term Loan” means any of such Term Loans.“Term Loan Facility” means the term loan facility established pursuant to Article II (includingany term loan facility established pursuant to Section 5.13).“Term Loan Lender” means any Amendment No. 1 Term Loan Lender, any Incremental TermLoan Lender or any Lender of Extended Term Loans.“Term Loan Note” means a promissory note made by the Borrower in favor of a Term LoanLender evidencing the Term Loan made by the Term Loan Lender, substantially in the form attached asExhibit A-3, and any substitutes therefor, and any replacements, restatements, renewals or extensionthereof, in whole or in part.“Term SOFR” means:(a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal tothe Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencementof such Interest Period with a term equivalent to such Interest Period; provided that if the rate is notpublished prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR ScreenRate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plusthe SOFR Adjustment for such Interest Period; and 38
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate perannum equal to the Term SOFR Screen Rate with a term of one month commencing that day;provided that if the Term SOFR determined in accordance with either of the foregoing provisions (a) or(b) of this definition would otherwise be less than zero, the Term SOFR shall be deemed zero forpurposes of this Agreement.“Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definitionof “Term SOFR”.“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (orany successor administrator satisfactory to the Administrative Agent) and published on the applicableReuters screen page (or such other commercially available source providing such quotations as may bedesignated by the Administrative Agent from time to time).“Termination Event” means the occurrence of any of the following which, individually or in theaggregate, has resulted or could reasonably be expected to result in liability of the Borrower in anaggregate amount in excess of the Threshold Amount: (a) a “Reportable Event” described in Section 4043of ERISA for which the thirty (30) day notice requirement has not been waived by the PBGC, or (b) thewithdrawal of any Credit Party or any ERISA Affiliate from a Pension Plan during a plan year in which itwas a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations thatis treated as such a withdrawal under Section 4062(e) of ERISA, or (c) the termination of a Pension Plan,the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendmentas a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all planliabilities, or (d) the institution of proceedings to terminate, or the appointment of a trustee with respectto, any Pension Plan by the PBGC, or (e) any other event or condition which would constitute groundsunder Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, anyPension Plan, or (f) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303 ofERISA, or (g) the determination that any Pension Plan or Multiemployer Plan is considered an at-riskplan or plan in endangered or critical status within the meaning of Sections 430, 431 or 432 of the Codeor Sections 303, 304 or 305 of ERISA or (h) the partial or complete withdrawal of any Credit Party or anyERISA Affiliate from a Multiemployer Plan if withdrawal liability is asserted by such plan, or (i) anyevent or condition which results in the insolvency of a Multiemployer Plan under Section 4245 of ERISA,or (j) any event or condition which results in the termination of a Multiemployer Plan under Section4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan underSection 4042 of ERISA, or (k) the imposition of any liability under Title IV of ERISA, other than forPBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Credit Party or anyERISA Affiliate.“Threshold Amount” means the greater of (x) $35,000,000 and (y) 15.00% of LTM EBITDA.“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments,Revolving Credit Exposure and outstanding Term Loans of such Lender at such time.“Total Net Leverage Ratio” means, as of any date of determination, the ratio of (a)(i)Consolidated Funded Indebtedness on such date minus (ii) the lesser of (x) all Unrestricted Cash and CashEquivalents on such date and (y) $150,000,000 to (b) LTM EBITDA.“Transaction Costs” means all transaction fees, expenses, charges and other amounts related tothe Transactions, any Permitted Acquisitions and, to the extent permitted under this Agreement, any otherAcquisition or other Investment, any Asset Disposition (other than in the ordinary course of business),39
any incurrence of Indebtedness, any issuance of Equity Interests or any amendments or waivers of theLoan Documents or any agreements or instruments relating to any other Indebtedness permittedhereunder, in each case whether or not consummated (including, without limitation, any financing fees,merger and acquisition fees, legal fees and expenses, due diligence fees or any other fees and expenses inconnection with the foregoing), in each case to the extent paid within six (6) months of the closing of theCredit Facility, such Permitted Acquisition or such other event, as applicable.“Transactions” means, collectively, (a) the execution, delivery and performance by the Borrowerof this Agreement and by the Borrower and the other Credit Parties, (b) the Refinancing and the ATVRefinancing, (c) the initial Extensions of Credit, (d) the DPL Acquisition and the Super ATV Acquisitionand (e) the payment of the Transaction Costs incurred in connection with the foregoing.“UCC” means the Uniform Commercial Code as in effect in the State of New York.“UK Financial Institution” means any BRRD Undertaking (as such term is defined under thePRA Rulebook (as amended from time to time) promulgated by the United Kingdom PrudentialRegulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from timeto time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain creditinstitutions 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 administrativeauthority having responsibility for the resolution of any UK Financial Institution.“United States” and “U.S.” mean the United States of America.“Unreimbursed Amount” has the meaning specified in Section 3.1(f).“Unrestricted Cash and Cash Equivalents” means, as of any date of determination, 100% of allcash and Cash Equivalents of the Borrower and its Subsidiaries as of such date that are held in bankaccounts or securities accounts located in the United States or Canada and that would not appear as“restricted” on any financial statement required to be delivered pursuant to Section 8.1, determined on aConsolidated basis in accordance with GAAP.“Unrestricted Subsidiary” means any subsidiary organized or acquired directly or indirectly bythe Borrower after the Closing Date that the Borrower designates as an “Unrestricted Subsidiary” bywritten notice to the Administrative Agent; provided that, (a) immediately before and after suchdesignation, no Event of Default shall have occurred and be continuing or would result from suchdesignation and the Borrower shall be in compliance on a Pro Forma Basis with Section 9.13, (b) noSubsidiary may be designated as an Unrestricted Subsidiary if it is a “restricted subsidiary” or a“guarantor” (or any similar designation) for Indebtedness of any Credit Party (other than Indebtednessunder this Agreement) in excess of the Threshold Amount and (c) capacity for the Investment resultingfrom such designation of such Unrestricted Subsidiary pursuant to Section 9.3 would exist. Thedesignation of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the parentcompany of such subsidiary therein under Section 9.3 at the date of designation in an amount equal to thefair market value of such parent company’s investment therein. No Unrestricted Subsidiary may own anyEquity Interests of a Subsidiary; provided that, so long as no Event of Default shall have occurred and becontinuing or would result therefrom, the Borrower may designate any Unrestricted Subsidiary as a“Subsidiary” by written notice to the Administrative Agent and by complying with the applicableprovisions of Section 8.17. Notwithstanding the foregoing, in no event shall (A) a subsidiary of theBorrower (whether such subsidiary is a subsidiary of the Borrower prior to such designation or willbecome a subsidiary of the Borrower upon such designation) be designated as an “Unrestricted40
Subsidiary” if such subsidiary holds any IP Rights or (B) the Borrower or any Subsidiary sell, transfer,exclusively license, lease or otherwise dispose of any IP Rights to an Unrestricted Subsidiary, in eachcase to the extent that such IP Rights are material to the business of the Borrower and its subsidiaries(taken as a whole).“U.S. Government Securities Business Day” means any Business Day, except any Business Dayon which any of the Securities Industry and Financial Markets Association, the New York StockExchange or the Federal Reserve Bank of New York is not open for business because such day is a legalholiday under the federal laws of the United States or the laws of the State of New York, as applicable.“U.S. Person” means any Person that is a “United States person” as defined in Section7701(a)(30) of the Code.“U.S. Tax Compliance Certificate” has the meaning assigned thereto in Section 5.11(g).“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, thenumber of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amountof each then remaining installment, sinking fund, serial maturity or other required payments of principal,including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to thenearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the thenoutstanding principal amount of such Indebtedness, in each case of clauses (a) and (b), without givingeffect to the application of any prior prepayment to such installment, sinking fund, serial maturity or otherrequired payment of principal. “Wholly-Owned” means, with respect to a subsidiary of the Borrower, that all of the EquityInterests of such subsidiary are, directly or indirectly, owned or controlled by the Borrower and/or one ormore of its Wholly-Owned subsidiaries of the Borrower (except for directors’ qualifying shares or othershares required by Applicable Law to be owned by a Person other than the Borrower and/or one or moreof its Wholly-Owned subsidiaries).“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 theBail-In Legislation for the applicable EEA Member Country, which write-down and conversion powersare described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, anypowers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify orchange the form of a liability of any UK Financial Institution or any contract or instrument under whichthat liability arises, to convert all or part of that liability into shares, securities or obligations of thatperson or any other person, to provide that any such contract or instrument is to have effect as if a righthad been exercised under it or to suspend any obligation in respect of that liability or any of the powersunder that Bail-In Legislation that are related to or ancillary to any of those powers.Section 1.2 Other Definitions and Provisions. With reference to this Agreement and eachother Loan Document, unless otherwise specified herein or in such other Loan Document: (a) thedefinitions of terms herein shall apply equally to the singular and plural forms of the terms defined, (b)whenever the context may require, any pronoun shall include the corresponding masculine, feminine andneuter forms, (c) the words “include”, “includes” and “including” shall be deemed to be followed by thephrase “without limitation”, (d) the word “will” shall be construed to have the same meaning and effect asthe word “shall”, (e) any reference herein to any Person shall be construed to include such Person’ssuccessors and assigns, (f) the words “herein”, “hereof” and “hereunder”, and words of similar import,shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (g)all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles41
and Sections of, and Exhibits and Schedules to, this Agreement, (h) the words “asset” and “property”shall be construed to have the same meaning and effect and to refer to any and all tangible and intangibleassets and properties, including cash, securities, accounts and contract rights, (i) the term “documents”includes any and all instruments, documents, agreements, certificates, notices, reports, financialstatements and other writings, however evidenced, whether in physical or electronic form and (j) in thecomputation of periods of time from a specified date to a later specified date, the word “from” means“from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through”means “to and including”.Section 1.3 Accounting Terms.(a) All accounting terms not specifically or completely defined herein shall beconstrued in conformity with, and all financial data (including financial ratios and other financialcalculations) required to be submitted pursuant to this Agreement shall be prepared in conformity withGAAP, applied on a consistent basis, as in effect from time to time and in a manner consistent with thatused in preparing the audited financial statements required by Section 8.1(a), except as otherwisespecifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliancewith any covenant (including the computation of any financial covenant) contained herein, Indebtednessof the Borrower and its Subsidiaries shall be deemed to be carried at one hundred percent (100%) of theoutstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 onfinancial liabilities shall be disregarded.(b) If at any time any change in GAAP would affect the computation of any financialratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lendersshall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith toamend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP(subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio orrequirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii)the Borrower shall provide to the Administrative Agent and the Lenders financial statements and otherdocuments required under this Agreement or as reasonably requested hereunder setting forth areconciliation between calculations of such ratio or requirement made before and after giving effect tosuch change in GAAP; provided, further that all obligations of any Person that are or would have beentreated as operating leases for purposes of GAAP prior to the effectiveness of FASB ASC 842 shallcontinue to be accounted for as operating leases for purposes of all financial definitions and calculationsfor purposes of this Agreement (whether or not such operating lease obligations were in effect on suchdate) notwithstanding the fact that such obligations are required in accordance with FASB ASC 842 (on aprospective or retroactive basis or otherwise) to be treated as Capital Lease Obligations in the financialstatements.Section 1.4 UCC Terms. Terms defined in the UCC in effect on the Closing Date and nototherwise defined herein shall, unless the context otherwise indicates, have the meanings provided bythose definitions. Subject to the foregoing, the term “UCC” refers, as of any date of determination, to theUCC then in effect.Section 1.5 Rounding. Any financial ratios required to be maintained pursuant to thisAgreement shall be calculated by dividing the appropriate component by the other component, carryingthe result to one place more than the number of places by which such ratio or percentage is expressedherein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearestnumber). 42
Section 1.6 References to Agreement and Laws. Unless otherwise expressly provided herein,(a) any definition or reference to formation documents, governing documents, agreements (including theLoan Documents) and other contractual documents or instruments shall be deemed to include allsubsequent amendments, restatements, extensions, supplements and other modifications thereto, but onlyto the extent that such amendments, restatements, extensions, supplements and other modifications are notprohibited by any Loan Document; and (b) any definition or reference to any Applicable Law, including,without limitation, Anti-Corruption Laws, Anti-Money Laundering Laws, the Bankruptcy Code, theCode, the Commodity Exchange Act, ERISA, the Exchange Act, the PATRIOT Act, the Securities Act,the UCC, the Investment Company Act, the Interstate Commerce Act, the Trading with the Enemy Act ofthe United States or any of the foreign assets control regulations of the United States TreasuryDepartment, shall include all statutory and regulatory provisions consolidating, amending, replacing,supplementing or interpreting such Applicable Law.Section 1.7 Times of Day. Unless otherwise specified, all references herein to times of dayshall be references to Eastern time (daylight or standard, as applicable).Section 1.8 Guarantees/Earn-Outs. Unless otherwise specified, (a) the amount of anyGuarantee shall be the lesser of the amount of the obligations guaranteed and still outstanding and themaximum amount for which the guaranteeing Person may be liable pursuant to the terms of theinstrument embodying such Guarantee and (b) the amount of any earn-out or similar obligation shall bethe amount of such obligation as reflected on the balance sheet of such Person in accordance with GAAP.Section 1.9 Covenant Compliance Generally. For purposes of determining compliance underSections 9.1, 9.2, 9.3, 9.5 and 9.6, any amount in a currency other than Dollars will be converted toDollars in a manner consistent with that used in calculating Consolidated Net Income in the most recentannual financial statements of the Borrower and its subsidiaries delivered pursuant to Section 8.1(a) ofthis Agreement. Notwithstanding the foregoing, for purposes of determining compliance with Sections9.1, 9.2 and 9.3, with respect to any amount of Indebtedness or Investment in a currency other thanDollars, no breach of any basket contained in such sections shall be deemed to have occurred solely as aresult of changes in rates of exchange occurring after the time such Indebtedness or Investment isincurred; provided that for the avoidance of doubt, the foregoing provisions of this Section 1.9 shallotherwise apply to such Sections, including with respect to determining whether any Indebtedness orInvestment may be incurred at any time under such Sections.Section 1.10 Limited Condition Acquisitions. In the event that the Borrower notifies theAdministrative Agent in writing that any proposed Acquisition is a Limited Condition Acquisition andthat the Borrower wishes to test the conditions to such Acquisition and the Indebtedness that is to be usedto finance such Acquisition in accordance with this Section 1.10, then, (x) so long as agreed to by theapplicable lenders providing such Indebtedness (in the case of such Indebtedness in the form of anincurrence of Incremental Loans or Incremental Equivalent Debt) and (y) in the case of such Indebtednessin the form of a Revolving Credit Borrowing, the following provisions shall apply:(a) any condition to such Limited Condition Acquisition or such Indebtedness(including Section 6.2) that requires that no Default or Event of Default shall have occurred and becontinuing at the time of such Limited Condition Acquisition or the incurrence of such Indebtedness,shall be satisfied if (i) no Default or Event of Default shall have occurred and be continuing at the time ofthe execution of the definitive purchase agreement, merger agreement or other acquisition agreementgoverning such Limited Condition Acquisition (the “LCA Test Date”) and (ii) no Specified Event ofDefault shall have occurred and be continuing both immediately before and immediately after giving43
effect to such Limited Condition Acquisition and any Indebtedness incurred in connection therewith(including any such additional Indebtedness);(b) any condition to such Limited Condition Acquisition or such Indebtedness(including Section 6.2) that the representations and warranties in this Agreement and the other LoanDocuments shall be true and correct at the time of consummation of such Limited Condition Acquisitionor the incurrence of such Indebtedness shall be deemed satisfied if (i) all representations and warranties inthis Agreement and the other Loan Documents are true and correct in all material respects (except for anyrepresentation and warranty that is qualified by materiality or reference to Material Adverse Effect, whichsuch representation and warranty shall be true and correct in all respects) as of the LCA Test Date, or ifsuch representation speaks as of an earlier date, as of such earlier date and (ii) as of the date ofconsummation of such Limited Condition Acquisition, (A) the representations and warranties under therelevant definitive agreement governing such Limited Condition Acquisition as are material to the lendersproviding such Indebtedness shall be true and correct, but only to the extent that the Borrower or itsapplicable Subsidiary has the right to terminate its obligations under such agreement or otherwise declineto close such Limited Condition Acquisition as a result of a breach of such representations and warrantiesor the failure of those representations and warranties to be true and correct and (B) (x) in the case of suchIndebtedness in the form of an incurrence of Incremental Loans or Incremental Equivalent Debt, certainof the representations and warranties in this Agreement and the other Loan Documents which arecustomary for similar “funds certain” financings and required by the lenders providing such Indebtednessshall be true and correct in all material respects (except for any representation and warranty that isqualified by materiality or reference to Material Adverse Effect, which such representation and warrantyshall be true and correct in all respects); and (y) in the case of such Indebtedness in the form of aRevolving Credit Borrowing, the Specified Representations shall be true and correct in all materialrespects (except for any Specified Representation that is qualified by materiality or reference to MaterialAdverse Effect, which such Specified Representation shall be true and correct in all respects);(c) any financial ratio test or condition to be tested in connection with such LimitedCondition Acquisition and the availability of such Indebtedness (including Section 6.2) will be tested asof the LCA Test Date, in each case, after giving effect to the relevant Limited Condition Acquisition andrelated incurrence of Indebtedness, on a Pro Forma Basis where applicable, and, for the avoidance ofdoubt, (i) such ratios and baskets shall not be tested at the time of consummation of such LimitedCondition Acquisition and (ii) if any of such ratios are exceeded or conditions are not met following theLCA Test Date, but prior to the closing of such Limited Condition Acquisition, as a result of fluctuationsin such ratio or amount (including due to fluctuations in Consolidated EBITDA of the Borrower or thePerson subject to such Limited Condition Acquisition), at or prior to the consummation of the relevanttransaction or action, such ratios will not be deemed to have been exceeded and such conditions will notbe deemed unmet as a result of such fluctuations solely for purposes of determining whether the relevanttransaction or action is permitted to be consummated or taken; and(d) except as provided in the next sentence, in connection with any subsequentcalculation of any ratio or basket on or following the relevant LCA Test Date and prior to the earlier ofthe date on which such Limited Condition Acquisition is consummated and the date that the definitiveagreement for such Limited Condition Acquisition is terminated or expires without consummation of suchLimited Condition Acquisition, any such ratio or basket shall be calculated (i) on a Pro Forma Basisassuming such Limited Condition Acquisition and other transactions in connection therewith (includingthe incurrence or assumption of Indebtedness) have been consummated and (ii) assuming such LimitedCondition Acquisition and other transactions in connection therewith (including the incurrence orassumption of Indebtedness) have not been consummated. Notwithstanding the foregoing, anycalculation of a ratio in connection with determining the Applicable Margin and determining whether ornot the Borrower is in compliance with the financial covenants set forth in Section 9.13 shall, in each case44
be calculated assuming such Limited Condition Acquisition and other transactions in connectiontherewith (including the incurrence or assumption of Indebtedness) have not been consummated.The foregoing provisions shall apply with similar effect during the pendency of multiple LimitedCondition Acquisitions such that each of the possible scenarios is separately tested.Section 1.11 [Reserved].Section 1.12 Divisions. For all purposes under the Loan Documents, in connection with anydivision or plan of division under Delaware law (or any comparable event under a different jurisdiction’slaws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation orliability of a different Person, then it shall be deemed to have been transferred from the original Person tothe subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemedto have been organized on the first date of its existence by the holders of its Equity Interests at such time.Section 1.13 Pro Forma Calculations. Other than for purposes of determining actual (asopposed to pro forma for determining the permissibility of a Permitted Acquisition, designation of anUnrestricted Subsidiary or incurrence of Indebtedness) compliance with Section 9.13, in connection withthe calculation of the Total Net Leverage Ratio, the Secured Net Leverage Ratio or the ConsolidatedInterest Coverage Ratio for purposes of incurring Indebtedness or Disqualified Equity Interests pursuantto a clause that requires compliance with a maximum Total Net Leverage Ratio or Secured Net LeverageRatio or minimum Consolidated Interest Coverage Ratio under this Agreement, no effect (pro forma orotherwise) shall be given to any Indebtedness being incurred (or commitments obtained) on the same datepursuant to any fixed dollar basket or basket based on a percentage of LTM EBITDA when making suchdetermination. Consolidated EBITDA shall be deemed to be (x) $61,939,380 for the fiscal quarter endedSeptember 26, 2020, $61,205,890 for the fiscal quarter ended December 26, 2020, $56,409,150 for thefiscal quarter ended March 27, 2021 and $62,016,360 for the fiscal quarter ended June 26, 2021 and (y)$71,065,927 for the fiscal quarter ended September 25, 2021, $76,604,146 for the fiscal quarter endedDecember 25, 2021, $72,456,458 for the fiscal quarter ended March 26, 2022 and $72,647,183 for thefiscal quarter ended June 25, 2022 (and, in the case of a determination of satisfaction of a provision ofSection 9.13 for determining such permissibility of any such transaction as of or for a period prior towhich financial statements are first required to be delivered pursuant to Section 8.1(a) or Section 8.1(b),such provision of such Section 9.13 shall be deemed to apply as of and for the period ended June 26,2021), in each case such determination to be made on a Pro Forma Basis for Specified Transactionsoccurring following the Closing Date.Section 1.14 Letter of Credit Amounts. Unless otherwise specified herein, the amount of aLetter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect atsuch time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms ofany Issuer Document related thereto, provides for one or more automatic increases in the stated amountthereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of suchLetter of Credit after giving effect to all such increases, whether or not such maximum stated amount is ineffect at such time.Section 1.15 Delayed Draw Term Loans. Incremental Term Loans and IncrementalEquivalent Debt may be structured in whole or part as delayed draw term facilities, and in such case, thedetermination whether such delayed draw Incremental Term Loans or Incremental Equivalent Debt wouldbe within the Incremental Facilities Limit shall be made, either (at the option of the Borrower) at (a) thetime the definitive agreements (which, in the case of an Incremental Term Loan, shall constitute the45
Lender Joinder Agreement) with respect to such delayed draw Incremental Term Loans or IncrementalEquivalent Debt are entered into by the parties thereto (and in the case of this clause (a), shall assume thatall such delayed draw Incremental Term Loans or Incremental Equivalent Debt has been drawn (and noneof the proceeds thereof shall have been included in clause (ii) of the definition of “Secured Net LeverageRatio” when making such determination)) or (b) upon each date that such Incremental Term Loans orIncremental Equivalent Debt is actually incurred (and none of the proceeds thereof shall have beenincluded in clause (ii) of the definition of “Secured Net Leverage Ratio” when making suchdetermination). ARTICLE IICREDIT FACILITYSection 2.1 Revolving Credit Loans and Amendment No. 1 Term Loans.(a) Subject to the terms and conditions of this Agreement and the other LoanDocuments, and in reliance upon the representations and warranties set forth in this Agreement and theother Loan Documents, each Revolving Credit Lender severally agrees to make Revolving Credit Loansin Dollars to the Borrower from time to time from the Closing Date to, but not including, the RevolvingCredit Maturity Date as requested by the Borrower in accordance with the terms of Section 2.3; providedthat (i) the Revolving Credit Outstandings shall not exceed the Revolving Credit Commitment and (ii) theRevolving Credit Exposure of any Revolving Credit Lender shall not at any time exceed such RevolvingCredit Lender’s Revolving Credit Commitment. Each Revolving Credit Loan by a Revolving CreditLender shall be in a principal amount equal to such Revolving Credit Lender’s Revolving CreditCommitment Percentage of the aggregate principal amount of Revolving Credit Loans requested on suchoccasion. Subject to the terms and conditions hereof, the Borrower may borrow, repay and reborrowRevolving Credit Loans hereunder until the Revolving Credit Maturity Date.(b) Subject solely to the satisfaction of the conditions set forth in Section 4 ofAmendment No. 1, each Amendment No. 1 Term Loan Lender severally agrees to make a term loan (an“Amendment No. 1 Term Loan”) to the Borrower on the Amendment No. 1 Effective Date in a principalamount equal to such Lender’s Amendment No. 1 Term Loan Commitment as of the Amendment No. 1Effective Date as set forth in the Amendment No. 1. Notwithstanding the foregoing, if the totalAmendment No. 1 Term Loan Commitment as of the Amendment No. 1 Effective Date is not drawn onthe Amendment No. 1 Effective Date, the undrawn amount shall automatically be cancelled. NoAmendment No. 1 Term Loans pursuant to this Agreement may be reborrowed once repaid.Section 2.2 Swingline Loans.(a) Availability. Subject to the terms and conditions of this Agreement and the otherLoan Documents, including, without limitation, Section 6.2(d) of this Agreement, and in reliance uponthe representations and warranties set forth in this Agreement and the other Loan Documents, theSwingline Lender may, in its sole discretion, make Swingline Loans in Dollars to the Borrower from timeto time from the Closing Date to, but not including, the Revolving Credit Maturity Date; provided that (i)after giving effect to any amount requested, the Revolving Credit Outstandings shall not exceed theRevolving Credit Commitment and (ii) the aggregate principal amount of all outstanding Swingline Loans(after giving effect to any amount requested) shall not exceed the Swingline Commitment.46
(b) Refunding.(i) The Swingline Lender, at any time and from time to time in its sole andabsolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the SwinglineLender to act on its behalf), by written notice given no later than 11:00 a.m. on any Business Day requesteach Revolving Credit Lender to make, and each Revolving Credit Lender hereby agrees to make, aRevolving Credit Loan as a Base Rate Loan in an amount equal to such Revolving Credit Lender’sRevolving Credit Commitment Percentage of the aggregate amount of the Swingline Loans outstandingon the date of such notice, to repay the Swingline Lender. Each Revolving Credit Lender shall make theamount of such Revolving Credit Loan available to the Administrative Agent in immediately availablefunds at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such notice.The proceeds of such Revolving Credit Loans shall be immediately made available by the AdministrativeAgent to the Swingline Lender for application by the Swingline Lender to the repayment of the SwinglineLoans. No Revolving Credit Lender’s obligation to fund its respective Revolving Credit CommitmentPercentage of a Swingline Loan shall be affected by any other Revolving Credit Lender’s failure to fundits Revolving Credit Commitment Percentage of a Swingline Loan, nor shall any Revolving CreditLender’s Revolving Credit Commitment Percentage be increased as a result of any such failure of anyother Revolving Credit Lender to fund its Revolving Credit Commitment Percentage of a SwinglineLoan. (ii) The Borrower shall pay to the Swingline Lender on demand, and in anyevent on the Revolving Credit Maturity Date, in immediately available funds the amount of suchSwingline Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient torepay in full the outstanding Swingline Loans requested or required to be refunded. In addition, theBorrower irrevocably authorizes the Administrative Agent to charge any account maintained by theBorrower with the Swingline Lender (up to the amount available therein) in order to immediately pay theSwingline Lender the amount of such Swingline Loans to the extent amounts received from theRevolving Credit Lenders are not sufficient to repay in full the outstanding Swingline Loans requested orrequired to be refunded. If any portion of any such amount paid to the Swingline Lender shall berecovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the lossof the amount so recovered shall be ratably shared among all the Revolving Credit Lenders in accordancewith their respective Revolving Credit Commitment Percentages.(iii) If for any reason any Swingline Loan cannot be refinanced with aRevolving Credit Loan pursuant to Section 2.2(b)(i), each Revolving Credit Lender shall, on the date suchRevolving Credit Loan was to have been made pursuant to the notice referred to in Section 2.2(b)(i),purchase for cash an undivided participating interest in the then outstanding Swingline Loans by payingto the Swingline Lender an amount (the “Swingline Participation Amount”) equal to such RevolvingCredit Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount ofSwingline Loans then outstanding. Each Revolving Credit Lender will immediately transfer to theSwingline Lender, in immediately available funds, the amount of its Swingline Participation Amount.Whenever, at any time after the Swingline Lender has received from any Revolving Credit Lender suchRevolving Credit Lender’s Swingline Participation Amount, the Swingline Lender receives any paymenton account of the Swingline Loans, the Swingline Lender will distribute to such Revolving Credit Lenderits Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect theperiod of time during which such Lender’s participating interest was outstanding and funded and, in thecase of principal and interest payments, to reflect such Revolving Credit Lender’s pro rata portion ofsuch payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loansthen due); provided that in the event that such payment received by the Swingline Lender is required to be47
returned, such Revolving Credit Lender will return to the Swingline Lender any portion thereofpreviously distributed to it by the Swingline Lender.(iv) Each Revolving Credit Lender’s obligation to make the Revolving CreditLoans referred to in Section 2.2(b)(i) and to purchase participating interests pursuant to Section 2.2(b)(iii)shall be absolute and unconditional and shall not be affected by any circumstance, including (A) anysetoff, counterclaim, recoupment, defense or other right that such Revolving Credit Lender or theBorrower may have against the Swingline Lender, the Borrower or any other Person for any reasonwhatsoever, (B) the occurrence or continuance of a Default or an Event of Default or the failure to satisfyany of the other conditions specified in Article VI, (C) any adverse change in the condition (financial orotherwise) of the Borrower, (D) any breach of this Agreement or any other Loan Document by theBorrower, any other Credit Party or any other Revolving Credit Lender or (E) any other circumstance,happening or event whatsoever, whether or not similar to any of the foregoing.(v) If any Revolving Credit Lender fails to make available to theAdministrative Agent, for the account of the Swingline Lender, any amount required to be paid by suchRevolving Credit Lender pursuant to the foregoing provisions of this Section 2.2(b) by the time specifiedin Section 2.2(b)(i) or 2.2(b)(iii), as applicable, the Swingline Lender shall be entitled to recover fromsuch Revolving Credit Lender (acting through the Administrative Agent), on demand, such amount withinterest thereon for the period from the date such payment is required to the date on which such paymentis immediately available to the Swingline Lender at a rate per annum equal to the applicable FederalFunds Rate, plus any administrative, processing or similar fees customarily charged by the SwinglineLender in connection with the foregoing. If such Revolving Credit Lender pays such amount (withinterest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Lender’sRevolving Credit Loan or Swingline Participation Amount, as the case may be. A certificate of theSwingline Lender submitted to any Revolving Credit Lender (through the Administrative Agent) withrespect to any amounts owing under this clause (v) shall be conclusive absent manifest error.(c) Defaulting Lenders. Notwithstanding anything to the contrary contained in thisAgreement, this Section 2.2 shall be subject to the terms and conditions of Section 5.14 and Section 5.15.Section 2.3 Procedure for Advances of Revolving Credit Loans, Term Loans and SwinglineLoans. (a) Requests for Borrowing. The Borrower shall give the Administrative Agentirrevocable prior written notice substantially in the form of Exhibit B (a “Notice of Borrowing”) not laterthan 11:00 a.m. (i) on the same Business Day as each Base Rate Loan and each Swingline Loan and (ii) atleast three (3) Business Days before each Term SOFR Loan, of its intention to borrow, specifying (A) thedate of such borrowing, which shall be a Business Day, (B) the amount of such borrowing, which shallbe, (x) with respect to Base Rate Loans (other than Swingline Loans) in an aggregate principal amount of$1,000,000 or a whole multiple of $100,000 in excess thereof, (y) with respect to Term SOFR Loans in anaggregate principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof and (z) withrespect to Swingline Loans in an aggregate principal amount of $500,000 or a whole multiple of $100,000in excess thereof, (C) whether such Loan is to be a Revolving Credit Loan, Swingline Loan or a TermLoan, (D) in the case of a Revolving Credit Loan or a Term Loan, whether the Loans are to be TermSOFR Loans or Base Rate Loans, and (E) in the case of a Term SOFR Loan, the duration of the InterestPeriod applicable thereto; provided that if the Borrower wishes to request Term SOFR Loans having anInterest Period of twelve (12) months in duration, such notice must be received by the AdministrativeAgent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such borrowing,whereupon the Administrative Agent shall give prompt notice to the Revolving Credit Lenders of suchrequest and determine whether the requested Interest Period is acceptable to all of them. If the Borrower48
fails to specify a type of Loan in a Notice of Borrowing, then the applicable Loans shall be made as BaseRate Loans. If the Borrower requests a borrowing of Term SOFR Loans in any such Notice ofBorrowing, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period ofone (1) month. A Notice of Borrowing received after 11:00 a.m. shall be deemed received on the nextBusiness Day. The Administrative Agent shall promptly notify the Revolving Credit Lenders of eachNotice of Borrowing.(b) Disbursement of Revolving Credit and Swingline Loans. Not later than 1:00p.m. on the proposed borrowing date, (i) each Revolving Credit Lender will make available to theAdministrative Agent, for the account of the Borrower, at the office of the Administrative Agent in fundsimmediately available to the Administrative Agent, such Revolving Credit Lender’s Revolving CreditCommitment Percentage of the Revolving Credit Loans to be made on such borrowing date and (ii) theSwingline Lender will make available to the Administrative Agent, for the account of the Borrower, at theoffice of the Administrative Agent in funds immediately available to the Administrative Agent, theSwingline Loans to be made on such borrowing date. The Borrower hereby irrevocably authorizes theAdministrative Agent to disburse the proceeds of each borrowing requested pursuant to this Section2.3(b) in immediately available funds by crediting or wiring such proceeds to the deposit account of theBorrower identified in the most recent notice substantially in the form attached as Exhibit C (a “Notice ofAccount Designation”) delivered by the Borrower to the Administrative Agent or as may be otherwiseagreed upon by the Borrower and the Administrative Agent from time to time. Subject to Section 5.7hereof, the Administrative Agent shall not be obligated to disburse the portion of the proceeds of anyRevolving Credit Loan requested pursuant to this Section 2.3(b) to the extent that any Revolving CreditLender has not made available to the Administrative Agent its Revolving Credit Commitment Percentageof such Loan. Revolving Credit Loans to be made for the purpose of refunding Swingline Loans shall bemade by the Revolving Credit Lenders as provided in Section 2.2(b).(c) With respect to SOFR or Term SOFR, the Administrative Agent will have theright to make Conforming Changes from time to time and, notwithstanding anything to the contraryherein or in any other Loan Document, any amendments implementing such Conforming Changes willbecome effective without any further action or consent of any other party to this Agreement or any otherLoan Document; provided that, with respect to any such amendment effected, the Administrative Agentshall post each such amendment implementing such Conforming Changes to the Borrower and theLenders reasonably promptly after such amendment becomes effective.Section 2.4 Repayment and Prepayment of Loans.(a) Repayment on Termination Date. The Borrower hereby agrees to repay theoutstanding principal amount of (i) all Revolving Credit Loans in full on the Revolving Credit MaturityDate, and (ii) all Swingline Loans in accordance with Section 2.2(b) (but, in any event, no later than theRevolving Credit Maturity Date), together, in each case, with all accrued but unpaid interest thereon.(b) Mandatory Prepayments. If at any time the Revolving Credit Outstandingsexceed the Revolving Credit Commitment, the Borrower agrees to promptly repay (and in any eventwithin one (1) Business Day) upon notice from the Administrative Agent, by payment to theAdministrative Agent for the account of the Revolving Credit Lenders, Extensions of Credit in an amountequal to such excess with each such repayment applied first, to the principal amount of outstandingSwingline Loans, second to the principal amount of outstanding Revolving Credit Loans and third, withrespect to any Letters of Credit then outstanding, a payment of Cash Collateral into a Cash Collateralaccount opened by the Administrative Agent, for the benefit of the Revolving Credit Lenders, in anamount equal to such excess (such Cash Collateral to be applied in accordance with Section 10.2(b)).49
(c) Optional Prepayments. The Borrower may at any time and from time to timeprepay Revolving Credit Loans, Term Loans and Swingline Loans, in whole or in part, without premiumor penalty, with irrevocable prior written notice to the Administrative Agent substantially in the formattached as Exhibit D (a “Notice of Prepayment”) given not later than 11:00 a.m. (i) on the same BusinessDay as each Base Rate Loan and each Swingline Loan and (ii) at least three (3) Business Days beforeeach Term SOFR Loan (in each case, or such later time approved by the Administrative Agent),specifying the date and amount of prepayment and whether the prepayment is of Term SOFR Loans, BaseRate Loans, Swingline Loans or a combination thereof, and, if of a combination thereof, the amountallocable to each. Upon receipt of such notice, the Administrative Agent shall promptly notify eachRevolving Credit Lender or Term Loan Lender, as applicable. If any such notice is given, the amountspecified in such notice shall be due and payable on the date set forth in such notice. Partial prepaymentsshall be in an aggregate amount of $1,000,000 or a whole multiple of $100,000 in excess thereof withrespect to Base Rate Loans (other than Swingline Loans), $1,000,000 or a whole multiple of $100,000 inexcess thereof with respect to Term SOFR Loans and $500,000 or a whole multiple of $100,000 in excessthereof with respect to Swingline Loans. A Notice of Prepayment received after 11:00 a.m. shall bedeemed received on the next Business Day. Each such repayment shall be accompanied by any amountrequired to be paid pursuant to Section 5.9 hereof. Notwithstanding the foregoing, any Notice ofPrepayment delivered in connection with any refinancing of all of the Credit Facility with the proceeds ofsuch refinancing or of any incurrence of Indebtedness or the occurrence of some other identifiable eventor condition, may be, if expressly so stated to be, contingent upon the consummation of such refinancingor incurrence or occurrence of such other identifiable event or condition and may be revoked by theBorrower in the event such contingency is not met (provided that the failure of such contingency shall notrelieve the Borrower from its obligations in respect thereof under Section 5.9).(d) [Reserved.](e) Limitation on Prepayment of Term SOFR Loans. The Borrower may not prepayany Term SOFR Loan on any day other than on the last day of the Interest Period applicable theretounless such prepayment is accompanied by any amount required to be paid pursuant to Section 5.9 hereof.(f) Hedge Agreements. No repayment or prepayment of the Loans pursuant to thisSection 2.4 shall affect any of the Borrower’s obligations under any Hedge Agreement entered into withrespect to the Loans.Section 2.5 Permanent Reduction of the Revolving Credit Commitment.(a) Voluntary Reduction. The Borrower shall have the right at any time and fromtime to time, upon at least five (5) Business Days prior irrevocable written notice to the AdministrativeAgent, to permanently reduce, without premium or penalty, (i) the entire Revolving Credit Commitmentat any time or (ii) portions of the Revolving Credit Commitment, from time to time, in an aggregateprincipal amount not less than $1,000,000 or any whole multiple of $500,000 in excess thereof. Anyreduction of the Revolving Credit Commitment shall be applied to the Revolving Credit Commitment ofeach Revolving Credit Lender according to its Revolving Credit Commitment Percentage. AllCommitment Fees accrued until the effective date of any termination of the Revolving CreditCommitment shall be paid on the effective date of such termination. Notwithstanding the foregoing, anynotice to reduce the Revolving Credit Commitment delivered in connection with any refinancing of all ofthe Credit Facility with the proceeds of such refinancing or of any incurrence of Indebtedness or theoccurrence of some other identifiable event or condition, may be, if expressly so stated to be, contingentupon the consummation of such refinancing or incurrence or occurrence of such identifiable event orcondition and may be revoked by the Borrower in the event such contingency is not met (provided that50
the failure of such contingency shall not relieve the Borrower from its obligations in respect thereof underSection 5.9). (b) [Reserved.](c) [Reserved.](d) Corresponding Payment. Each permanent reduction permitted pursuant to thisSection shall be accompanied by a payment of principal sufficient to reduce the aggregate outstandingRevolving Credit Loans, Swingline Loans and L/C Obligations, as applicable, after such reduction to theRevolving Credit Commitment as so reduced, and if the aggregate amount of all outstanding Letters ofCredit exceeds the Revolving Credit Commitment as so reduced, the Borrower shall be required todeposit Cash Collateral in a Cash Collateral account opened by the Administrative Agent in an amountequal to such excess. Such Cash Collateral shall be applied in accordance with Section 10.2(b). Anyreduction of the Revolving Credit Commitment to zero shall be accompanied by payment of alloutstanding Revolving Credit Loans and Swingline Loans (and furnishing of Cash Collateral satisfactoryto the Administrative Agent for all L/C Obligations) and shall result in the termination of the RevolvingCredit Commitment and the Swingline Commitment and the Revolving Credit Facility. If the reductionof the Revolving Credit Commitment requires the repayment of any Term SOFR Loan, such repaymentshall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof.Section 2.6 Termination of Revolving Credit Facility. The Revolving Credit Facility and theRevolving Credit Commitments shall terminate on the Revolving Credit Maturity Date.ARTICLE IIILETTER OF CREDIT FACILITYSection 3.1 L/C Facility.(a) General. The Letter of Credit Commitment. (i) Subject to the terms andconditions set forth herein, in addition to the Revolving Credit Loans provided for in Section 2.1, theBorrower may request that any Issuing Lender, in reliance on the agreements of the Revolving CreditLenders set forth in this Section 3.1, issue, at any time and from time to time during the Letter of CreditAvailability Period, Letters of Credit denominated in Dollars for its own account or the account of any ofits Subsidiaries in such form as is acceptable to the Administrative Agent and such Issuing Lender in itsreasonable determination. Letters of Credit issued hereunder shall constitute utilization of the RevolvingCredit Commitments.(b) Notice of Issuance, Amendment, Extension, Reinstatement or Renewal. Torequest the issuance of a Letter of Credit (or the amendment of the terms and conditions, extension of theterms and conditions, extension of the expiration date, or reinstatement of amounts paid, or renewal of anoutstanding Letter of Credit), the Borrower shall deliver (or transmit by electronic communication, ifarrangements for doing so have been approved by the applicable Issuing Lender) to an Issuing Lenderselected by it and to the Administrative Agent not later than 11:00 a.m. at least two Business Days (orsuch later date and time as the Administrative Agent and such Issuing Lender may agree in a particularinstance in their sole discretion) prior to the proposed issuance date or date of amendment, as the casemay be a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to beamended, extended, reinstated or renewed, and specifying the date of issuance, amendment, extension,reinstatement or renewal (which shall be a Business Day), the date on which such Letter of Credit is toexpire (which shall comply with clause (d) of this Section 3.1), the amount of such Letter of Credit, thename and address of the beneficiary thereof, the purpose and nature of the requested Letter of Credit and51
such other information as shall be necessary to prepare, amend, extend, reinstate or renew such Letter ofCredit. If requested by the applicable Issuing Lender, the Borrower also shall submit a letter of creditapplication and reimbursement agreement on such Issuing Lender’s standard form in connection with anyrequest for a Letter of Credit. In the event of any inconsistency between the terms and conditions of thisAgreement and the terms and conditions of any form of letter of credit application and reimbursementagreement or other agreement submitted by the Borrower to, or entered into by the Borrower with, anIssuing Lender relating to any Letter of Credit, the terms and conditions of this Agreement shall control.If the Borrower so requests in any applicable Letter of Credit Application (or the amendment ofan outstanding Letter of Credit), the applicable Issuing Lender may, in its sole discretion, agree to issue aLetter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);provided that any such Auto-Extension Letter of Credit shall permit such Issuing Lender to prevent anysuch extension at least once in each twelve-month period (commencing with the date of issuance of suchLetter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-ExtensionNotice Date”) in each such twelve-month period to be agreed upon by the Borrower and the applicableIssuing Lender at the time such Letter of Credit is issued. Unless otherwise directed by the applicableIssuing Lender, the Borrower shall not be required to make a specific request to such Issuing Lender forany such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving CreditLenders shall be deemed to have authorized (but may not require) the applicable Issuing Lender to permitthe extension of such Letter of Credit at any time to an expiration date not later than the date permittedpursuant to Section 3.1(d); provided, that such Issuing Lender shall not (i) permit any such extension if(A) such Issuing Lender has determined that it would not be permitted, or would have no obligation, atsuch time to issue such Letter of Credit in its extended form under the terms hereof (except that theexpiration date may be extended to a date that is no more than one year from the then-current expirationdate) or (B) it has received notice (which may be in writing or by telephone (if promptly confirmed inwriting)) on or before the day that is seven Business Days before the Non-Extension Notice Date from theAdministrative Agent that the Required Revolving Credit Lenders have elected not to permit suchextension or (ii) be obligated to permit such extension if it has received notice (which may be in writingor by telephone (if promptly confirmed in writing)) on or before the day that is seven Business Daysbefore the Non-Extension Notice Date from the Administrative Agent, any Revolving Credit Lender orthe Borrower that one or more of the applicable conditions set forth in Section 6.2 is not then satisfied,and in each such case directing such Issuing Lender not to permit such extension.(c) Limitations on Amounts, Issuance and Amendment. A Letter of Credit shall beissued, amended, extended, reinstated or renewed only if (and upon issuance, amendment, extension,reinstatement or renewal of each Letter of Credit the Borrower shall be deemed to represent and warrantthat), after giving effect to such issuance, amendment, extension, reinstatement or renewal (i) theaggregate amount of the outstanding Letters of Credit issued by any Issuing Lender shall not exceed itsL/C Commitment, (ii) the aggregate L/C Obligations shall not exceed the L/C Sublimit, (iii) theRevolving Credit Exposure of any Lender shall not exceed its Revolving Credit Commitment, (iv) thesum of the total Revolving Credit Exposures of all Lenders shall not exceed the total Revolving CreditCommitments of all Lenders and (v) the Revolving Credit Outstandings shall not exceed the RevolvingCredit Commitment. (i) No Issuing Lender shall be under any obligation to issue, amend, extend,reinstate or renew any Letter of Credit if:(A) any order, judgment or decree of any Governmental Authority orarbitrator shall by its terms purport to enjoin or restrain such Issuing Lender from issuing,amending, extending, reinstating or renewing such Letter of Credit, or any Law applicable to suchIssuing Lender or any request or directive (whether or not having the force of law) from any52
Governmental Authority with jurisdiction over such Issuing Lender shall prohibit, or request thatsuch Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Creditin particular or shall impose upon such Issuing Lender with respect to the Letter of Credit anyrestriction, reserve or capital requirement (for which the such Issuing Lender is not otherwisecompensated hereunder) not in effect on the Closing Date, or shall impose upon such IssuingLender any unreimbursed loss, cost or expense which was not applicable on the Closing Date andwhich such Issuing Lender in good faith deems material to it;(B) the issuance, amendment, extension, reinstatement or renewal ofsuch Letter of Credit would violate one or more policies of such Issuing Lender applicable toletters of credit generally;(C) except as otherwise agreed by the Administrative Agent and suchIssuing Lender, the Letter of Credit is in an initial stated amount not less than $100,000, in thecase of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;(D) any Revolving Credit Lender is at that time a Defaulting Lender,unless such Issuing Lender has entered into arrangements, including the delivery of CashCollateral, satisfactory to such Issuing Lender (in its sole discretion) with the Borrower or suchLender to eliminate such Issuing Lender actual or potential Fronting Exposure (after giving effectto Section 5.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter ofCredit then proposed to be issued or that Letter of Credit and all other L/C Obligations as towhich such Issuing Lender has actual or potential Fronting Exposure, as it may elect in its solediscretion. (ii) No Issuing Lender shall be under any obligation to amend, extend,reinstate or renew any Letter of Credit if (A) such Issuing Lender would have no obligation at such timeto issue the Letter of Credit in its amended, extended, reinstated or renewed form under the terms hereof,or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment, extension,reinstatement or renewal with respect to the Letter of Credit.(d) Expiration Date. Each Letter of Credit shall have a stated expiration date no laterthan the earlier of (i) the date twelve months after the date of the issuance of such Letter of Credit (or, inthe case of any extension of the expiration date thereof, whether automatic or by amendment, twelvemonths after the then-current expiration date of such Letter of Credit) and (ii) the date that is fiveBusiness Days prior to the Revolving Credit Maturity Date.(e) Participations. By the issuance of a Letter of Credit (or an amendment,extension, renewal or reinstatement with respect to a Letter of Credit increasing the amount or extendingthe expiration date thereof), and without any further action on the part of the applicable Issuing Lender orthe Lenders, such Issuing Lender hereby grants to each Revolving Credit Lender, and each RevolvingCredit Lender hereby acquires from such Issuing Lender, a participation in such Letter of Credit equal tosuch Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter ofCredit. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquireparticipations pursuant to this clause (e) in respect of Letters of Credit is absolute, unconditional andirrevocable and shall not be affected by any circumstance whatsoever, including any amendment,extension, reinstatement or renewal of any Letter of Credit or the occurrence and continuance of a Defaultor reduction or termination of the Revolving Credit Commitments.In consideration and in furtherance of the foregoing, each Revolving Credit Lender herebyabsolutely, unconditionally and irrevocably agrees to pay to the Administrative Agent, for account of the53
applicable Issuing Lender, such Lender’s Applicable Percentage of each L/C Disbursement made by anIssuing Lender not later than 1:00 p.m. on the Business Day specified in the notice provided by theAdministrative Agent to the Revolving Credit Lenders pursuant to Section 3.1(f) until such L/CDisbursement is reimbursed by the Borrower or at any time after any reimbursement payment is requiredto be refunded to the Borrower for any reason, including after the Revolving Credit Maturity Date. Suchpayment shall be made without any offset, abatement, withholding or reduction whatsoever. Each suchpayment shall be made in the same manner as provided in Section 2.3 with respect to Revolving CreditLoans made by such Revolving Credit Lender (and Section 2.3 shall apply, mutatis mutandis, to thepayment obligations of the Revolving Credit Lenders pursuant to this Section 3.1), and the AdministrativeAgent shall promptly pay to the applicable Issuing Lender the amounts so received by it from theLenders. Promptly following receipt by the Administrative Agent of any payment from the Borrowerpursuant to Section 3.1(f), the Administrative Agent shall distribute such payment to the applicableIssuing Lender or, to the extent that the Revolving Credit Lenders have made payments pursuant to thisclause (e) to reimburse such Issuing Lender, then to such Lenders and such Issuing Lender as theirinterests may appear. Any payment made by a Lender pursuant to this clause (e) to reimburse an IssuingLender for any L/C Disbursement shall not constitute a Loan and shall not relieve the Borrower of itsobligation to reimburse such L/C Disbursement.Each Revolving Credit Lender further acknowledges and agrees that its participation in eachLetter of Credit will be automatically adjusted to reflect such Lender’s Applicable Percentage of theaggregate amount available to be drawn under such Letter of Credit at each time such Lender’sCommitment is amended pursuant to the operation of Section 5.13 or 5.16, as a result of an assignment inaccordance with Section 12.9 or otherwise pursuant to this Agreement.If any Revolving Credit Lender fails to make available to the Administrative Agent for theaccount of the applicable Issuing Lender any amount required to be paid by such Lender pursuant to theforegoing provisions of this Section 3.1(e), then, without limiting the other provisions of this Agreement,the applicable Issuing Lender shall be entitled to recover from such Lender (acting through theAdministrative Agent), on demand, such amount with interest thereon for the period from the date suchpayment is required to the date on which such payment is immediately available to such Issuing Lender ata rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the applicableIssuing Lender in accordance with banking industry rules on interbank compensation, plus anyadministrative, processing or similar fees customarily charged by such Issuing Lender in connection withthe foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paidshall constitute such Lender’s Revolving Credit Loan included in the relevant Revolving CreditBorrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate ofany Issuing Lender submitted to any Revolving Credit Lender (through the Administrative Agent) withrespect to any amounts owing under this clause (e) shall be conclusive absent manifest error.(f) Reimbursement. If an Issuing Lender shall make any L/C Disbursement inrespect of a Letter of Credit, the Borrower shall reimburse such Issuing Lender in respect of such L/CDisbursement by paying to the Administrative Agent an amount equal to such L/C Disbursement not laterthan 12:00 noon on (i) the Business Day that the Borrower receives notice of such L/C Disbursement, ifsuch notice is received prior to 10:00 a.m. or (ii) the Business Day immediately following the day that theBorrower receives such notice, if such notice is not received prior to such time, provided that, theBorrower may, subject to the conditions to borrowing set forth herein, request in accordance withSection 2.2 or Section 2.3 that such payment be financed with a Revolving Credit Borrowing of BaseRate Loans or Swingline Loan in an equivalent amount and, to the extent so financed, the Borrower’sobligation to make such payment shall be discharged and replaced by the resulting Revolving CreditBorrowing of Base Rate Loans or Swingline Loan. If the Borrower fails to make such payment whendue, the Administrative Agent shall notify each Revolving Credit Lender of the applicable L/C54
Disbursement, the payment then due from the Borrower in respect thereof (the “Unreimbursed Amount”)and such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to haverequested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the date of payment bythe applicable Issuing Lender under a Letter of Credit in an amount equal to the Unreimbursed Amount,without regard to the minimum and multiples specified in Section 2.3 for the principal amount of BaseRate Loans, but subject to the amount of the unutilized portion of the aggregate Revolving CreditCommitments and the conditions set forth in Section 6.2 (other than the delivery of a Committed LoanNotice). Any notice given by any Issuing Lender or the Administrative Agent pursuant to thisSection 3.1(f) may be given by telephone if immediately confirmed in writing; provided that the lack ofsuch an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.(g) Obligations Absolute. The Borrower’s obligation to reimburse L/CDisbursements as provided in clause (f) of this Section 3.1 shall be absolute, unconditional andirrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any andall circumstances whatsoever and irrespective of:(i) any lack of validity or enforceability of this Agreement, any other LoanDocument or any Letter of Credit, or any term or provision herein or therein;(ii) the existence of any claim, counterclaim, setoff, defense or other rightthat the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee ofsuch Letter of Credit (or any Person for whom any such beneficiary or any such transferee may beacting), any Issuing Lender or any other Person, whether in connection with this Agreement, thetransactions contemplated hereby or by such Letter of Credit or any agreement or instrument relatingthereto, or any unrelated transaction;(iii) any draft, demand, certificate or other document presented under suchLetter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement insuch draft or other document being untrue or inaccurate in any respect; or any loss or delay in thetransmission or otherwise of any document required in order to make a drawing under such Letter ofCredit; (iv) waiver by any Issuing Lender of any requirement that exists for suchIssuing Lender’s protection and not the protection of the Borrower or any waiver by such Issuing Lenderwhich does not in fact materially prejudice the Borrower;(v) honor of a demand for payment presented electronically even if suchLetter of Credit required that demand be in the form of a draft;(vi) any payment made by any Issuing Lender in respect of an otherwisecomplying item presented after the date specified as the expiration date of, or the date by whichdocuments must be received under such Letter of Credit if presentation after such date is authorized bythe UCC, the ISP or the UCP, as applicable;(vii) payment by the applicable Issuing Lender under a Letter of Creditagainst presentation of a draft or other document that does not comply strictly with the terms of suchLetter of Credit; or any payment made by any Issuing Lender under such Letter of Credit to any Personpurporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such55
Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;or (viii) any other event or circumstance whatsoever, whether or not similar toany of the foregoing, that might, but for the provisions of this Section 3.1, constitute a legal or equitabledischarge of, or provide a right of setoff against, the Borrower’s obligations hereunder.The Borrower shall promptly examine a copy of each Letter of Credit and each amendmentthereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’sinstructions or other irregularity, the Borrower will reasonably promptly notify the applicable IssuingLender. The Borrower shall be conclusively deemed to have waived any such claim against each IssuingLender and its correspondents unless such notice is given as aforesaid.None of the Administrative Agent, the Lenders, any Issuing Lender, or any of their RelatedParties shall have any liability or responsibility by reason of or in connection with the issuance or transferof any Letter of Credit by the applicable Issuing Lender or any payment or failure to make any paymentthereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error,omission, interruption, loss or delay in transmission or delivery of any draft, notice or othercommunication under or relating to any Letter of Credit (including any document required to make adrawing thereunder), any error in interpretation of technical terms, any error in translation or anyconsequence arising from causes beyond the control of the applicable Issuing Lender; provided that theforegoing shall not be construed to excuse an Issuing Lender from liability to the Borrower to the extentof any direct damages (as opposed to consequential damages, claims in respect of which are herebywaived by the Borrower to the extent permitted by Applicable Law) suffered by the Borrower that arecaused by such Issuing Lender’s failure to exercise care when determining whether drafts and otherdocuments presented under a Letter of Credit comply with the terms thereof. The parties hereto expresslyagree that, in the absence of gross negligence or willful misconduct on the part of an Issuing Lender (asfinally determined by a court of competent jurisdiction), an Issuing Lender shall be deemed to haveexercised care in each such determination, and that:(i) an Issuing Lender may replace a purportedly lost, stolen, or destroyedoriginal Letter of Credit or missing amendment thereto with a certified true copy marked as such or waivea requirement for its presentation;(ii) an Issuing Lender may accept documents that appear on their face to bein substantial compliance with the terms of a Letter of Credit without responsibility for furtherinvestigation, regardless of any notice or information to the contrary, and may make payment uponpresentation of documents that appear on their face to be in substantial compliance with the terms of suchLetter of Credit and without regard to any non-documentary condition in such Letter of Credit;(iii) an Issuing Lender shall have the right, in its sole discretion, to decline toaccept such documents and to make such payment if such documents are not in strict compliance with theterms of such Letter of Credit; and(iv) this sentence shall establish the standard of care to be exercised by anIssuing Lender when determining whether drafts and other documents presented under a Letter of Creditcomply with the terms thereof (and the parties hereto hereby waive, to the extent permitted by ApplicableLaw, any standard of care inconsistent with the foregoing).Without limiting the foregoing, none of the Administrative Agent, the Lenders, any IssuingLender, or any of their Related Parties shall have any liability or responsibility by reason of (i) any56
presentation that includes forged or fraudulent documents or that is otherwise affected by the fraudulent,bad faith, or illegal conduct of the beneficiary or other Person, (ii) an Issuing Lender declining to take-updocuments and make payment (A) against documents that are fraudulent, forged, or for other reasons bywhich that it is entitled not to honor or (B) following a Borrower’s waiver of discrepancies with respect tosuch documents or request for honor of such documents or (iii) an Issuing Lender retaining proceeds of aLetter of Credit based on an apparently applicable attachment order, blocking regulation, or third-partyclaim notified to such Issuing Lender.(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by theapplicable an Issuing Lender and the Borrower when a Letter of Credit is issued by it (including any suchagreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standbyLetter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit.Notwithstanding the foregoing, no Issuing Lender shall be responsible to the Borrower for, and no IssuingLender’s rights and remedies against the Borrower shall be impaired by, any action or inaction of anyIssuing Lender required or permitted under any law, order, or practice that is required or permitted to beapplied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction whereany Issuing Lender or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or inthe decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, theBankers Association for Finance and Trade – International Financial Services Association (BAFT-IFSA),or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses suchlaw or practice. (i) Each Issuing Lender shall act on behalf of the Lenders with respect to any Lettersof Credit issued by it and the documents associated therewith, and each Issuing Lender shall have all ofthe benefits and immunities (A) provided to the Administrative Agent in Article XI with respect to anyacts taken or omissions suffered by such Issuing Lender in connection with Letters of Credit issued by itor proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if theterm “Administrative Agent” as used in Article XI included such Issuing Lender with respect to such actsor omissions, and (B) as additionally provided herein with respect to such Issuing Lender.(j) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent forthe account of each Revolving Credit Lender in accordance with its Applicable Revolving CreditPercentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to theApplicable Margin times the daily amount available to be drawn under such Letter of Credit. Forpurposes of computing the daily amount available to be drawn under any Letter of Credit, the amount ofsuch Letter of Credit shall be determined in accordance with Section 1.14. Letter of Credit Fees shall be(i) due and payable on the last Business Day of each March, June, September and December followingthe Closing Date, commencing with the first such date to occur after the issuance of such Letter of Credit,on the Revolving Credit Maturity Date and thereafter on demand and (ii) computed on a quarterly basis inarrears. If there is any change in the Applicable Margin during any quarter, the daily amount available tobe drawn under each Letter of Credit shall be computed and multiplied by the Applicable Marginseparately for each period during such quarter that such Applicable Margin was in effect.Notwithstanding anything to the contrary contained herein, upon the request of the Required RevolvingCredit Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue after giving effectto Section 5.1(b).(k) Fronting Fee and Documentary and Processing Charges Payable to IssuingLenders. The Borrower shall pay directly to the applicable Issuing Lender for its own account a frontingfee with respect to each Letter of Credit, at the rate per annum equal to the percentage separately agreedupon between the Borrower and such Issuing Lender (but not to exceed, in any event, 0.125% perannum), computed on the daily amount available to be drawn under such Letter of Credit on a quarterly57
basis in arrears. Such fronting fee shall be due and payable on the last Business Day of each March, June,September and December in respect of the most recently-ended quarterly period (or portion thereof, in thecase of the first payment), commencing with the first such date to occur after the issuance of such Letterof Credit, on the Revolving Credit Maturity Date and thereafter on demand. For purposes of computingthe daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Creditshall be determined in accordance with Section 1.14. In addition, the Borrower shall pay directly to theapplicable Issuing Lender for its own account the customary issuance, presentation, amendment and otherprocessing fees, and other standard costs and charges, of such Issuing Lender relating to letters of creditas from time to time in effect. Such customary fees and standard costs and charges are due and payableon demand and are nonrefundable.(l) Disbursement Procedures. The Issuing Lender for any Letter of Credit shall,within the time allowed by Applicable Laws or the specific terms of the Letter of Credit following itsreceipt thereof, examine all documents purporting to represent a demand for payment under such Letter ofCredit. Such Issuing Lender shall promptly after such examination notify the Administrative Agent andthe Borrower in writing of such demand for payment if such Issuing Lender has made or will make anL/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall notrelieve the Borrower of its obligation to reimburse such Issuing Lender and the Lenders with respect toany such L/C Disbursement.(m) Interim Interest. If the Issuing Lender for any Letter of Credit shall make anyL/C Disbursement, then, unless the Borrower shall reimburse such L/C Disbursement in full on the datesuch L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day from andincluding the date such L/C Disbursement is made to but excluding the date that the Borrower reimbursessuch L/C Disbursement, at the rate per annum then applicable to Base Rate Loans; provided that if theBorrower fails to reimburse such L/C Disbursement when due pursuant to clause (f) of this Section 3.1,then Section 5.1(b) shall apply. Interest accrued pursuant to this clause (m) shall be for account of suchIssuing Lender, except that interest accrued on and after the date of payment by any Lender pursuant toclause (f) of this Section 3.1 to reimburse such Issuing Lender shall be for account of such Lender to theextent of such payment.(n) Replacement of any Issuing Lender. Any Issuing Lender may be replaced at anytime by written agreement between the Borrower, the Administrative Agent, the replaced Issuing Lender`and the successor Issuing Lender. The Administrative Agent shall notify the Lenders of any suchreplacement of an Issuing Lender. At the time any such replacement shall become effective, theBorrower shall pay all unpaid fees accrued for the account of the replaced Issuing Lender pursuant toSection 3.1(j). From and after the effective date of any such replacement, (i) the successor Issuing Lendershall have all the rights and obligations of an Issuing Lender under this Agreement with respect to Lettersof Credit to be issued by it thereafter and (ii) references herein to the term “Issuing Lender” shall bedeemed to include such successor or any previous Issuing Lender, or such successor and all previousIssuing Lender, as the context shall require. After the replacement of an Issuing Lender hereunder, thereplaced Issuing Lender shall remain a party hereto and shall continue to have all the rights andobligations of an Issuing Lender under this Agreement with respect to Letters of Credit issued by it priorto such replacement, but shall not be required to issue additional Letters of Credit.(o) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Creditissued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary,the Borrower shall be obligated to reimburse, indemnify and compensate the applicable Issuing Lenderhereunder for any and all drawings under such Letter of Credit as if such Letter of Credit had been issuedsolely for the account of the Borrower. The Borrower irrevocably waives any and all defenses that mightotherwise be available to it as a guarantor or surety of any or all of the obligations of such Subsidiary in58
respect of such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Creditfor the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s businessderives substantial benefits from the businesses of such Subsidiaries.(p) Conflict with Issuer Documents. In the event of any conflict between the termshereof and the terms of any Issuer Document, the terms hereof shall control.(q) Issuing Lender Reports to the Administrative Agent. Unless otherwise agreed bythe Administrative Agent, each Issuing Lender shall, in addition to its notification obligations set forthelsewhere in this Section 3.1, provide the Administrative Agent a Letter of Credit Report (“Letter ofCredit Report”), as set forth below:(i) reasonably prior to the time that such Issuing Lender issues, amends,renews, increases or extends a Letter of Credit, the date of such issuance, amendment, renewal, increaseor extension and the stated amount of the applicable Letters of Credit after giving effect to such issuance,amendment, renewal or extension (and whether the amounts thereof shall have changed);(ii) on each Business Day on which such Issuing Lender makes a paymentpursuant to a Letter of Credit, the date and amount of such payment;(iii) on any Business Day on which the Borrower fails to reimburse apayment made pursuant to a Letter of Credit required to be reimbursed to such Issuing Lender on suchday, the date of such failure and the amount of such payment;(iv) on any other Business Day, such other information as the AdministrativeAgent shall reasonably request as to the Letters of Credit issued by such Issuing Lender; and(v) for so long as any Letter of Credit issued by an Issuing Lender isoutstanding, such Issuing Lender shall deliver to the Administrative Agent (A) on the last Business Dayof each calendar month, (B) at all other times a Letter of Credit Report is required to be deliveredpursuant to this Agreement, and (C) on each date that (1) an L/C Credit Extension occurs or (2) there isany expiration, cancellation and/or disbursement, in each case, with respect to any such Letter of Credit, aLetter of Credit Report appropriately completed with the information for every outstanding Letter ofCredit issued by such Issuing Lender. ARTICLE IVTERM LOAN FACILITYSection 4.1 [Reserved].Section 4.2 [Reserved].Section 4.3 Repayment of Term Loans. The Borrower shall repay the Amendment No. 1Term Loans on the last Business Day of each of March, June, September and December commencing onthe fiscal quarter ended on December 31, 2022 in a principal amount equal to the product of (x) theaggregate principal amount of Amendment No. 1 Term Loans funded as of the Amendment No. 1Effective Date times (y) the percentage set forth opposite the last Business Day of the relevant quarterbelow, except as the amounts of individual installments may be adjusted pursuant to Section 4.4 hereof:Fiscal Quarter ending Amendment No. 1 Term LoanPrincipal Amortization59
Payment PercentageDecember 31, 2022 throughSeptember 30, 2023 0.625%December 31, 2023 throughSeptember 30, 2024 0.625%December 31, 2024 throughSeptember 30, 2025 1.250%December 31, 2025 throughSeptember 30, 2026 1.875%December 31, 2026 throughSeptember 30, 2027 1.875%Amendment No. 1 Term LoanMaturity Date balance payableIf not sooner paid, such Amendment No. 1 Term Loans shall be paid in full, together with accrued interestthereon, on the Amendment No. 1 Term Loan Maturity Date. The Borrower shall repay any AmendmentNo. 1 Term Loans as determined pursuant to, and in accordance with, Section 5.13.Section 4.4 Prepayments of Term Loans.(a) [Reserved].(b) Mandatory Prepayments.(i) Debt Issuances. The Borrower shall make mandatory principalprepayments of the Term Loans in the manner set forth in clause (iv) below in an amount equal to onehundred percent (100%) of the aggregate Net Cash Proceeds from any Debt Issuance. Such prepaymentshall be made within three (3) Business Days after the date of receipt of the Net Cash Proceeds of anysuch Debt Issuance. (ii) Asset Dispositions and Insurance and Condemnation Events. TheBorrower shall make mandatory principal prepayments of the Term Loans in the manner set forth inclause (iv) below in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceedsfrom any Asset Disposition by any Credit Party (other than any Asset Disposition permitted pursuant to,and in accordance with, clauses (a) through (k) of Section 9.5), to the extent that the aggregate amount ofsuch Net Cash Proceeds exceed $10,000,000 per Asset Disposition (or series of related transactions) or ifthe Net Cash Proceeds from such Asset Disposition, when taken together with the Net Cash Proceedsfrom all other Asset Dispositions by Credit Parties (other than any Asset Disposition permitted pursuantto, and in accordance with, clauses (a) through (k) of Section 9.5) effectuated during such Fiscal Year,exceed $25,000,000 in the aggregate. Such prepayments shall be made within five (5) Business Daysafter the date of receipt of the Net Cash Proceeds; provided that, so long as no Event of Default hasoccurred and is continuing, no prepayment shall be required under this Section 4.4(b)(ii) with respect tosuch portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date givenwritten notice to the Administrative Agent of its intent to reinvest in accordance with Section 4.4(b)(iii);provided further that, with respect to any Net Cash Proceeds from any such Asset Disposition, theBorrower may prepay Term Loans and prepay or purchase any Incremental Equivalent Debt that issecured by the Collateral on a pari passu basis (at a purchase price no greater than par plus accrued andunpaid interest), to the extent required thereby, on a pro rata basis in accordance with the respectiveoutstanding principal amounts of the Term Loans and such Incremental Equivalent Debt as of the time ofthe applicable Asset Disposition. 60
(iii) Reinvestment Option. With respect to any Net Cash Proceeds realized orreceived with respect to any Asset Disposition by any Credit Party (other than any Asset Dispositionpermitted pursuant to, and in accordance with, clauses (a) through (k) of Section 9.5), at the option of theBorrower, the Credit Parties may reinvest (or commit to reinvest) all or any portion of such Net CashProceeds in assets used or useful for the business of the Credit Parties within eighteen (18) monthsfollowing receipt of such Net Cash Proceeds (or if committed to be reinvested within such eighteen-month period, actually reinvested no later than 180 days after the making of such commitment); providedthat if any Net Cash Proceeds have not been so reinvested by the end of such 18-month (or, if applicable180-day) period, an amount equal to any such Net Cash Proceeds shall be applied within five (5) BusinessDays to the prepayment of the Term Loans as set forth in this Section 4.4(b); provided further that if suchNet Cash Proceeds are reinvested in assets under construction, such reinvestment shall be deemed tooccur in full on the date of commencement of the construction.(iv) Notice; Manner of Payment. Upon the occurrence of any eventtriggering the prepayment requirement under clause (i), (ii) or (iii) above, the Borrower shall promptlydeliver a Notice of Prepayment to the Administrative Agent and upon receipt of such notice, theAdministrative Agent shall promptly so notify the Lenders. Each prepayment of the Term Loans underthis Section shall be applied among each Class of Term Loans (unless otherwise agreed by the applicableIncremental Lenders) to reduce the remaining scheduled principal installments of each Class of TermLoans ratably among such installments.(v) Prepayment of Term SOFR Loans. Each prepayment of Term Loans thatare Term SOFR Loans shall be accompanied by any amount required to be paid pursuant to Section 5.9;provided that, so long as no Default or Event of Default shall have occurred and be continuing, if anyprepayment of Term SOFR Loans is required to be made under this Section 4.4(b) prior to the last day ofthe Interest Period therefor, in lieu of making any payment pursuant to this Section 4.4(b) in respect ofany such Term SOFR Loan prior to the last day of the Interest Period therefor, the Borrower may, in itssole discretion, deposit an amount sufficient to make any such prepayment otherwise required to be madethereunder together with accrued interest to the last day of such Interest Period into an account held at,and subject to the sole control of, the Administrative Agent until the last day of such Interest Period, atwhich time the Administrative Agent shall be authorized (without any further action by or notice to orfrom the Borrower or any other Credit Party) to apply such amount to the prepayment of such TermLoans in accordance with this Section 4.4(b). Upon the occurrence and during the continuance of anyDefault or Event of Default, the Administrative Agent shall also be authorized (without any further actionby or notice to or from the Borrower or any other Credit Party) to apply such amount to the prepaymentof the outstanding Term Loans in accordance with the relevant provisions of this Section 4.4(b).(vi) No Reborrowings. Amounts prepaid under the Term Loans pursuant tothis Section may not be reborrowed. ARTICLE VGENERAL LOAN PROVISIONSSection 5.1 Interest.(a) Interest Rate Options. Subject to the provisions of this Section, at the election ofthe Borrower, (i) Revolving Credit Loans and the Amendment No. 1 Term Loans shall bear interest at (A)the Base Rate plus the Applicable Margin or (B) the Term SOFR plus the Applicable Margin (providedthat the Term SOFR shall not be available until three (3) Business Days after the Amendment No. 1Effective Date unless the Borrower has delivered to the Administrative Agent a letter in form andsubstance reasonably satisfactory to the Administrative Agent indemnifying the Lenders in the manner set61
forth in Section 5.9 of this Agreement) and (ii) any Swingline Loan shall bear interest at the Base Rateplus the Applicable Margin. The Borrower shall select the rate of interest and Interest Period, if any,applicable to any Loan at the time a Notice of Borrowing is given or at the time a Notice ofConversion/Continuation is given pursuant to Section 5.2.(b) Default Rate. Subject to Section 10.3, (i) immediately upon the occurrence andduring the continuance of a Specified Event of Default or (ii) at the election of the Required Lenders (orthe Administrative Agent at the direction of the Required Lenders), upon the occurrence and during thecontinuance of any other Event of Default, (A) the Borrower shall no longer have the option to requestTerm SOFR Loans, Swingline Loans or Letters of Credit, (B) all outstanding Term SOFR Loans shallbear interest at a rate per annum of two percent (2%) in excess of the rate (including the ApplicableMargin) then applicable to Term SOFR Loans until the end of the applicable Interest Period and thereafterat a rate equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicableto Base Rate Loans, (C) all outstanding Base Rate Loans and other Obligations arising hereunder or underany other Loan Document shall bear interest at a rate per annum equal to two percent (2%) in excess ofthe rate (including the Applicable Margin) then applicable to Base Rate Loans or such other Obligationsarising hereunder or under any other Loan Document and (D) all accrued and unpaid interest shall be dueand payable on demand of the Administrative Agent. Interest shall continue to accrue on the Obligationsafter the filing by or against the Borrower of any petition seeking any relief in bankruptcy or under anyDebtor Relief Law.(c) Interest Payment and Computation. Interest on each Base Rate Loan shall be dueand payable in arrears on the last Business Day of each March, June, September and December; andinterest on each Term SOFR Loan shall be due and payable on the last day of each Interest Periodapplicable thereto, and if such Interest Period extends over three (3) months, at the end of each three (3)month interval during such Interest Period. All computations of interest for Base Rate Loans when theBase Rate is determined by the Prime Rate shall be made on the basis of a year of 365 or 366 days, as thecase may be, and actual days elapsed. All other computations of fees and interest provided hereundershall be made on the basis of a 360-day year and actual days elapsed (which results in more fees orinterest, as applicable, being paid than if computed on the basis of a 365/366-day year).(d) Maximum Rate. In no contingency or event whatsoever shall the aggregate of allamounts deemed interest under this Agreement charged or collected pursuant to the terms of thisAgreement exceed the highest rate permissible under any Applicable Law which a court of competentjurisdiction shall, in a final determination, deem applicable hereto. In the event that such a courtdetermines that the Lenders have charged or received interest hereunder in excess of the highestapplicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate permittedby Applicable Law and the Lenders shall at the Administrative Agent’s option (i) promptly refund to theBorrower any interest received by the Lenders in excess of the maximum lawful rate or (ii) apply suchexcess to the principal balance of the Obligations. It is the intent hereof that the Borrower not pay orcontract to pay, and that neither the Administrative Agent nor any Lender receive or contract to receive,directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by theBorrower under Applicable Law.Section 5.2 Notice and Manner of Conversion or Continuation of Loans. Provided that noDefault or Event of Default has occurred and is then continuing, the Borrower shall have the option to (a)convert at any time following the third (3rd) Business Day after the Closing Date all or any portion of anyoutstanding Base Rate Loans (other than Swingline Loans) in a principal amount equal to $1,000,000 orany whole multiple of $100,000 in excess thereof into one or more Term SOFR Loans and (b) upon theexpiration of any Interest Period, (i) convert all or any part of its outstanding Term SOFR Loans in aprincipal amount equal to $1,000,000 or a whole multiple of $100,000 in excess thereof into Base Rate62
Loans (other than Swingline Loans) or (ii) continue such Term SOFR Loans as Term SOFR Loans.Whenever the Borrower desires to convert or continue Loans as provided above, the Borrower shall givethe Administrative Agent irrevocable prior written notice in the form attached as Exhibit E (a “Notice ofConversion/Continuation”) not later than 11:00 a.m. three (3) Business Days before the day on which aproposed conversion or continuation of such Loan is to be effective specifying (A) the Loans to beconverted or continued, and, in the case of any Term SOFR Loan to be converted or continued, the lastday of the Interest Period therefor, (B) the effective date of such conversion or continuation (which shallbe a Business Day), (C) the principal amount of such Loans to be converted or continued, and (D) theInterest Period to be applicable to such converted or continued Term SOFR Loan. If the Borrower fails togive a timely Notice of Conversion/Continuation prior to the end of the Interest Period for any TermSOFR Loan, then the applicable Term SOFR Loan shall be converted to a Base Rate Loan. Any suchautomatic conversion to a Base Rate Loan shall be effective as of the last day of the Interest Period thenin effect with respect to the applicable Term SOFR Loan. If the Borrower requests a conversion to, orcontinuation of, Term SOFR Loans, but fails to specify an Interest Period, it will be deemed to havespecified an Interest Period of one (1) month. Notwithstanding anything to the contrary herein, aSwingline Loan may not be converted to a Term SOFR Loan. The Administrative Agent shall promptlynotify the affected Lenders of such Notice of Conversion/Continuation.Section 5.3 Fees.(a) Commitment Fee. Commencing on the Closing Date, subject toSection 5.15(a)(iii)(A), the Borrower shall pay to the Administrative Agent, for the account of theRevolving Credit Lenders, a non-refundable commitment fee (the “Commitment Fee”) at a rate perannum equal to the applicable amount for Commitment Fees as set forth in the definition of ApplicableMargin on the daily unused portion of the Revolving Credit Commitment of the Revolving CreditLenders (other than the Defaulting Lenders, if any); provided that the amount of outstanding SwinglineLoans shall not be considered usage of the Revolving Credit Commitment for the purpose of calculatingthe Commitment Fee. The Commitment Fee shall be payable in arrears on the last Business Day of eachMarch, June, September and December during the term of this Agreement and ending on the date uponwhich all Obligations (other than contingent indemnification obligations not then due) arising under theRevolving Credit Facility shall have been indefeasibly and irrevocably paid and satisfied in full, allLetters of Credit have been terminated or expired (or been Cash Collateralized) and the Revolving CreditCommitment has been terminated. The Commitment Fee shall be distributed by the Administrative Agentto the Revolving Credit Lenders (other than any Defaulting Lender) pro rata in accordance with suchRevolving Credit Lenders’ respective Revolving Credit Commitment Percentages.(b) [Reserved.](c) [Reserved.](d) Other Fees. The Borrower shall pay to each Arranger and the AdministrativeAgent for their own respective accounts fees in the amounts and at the times as shall have been separatelyagreed upon in writing. The Borrower shall pay to the Lenders such fees as shall have been separatelyagreed upon in writing in the amounts and at the times so specified.Section 5.4 Manner of Payment. Each payment by the Borrower on account of the principalof or interest on the Loans or of any fee, commission or other amounts (including the ReimbursementObligation) payable to the Lenders under this Agreement shall be made not later than 1:00 p.m. on thedate specified for payment under this Agreement to the Administrative Agent at the AdministrativeAgent’s Office for the account of the Lenders entitled to such payment in Dollars, in immediatelyavailable funds and shall be made without any setoff, counterclaim or deduction whatsoever. Any63
payment received after such time but before 2:00 p.m. on such day shall be deemed a payment on suchdate for the purposes of Section 10.1, but for all other purposes shall be deemed to have been made on thenext succeeding Business Day. Any payment received after 2:00 p.m. shall be deemed to have been madeon the next succeeding Business Day for all purposes. Upon receipt by the Administrative Agent of eachsuch payment, the Administrative Agent shall distribute to each such Lender at its address for notices setforth herein its Commitment Percentage in respect of the relevant Credit Facility (or other applicableshare as provided herein) of such payment and shall wire advice of the amount of such credit to eachLender. Each payment to the Administrative Agent on account of the principal of or interest on theSwingline Loans or of any fee, commission or other amounts payable to the Swingline Lender shall bemade in like manner, but for the account of the Swingline Lender. Each payment to the AdministrativeAgent of any Issuing Lender’s fees or L/C Participants’ commissions shall be made in like manner, butfor the account of such Issuing Lender or the L/C Participants, as the case may be. Each payment to theAdministrative Agent of Administrative Agent’s fees or expenses shall be made for the account of theAdministrative Agent and any amount payable to any Lender under Sections 5.9, 5.10, 5.11 or 12.3 shallbe paid to the Administrative Agent for the account of the applicable Lender. Subject to the definition ofInterest Period, if any payment under this Agreement shall be specified to be made upon a day which isnot a Business Day, it shall be made on the next succeeding day which is a Business Day and suchextension of time shall in such case be included in computing any interest if payable along with suchpayment. Notwithstanding the foregoing, if there exists a Defaulting Lender each payment by theBorrower to such Defaulting Lender hereunder shall be applied in accordance with Section 5.15(a)(ii).Section 5.5 Evidence of Indebtedness.(a) Extensions of Credit. The Extensions of Credit made by each Lender and eachIssuing Lender shall be evidenced by one or more accounts or records maintained by such Lender or suchIssuing Lender and by the Administrative Agent in the ordinary course of business. The accounts orrecords maintained by the Administrative Agent and each Lender or the applicable Issuing Lender shallbe conclusive absent manifest error of the amount of the Extensions of Credit made by the Lenders orsuch Issuing Lender to the Borrower and its Subsidiaries and the interest and payments thereon. Anyfailure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation ofthe Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of anyconflict between the accounts and records maintained by any Lender or any Issuing Lender and theaccounts and records of the Administrative Agent in respect of such matters, the accounts and records ofthe Administrative Agent shall control in the absence of manifest error. Upon the request of any Lendermade through the Administrative Agent, the Borrower shall execute and deliver to such Lender (throughthe Administrative Agent) a Revolving Credit Note, Term Loan Note and/or Swingline Note, asapplicable, which shall evidence such Lender’s Revolving Credit Loans, Term Loans and/or SwinglineLoans, as applicable, in addition to such accounts or records. Each Lender may attach schedules to itsNotes and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.(b) Participations. In addition to the accounts and records referred to in subsection(a), each Revolving Credit Lender and the Administrative Agent shall maintain in accordance with itsusual practice accounts or records evidencing the purchases and sales by such Revolving Credit Lender ofparticipations in Letters of Credit and Swingline Loans. In the event of any conflict between the accountsand records maintained by the Administrative Agent and the accounts and records of any RevolvingCredit Lender in respect of such matters, the accounts and records of the Administrative Agent shallcontrol in the absence of manifest error.Section 5.6 Sharing of Payments by Lenders. If any Lender shall, by exercising any right ofsetoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of itsLoans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the64
aggregate amount of its Loans and accrued interest thereon or other such obligations (other than pursuantto Sections 5.9, 5.10, 5.11 or 12.3) greater than its pro rata share thereof as provided herein, then theLender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b)purchase (for cash at face value) participations in the Loans and such other obligations of the otherLenders, or make such other adjustments as shall be equitable, so that the benefit of all such paymentsshall be shared by the Lenders ratably in accordance with the aggregate amount of principal of andaccrued interest on their respective Loans and other amounts owing them; provided that:(i) if any such participations are purchased and all or any portion of thepayment giving rise thereto is recovered, such participations shall be rescinded and the purchase pricerestored to the extent of such recovery, without interest, and(ii) the provisions of this paragraph shall not be construed to apply to (A)any payment made by the Borrower pursuant to and in accordance with the express terms of thisAgreement (including the application of funds arising from the existence of a Defaulting Lender andincluding assignments pursuant to Section 12.9(h)), (B) the application of Cash Collateral provided for inSection 5.14 or (C) any payment obtained by a Lender as consideration for the assignment of, or sale of, aparticipation in any of its Loans or participations in Swingline Loans and Letters of Credit to any assigneeor participant.Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so underApplicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements mayexercise against each Credit Party rights of setoff and counterclaim with respect to such participation asfully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.For purposes of clause (b)(i) of the definition of “Excluded Taxes,” a participation acquired pursuant tothis Section 5.6 shall be treated as having been acquired on the earlier date(s) on which the applicableLender acquired the applicable interest in the Commitment(s) or Loan(s) to which such participationrelates. Section 5.7 Administrative Agent’s Clawback.(a) Funding by Lenders; Presumption by Administrative Agent. Unless theAdministrative Agent shall have received notice from a Lender (i) in the case of Base Rate Loans, notlater than 12:00 noon on the date of any proposed borrowing and (ii) otherwise, prior to the proposed dateof any borrowing that such Lender will not make available to the Administrative Agent such Lender’sshare of such borrowing, the Administrative Agent may assume that such Lender has made such shareavailable on such date in accordance with Section 2.3(b) 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 madeits share of the applicable borrowing available to the Administrative Agent, then the applicable Lenderand the Borrower severally agree to pay to the Administrative Agent forthwith on demand suchcorresponding amount with interest thereon, for each day from and including the date such amount ismade available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A)in the case of a payment to be made by such Lender, the greater of the daily average Federal Funds Rateand a rate determined by the Administrative Agent in accordance with banking industry rules oninterbank compensation and (B) in the case of a payment to be made by the Borrower, the interest rateapplicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to theAdministrative Agent for the same or an overlapping period, the Administrative Agent shall promptlyremit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lenderpays its share of the applicable borrowing to the Administrative Agent, then the amount so paid shallconstitute such Lender’s Loan included in such borrowing. Any payment by the Borrower shall be65
without prejudice to any claim the Borrower may have against a Lender that shall have failed to makesuch payment to the Administrative Agent.(b) Payments by the Borrower; Presumptions by Administrative Agent. Unless theAdministrative Agent shall have received notice from the Borrower prior to the date on which anypayment is due to the Administrative Agent for the account of the Lenders, the Issuing Lenders or theSwingline Lender hereunder that the Borrower will not make such payment, the Administrative Agentmay assume that the Borrower has made such payment on such date in accordance herewith and may, inreliance upon such assumption, distribute to the Lenders, the Issuing Lender or the Swingline Lender, asthe case may be, the amount due. In such event, if the Borrower has not in fact made such payment, theneach of the Lenders, the Issuing Lenders or the Swingline Lender, as the case may be, severally agrees torepay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, IssuingLenders or the Swingline Lender, with interest thereon, for each day from and including the date suchamount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greaterof the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with bankingindustry rules on interbank compensation. With respect to any payment that the Administrative Agentmakes for the account of the Lenders or any Issuing Lender hereunder as to which the AdministrativeAgent determines (which determination shall be conclusive absent manifest error) that any of thefollowing applies (such payment referred to as the “Rescindable Amount”) : (1) the Borrower has not infact made such payment; (2) the Administrative Agent has made a payment in excess of the amount sopaid by the Borrower (whether or not then owed); or (3) the Administrative Agent has for any reasonotherwise erroneously made such payment; then each of the Lenders or the applicable Issuing Lenders asthe case may be, severally agrees to repay to the Administrative Agent forthwith on demand theRescindable Amount so distributed to such Lender or such Issuing Lender, in immediately available fundswith interest thereon, for each day from and including the date such amount is distributed to it to butexcluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and arate determined by the Administrative Agent in accordance with banking industry rules on interbankcompensation. A notice of the Administrative Agent to any Lender or the Borrower with respect to anyamount owing under this clause (b) shall be conclusive, absent manifest error.(c) Nature of Obligations of Lenders. The obligations of the Lenders under thisAgreement to make the Loans, to issue or participate in Letters of Credit and to make payments under thisSection, Section 11.12, Section 12.3(c) or Section 12.7, as applicable, are several and are not joint or jointand several. The failure of any Lender to make available its Commitment Percentage of any Loanrequested by the Borrower shall not relieve it or any other Lender of its obligation, if any, hereunder tomake its Commitment Percentage of such Loan available on the borrowing date, but no Lender shall beresponsible for the failure of any other Lender to make its Commitment Percentage of such Loanavailable on the borrowing date.Section 5.8 Changed Circumstances.(a) [reserved].(b) [reserved].(c) Inability to Determine Rates. Notwithstanding anything to the contrary herein orin any other Loan Document:(i) If in connection with any request for a Term SOFR Loan or a conversionof Base Rate Loans to Term SOFR Loans or a continuation of any of such Loans, as applicable, (i) theAdministrative Agent determines (which determination shall be conclusive absent manifest error) that (A)66
no Successor Rate has been determined in accordance with Section 5.8(c)(ii), and the circumstances underclause (i) of Section 5.8(c)(ii) or the Scheduled Unavailability Date has occurred, or (B) adequate andreasonable means do not otherwise exist for determining Term SOFR for any requested Interest Periodwith respect to a proposed Term SOFR Loan or in connection with an existing or proposed Base RateLoan, or (ii) the Administrative Agent or the Required Lenders determine that for any reason that TermSOFR for any requested Interest Period with respect to a proposed Loan does not adequately and fairlyreflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notifythe Borrower and each Lender. (A) Thereafter, (x) the obligation of the Lenders to make or maintainTerm SOFR Loans, or to convert Base Rate Loans to Term SOFR Loans, shall be suspended (tothe extent of the affected Term SOFR Loans or Interest Periods), and (y) in the event of adetermination described in the preceding sentence with respect to the Term SOFR component ofthe Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall besuspended, in each case until the Administrative Agent (or, in the case of a determination by theRequired Lenders described in clause (ii) of this Section 5.8(c), until the Administrative Agentupon instruction of the Required Lenders) revokes such notice.(B) Upon receipt of such notice, (i) the Borrower may revoke anypending request for a Borrowing of, or conversion to, or continuation of Term SOFR Loans (tothe extent of the affected Term SOFR Loans or Interest Periods) or, failing that, will be deemedto have converted such request into a request for a Borrowing of Base Rate Loans in the amountspecified therein and (ii) any outstanding Term SOFR Loans shall be deemed to have beenconverted to Base Rate Loans immediately at the end of their respective applicable InterestPeriod. (ii) Replacement of Term SOFR or Successor Rate. Notwithstandinganything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agentdetermines (which determination shall be conclusive absent manifest error), or the Borrower or RequiredLenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to theBorrower) that the Borrower or Required Lenders (as applicable) have determined, that:(A) adequate and reasonable means do not exist for ascertaining onemonth, three month and six month interest periods of Term SOFR, including, without limitation,because the Term SOFR Screen Rate is not available or published on a current basis and suchcircumstances are unlikely to be temporary; or(B) CME or any successor administrator of the Term SOFR ScreenRate or a Governmental Authority having jurisdiction over the Administrative Agent or suchadministrator with respect to its publication of Term SOFR, in each case acting in such capacity,has made a public statement identifying a specific date after which one month, three month andsix month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longerbe made available, or permitted to be used for determining the interest rate of U.S. dollardenominated syndicated loans, or shall or will otherwise cease, provided that, at the time of suchstatement, there is no successor administrator that is satisfactory to the Administrative Agent, thatwill continue to provide such interest periods of Term SOFR after such specific date (the latestdate on which one month, three month and six month interest periods of Term SOFR or the TermSOFR Screen Rate are no longer available permanently or indefinitely, the “ScheduledUnavailability Date”); 67
then, on a date and time determined by the Administrative Agent (any such date, the “Term SOFRReplacement Date”), which date shall be at the end of an Interest Period or on the relevant interestpayment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no laterthan the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any LoanDocument with Daily Simple SOFR plus the SOFR Adjustment for any payment period for interestcalculated that can be determined by the Administrative Agent, in each case, without any amendment to,or further action or consent of any other party to, this Agreement or any other Loan Document (the“Successor Rate”).If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest paymentswill be payable on a quarterly basis.Notwithstanding anything to the contrary herein, (i) if the Administrative Agent determines thatDaily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the eventsor circumstances of the type described in Section 5.8(c)(i) or (ii) have occurred with respect to theSuccessor Rate then in effect, then in each case, the Administrative Agent and the Borrower may amendthis Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate inaccordance with this Section 5.8 at the end of any Interest Period, relevant interest payment date orpayment period for interest calculated, as applicable, with an alternative benchmark rate giving dueconsideration to any evolving or then existing convention for similar U.S. dollar denominated creditfacilities syndicated and agented in the United States for such alternative benchmark. and, in each case,including any mathematical or other adjustments to such benchmark giving due consideration to anyevolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated andagented in the United States for such benchmark, which adjustment or method for calculating suchadjustment shall be published on an information service as selected by the Administrative Agent fromtime to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt,any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment shallbecome effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have postedsuch proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprisingthe Required Lenders have delivered to the Administrative Agent written notice that such RequiredLenders object to such amendment.The Administrative Agent will promptly (in one or more notices) notify the Borrower and eachLender of the implementation of any Successor Rate.Any Successor Rate shall be applied in a manner consistent with market practice; provided that tothe extent such market practice is not administratively feasible for the Administrative Agent, suchSuccessor Rate shall be applied in a manner as otherwise reasonably determined by the AdministrativeAgent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined wouldotherwise be less than zero, the Successor Rate will be deemed to be zero for the purposes of thisAgreement and the other Loan Documents.In connection with the implementation of a Successor Rate, the Administrative Agent will havethe right to make Conforming Changes from time to time and, notwithstanding anything to the contraryherein or in any other Loan Document, any amendments implementing such Conforming Changes willbecome effective without any further action or consent of any other party to this Agreement; providedthat, with respect to any such amendment effected, the Administrative Agent shall post each such68
amendment implementing such Conforming Changes to the Borrower and the Lenders reasonablypromptly after such amendment becomes effective.For purposes of this Section 5.8, those Lenders that either have not made, or do not have anobligation under this Agreement to make, the relevant Loans in Dollars shall be excluded from anydetermination of Required Lenders.If any Lender determines that any Law has made it unlawful, or that any Governmental Authorityhas asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fundLoans whose interest is determined by reference to SOFR or Term SOFR, or to determine or chargeinterest rates based upon SOFR or Term SOFR, then, upon notice thereof by such Lender to the Borrower(through the Administrative Agent), (a) any obligation of such Lender to make or continue Term SOFRLoans or to convert Base Rate Loans to Term SOFR Loans shall be suspended, and (b) if such noticeasserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which isdetermined by reference to the Term SOFR component of the Base Rate, the interest rate on which BaseRate Loans of such Lender shall, if necessary to avoid such illegality, be determined by theAdministrative Agent without reference to the Term SOFR component of the Base Rate, in each case untilsuch Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise tosuch determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demandfrom such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all TermSOFR Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of suchLender shall, if necessary to avoid such illegality, be determined by the Administrative Agent withoutreference to the Term SOFR component of the Base Rate), either on the last day of the Interest Periodtherefor, if such Lender may lawfully continue to maintain such Term SOFR Loan to such day, orimmediately, if such Lender may not lawfully continue to maintain such Term SOFR Loan and (ii) if suchnotice asserts the illegality of such Lender determining or charging interest rates based upon SOFR, theAdministrative Agent shall during the period of such suspension compute the Base Rate applicable tosuch Lender without reference to the Term SOFR component thereof until the Administrative Agent isadvised in writing by such Lender that it is no longer illegal for such Lender to determine or chargeinterest rates based upon SOFR. Upon any such prepayment or conversion, the Borrower shall also payaccrued interest on the amount so prepaid or converted, together with any additional amounts requiredpursuant to Section 5.9.Section 5.9 Indemnity. The Borrower hereby indemnifies each of the Lenders against anyloss or expense (including any loss or expense arising from the liquidation or reemployment of fundsobtained by it to maintain a Term SOFR Loan or from fees payable to terminate the deposits from whichsuch funds were obtained) which may arise or be attributable to each Lender’s obtaining, liquidating oremploying deposits or other funds acquired to effect, fund or maintain any Loan (a) as a consequence ofany failure by the Borrower to make any payment when due of any amount due hereunder in connectionwith a Term SOFR Loan, (b) due to any failure of the Borrower to borrow or continue a Term SOFRLoan or convert to a Term SOFR Loan on a date specified therefor in a Notice of Borrowing or Notice ofConversion/Continuation or (c) due to any payment, prepayment or conversion of any Term SOFR Loanon a date other than the last day of the Interest Period therefor. A certificate of such Lender setting forththe basis for determining such amount or amounts necessary to compensate such Lender shall beforwarded to the Borrower through the Administrative Agent and shall be conclusively presumed to becorrect save for manifest error. All of the obligations of the Credit Parties under this Section 5.9 shallsurvive the resignation or replacement of the Administrative Agent or any assignment of rights by, or thereplacement of, a Lender, the termination of the Commitments and the repayment, satisfaction ordischarge of all obligations under any Loan Document.69
Section 5.10 Increased Costs.(a) Increased Costs Generally. If any Change in Law shall:(i) impose, modify or deem applicable any reserve, special deposit,compulsory loan, insurance charge or similar requirement against assets of, deposits with or for theaccount of, or advances, loans or other credit extended or participated in by, any Lender (except anyreserve requirement reflected in the Term SOFR) or any Issuing Lender;(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes,(B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes” and (C) ConnectionIncome Taxes) in respect of its loans, letters of credit, commitments, or other obligations, or its deposits,reserves, other liabilities or capital attributable thereto; or(iii) impose on any Lender or any Issuing Lender any other condition, cost orexpense (other than Taxes) affecting this Agreement or Term SOFR Loans made by such Lender or anyLetter of Credit or participation therein;and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Lender orsuch other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining itsobligation to make any such Loan), or to increase the cost to such Lender, such Issuing Lender or suchother Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining itsobligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum receivedor receivable by such Lender, such Issuing Lender or such other Recipient hereunder (whether ofprincipal, interest or any other amount) then, upon written request of such Lender, such Issuing Lender orother Recipient, the Borrower shall promptly pay to any such Lender, such Issuing Lender or otherRecipient, as the case may be, such additional amount or amounts as will compensate such Lender, suchIssuing Lender or other Recipient, as the case may be, for such additional costs incurred or reductionsuffered. (b) Capital Requirements. If any Lender or any Issuing Lender determines that anyChange in Law affecting such Lender or such Issuing Lender or any Lending Office of such Lender orsuch Lender’s or such Issuing Lender’s holding company, if any, regarding capital or liquidityrequirements, has or would have the effect of reducing the rate of return on such Lender’s or such IssuingLender’s capital or on the capital of such Lender’s or such Issuing Lender’s holding company, if any, as aconsequence of this Agreement, the Revolving Credit Commitment of such Lender or the Loans made by,or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Creditissued by such Issuing Lender, to a level below that which such Lender or such Issuing Lender or suchLender’s or such Issuing Lender’s holding company could have achieved but for such Change in Law(taking into consideration such Lender’s or such Issuing Lender’s policies and the policies of suchLender’s or such Issuing Lender’s holding company with respect to capital adequacy and liquidity), thenfrom time to time upon written request of such Lender or such Issuing Lender the Borrower shallpromptly pay to such Lender or such Issuing Lender, as the case may be, such additional amount oramounts as will compensate such Lender or such Issuing Lender or such Lender’s or such IssuingLender’s holding company for any such reduction suffered.(c) Certificates for Reimbursement. A certificate of a Lender, or an Issuing Lenderor such other Recipient setting forth the amount or amounts necessary to compensate such Lender or suchIssuing Lender, such other Recipient or any of their respective holding companies, as the case may be, asspecified in paragraph (a) or (b) of this Section 5.10 and delivered to the Borrower, shall be conclusiveabsent manifest error. The Borrower shall pay such Lender or such Issuing Lender or such other70
Recipient, as the case may be, the amount shown as due on any such certificate within ten (10) days afterreceipt thereof. (d) Delay in Requests. Failure or delay on the part of any Lender or any IssuingLender or such other Recipient to demand compensation pursuant to this Section 5.10 shall not constitutea waiver of such Lender’s or such Issuing Lender’s or such other Recipient’s right to demand suchcompensation; provided that the Borrower shall not be required to compensate any Lender or an IssuingLender or any other Recipient pursuant to this Section 5.10 for any increased costs incurred or reductionssuffered more than nine (9) months prior to the date that such Lender or such Issuing Lender or such otherRecipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increasedcosts or reductions, and of such Lender’s or such Issuing Lender’s or such other Recipient’s intention toclaim compensation therefor (except that if the Change in Law giving rise to such increased costs orreductions is retroactive, then the nine-month period referred to above shall be extended to include theperiod of retroactive effect thereof).(e) Survival. All of the obligations of the Credit Parties under this Section 5.10 shallsurvive the resignation or replacement of the Administrative Agent or any assignment of rights by, or thereplacement of, a Lender, the termination of the Commitments and the repayment, satisfaction ordischarge of all obligations under any Loan Document.Section 5.11 Taxes.(a) Defined Terms. For purposes of this Section 5.11, the term “Lender” includesany Issuing Lender and the term “Applicable Law” includes FATCA.(b) Payments Free of Taxes. All payments by or on account of any obligation of anyCredit Party under any Loan Document shall be made without deduction or withholding for any Taxes,except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretionof any applicable withholding agent) requires the deduction or withholding of any Tax in respect of anysuch payment, then the applicable withholding agent shall be entitled to make such deduction orwithholding and shall timely pay the full amount deducted or withheld to the relevant GovernmentalAuthority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sumpayable by the applicable Credit Party shall be increased as necessary so that, after such deduction orwithholding has been made (including any such deductions and withholdings applicable to additionalsums payable under this Section 5.11), the applicable Lender (or, in the case of any amount received bythe Administrative Agent for its own account, the Administrative Agent) receives an amount equal to thesum it would have received had no such deduction or withholding been made.(c) Payment of Other Taxes by the Credit Parties. The Credit Parties shall timelypay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of theAdministrative Agent timely reimburse it for the payment of, all Other Taxes.(d) Indemnification by the Credit Parties. The Credit Parties shall jointly andseverally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of anyIndemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amountspayable under this Section 5.11) payable or paid by such Recipient or required to be withheld or deductedfrom a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto,whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevantGovernmental Authority. A certificate as to the amount of such payment or liability delivered to the71
Borrower by a Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on itsown behalf or on behalf of a Recipient, shall be conclusive absent manifest error.(e) [reserved].(f) Evidence of Payments. As soon as practicable after any payment of Taxes byany Credit Party to a Governmental Authority pursuant to this Section 5.11, such Credit Party shalldeliver to the Administrative Agent the original or a certified copy of a receipt issued by suchGovernmental Authority evidencing such payment, a copy of the return reporting such payment or otherevidence of such payment reasonably satisfactory to the Administrative Agent.(g) Status of Lenders.(i) Any Lender that is entitled to an exemption from or reduction ofwithholding Tax with respect to any payments made under any Loan Document shall deliver to theBorrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or theAdministrative Agent, such properly completed and executed documentation reasonably requested by theBorrower or the Administrative Agent as will permit such payments to be made without withholding or ata reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or theAdministrative Agent, shall deliver such other documentation prescribed by Applicable Law orreasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or theAdministrative Agent to determine whether or not such Lender is subject to backup withholding orinformation reporting requirements. Notwithstanding anything to the contrary in the preceding twosentences, the completion, execution and submission of such documentation (other than suchdocumentation set forth in Section 5.11(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in theLender’s reasonable judgment such completion, execution or submission would subject such Lender toany material unreimbursed cost or expense or would materially prejudice the legal or commercial positionof such Lender. (ii) Without limiting the generality of the foregoing:(A) Any Lender that is a U.S. Person shall deliver to the Borrowerand the Administrative Agent on or prior to the date on which such Lender becomes a Lenderunder this Agreement (and from time to time thereafter upon the reasonable request of theBorrower or the Administrative Agent), two duly executed and properly completed originals ofIRS Form W-9 certifying that such Lender is exempt from United States federal backupwithholding Tax; (B) any Foreign Lender shall, to the extent it is legally eligible to doso, deliver to the Borrower and the Administrative Agent on or prior to the date on which suchForeign Lender becomes a Lender under this Agreement (and from time to time thereafter uponthe reasonable request of the Borrower or the Administrative Agent), two duly executed andproperly completed originals of whichever of the following is applicable:(1) in the case of a Foreign Lender claiming the benefits ofan income tax treaty to which the United States is a party, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, United States federalwithholding Tax pursuant to such tax treaty;(2) IRS Form W-8ECI;72
(3) in the case of a Foreign Lender claiming the benefits ofthe exemption for portfolio interest under Section 881(c) of the Code, (x) a certificatesubstantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank”within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of theBorrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreigncorporation” described in Section 881(c)(3)(C) of the Code and that no payments under any LoanDocument are effectively connected with such Foreign Lender’s conduct of a trade or businesswithin the United States (a “U.S. Tax Compliance Certificate”) and (y) IRS Form W-8BEN orIRS Form W-8BEN-E, as applicable; or(4) to the extent a Foreign Lender is not the beneficialowner, IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRSForm W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 orExhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, asapplicable; provided that if the Foreign Lender is a partnership (and not a participating Lender)and one or more direct or indirect partners of such Foreign Lender are claiming the portfoliointerest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificatesubstantially in the form of Exhibit H-4 on behalf of such direct and indirect partner(s);(C) any Foreign Lender shall, to the extent it is legally eligible to doso, deliver to the Borrower and the Administrative Agent on or prior to the date on which suchForeign Lender becomes a Lender under this Agreement (and from time to time thereafter uponthe reasonable request of the Borrower or the Administrative Agent), two duly executed andproperly completed originals of any other documentation prescribed by Applicable Law as a basisfor claiming exemption from or a reduction in United States federal withholding Tax, togetherwith such supplementary documentation as may be prescribed by Applicable Law to permit theBorrower or the Administrative Agent to determine the withholding or deduction required to bemade; and (D) if a payment made to a Lender under any Loan Document wouldbe subject to United States federal withholding Tax imposed by FATCA if such Lender were tofail to comply with the applicable reporting requirements of FATCA (including those containedin Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to theBorrower and the Administrative Agent at the time or times prescribed by Applicable Law and atsuch time or times reasonably requested by the Borrower or the Administrative Agent suchdocumentation prescribed by Applicable Law (including as prescribed by Section1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by theBorrower or the Administrative Agent as may be necessary for the Borrower and theAdministrative Agent to comply with their obligations under FATCA and to determine whethersuch Lender has complied with such Lender’s obligations under FATCA or to determine theamount, if any, to deduct and withhold from such payment. Solely for purposes of this clause(D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.(iii) Notwithstanding any other provision of this Section 5.11(g), a Lendershall not be required to deliver any documentation that such Lender is not legally eligible to deliver.(iv) Each Lender hereby authorizes the Administrative Agent to deliver to theCredit Parties and to any successor Administrative Agent any documentation provided by such Lender tothe Administrative Agent pursuant to this Section 5.11(g).73
Each Lender agrees that if any documentation described above that it previously delivered expiresor becomes obsolete or inaccurate in any respect, it shall update such documentation or promptly notifythe Borrower and the Administrative Agent in writing of its legal ineligibility to do so.(h) Treatment of Certain Refunds. If any Recipient determines, in its sole discretionexercised in good faith, that it has received a refund of any Taxes as to which it has been indemnifiedpursuant to this Section 5.11 (including by the payment of additional amounts pursuant to this Section5.11), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent ofindemnity payments made under this Section 5.11with 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 (otherthan any interest paid by the relevant Governmental Authority with respect to such refund). Suchindemnifying party, upon the request of such indemnified party, shall repay to such indemnified party theamount paid over pursuant to this Section 5.11(h) (plus any penalties, interest or other charges imposedby the relevant Governmental Authority) in the event that such indemnified party is required to repaysuch refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section5.11(h), in no event will the indemnified party be required to pay any amount to an indemnifying partypursuant to this Section 5.11(h) the payment of which would place the indemnified party in a lessfavorable net after-Tax position than the indemnified party would have been in if the Tax subject toindemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed andthe indemnification payments or additional amounts with respect to such Tax had never been paid. ThisSection 5.11(h) shall not be construed to require any indemnified party to make available its Tax returns(or any other information relating to its Taxes that it deems confidential) to the indemnifying party or anyother Person. (i) Survival. Each Person’s obligations under this Section 5.11 shall survive theresignation or replacement of the Administrative Agent or any assignment of rights by, or the replacementof, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of allobligations under any Loan Document.Section 5.12 Mitigation Obligations; Replacement of Lenders.(a) Designation of a Different Lending Office. If any Lender requests compensationunder Section 5.10, or requires the Borrower to pay any Indemnified Taxes or additional amounts to anyLender or any Governmental Authority for the account of any Lender pursuant to Section 5.11, then suchLender shall, at the request of the Borrower, use reasonable efforts to designate a different Lending Officefor funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another ofits offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)would eliminate or reduce amounts payable pursuant to Section 5.10 or Section 5.11, as the case may be,in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would nototherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costsand expenses incurred by any Lender in connection with any such designation or assignment. Acertificate setting forth such costs and expenses in reasonable detail submitted by such Lender to theBorrower shall be conclusive absent manifest error.(b) Replacement of Lenders. If any Lender requests compensation under Section5.10, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender orany Governmental Authority for the account of any Lender pursuant to Section 5.11, and, in each case,such Lender has declined or is unable to designate a different Lending Office in accordance with Section5.12(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, atits sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lenderto assign and delegate, without recourse (in accordance with and subject to the restrictions contained in,74
and consents required by, Section 12.9), all of its interests, rights (other than its existing rights topayments pursuant to Section 5.10 or Section 5.11) and obligations under this Agreement and the relatedLoan Documents to an Eligible Assignee that shall assume such obligations (which assignee may beanother Lender, if a Lender accepts such assignment); provided that:(i) the Borrower shall have paid to the Administrative Agent the assignmentfee (if any) specified in Section 12.9;(ii) such Lender shall have received payment of an amount equal to theoutstanding principal of its Loans and funded participations in Letters of Credit and Swingline Loans,accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the otherLoan Documents (including any amounts under Section 5.9) from the assignee (to the extent of suchoutstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);(iii) in the case of any such assignment resulting from a claim forcompensation under Section 5.10 or payments required to be made pursuant to Section 5.11, suchassignment will result in a reduction in such compensation or payments thereafter;(iv) such assignment does not conflict with Applicable Law; and(v) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver orconsent.A Lender shall not be required to make any such assignment or delegation if, prior thereto, as aresult of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require suchassignment and delegation cease to apply.Each party hereto agrees that (x) an assignment required pursuant to this Section 5.12 may beeffected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agentand the assignee and (y) the Lender required to make such assignment need not be a party thereto in orderfor such assignment to be effective and shall be deemed to have consented to and be bound by the termsthereof; provided that, following the effectiveness of any such assignment, the other parties to suchassignment agree to execute and deliver such documents necessary to evidence such assignment asreasonably requested by the applicable Lender or the Administrative Agent, provided, further that anysuch documents shall be without recourse to or warranty by the parties thereto.(c) Selection of Lending Office. Subject to Section 5.12(a), each Lender may makeany Loan to the Borrower through any Lending Office; provided that the exercise of this option shall notaffect the obligations of the Borrower to repay the Loan in accordance with the terms of this Agreementor otherwise alter the rights of the parties hereto.Section 5.13 Incremental Loans.(a) At any time after the Closing Date, the Borrower may by written notice to theAdministrative Agent elect to request the establishment of:(i) one or more incremental term loan commitments (any such incrementalterm loan commitment, an “Incremental Term Loan Commitment”) to make one or more term loans,including a borrowing of an additional term loan the principal amount of which will be added to the75
outstanding principal amount of the existing tranche of Term Loans (any such additional term loan, an“Incremental Term Loan”); or(ii) one or more increases in the Revolving Credit Commitments (any suchincrease, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term LoanCommitments, the “Incremental Loan Commitments”) to make revolving credit loans under theRevolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, togetherwith the Incremental Term Loans, the “Incremental Loans”);provided that (1) the total aggregate initial principal amount (as of the date of incurrence thereof) of suchrequested Incremental Loan Commitments and Incremental Loans shall not exceed the IncrementalFacilities Limit (determined after giving effect to all Incremental Loans, Incremental Loan Commitmentsand Incremental Equivalent Debt incurred or established in reliance on the relevant clauses of IncrementalFacilities Limit) and (2) the total aggregate amount for each Incremental Loan Commitment (and theIncremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shallspecify the date (each, an “Increased Amount Date”) on which the Borrower proposes that anyIncremental Loan Commitment shall be effective, which shall be a date not less than ten (10) BusinessDays after the date on which such notice is delivered to Administrative Agent (or such earlier date as maybe approved by the Administrative Agent). The Borrower may invite any Lender, any Affiliate of anyLender and/or any Approved Fund, and/or any other Person, to provide an Incremental LoanCommitment, subject to the consent of the Administrative Agent and the Issuing Lenders and SwinglineLender, to the extent such consent would be required for an assignment by such Person (any such Person,an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or aportion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide suchIncremental Loan Commitment or any portion thereof. Any Incremental Loan Commitment shall becomeeffective as of such Increased Amount Date; provided that, subject to Section 1.10, each of the followingconditions has been satisfied or waived as of such Increased Amount Date:(A) no Event of Default shall exist on such Increased Amount Dateimmediately prior to or after giving effect to (1) any Incremental Loan Commitment, (2) themaking of any Incremental Loans pursuant thereto and (3) any Permitted Acquisitionconsummated in connection therewith;(B) [Reserved];(C) each of the representations and warranties contained in ArticleVII shall be true and correct in all material respects, except to the extent any such representationand warranty is qualified by materiality or reference to Material Adverse Effect, in which case,such representation and warranty shall be true, correct and complete in all respects, on suchIncreased Amount Date with the same effect as if made on and as of such date (except for anysuch representation and warranty that by its terms is made only as of an earlier date, whichrepresentation and warranty shall remain true and correct as of such earlier date);(D) the proceeds of any Incremental Loans shall be used for anypurpose not prohibited under this Agreement;(E) each Incremental Loan Commitment (and the Incremental Loansmade thereunder) shall constitute Obligations of the Borrower and shall be secured andguaranteed with the other Extensions of Credit on a pari passu basis;76
(F) in the case of each Incremental Term Loan (the terms of whichshall be set forth in the relevant Lender Joinder Agreement): (x) such Incremental Term Loanwill mature and amortize in a manner reasonably acceptable to the Incremental Lenders makingsuch Incremental Term Loan and the Borrower, but will not in any event have a shorter WeightedAverage Life to Maturity than the remaining Weighted Average Life to Maturity of any then-existing Term Loans or a maturity date earlier than the Latest Maturity Date (provided that thisclause (x) shall not prevent this incurrence of an Incremental Term Loan if the proceeds thereofare placed into escrow and only permitted to be released upon certain conditions and suchIncremental Term Loan is prepayable if such conditions are not satisfied); (y) the ApplicableMargin and pricing grid, if applicable, for such Incremental Term Loan shall be determined bythe Incremental Lenders and the Borrower on the applicable Increased Amount Date; and (z)except as provided above, all other terms and conditions applicable to any Incremental TermLoan, to the extent not consistent with the terms and conditions applicable to any then-existingTerm Loans, shall be reasonably satisfactory to the Administrative Agent and the Borrower(provided that such other terms and conditions, taken as a whole, shall not be materially morefavorable to the Lenders under any Incremental Term Loans than such other terms andconditions, taken as a whole, under any then-existing Term Loans.(G) in the case of each Incremental Revolving Credit Increase (theterms of which shall be set forth in the relevant Lender Joinder Agreement): (x) such IncrementalRevolving Credit Increase shall mature on the Revolving Credit Maturity Date, shall bear interestand be entitled to fees (other than upfront fees), in each case at the rate applicable to theRevolving Credit Loans, and shall be subject to the same terms and conditions as the RevolvingCredit Loans; (y) the outstanding Revolving Credit Loans and Revolving Credit CommitmentPercentages of Swingline Loans and L/C Obligations will be reallocated by the AdministrativeAgent on the applicable Increased Amount Date among the Revolving Credit Lenders (includingthe Incremental Lenders providing such Incremental Revolving Credit Increase) in accordancewith their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders(including the Incremental Lenders providing such Incremental Revolving Credit Increase) agreeto make all payments and adjustments necessary to effect such reallocation and the Borrowershall pay any and all costs required pursuant to Section 5.9 in connection with such reallocationas if such reallocation were a repayment); and (z) except as provided above, all of the other termsand conditions applicable to such Incremental Revolving Credit Increase shall, except to theextent otherwise provided in this Section 5.13, be identical to the terms and conditions applicableto the Revolving Credit Facility;(H) any Incremental Lender making any Incremental Term Loanshall be entitled to the same voting rights as the existing Term Loan Lenders under the TermLoan Facility and (unless otherwise agreed by the applicable Incremental Lenders) eachIncremental Term Loan shall receive proceeds of prepayments on the same basis as the existingTerm Loans (such prepayments to be shared pro rata on the basis of the original aggregatefunded amount thereof among the existing Term Loans and each Class of Incremental TermLoans); and any Incremental Lender with an Incremental Revolving Credit Increase shall beentitled to the same voting rights as the existing Revolving Credit Lenders under the RevolvingCredit Facility and any Extensions of Credit made in connection with each IncrementalRevolving Credit Increase shall receive proceeds of prepayments on the same basis as the otherRevolving Credit Loans made hereunder;(I) any Incremental Term Loans and any Incremental RevolvingCredit Commitment shall be on terms and pursuant to documentation to be determined; providedthat, to the extent such terms and documentation are not consistent with the Credit Facility77
(except to the extent permitted by clause (F) or (G) above and except for covenants and otherprovisions applicable only after the Latest Maturity Date, such terms shall, at the option of theBorrower (x) reflect market terms and conditions (taken as a whole) at the time of incurrence,issuance or effectiveness of such Incremental Term Loans and any Incremental Revolving CreditCommitment, as the case may be (as determined in good faith by the Borrower), (y) not bematerially more restrictive on the Borrower and its Subsidiaries (when taken as a whole) than theterms and conditions of the Loan Documents (when taken as a whole) or (z) be otherwisereasonably satisfactory to the Administrative Agent (it being understood to the extent that anycovenant or provision is added for the benefit of (A) any Incremental Term Loans, no consentshall be required from the Administrative Agent or any Lender to the extent that such covenant orprovision is also added for the benefit of all of the then-existing Loans and Commitments underthe Loan Documents or (B) any Incremental Revolving Credit Commitment, such covenant orprovision shall also be added for the benefit of the then-existing Revolving Credit Commitmentsunder the Loan Documents);(J) such Incremental Loan Commitments shall be effected pursuantto one or more Lender Joinder Agreements executed and delivered by the Borrower, theAdministrative Agent and the applicable Incremental Lenders (which Lender Joinder Agreementmay, without the consent of any other Lenders, effect such amendments to this Agreement andthe other Loan Documents as may be necessary or appropriate, in the opinion of theAdministrative Agent, to effect the provisions of this Section 5.13);(K) the Borrower shall deliver or cause to be delivered anycustomary legal opinions or other documents (including, without limitation, a resolution dulyadopted by the board of directors (or equivalent governing body) of each Credit Party authorizingsuch Incremental Loan and/or Incremental Loan Commitment), as may be reasonably requestedby Administrative Agent in connection with any such transaction;(L) the Administrative Agent shall have received, prior to theconsummation of such Incremental Loan and/or Incremental Loan Commitment, such“onboarding” and tax and administrative forms that are customarily provided for new lenders insyndicated facilities; and(M) solely with respect to any Incremental Revolving CreditCommitment or Incremental Revolving Credit Increase, the Swingline Lender and IssuingLenders shall have consent rights (not to be unreasonably withheld) with respect to suchIncremental Lender, if such consent would be required for an assignment of Revolving CreditLoans or Revolving Credit Commitments, as applicable, to such Incremental Lender.(b) The Incremental Term Loans shall be deemed to be Term Loans; provided thatany such Incremental Term Loan that is not added to the outstanding principal balance of a pre-existingTerm Loan shall be designated as a separate tranche of Term Loans for all purposes of this Agreement.(i) The Incremental Lenders shall be included in any determination of theRequired Lenders, Required Revolving/TLA Lenders or Required Revolving Credit Lenders, asapplicable, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate votingclass for any purposes under this Agreement.(c) On any Increased Amount Date on which any Incremental Term LoanCommitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lenderwith an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term78
Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become aTerm Loan Lender hereunder with respect to such Incremental Term Loan Commitment and theIncremental Term Loan made pursuant thereto.(i) On any Increased Amount Date on which any Incremental RevolvingCredit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lenderwith an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender hereunderwith respect to such Incremental Revolving Credit Commitment.(d) If on any Increased Amount Date, the Borrower incurs on such date Indebtednessunder (x) the Incremental Dollar Amount or the Incremental Repayment Amount and (y) the IncrementalRatio Amount, then the Secured Net Leverage Ratio with respect to the amounts incurred under theIncremental Ratio Amount will be calculated without regard to any incurrence under the IncrementalDollar Amount or the Incremental Repayment Amount. For the avoidance of doubt, each IncrementalLoan shall be deemed incurred first under the Incremental Ratio Amount to the extent available, with thebalance incurred under the Incremental Repayment Amount and, thereafter, any remaining IncrementalDollar Amount.Section 5.14 Cash Collateral. At any time that there shall exist a Defaulting Lender, withinone (1) Business Day following the written request of the Administrative Agent, any Issuing Lender (witha copy to the Administrative Agent) or the Swingline Lender (with a copy to the Administrative Agent),the Borrower shall Cash Collateralize the Fronting Exposure of such Issuing Lender and/or the SwinglineLender, as applicable, with respect to such Defaulting Lender (determined after giving effect toSection 5.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not lessthan the Minimum Collateral Amount.(a) Grant of Security Interest. The Borrower, and to the extent provided by anyDefaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit ofeach Issuing Lender and the Swingline Lender, and agrees to maintain, a first priority security interest inall such Cash Collateral as security for the Defaulting Lender’s obligation to fund participations in respectof L/C Obligations and Swingline Loans, to be applied pursuant to subsection (b) below. If at any timethe Administrative Agent determines that Cash Collateral is subject to any right or claim of any Personother than the Administrative Agent, each Issuing Lender and the Swingline Lender as herein provided(other than Permitted Liens), or that the total amount of such Cash Collateral is less than the MinimumCollateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay orprovide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate suchdeficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).(b) Application. Notwithstanding anything to the contrary contained in thisAgreement or any other Loan Document, Cash Collateral provided under this Section 5.14 or Section5.15 in respect of Letters of Credit and Swingline Loans shall be applied to the satisfaction of theDefaulting Lender’s obligation to fund participations in respect of L/C Obligations and Swingline Loans(including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on suchobligation) for which the Cash Collateral was so provided, prior to any other application of such propertyas may otherwise be provided for herein.(c) Termination of Requirement. Cash Collateral (or the appropriate portion thereof)provided to reduce the Fronting Exposure of any Issuing Lender and/or the Swingline Lender, asapplicable, shall no longer be required to be held as Cash Collateral pursuant to this Section 5.14following (i) the elimination of the applicable Fronting Exposure (including by the termination ofDefaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent,79
the Issuing Lenders and the Swingline Lender that there exists excess Cash Collateral; provided that,subject to Section 5.15, the Person providing Cash Collateral, the Issuing Lenders and the SwinglineLender may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure orother obligations.Section 5.15 Defaulting Lenders.(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrarycontained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as suchLender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:(i) Waivers and Amendments. Such Defaulting Lender’s right to approve ordisapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as setforth in the definitions of Required Lenders, Required Revolving Credit Lenders and RequiredRevolving/TLA Lenders and Section 12.2.(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees orother amounts received by the Administrative Agent for the account of such Defaulting Lender (whethervoluntary or mandatory, at maturity, pursuant to Article X or otherwise) or received by the AdministrativeAgent from a Defaulting Lender pursuant to Section 12.4 shall be applied at such time or times as may bedetermined by the Administrative Agent as follows: first, to the payment of any amounts owing by suchDefaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis ofany amounts owing by such Defaulting Lender to the Issuing Lenders or the Swingline Lender hereunder;third, to Cash Collateralize the Fronting Exposure of the Issuing Lenders and the Swingline Lender withrespect to such Defaulting Lender in accordance with Section 5.14; fourth, as the Borrower may request(so long as no Default or Event of Default exists), to the funding of any Loan or funded participation inrespect of which such Defaulting Lender has failed to fund its portion thereof as required by thisAgreement, as determined by the Administrative Agent; fifth, if so determined by the AdministrativeAgent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy suchDefaulting Lender’s potential future funding obligations with respect to Loans and funded participationsunder this Agreement and (B) Cash Collateralize the Issuing Lenders’ future Fronting Exposure withrespect to such Defaulting Lender with respect to future Letters of Credit and Swingline Loans issuedunder this Agreement, in accordance with Section 5.14; sixth, to the payment of any amounts owing tothe Lenders, the Issuing Lenders or the Swingline Lender as a result of any judgment of a court ofcompetent jurisdiction obtained by any Lender, any Issuing Lender or the Swingline Lender against suchDefaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to theBorrower as a result of any judgment of a court of competent jurisdiction obtained by the Borroweragainst such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under thisAgreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competentjurisdiction; provided that if (1) such payment is a payment of the principal amount of any RevolvingCredit Loans or funded participations in Letters of Credit or Swingline Loans in respect of which suchDefaulting Lender has not fully funded its appropriate share, and (2) such Revolving Credit Loans weremade or the related Letters of Credit or Swingline Loans were issued at a time when the conditions setforth in Section 6.2 were satisfied or waived, such payment shall be applied solely to pay the RevolvingCredit Loans of, and funded participations in Letters of Credit or Swingline Loans owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Revolving CreditLoans of, or funded participations in Letters of Credit or Swingline Loans owed to, such DefaultingLender until such time as all Revolving Credit Loans and funded and unfunded participations in L/CObligations and Swingline Loans are held by the Lenders pro rata in accordance with the RevolvingCredit Commitments under the applicable Revolving Credit Facility without giving effect to Section80
5.15(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that areapplied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to thisSection 5.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lenderirrevocably consents hereto.(iii) Certain Fees.(A) No Defaulting Lender shall be entitled to receive anyCommitment Fee for any period during which that Lender is a Defaulting Lender (and theBorrower shall not be required to pay any such fee that otherwise would have been required tohave been paid to that Defaulting Lender).(B) Each Defaulting Lender shall be entitled to receive letter ofcredit commissions pursuant to Section 5.8(c) for any period during which that Lender is aDefaulting Lender only to the extent allocable to its Revolving Credit Commitment Percentage ofthe stated amount of Letters of Credit for which it has provided Cash Collateral pursuant toSection 5.14. (C) With respect to any Commitment Fee or letter of creditcommission not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above,the Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwisepayable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/CObligations or Swingline Loans that has been reallocated to such Non-Defaulting Lenderpursuant to clause (iv) below, (2) pay to each applicable Issuing Lender and Swingline Lender, asapplicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extentallocable to such Issuing Lender’s or Swingline Lender’s Fronting Exposure to such DefaultingLender, and (3) not be required to pay the remaining amount of any such fee.(iv) Reallocation of Participations to Reduce Fronting Exposure. All or anypart of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall bereallocated among the Non-Defaulting Lenders in accordance with their respective Revolving CreditCommitment Percentages (calculated without regard to such Defaulting Lender’s Revolving CreditCommitment) but only to the extent that such reallocation does not cause the aggregate Revolving CreditExposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving CreditCommitment. Subject to Section 12.23, no reallocation hereunder shall constitute a waiver or release ofany claim of any party hereunder against a Defaulting Lender arising from that Lender having become aDefaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-DefaultingLender’s increased exposure following such reallocation.(v) Cash Collateral, Repayment of Swingline Loans. If the reallocationdescribed in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, withoutprejudice to any right or remedy available to it hereunder or under law, (x) first, repay Swingline Loans inan amount equal to the Swingline Lenders’ Fronting Exposure and (y) second, Cash Collateralize theIssuing Lenders’ Fronting Exposure in accordance with the procedures set forth in Section 5.14.(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the IssuingLenders and the Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, theAdministrative Agent will so notify the parties hereto, whereupon as of the effective date specified insuch notice and subject to any conditions set forth therein (which may include arrangements with respectto any Cash Collateral), such Lender will, to the extent applicable, purchase at par that portion ofoutstanding Loans of the other Lenders or take such other actions as the Administrative Agent may81
determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Creditand Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments under theapplicable Credit Facility (without giving effect to Section 5.15(a)(iv)), whereupon such Lender willcease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect tofees accrued or payments made by or on behalf of the Borrower while that Lender was a DefaultingLender; and provided further that except to the extent otherwise expressly agreed by the affected parties,no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim ofany party hereunder arising from that Lender’s having been a Defaulting Lender.Section 5.16 Amend and Extend Transactions.(a) The Borrower may, by written notice to the Administrative Agent from time totime, request an extension (each, an “Extension”) of the maturity date or expiry date of any Class ofLoans and Commitments to the extended maturity date or expiry date specified in such notice. Suchnotice shall (i) set forth the amount of the applicable Class of Revolving Credit Commitments and/orTerm Loans that will be subject to the Extension (which shall be in minimum increments of $1,000,000and a minimum amount of $5,000,000), (ii) set forth the date on which such Extension is requested tobecome effective (which shall be not less than ten (10) Business Days nor more than sixty (60) days afterthe date of such Extension notice (or such longer or shorter periods as the Administrative Agent shallagree in its sole discretion)) and (iii) identify the relevant Class of Revolving Credit Commitments and/orTerm Loans to which such Extension relates. Each Lender of the applicable Class shall be offered (an“Extension Offer”) an opportunity to participate in such Extension on a pro rata basis and on the sameterms and conditions as each other Lender of such Class pursuant to procedures established by, orreasonably acceptable to, the Administrative Agent and the Borrower. If the aggregate principal amountof Revolving Credit Commitments and/or Term Loans in respect of which Lenders shall have acceptedthe relevant Extension Offer shall exceed the maximum aggregate principal amount of Revolving CreditCommitments and/or Term Loans, as applicable, subject to the Extension Offer as set forth in theExtension notice, then the Revolving Credit Commitments or Term Loans, as applicable, of Lenders ofthe applicable Class shall be extended ratably up to such maximum amount based on the respectiveprincipal amounts with respect to which such Lenders have accepted such Extension Offer.(b) The following shall be conditions precedent to the effectiveness of anyExtension: (i) no Default or Event of Default shall have occurred and be continuing immediately prior toand immediately after giving effect to such Extension, (ii) the representations and warranties set forth inArticle VII and in each other Loan Document shall be deemed to be made and shall be true and correct inall material respects on and as of the effective date of such Extension, (iii) the Issuing Lender and theSwingline Lender shall have consented to any Extension of the Revolving Credit Commitments, to theextent that such Extension provides for the issuance or extension of Letters of Credit or making ofSwingline Loans at any time during the extended period and (iv) the terms of such Extended RevolvingCredit Commitments and Extended Term Loans shall comply with paragraph (c) of this Section.(c) The terms of each Extension shall be determined by the Borrower and theapplicable extending Lenders and set forth in an Extension Amendment; provided that (i) the finalmaturity date of any Extended Revolving Credit Commitment or Extended Term Loan shall be no earlierthan the Revolving Credit Maturity Date or the Amendment No. 1 Term Loan Maturity Date,respectively, (ii)(A) there shall be no scheduled amortization of the loans or reductions of commitmentsunder any Extended Revolving Credit Commitments and (B) the average life to maturity of the ExtendedTerm Loans shall be no shorter than the remaining average life to maturity of the existing Term Loans,(iii) the Extended Revolving Credit Loans and the Extended Term Loans will rank pari passu in right ofpayment and with respect to security with the existing Revolving Credit Loans and the existing TermLoans and the borrower and guarantors of the Extended Revolving Credit Commitments or Extended82
Term Loans, as applicable, shall be the same as the Borrower and Subsidiary Guarantors with respect tothe existing Revolving Credit Loans or Term Loans, as applicable, (iv) the interest rate margin, ratefloors, fees, original issue discount and premium applicable to any Extended Revolving CreditCommitment (and the Extended Revolving Credit Loans thereunder) and Extended Term Loans shall bedetermined by the Borrower and the applicable extending Lenders, (v)(A) the Extended Term Loans mayparticipate on a pro rata or less than pro rata (but not greater than pro rata) basis in voluntary ormandatory prepayments with the other Term Loans and (B) borrowing and prepayment of ExtendedRevolving Credit Loans, or reductions of Extended Revolving Credit Commitments, and participation inLetters of Credit and Swingline Loans, shall be on a pro rata basis with the other Revolving Credit Loansor Revolving Credit Commitments (other than upon the maturity of the non-extended Revolving CreditLoans and Revolving Credit Commitments) and (vi) the terms of the Extended Revolving CreditCommitments or Extended Term Loans, as applicable, shall be substantially identical to the terms setforth herein (except as set forth in clauses (i) through (v) above).(d) In connection with any Extension, the Borrower, the Administrative Agent andeach applicable extending Lender shall execute and deliver to the Administrative Agent an ExtensionAmendment and such other documentation as the Administrative Agent shall reasonably specify toevidence the Extension. The Administrative Agent shall promptly notify each Lender as to theeffectiveness of each Extension. Any Extension Amendment may, without the consent of any otherLender, effect such amendments to this Agreement and the other Loan Documents as may be necessary orappropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to implement theterms of any such Extension, including any amendments necessary to establish Extended RevolvingCredit Commitments or Extended Term Loans as a new Class or tranche of Revolving CreditCommitments or Term Loans, as applicable and such other technical amendments as may be necessary orappropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection withthe establishment of such new Class or tranche (including to preserve the pro rata treatment of theextended and non-extended Classes or tranches and to provide for the reallocation of Revolving CreditExposure upon the expiration or termination of the commitments under any Class or tranche), in eachcase on terms consistent with this Section.Section 5.17 Refinancing Term Loans.(a) The Borrower may at any time and from time to time, with the consent of theAdministrative Agent (not to be unreasonably withheld or delayed), request the establishment of one ormore additional Classes of Term Loans under this Agreement or an increase to an existing Class of TermLoans under this Credit Agreement (in each case, “Refinancing Term Loans”); provided that:(i) the proceeds of such Refinancing Term Loans shall be used, concurrentlyor substantially concurrently with the incurrence thereof, solely to refinance all or any portion of anyClass (on a ratable basis within such Class) outstanding Term Loans;(ii) each Class of Refinancing Term Loans shall be in an aggregate amountof $25,000,000 or any whole multiple of $5,000,000 in excess thereof (or such other amount necessary torepay any Class of outstanding Term Loans in full);(iii) such Refinancing Term Loans shall be in an aggregate principal amountnot greater than the aggregate principal amount of Term Loans to be refinanced plus any accrued interest,fees, costs, premiums and expenses related thereto (including any original issue discount or upfront fees);(iv) the final maturity date of such Refinancing Term Loans shall be noearlier than the maturity date of the Term Loans being refinanced, and the Weighted Average Life to83
Maturity of such Refinancing Term Loans shall be no shorter than the then remaining Weighted AverageLife to Maturity of each Class of Term Loans being refinanced;(v) (A) the pricing, interest rate margins, rate floors, discounts, fees andoptional and mandatory prepayment or redemption provisions (including premiums, if any) applicable tosuch Refinancing Term Loans shall be as agreed between the Borrower and the providers of suchRefinancing Term Loans so long as, in the case of any mandatory prepayment or redemption provisions,the providers of such Refinancing Term Loans do not participate on a greater than pro rata basis in anysuch prepayments as compared to Lenders being refinanced and (B) the covenants and other termsapplicable to such Refinancing Term Loans (excluding those terms described in the immediatelypreceding clause (A)), which shall be as agreed between the Borrower and the lenders providing suchRefinancing Term Loans, at the option of the Borrower (x) reflect market terms and conditions (taken as awhole) at the time of incurrence, issuance or effectiveness of such Refinancing Term Loans (asdetermined in good faith by the Borrower), (y) not be materially more restrictive on the Borrower and itsSubsidiaries (when taken as a whole) than the terms and conditions of the Loan Documents (when takenas a whole) or (z) be otherwise reasonably satisfactory to the Administrative Agent (it being understoodto the extent that any covenant or provision is added for the benefit of (A) any Refinancing Term Loans,no consent shall be required from the Administrative Agent or any Lender to the extent that suchcovenant or provision is also added for the benefit of all of the then-existing Loans and Commitmentsunder the Loan Documents), except to the extent such covenants and other terms apply solely to anyperiod after the Latest Maturity Date applicable under this Agreement (after giving effect to suchRefinancing Term Loans) or such covenants or other terms apply equally for the benefit of the otherLenders; provided that it is understood and agreed that Refinancing Term Loans may be guaranteed bySubsidiary Guarantors that are (but not other Subsidiaries) and, if secured, may only be secured byCollateral; (vi) no existing Lender shall be required to provide any Refinancing TermLoans; and (vii) (A) the Refinancing Term Loans shall rank pari passu in right ofpayment and security with the existing Term Loans and (B) the Refinancing Term Loans may be (x)secured by Collateral on a pari passu basis with the existing Term Loans, (y) secured by Collateral on ajunior Lien basis to the existing Term Loans or (z) unsecured; provided, further, that in the case of clause(x) or clause (y), the holders of such Refinancing Term Loans or their representative is or becomes partyto a Customary Intercreditor Agreement.(b) Each such notice shall specify (x) the date (each, a “Refinancing Effective Date”)on which the Borrower proposes that the Refinancing Term Loans be made, which shall be a datereasonably acceptable to the Administrative Agent and (y) in the case of Refinancing Term Loans, theidentity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for thispurpose treating a Lender of Refinancing Term Loans as if it were an assignee)) whom the Borrowerproposes would provide the Refinancing Term Loans and the portion of the Refinancing Term Loans tobe provided by each such Person. On each Refinancing Effective Date, each Person with a commitmentfor a Refinancing Term Loans shall make a Refinancing Term Loan to the Borrower in a principal amountequal to such Person’s commitment therefor.(c) The Refinancing Term Loans shall be documented by an amendment executed bythe Persons providing the Refinancing Term Loans, the Credit Parties and the Administrative Agent (suchamendment, the “Refinancing Term Loan Amendment”), and the Refinancing Term Loan Amendmentmay provide for such amendments to this Agreement and the other Loan Documents as may be necessary84
or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect theprovisions of this Section 5.17.Section 5.18 Replacement Revolving Commitments.(a) The Borrower may at any time and from time to time, with the consent of theAdministrative Agent (not to be unreasonably withheld or delayed), request the establishment of one ormore additional Classes of Revolving Credit Commitments (“Replacement Revolving Commitments”) toreplace (on a ratable basis within such Class) all or a portion of any existing Classes of Revolving CreditCommitments under this Credit Agreement (“Replaced Revolving Commitments”); provided that:(i) substantially concurrently with the effectiveness of the ReplacementRevolving Commitments, all or an equivalent portion of the Revolving Credit Commitments in effectimmediately prior to such effectiveness shall be terminated, and all or an equivalent portion of theRevolving Credit Loans and Swingline Loans then outstanding, together with all interest thereon, and allother amounts accrued for the benefit of the Revolving Credit Lenders, shall be repaid or paid (it beingunderstood, however, than any Letters of Credit issued and outstanding under the Replaced RevolvingCommitments shall be deemed to have been issued under the Replacement Revolving Commitments if theamount of such Letters of Credit would exceed the remaining amount of commitments under the ReplacedRevolving Commitments after giving effect to the reduction contemplated hereby);(ii) such Replacement Revolving Commitments shall be in an aggregateamount not greater than the aggregate amount of Replaced Revolving Commitments to be replaced plusany accrued interest, fees, costs and expenses related thereto (including any upfront fees);(iii) the final maturity date of such Replacement Revolving Commitmentsshall be no earlier than the maturity date of the Replaced Revolving Commitments and shall have nomandatory interim commitment reductions;(iv) the L/C Commitments and the Swingline Commitment under suchReplacement Revolving Commitments shall be as agreed between the Borrower, the Lenders providingsuch Replacement Revolving Commitments, the Administrative Agent, the Issuing Lenders (or anyreplacement Issuing Lenders) and the Swingline Lender (or any replacement Swingline Lender); providedthat in no event may the Swingline Commitment or the L/C Sublimit be increased without the consent ofthe Swingline Lender (other than a replacement Swingline Lender with respect to such ReplacementRevolving Commitment) or each Issuing Lender (other than any replacement Issuing Lender with respectto such Replacement Revolving Commitment), as the case may be;(v) (A) the pricing, rate floors, discounts, fees and optional prepayment orredemption provisions applicable to such Replacement Revolving Commitments shall be as agreedbetween the Borrower and the Replacement Revolving Lenders so long as, in the case of any optionalprepayment or redemption provisions, such Replacement Revolving Lenders do not participate on agreater than pro rata basis in any such prepayments as compared to Replaced Revolving Commitmentsand (B) the covenants and other terms applicable to such Replacement Revolving Commitments(excluding those terms described in the immediately preceding clause (A)), which shall be as agreedbetween the Borrower and the lenders providing such Replacement Revolving Commitments, shall, at theoption of the Borrower (x) reflect market terms and conditions (taken as a whole) at the time ofincurrence, issuance or effectiveness of Replacement Revolving Commitments (as determined in goodfaith by the Borrower), (y) not be materially more restrictive on the Borrower and its Subsidiaries (whentaken as a whole) than the terms and conditions of the Loan Documents (when taken as a whole) or (z) beotherwise reasonably satisfactory to the Administrative Agent (it being understood to the extent that any85
covenant or provision is added for the benefit of any Incremental Revolving Credit Commitment, suchcovenant or provision shall also be added for the benefit of the then-existing Revolving CreditCommitments under the Loan Documents); provided that it is understood and agreed that theReplacement Revolving Commitments may be guaranteed by Subsidiary Guarantors;(vi) no existing Lender shall be required to provide any ReplacementRevolving Commitments;(vii) the Replacement Revolving Commitments shall rank pari passu in rightof payment and security with the existing Revolving Credit Commitments;(viii) any Loans under a Replacement Revolving Commitment will be drawnand participate in Letters of Credit and Swingline Loans on a pro rata basis with any existing RevolvingCredit Commitments.(b) Each such notice shall specify (x) the date on which the Borrower propose thatthe Replacement Revolving Commitments become effective, which shall be a date reasonably acceptableto the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person thatwould be an Eligible Assignee (for this purpose treating a Lender of Replacement RevolvingCommitments as if it were an assignee)) whom the Borrowers propose would provide the ReplacementRevolving Commitments (each such person, a “Replacement Revolving Lender”) and the portion of theReplacement Revolving Commitments to be provided by each such Person.(c) The Replacement Revolving Commitments shall be documented by anamendment executed by the Persons providing the Replacement Revolving Commitments, the CreditParties and the Administrative Agent (such amendment, a “Replacement Revolving CommitmentsAmendment”), and such Replacement Revolving Commitment Amendment may provide for suchamendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in thereasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section5.18. ARTICLE VICONDITIONS OF CLOSING AND BORROWINGSection 6.1 Conditions to Closing and Initial Extensions of Credit. The obligation of theLenders to close this Agreement and to make the Initial Loans or issue or participate in the initial Letterof Credit, if any, is subject to the satisfaction of each of the following conditions:(a) Executed Loan Documents. This Agreement, a Revolving Credit Note in favor ofeach Revolving Credit Lender requesting a Revolving Credit Note, a Swingline Note in favor of theSwingline Lender (in each case, if requested thereby), the Security Documents and the SubsidiaryGuaranty Agreement, together with any other applicable Loan Documents, shall have been dulyauthorized, executed and delivered to the Administrative Agent by the parties thereto and shall be in fullforce and effect.(b) Closing Certificates; Etc. The Administrative Agent shall have received each ofthe following in form and substance reasonably satisfactory to the Administrative Agent:86
(i) Officer’s Certificate. A certificate from a Responsible Officer of theBorrower to the effect that each of the Credit Parties, as applicable, has satisfied each of the conditions setforth in Section 6.1(g), (h) and (i).(ii) Certificate of a Responsible Officer of Each Credit Party. A certificate ofa Responsible Officer, secretary or assistant secretary of each Credit Party certifying as to theincumbency and genuineness of the signature of each officer of such Credit Party executing LoanDocuments to which it is a party and certifying that attached thereto is a true, correct and complete copyof (A) the articles or certificate of incorporation or formation (or equivalent), as applicable, of such CreditParty and all amendments thereto, certified as of a recent date by the appropriate Governmental Authorityin its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, (B) thebylaws or other governing document of such Credit Party as in effect on the Closing Date, (C) resolutionsduly adopted by the board of directors (or other governing body) of such Credit Party authorizing andapproving the transactions contemplated hereunder and the execution, delivery and performance of thisAgreement and the other Loan Documents to which it is a party, and (D) each certificate required to bedelivered pursuant to Section 6.1(b)(iii).(iii) Certificates of Good Standing. Certificates as of a recent date of the goodstanding of each Credit Party under the laws of its jurisdiction of incorporation, organization or formation(or equivalent), as applicable, and, to the extent requested by the Administrative Agent, each otherjurisdiction where such Credit Party is qualified to do business.(iv) Opinions of Counsel. Opinions of counsel to the Credit Parties addressedto the Administrative Agent and the Lenders with respect to the Credit Parties, the Loan Documents andsuch other matters as the Administrative Agent shall request (which such opinions shall expressly permitreliance by permitted successors and assigns of the Administrative Agent and the Lenders).(c) Personal Property Collateral.(i) Filings and Recordings. The Administrative Agent shall have received allfilings and recordations that are necessary to perfect the security interests of the Administrative Agent, onbehalf of the Secured Parties, in the Collateral and the Administrative Agent shall have received evidencereasonably satisfactory to the Administrative Agent that upon such filings and recordations such securityinterests constitute valid and perfected first priority Liens thereon (subject to Permitted Liens).(ii) Pledged Collateral. The Administrative Agent shall have received (A)original stock certificates or other certificates evidencing the certificated Equity Interests pledgedpursuant to the Security Documents, together with an undated stock power for each such certificate dulyexecuted in blank by the registered owner thereof and (B) each original promissory note pledged pursuantto the Security Documents together with an undated allonge for each such promissory note duly executedin blank by the holder thereof.(iii) Lien Search. The Administrative Agent shall have received the results ofa Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters), inform and substance reasonably satisfactory thereto, made against the Credit Parties under the UCC (orapplicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the UCCshould be made to evidence or perfect security interests in all assets of such Credit Party, indicatingamong other things that the assets of each such Credit Party are free and clear of any Lien (except forPermitted Liens). 87
(iv) Property and Liability Insurance. The Administrative Agent shall havereceived, in each case in form and substance reasonably satisfactory to the Administrative Agent,evidence of property, business interruption and liability insurance covering each Credit Party, evidence ofpayment of all insurance premiums for the current policy year of each policy (with appropriateendorsements naming the Administrative Agent as lender’s loss payee on all policies for property hazardinsurance and as additional insured on all policies for liability insurance), and if requested by theAdministrative Agent, copies of such insurance policies.(v) Intellectual Property. The Administrative Agent shall have receivedsecurity agreements duly executed by the applicable Credit Parties for all U.S. federally registeredcopyrights, exclusive licenses to registered U.S. copyrights, patents, patent applications, trademarks andtrademark applications included in the Collateral, in each case in proper form for filing with the U.S.Patent and Trademark Office or U.S. Copyright Office, as applicable (the “IP Security Agreements”).Notwithstanding the foregoing, to the extent any security interest in any Collateral (other than securityinterests that may be perfected by the filing of a financing statement under the Uniform CommercialCode) or the possession or control of the stock certificates of the Acquired Company and any of thematerial domestic Subsidiaries of the Borrower or the Acquired Company (with respect to the stockcertificates of the Acquired Company, to the extent received pursuant to the Acquisition Agreement on orprior to the Closing Date after Borrower using its using commercially reasonable efforts) is not or cannotbe perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so,then the perfection of such security interests shall not constitute a condition precedent to the closing ofthis Agreement and the funding of the Initial Loans or the issuance of or participation in the initial Lettersof Credit, but instead shall be required to be perfected within ninety (90) days after the Closing Date (orsuch later date as may be approved by the Administrative Agent).(d) Financial Matters.(i) Financial Statements. The Administrative Agent shall have received:(A) with respect to the Borrower and its Subsidiaries (prior to givingeffect to the DPL Acquisition), (I) audited consolidated balance sheets and related consolidatedstatements of income, shareholder’s equity and cash flows for the three (3) most recentlycompleted Fiscal Years ended at least ninety (90) days prior to the Closing Date and (II)unaudited consolidated balance sheets and related consolidated statements of income and cashflows for each interim fiscal quarter ended since the last audited financial statements and at leastforty-five (45) days prior to the Closing Date;(B) with respect to the Acquired Company and its Subsidiaries, (I)audited consolidated balance sheets and related consolidated statements of income, shareholder’sequity and cash flows for the fiscal years ended December 31, 2019 and December 31, 2020 and(II) unaudited consolidated balance sheets and related consolidated statements of income and cashflows for the interim fiscal quarter ended on March 31, 2021;(ii) [Reserved].(iii) Solvency Certificate. The Borrower shall have delivered to theAdministrative Agent a solvency certificate in the form previously agreed to by the Borrower and theRevolving Credit Lenders. 88
(iv) Payment at Closing. All fees and expenses due to the Arrangers, theAdministrative Agent and the Lenders required to be paid on the Closing Date (including the fees andexpenses of counsel for the Arranger and the Administrative Agent) will have been or, substantiallyconcurrently with the Closing Date, will be, paid.(e) Miscellaneous.(i) PATRIOT Act, Etc. The Arrangers shall have received, at least 3business days prior to the Closing Date, (x) all documentation and other information required byregulatory authorities under applicable “know your customer” and anti-money laundering rules andregulations, including, without limitation, the PATRIOT Act, that has been requested by any Lender, and(y) if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “BeneficialOwnership Regulation”), a certification regarding beneficial ownership with respect to the Borrower asrequired by the Beneficial Ownership Regulation for each Lender that so requests (which request shall bemade through the Administrative Agent); provided that, in each case, the Borrower has received a list ofeach such Lender and its requests and electronic delivery requirements at least ten business days prior tothe Closing Date.(f) The Administrative Agent shall have received, in form and substance reasonablysatisfactory to the Administrative Agent, true and correct fully-executed copies of documentation for theDPL Acquisition and other aspects of the Transactions, including the Acquisition Agreement (it beingacknowledged by the Administrative Agent that the form and substance of the Acquisition Agreement ineffect on June 25, 2021 is in form and substance reasonably satisfactory to the Administrative Agent).(g) The Specified Representations and the Specified Acquisition AgreementRepresentations shall be true and correct in all material respects (or in all respects if already qualified bymateriality or by reference to Material Adverse Effect or Company Group Material Adverse Effect).(h) Substantially concurrently with the closing of this Agreement and the funding ofthe Initial Loans or the issuance of or participation in the initial Letters of Credit, the DPL Acquisitionand the other Transactions shall have been consummated in accordance with Applicable Law and on theterms described in the Acquisition Agreement without giving effect to any waiver, modification orconsent thereunder that is materially adverse to the interests of the Administrative Agent or the Lenders(as reasonably determined by the Administrative Agent) unless approved by the Administrative Agentand the Lenders.(i) There shall not have occurred since June 25, 2021, a Company Group MaterialAdverse Effect. (j) The Administrative Agent shall have received a Notice of Borrowing, Letter ofCredit Application, or Notice of Conversion/Continuation, as applicable, from the Borrower inaccordance with Section 2.3(a), Section 3.1(b), or Section 5.2, as applicable.(k) The Refinancing shall have been, or substantially concurrently with the ClosingDate shall be, consummated.Without limiting the generality of the provisions of Section 11.3(c), for purposes of determiningcompliance with the conditions specified in this Section 6.1, the Administrative Agent and each Lenderthat has signed this Agreement shall be deemed to have consented to, approved or accepted or to besatisfied with, each document or other matter required thereunder to be consented to or approved by or89
acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice fromsuch Lender prior to the proposed Closing Date specifying its objection thereto.Section 6.2 Conditions to All Extensions of Credit. Subject to Section 1.10, the obligationsof the Lenders to make or participate in any Extensions of Credit, and/or any Issuing Lender to issue orextend any Letter of Credit, in each case after the Closing Date, are subject to the satisfaction of thefollowing conditions precedent on the relevant borrowing, issuance or extension date:(a) Continuation of Representations and Warranties. The representations andwarranties contained in this Agreement and the other Loan Documents shall be true and correct in allmaterial respects, except for any representation and warranty that is qualified by materiality or referenceto Material Adverse Effect, which such representation and warranty shall be true and correct in allrespects, on and as of such borrowing, issuance or extension date with the same effect as if made on andas of such date (except for any such representation and warranty that by its terms is made only as of anearlier date, which representation and warranty shall remain true and correct in all material respects as ofsuch earlier date, except for any representation and warranty that is qualified by materiality or referenceto Material Adverse Effect, which such representation and warranty shall be true and correct in allrespects as of such earlier date).(b) No Existing Default. No Default or Event of Default shall have occurred and becontinuing (i) on the borrowing date with respect to such Loan or after giving effect to the Loans to bemade on such date or (ii) on the issuance or extension date with respect to such Letter of Credit or aftergiving effect to the issuance or extension of such Letter of Credit on such date.(c) Notices. The Administrative Agent shall have received a Notice of Borrowing,Letter of Credit Application, or Notice of Conversion/Continuation, as applicable, from the Borrower inaccordance with Section 2.3(a), Section 3.1(b) or Section 5.2, as applicable.(d) New Swingline Loans/Letters of Credit. So long as any Lender is a DefaultingLender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfiedthat it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) the IssuingLenders shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfiedthat it will have no Fronting Exposure after giving effect thereto.Section 6.3 [Reserved]. ARTICLE VIIREPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIESTo induce the Administrative Agent and the Lenders to enter into this Agreement and to inducethe Lenders to make Extensions of Credit, the Credit Parties hereby represent and warrant to theAdministrative Agent and the Lenders both before and after giving effect to the transactions contemplatedhereunder, which representations and warranties shall be deemed made on the Closing Date and asotherwise set forth in Section 6.2, that:Section 7.1 Organization; Power; Qualification. Each Credit Party (a) is duly organized,validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation,(b) has the power and authority to own its Properties and to carry on its business as now being andhereafter proposed to be conducted and (c) is duly qualified and authorized to do business in eachjurisdiction in which the character of its Properties or the nature of its business requires such qualificationand authorization except (other than with respect to the Borrower in the case of clause (a) or clause (b))90
where the failure to be so organized, existing, empowered, authorized, qualified or in good standing couldnot reasonably be expected to result in a Material Adverse Effect. No Credit Party nor any Subsidiarythereof is an Affected Financial Institution.Section 7.2 Ownership. Each Subsidiary of each Credit Party as of the Closing Date is listedon Schedule 7.2. As of the Closing Date, the capitalization of each Credit Party and its Subsidiariesconsists of the number of shares, authorized, issued and outstanding, of such classes and series, with orwithout par value, described on Schedule 7.2. All outstanding shares have been duly authorized andvalidly issued and are fully paid and nonassessable and not subject to any preemptive or similar rights,except as described in Schedule 7.2. As of the Closing Date, there are no outstanding stock purchasewarrants, subscriptions, options, securities, instruments or other rights of any type or nature whatsoever,which are convertible into, exchangeable for or otherwise provide for or require the issuance of EquityInterests of any Credit Party or any Subsidiary thereof, except as described on Schedule 7.2. As of theClosing Date, there are no Unrestricted Subsidiaries.Section 7.3 Authorization; Enforceability. Each Credit Party has the right, power andauthority and has taken all necessary corporate and other action to authorize the execution, delivery andperformance of this Agreement and each of the other Loan Documents to which it is a party in accordancewith their respective terms. This Agreement and each of the other Loan Documents have been dulyexecuted and delivered by the duly authorized officers of each Credit Party that is a party thereto, andeach such document constitutes the legal, valid and binding obligation of each Credit Party that is a partythereto, enforceable in accordance with its terms, except as such enforceability may be limited bybankruptcy, insolvency, reorganization, moratorium or similar state or federal Debtor Relief Laws fromtime to time in effect which affect the enforcement of creditors’ rights in general and the availability ofequitable remedies.Section 7.4 Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.The execution, delivery and performance by each Credit Party of the Loan Documents to which each suchPerson is a party, in accordance with their respective terms, the Extensions of Credit hereunder and thetransactions contemplated hereby or thereby do not and will not, by the passage of time, the giving ofnotice or otherwise, (a) require any Governmental Approval or violate any Applicable Law relating to anyCredit Party or any Subsidiary thereof where the failure to obtain such Governmental Approval or suchviolation could reasonably be expected to have a Material Adverse Effect, (b) conflict with, result in abreach of or constitute a default under the articles of incorporation, bylaws or other organizationaldocuments of any Credit Party or any Subsidiary thereof, (c) conflict with, result in a breach of orconstitute a default under any indenture, agreement or other instrument to which such Person is a party orby which any of its properties may be bound or any Governmental Approval relating to such Personwhich could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect,(d) result in or require the creation or imposition of any Lien upon or with respect to any property nowowned or hereafter acquired by such Person other than Permitted Liens or (e) require any consent orauthorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and noconsent of any other Person is required in connection with the execution, delivery, performance, validityor enforceability of this Agreement other than (i) consents, authorizations, filings or other acts or consentsfor which the failure to obtain or make could not, individually or in the aggregate, reasonably be expectedto have a Material Adverse Effect, (ii) consents or filings under the UCC and (iii) filings with the UnitedStates Copyright Office and/or the United States Patent and Trademark Office.Section 7.5 Compliance with Law; Governmental Approvals. Each Credit Party and eachSubsidiary thereof (a) has all Governmental Approvals required by any Applicable Law for it to conductits business, each of which is in full force and effect, is final and not subject to review on appeal and is91
not the subject of any pending or, to its knowledge, threatened attack by direct or collateral proceeding,(b) is in compliance with each Governmental Approval applicable to it and in compliance with all otherApplicable Laws relating to it or any of its respective properties and (c) has timely filed all materialreports, documents and other materials required to be filed by it under all Applicable Laws with anyGovernmental Authority and has retained all material records and documents required to be retained by itunder Applicable Law, except in each case of clause (a), (b) or (c) where the failure to have, comply orfile could not reasonably be expected to have a Material Adverse Effect.Section 7.6 Tax Returns and Payments. Each Credit Party and each Subsidiary thereof hasduly filed or caused to be filed all federal and other tax returns required by Applicable Law to have beenfiled, and has paid, or made adequate provision for the payment of, all federal and other Taxes upon it andits property, income, profits and assets which are due and payable (other than any amount the validity ofwhich is currently being contested in good faith by appropriate proceedings and with respect to whichreserves in conformity with GAAP have been provided for on the books of the relevant Credit Party), ineach case except to the extent that the failure to do so could not, individually or in the aggregate,reasonably be expected to have a Material Adverse Effect.Section 7.7 Intellectual Property Matters. Each Credit Party and each Subsidiary thereofowns or possesses rights to use all material licenses, copyrights, copyright applications, patents, patentrights or licenses, patent applications, trademarks, trademark rights, service mark, service mark rights,trade names and other applicable intellectual property rights with respect to the foregoing which arereasonably necessary to conduct its business (collectively, the “IP Rights”). No event has occurred sinceAugust 1, 2019 which permits, or after notice or lapse of time or both would permit, the revocation ortermination of any such IP Rights, and no Credit Party nor any Subsidiary thereof is liable to any Personfor infringement, misappropriation or violation in any material respect under Applicable Law with respectto any such rights as a result of its current business operations.Section 7.8 Environmental Matters. Except as would not reasonably be expected to result ina Material Adverse Effect:(a) Each Credit Party and each Subsidiary thereof, and their respective owned andleased real properties and operations are and have been in compliance with all applicable EnvironmentalLaws and Environmental Permits, and there is no contamination at, under or about such properties whichcould interfere with the continued operation of such properties or impair the fair saleable value thereof;(b) No Credit Party nor any Subsidiary thereof has received any notice of, or hasotherwise become subject to, any Environmental Liability, nor does any Credit Party or any Subsidiarythereof have knowledge of any basis for any such notice or liability;(c) No judicial proceedings or governmental or administrative action is pending, or,to the knowledge of the Borrower, threatened, under any Environmental Law to which any Credit Party orany Subsidiary thereof is or will be named as a potentially responsible party, nor are there any consentdecrees or other decrees, consent orders, administrative orders or other orders, or other administrative orjudicial requirements outstanding under any applicable Environmental Law with respect to any CreditParty, any Subsidiary thereof, with respect to any real property owned, leased or operated by any CreditParty or any Subsidiary thereof or operations conducted in connection therewith; and(d) There has been no release, transport, storage, generation or disposal of, or anyexposure to, any of Hazardous Materials at or from any location (including any real properties owned,92
leased or operated by any Credit Party or any Subsidiary), in violation of or in amounts or in a mannerthat could give rise to Environmental Liability.Section 7.9 Employee Benefit Matters.(a) Each Credit Party and each ERISA Affiliate is in compliance with all applicableprovisions of ERISA, the Code and the regulations and published interpretations thereunder with respectto all Employee Benefit Plans except for any required amendments for which the remedial amendmentperiod as defined in Section 401(b) of the Code has not yet expired and except where a failure to socomply could not reasonably be expected to have a Material Adverse Effect. Each Employee BenefitPlan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS tobe so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a)of the Code except for such plans that have not yet received determination letters but for which theremedial amendment period for submitting a determination letter has not yet expired. No liability hasbeen incurred by any Credit Party or any ERISA Affiliate which remains unsatisfied for any taxes orpenalties assessed with respect to any Employee Benefit Plan or any Multiemployer Plan except for aliability that could not reasonably be expected to have a Material Adverse Effect;(b) As of the Closing Date, no Pension Plan has been terminated, nor has anyPension Plan become subject to funding based benefit restrictions under Section 436 of the Code, nor hasany funding waiver from the IRS been received or requested with respect to any Pension Plan, nor hasany Credit Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due andowing as required by Sections 412 or 430 of the Code, Section 302 of ERISA or the terms of any PensionPlan on or prior to the due dates of such contributions under Sections 412 or 430 of the Code or Section302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or4063(a) of ERISA with respect to any Pension Plan, except in each case as could not reasonably beexpected individually or in the aggregate to have a Material Adverse Effect;(c) Except where the failure of any of the following representations to be correctcould not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, noCredit Party nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described inSection 406 of the ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC whichremains outstanding other than the payment of premiums and there are no premium payments which aredue and unpaid, (iii) failed to make a required contribution or payment to a Multiemployer Plan, or (iv)failed to make a required installment or other required payment under Sections 412 or 430 of the Code;(d) No Termination Event has occurred or, to the knowledge of the Borrower, isreasonably expected to occur;(e) Except where the failure of any of the following representations to be correctcould not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, noproceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/orinvestigation is existing or, to its knowledge, threatened concerning or involving (i) any employee welfarebenefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by any CreditParty or any ERISA Affiliate, (ii) any Pension Plan or (iii) any Multiemployer Plan.(f) As of the Closing Date the Borrower is not nor will be using “plan assets”(within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or moreBenefit Plans in connection with the Loans, the Letters of Credit or the Commitments.93
Section 7.10 Margin Stock. The Borrower is not engaged nor will it engage, principally or asone of its important activities, in the business of (1) purchasing or carrying margin stock (within themeaning of Regulation U of the Board of Governors of the United States Federal Reserve System) or (2)extending credit for the purpose of purchasing or carrying margin stock, in each case of the foregoingclauses (1) and (2) in a manner that violates Regulation U of the Board of Governors of the United StatesFederal Reserve System, and (ii) no proceeds of any borrowings or drawings under any Letter of Creditwill be used for any purpose that violates Regulation U of the Board of Governors of the United StatesFederal Reserve System.Section 7.11 Government Regulation. No Credit Party is or is required to be registered as an“investment company” under the Investment Company Act.Section 7.12 [Reserved].Section 7.13 [Reserved].Section 7.14 Burdensome Provisions. No Subsidiary is party to any agreement or instrumentor otherwise subject to any restriction or encumbrance that restricts or limits its ability to make dividendpayments or other distributions in respect of its Equity Interests to the Borrower or any other Subsidiaryor to transfer any of its assets or properties to the Borrower or any other Subsidiary in each case otherthan existing under or by reason of the Loan Documents or Applicable Law.Section 7.15 Financial Statements. The audited and unaudited financial statements deliveredpursuant to Section 6.1(d)(i)(A) are complete and correct and fairly present in all material respects on aConsolidated basis the assets, liabilities and financial position of the Borrower and its subsidiariespreviously (and for the avoidance of doubt including the Acquired Company from and after the auditedfinancial statements delivered in connection with the first full fiscal year ended after the Closing Date) asat such dates, and the results of the operations and changes of financial position for the periods then ended(other than customary year-end adjustments for unaudited financial statements and the absence offootnotes from unaudited financial statements). All such financial statements, including the relatedschedules and notes thereto, have been prepared in accordance with GAAP. Such financial statementsshow all material indebtedness and other material liabilities, direct or contingent, of the Borrower and itsrespective subsidiaries as of the date thereof, including material liabilities for taxes, materialcommitments, and Indebtedness, in each case, to the extent required to be disclosed under GAAP.Section 7.16 No Material Adverse Change. Since the Closing Date, no event has occurred orcondition arisen, either individually or in the aggregate, that could reasonably be expected to have aMaterial Adverse Effect.Section 7.17 Solvency. The Credit Parties and their respective subsidiaries, on a Consolidatedbasis, are Solvent.Section 7.18 Title to Properties. As of the Closing Date, the real property listed onSchedule 7.18 constitutes all of the real property that is owned, leased or, subleased by any Credit Partyor any of its Subsidiaries. Each Credit Party and each Subsidiary thereof has such title to the realproperty owned or leased by it as is necessary to the conduct of its business and valid and legal title to allof its personal property and assets, except (i) those which have been disposed of by the Credit Parties andtheir Subsidiaries subsequent to such date which dispositions have been in the ordinary course of businessor as otherwise expressly permitted hereunder or (ii) as could not reasonably be expected to have aMaterial Adverse Effect. 94
Section 7.19 Litigation. Except for matters existing on the Closing Date and set forth onSchedule 7.19, there are no actions, suits or proceedings pending nor, to the knowledge of any CreditParty, threatened against or in any other way relating adversely to or affecting any Credit Party or anySubsidiary thereof or any of their respective properties in any court or before any arbitrator of any kind orbefore or by any Governmental Authority that could reasonably be expected to have a Material AdverseEffect. Section 7.20 Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions.(a) None of (i) the Borrower, any subsidiary, any of their respective directors,officers, or, to the knowledge of the Borrower or such subsidiary, any of their respective employees orAffiliates, or (ii) any agent or representative of the Borrower or any subsidiary that will act in anycapacity in connection with or benefit from the Credit Facility, (A) is a Sanctioned Person, (B) has itsassets located in a Sanctioned Country, (C) is under administrative, civil or criminal investigation for analleged violation of, or received notice from or made a voluntary disclosure to any governmental entityregarding a possible violation of, Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions by agovernmental authority that enforces Sanctions or any Anti-Corruption Laws or Anti-Money LaunderingLaws, or (D) directly or indirectly derives revenues from investments in, or transactions with, SanctionedPersons in violation of Applicable Law.(b) Each of the Borrower and its subsidiaries has implemented and maintains ineffect policies and procedures designed to ensure compliance by the Borrower and its subsidiaries andtheir respective directors, officers, employees, agents and Affiliates with all Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions.(c) Each of the Borrower and its subsidiaries, each director, officer, and to theknowledge of Borrower, employee, agent and Affiliate of Borrower and each such subsidiary, is incompliance with all Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions in allrespects. (d) No proceeds of any Extension of Credit have been used, directly or indirectly, bythe Borrower, any of its subsidiaries or any of its or their respective directors, officers, employees andagents in violation of Section 8.15(d).Section 7.21 [Reserved].Section 7.22 [Reserved].Section 7.23 Disclosure. The Borrower and/or its Subsidiaries have disclosed to theAdministrative Agent and the Lenders all agreements, instruments and corporate or other restrictions towhich any Credit Party and any Subsidiary thereof are subject, and all other matters known to them, that,individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. Nofinancial statement, material report, material certificate or other material written information furnished byor on behalf of any Credit Party or any Subsidiary thereof to the Administrative Agent or any Lender inconnection with the transactions contemplated hereby and the negotiation of this Agreement or deliveredhereunder (as modified or supplemented by other information furnished in writing), taken together as awhole, contains any untrue statement of a material fact or omits to state any material fact necessary tomake the statements therein, in the light of the circumstances under which they were made, notmisleading; provided that, with respect to projected financial information, pro forma financialinformation, estimated financial information and other projected or estimated information, suchinformation was prepared in good faith based upon assumptions believed to be reasonable at the time (it95
being recognized by the Lenders that projections are not to be viewed as facts and that the actual resultsduring the period or periods covered by such projections may vary from such projections). If deliveredunder Section 6.1(e)(i)(y), as of the Closing Date, all of the information included in the BeneficialOwnership Certification is true and correct. ARTICLE VIIIAFFIRMATIVE COVENANTSUntil all of the Obligations (other than contingent indemnification obligations not then due) havebeen paid and satisfied in full in cash, all Letters of Credit have been terminated or expired (or been CashCollateralized) and the Commitments terminated, each Credit Party will, and will cause each of itsSubsidiaries (or, where applicable, subsidiaries) to:Section 8.1 Financial Statements and Budgets. Deliver to the Administrative Agent, in formand detail satisfactory to the Administrative Agent (which shall promptly make such informationavailable to the Lenders in accordance with its customary practice):(a) Annual Financial Statements. As soon as practicable and in any event withinninety (90) days (or such later date as may be permitted for the filing of annual financial statements by theSEC) after the end of each Fiscal Year (commencing with the Fiscal Year ended December 25, 2021), anaudited consolidated balance sheet of the Borrower and its subsidiaries as of the close of such Fiscal Yearand audited consolidated statements of comprehensive income, shareholder’s equity and cash flowsincluding the notes thereto, all in reasonable detail setting forth in comparative form the correspondingfigures as of the end of and for the preceding Fiscal Year and prepared in accordance with GAAP and, ifapplicable, containing disclosure of the effect on the financial position or results of operations of anychange in the application of accounting principles and practices during the year. Such annualconsolidated financial statements shall be audited by an independent certified public accounting firm ofrecognized national standing acceptable to the Administrative Agent, and accompanied by a report andopinion thereon by such certified public accountants prepared in accordance with generally acceptedauditing standards that is not subject to any “going concern” or similar qualification or exception or anyqualification as to the scope of such audit or with respect to accounting principles followed by theBorrower or any of its subsidiaries not in accordance with GAAP (other than any scope qualification orany going concern qualification solely with respect to, or resulting solely from, (1) an upcoming maturitydate under the documentation governing any Indebtedness, (2) the activities, operations, financial results,assets or liabilities of any Unrestricted Subsidiaries or (3) any prospective breach of the financialcovenant (or, other than in the case of the Credit Facility or any other agreement containing a financialmaintenance covenant, any such breach) under the documentation governing any Indebtedness).(b) Quarterly Financial Statements. As soon as practicable and in any event withinforty-five (45) days (or such later date as may be permitted for the filing of quarterly financial statementsby the SEC) after the end of the first three (3) fiscal quarters of each Fiscal Year (commencing with thefiscal quarter ended September 25, 2021), an unaudited consolidated balance sheet of the Borrower andits subsidiaries as of the close of such fiscal quarter and unaudited consolidated statements ofcomprehensive income and cash flows for the fiscal quarter then ended and that portion of the Fiscal Yearthen ended, including the notes thereto, all in reasonable detail setting forth in comparative form thecorresponding figures as of the end of and for the corresponding period in the preceding Fiscal Year andprepared by the Borrower in accordance with GAAP and, if applicable, containing disclosure of the effecton the financial position or results of operations of any change in the application of accounting principlesand practices during the period, and certified by the chief financial officer of the Borrower to presentfairly in all material respects the financial condition of the Borrower and its subsidiaries on a96
Consolidated basis as of their respective dates and the results of operations of the Borrower and itssubsidiaries for the respective periods then ended, subject to normal year-end adjustments and the absenceof footnotes. (c) Annual Business Plan and Budget. As soon as practicable and in any eventwithin ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year endedDecember 25, 2021), an annual business plan of the Borrower and its subsidiaries for the ensuing four (4)fiscal quarters in a manner currently created by management of the Borrower and its subsidiaries.Section 8.2 Certificates; Other Reports. Deliver to the Administrative Agent (which shallpromptly make such information available to the Lenders in accordance with its customary practice):(a) at each time financial statements are delivered pursuant to Section 8.1(a) or (b), aduly completed Officer’s Compliance Certificate signed by the chief executive officer, chief financialofficer, treasurer or controller of the Borrower, a report containing management’s discussion and analysisof such financial statements (which report may be contained in any periodic report which the Borrowerfiles with the SEC), and, at any time when there is any Unrestricted Subsidiary, a reconciliation statementor other report prepared by management and reasonably acceptable to the Administrative Agentexplaining in reasonable detail the effect of including the accounts of such Unrestricted Subsidiary insuch financial statements.(b) [Reserved];(c) [Reserved];(d) promptly after the furnishing thereof, copies of any statement or report furnishedto any holder of Indebtedness of any Credit Party or any Subsidiary thereof in excess of the ThresholdAmount pursuant to the terms of any indenture, loan or credit or similar agreement;(e) promptly after the assertion or occurrence thereof, notice of any action orproceeding against or of any noncompliance by any Credit Party or any subsidiary thereof with anyEnvironmental Law that could reasonably be expected to have a Material Adverse Effect;(f) promptly after the same are available, copies of each annual report, proxy orfinancial statement or other report or communication sent to the stockholders of the Borrower, and copiesof all annual, regular, periodic and special reports and registration statements which the Borrower mayfile or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, or with anynational securities exchange, and in any case not otherwise required to be delivered to the AdministrativeAgent pursuant hereto;(g) promptly, and in any event within five (5) Business Days after receipt thereof byany Credit Party or any subsidiary thereof, copies of each notice or other correspondence received fromthe SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation orpossible investigation or other inquiry by such agency regarding financial or other operational results ofany Credit Party or any subsidiary thereof;(h) promptly upon the request thereof, such other information and documentationrequired under applicable “know your customer” rules and regulations, the PATRIOT Act or any97
applicable Anti-Money Laundering Laws or Anti-Corruption Laws, in each case as from time to timereasonably requested by the Administrative Agent or any Lender; and(i) such other information regarding the operations, business affairs and financialcondition of any Credit Party or any subsidiary thereof as the Administrative Agent or any Lender mayreasonably request.Documents required to be delivered pursuant to Section 8.1(a) or (b) or Section 8.2(f) (to the extent anysuch documents are included in materials otherwise filed with the SEC) may be delivered electronicallyand if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower postssuch documents, or provides a link thereto on the Borrower’s website on the Internet at the websiteaddress listed in Section 12.1; or (ii) on which such documents are posted on the Borrower’s behalf on anInternet or intranet website, if any, to which each Lender and the Administrative Agent have access(whether a commercial, third-party website or whether sponsored by the Administrative Agent); providedthat: (i) upon a written request, the Borrower shall deliver paper copies of such documents to theAdministrative Agent or any Lender that requests the Borrower to deliver such paper copies and (ii) theBorrower shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of theposting of any such documents and provide to the Administrative Agent by electronic mail electronicversions of such documents. Except for such Officer’s Compliance Certificates, the Administrative Agentshall have no obligation to request the delivery or to maintain copies of the documents referred to above,and in any event shall have no responsibility to monitor compliance by the Borrower with any suchrequest for delivery, and each Lender shall be solely responsible for requesting delivery to it ormaintaining its copies of such documents.The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will makeavailable to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf ofthe Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on thePlatform and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish toreceive material non-public information with respect to the Borrower or its securities) (each, a “PublicLender”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify thatportion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all suchBorrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, meansthat the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking BorrowerMaterials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, theArrangers, the Issuing Lenders and the Lenders to treat such Borrower Materials as not containing anymaterial non-public information (although it may be sensitive and proprietary) with respect to theBorrower or its securities for purposes of United States Federal and state securities laws (provided,however, that to the extent such Borrower Materials constitute Information, they shall be treated as setforth in Section 12.10); (y) all Borrower Materials marked “PUBLIC” are permitted to be made availablethrough a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and theArrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as beingsuitable only for posting on a portion of the Platform not designated “Public Investor.”Section 8.3 Notice of Litigation and Other Matters. Promptly (but in no event later than ten(10) days after any Responsible Officer of any Credit Party obtains knowledge thereof) notify theAdministrative Agent in writing of (which shall promptly make such information available to the Lendersin accordance with its customary practice):(a) the occurrence of any Default or Event of Default;98
(b) the commencement of all proceedings and investigations by or before anyGovernmental Authority and all actions and proceedings in any court or before any arbitrator against orinvolving any Credit Party or any subsidiary thereof or any of their respective properties, assets orbusinesses in each case that if adversely determined could reasonably be expected to result in a MaterialAdverse Effect; and(c) (i) any unfavorable determination letter from the IRS regarding the qualificationof an Employee Benefit Plan under Section 401(a) of the Code (along with a copy thereof), (ii) all noticesreceived by any Credit Party or any ERISA Affiliate of the PBGC’s intent to terminate any Pension Planor to have a trustee appointed to administer any Pension Plan, (iii) all notices received by any Credit Partyor any ERISA Affiliate from a Multiemployer Plan sponsor concerning the imposition or amount ofwithdrawal liability pursuant to Section 4202 of ERISA and (iv) the Borrower obtaining knowledge orreason to know that any Credit Party or any ERISA Affiliate has filed or intends to file a notice of intentto terminate any Pension Plan under a distress termination within the meaning of Section 4041(c) ofERISA. Each notice pursuant to Section 8.3 shall be accompanied by a statement of a Responsible Officerof the Borrower setting forth details of the occurrence referred to therein and stating what action theBorrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 8.3(a)shall describe with particularity any and all provisions of this Agreement and any other Loan Documentthat have been breached.Section 8.4 Preservation of Corporate Existence and Related Matters. Except as permitted bySection 9.4, preserve and maintain its separate corporate existence or equivalent form and all rights,franchises, licenses and privileges necessary to the conduct of its business, and qualify and remainqualified as a foreign corporation or other entity and authorized to do business in each jurisdiction inwhich the failure to so qualify could reasonably be expected to have a Material Adverse Effect.Section 8.5 Maintenance of Property and Licenses.(a) In addition to the requirements of any of the Security Documents, except as suchaction or inaction could not reasonably be expected to result in a Material Adverse Effect, (i) maintain,protect and preserve all Properties, including copyrights, patents, trade names, service marks andtrademarks; (ii) maintain in good working order and condition, ordinary wear and tear excepted, allbuildings, equipment and other tangible real and personal property; and (iii) from time to time make orcause to be made all repairs, renewals and replacements thereof and additions to such Property necessaryfor the conduct of its business, so that the business carried on in connection therewith may be conductedin a commercially reasonable manner.(b) Maintain, in full force and effect in all material respects, each and every license,permit, certification, qualification, approval or franchise issued by any Governmental Authority requiredfor each of them to conduct their respective businesses as presently conducted, except where the failure todo so could not reasonably be expected to have a Material Adverse Effect.Section 8.6 Insurance. Maintain insurance with financially sound and reputable insurancecompanies against at least such risks and in at least such amounts as are customarily maintained bysimilar businesses and as may be required by Applicable Law and as are required by any SecurityDocuments (including, without limitation, hazard and business interruption insurance, but not floodinsurance except to the extent required by Applicable Law). All such insurance shall, (a) to the extentagreed by such insurance company after the Borrower’s use of commercially reasonable efforts, provide99
that no cancellation or material modification thereof shall be effective until at least thirty (30) days afterreceipt by the Administrative Agent of written notice thereof and, in any event provide that nocancellation or material modification thereof shall be effective until at least five (5) days after receipt bythe Administrative Agent of written notice thereof, (b) name the Administrative Agent as an additionalinsured party thereunder and (c) in the case of each casualty insurance policy, name the AdministrativeAgent as lender’s loss payee or mortgagee, as applicable. On the Closing Date and from time to timethereafter deliver to the Administrative Agent upon its request information in reasonable detail as to theinsurance then in effect, stating the names of the insurance companies, the amounts and rates of theinsurance, the dates of the expiration thereof and the properties and risks covered thereby.Section 8.7 Accounting Methods and Financial Records. Maintain a system of accounting,and keep proper books, records and accounts (which shall be accurate and complete in all materialrespects) as may be required or as may be necessary to permit the preparation of financial statements inaccordance with GAAP and in compliance with the regulations of any Governmental Authority havingjurisdiction over it or any of its Properties.Section 8.8 Payment of Taxes. With respect to the Borrower and the Subsidiaries, pay anddischarge all Taxes that may be levied or assessed upon it or any of its Property, except where the failureto pay or discharge such Taxes could not, individually or in the aggregate, reasonably be expected to havea Material Adverse Effect.Section 8.9 Compliance with Laws and Approvals. With respect to the Borrower and theSubsidiaries, observe and remain in compliance with all Applicable Laws and maintain in full force andeffect all Governmental Approvals, in each case applicable to the conduct of its business except where thefailure to do so could not reasonably be expected to have a Material Adverse Effect.Section 8.10 Environmental Laws. With respect to the Borrower and the Subsidiaries, inaddition to and without limiting the generality of Section 8.9, (a) comply with, and ensure suchcompliance by all tenants and subtenants with all applicable Environmental Laws, including obtaining,maintaining and complying with all tenants and subtenants, if any, obtain and comply with and maintain,any and all licenses, approvals, notifications, registrations or permits required by applicableEnvironmental Laws and (b) conduct and complete all investigations, studies, sampling and testing, andall remedial, removal and other actions required under Environmental Laws, and promptly comply withall lawful orders and directives of any Governmental Authority regarding Environmental Laws; exceptwhere the failure to perform such item described in clause (a) or (b) of this Section could not reasonablybe expected to have a Material Adverse Effect.Section 8.11 Compliance with ERISA. With respect to the Borrower and the Subsidiaries, inaddition to and without limiting the generality of Section 8.9, (a) except where the failure to so complycould not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i)comply with applicable provisions of ERISA, the Code and the regulations and published interpretationsthereunder with respect to all Employee Benefit Plans, (ii) not take any action or fail to take action theresult of which could reasonably be expected to result in a liability to the PBGC or to a MultiemployerPlan other than for PBGC premiums due but not yet delinquent, (iii) not participate in any non-exemptprohibited transaction that could reasonably be expected to result in any civil penalty under ERISA or taxunder the Code and (iv) operate each Employee Benefit Plan in such a manner that will not incur any taxliability under Section 4980B of the Code or any liability to any qualified beneficiary as defined in100
Section 4980B of the Code and (b) furnish to the Administrative Agent upon the Administrative Agent’srequest such additional information about any Employee Benefit Plan as may be reasonably requested bythe Administrative Agent.Section 8.12 Transactions with Affiliates. Refrain from directly or indirectly entering into anytransaction, including, without limitation, any purchase, sale, lease or exchange of Property, the renderingof any service or the payment of any management, advisory or similar fees, with (a) any officer, director,holder of any Equity Interests in, or other Affiliate of, the Borrower or any of its Subsidiaries or (b) anyAffiliate of any such officer, director or holder, other than:(i) transactions permitted by Sections 9.1, 9.3, 9.4, 9.5, and 9.6;(ii) transactions existing on the Closing Date and described on Schedule8.12; (iii) transactions among Credit Parties not prohibited hereunder;(iv) other transactions in the ordinary course of business on terms asfavorable as would be obtained by it on a comparable arm’s-length transaction with an independent,unrelated third party as determined in good faith by the board of directors (or equivalent governing body)of the Borrower; (v) employment and severance arrangements (including equity incentiveplans and employee benefit plans and arrangements) with their respective officers and employees in theordinary course of business; and(vi) payment of customary fees and reasonable out of pocket costs to, andindemnities for the benefit of, directors, officers and employees of the Borrower and its Subsidiaries inthe ordinary course of business to the extent attributable to the ownership or operation of the Borrowerand its Subsidiaries.Section 8.13 Visits and Inspections. Permit representatives of the Administrative Agent orany Lender, from time to time upon prior reasonable notice (which shall be not less than 24 hours, exceptas expressly provided below) and at such times during normal business hours, all at the expense of theBorrower, to visit and inspect its properties; inspect, audit and make extracts from its books, records andfiles, including, but not limited to, management letters prepared by independent accountants; and discusswith its principal officers, and its independent accountants, its business, assets, liabilities, financialcondition, results of operations and business prospects; provided that excluding any such visits andinspections during the continuation of an Event of Default, the Administrative Agent shall not exercisesuch rights more often than one (1) time during any calendar year at the Borrower’s expense; providedfurther that upon the occurrence and during the continuance of an Event of Default, the AdministrativeAgent or any Lender may do any of the foregoing at the expense of the Borrower at any time withoutadvance notice. The Borrower shall have the right to have one or more employees or representativesaccompany the Administrative Agent, any Lender or their respective representatives during any visits,inspections or access. All visits, inspections and access shall be conducted in such a way so as tominimize, to the greatest practical extent, any interference with the use or operation of the respectiveproperties. Notwithstanding anything to the contrary in this Section 8.13, during any such access theAdministrative Agent, each Lender and their respective representatives shall observe and comply with allof the Borrower’s commercially reasonable safety, security and other similar rules at any of its respective101
properties. Without limiting the foregoing, the Borrower shall not be required to disclose, grant access to,permit inspection of or discuss any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) the disclosure of which is prohibitedby applicable laws, rules or regulations, or (iii) that is subject to the attorney-client privilege or thatconstitutes attorney work product.Section 8.14 Additional Subsidiaries.(a) Additional Subsidiaries. (x) Promptly notify the Administrative Agent of (i) thecreation or acquisition (including by division) of a Person that becomes a Domestic Subsidiary and (ii)any Domestic Subsidiary that is an Excluded Subsidiary failing to constitute an Excluded Subsidiary and,within forty-five (45) days after such event, as such time period may be extended by the AdministrativeAgent in its sole discretion, cause such Domestic Subsidiary (other than an Excluded Subsidiary) to (A)become a Subsidiary Guarantor by delivering to the Administrative Agent a duly executed supplement tothe Subsidiary Guaranty Agreement or such other document as the Administrative Agent shall deemappropriate for such purpose, (B) except during a Collateral Release Period, grant a security interest insubstantially all assets of such Subsidiary (subject to the exceptions specified in the CollateralAgreement) by delivering to the Administrative Agent a duly executed supplement to each applicableSecurity Document or such other document as the Administrative Agent may reasonably request for suchpurpose and cause such Domestic Subsidiary to comply with the terms of each applicable SecurityDocument, as so supplemented, and to deliver the documents and take such action as may be required toperfect such security interest (subject to exceptions specified in the Collateral Agreement), (C) deliver tothe Administrative Agent such opinions, documents and certificates of the type referred to in Section6.1(b) as may be reasonably requested by the Administrative Agent and (D) except during a CollateralRelease Period, if the Equity Interests constituting Collateral that are owned by such Subsidiary arecertificated, deliver to the Administrative Agent such original certificated Equity Interests or othercertificates and stock or other transfer powers evidencing the Equity Interests of such Person, and (y)deliver or cause to be delivered to the Administrative Agent such updated Schedules to the LoanDocuments as requested by the Administrative Agent with respect to such Subsidiary, all in form, contentand scope reasonably satisfactory to the Administrative Agent and except during a Collateral ReleasePeriod, cause the Credit Party that owns the Equity Interests of such Subsidiary constituting Collateralthat are certificated to deliver to the Administrative Agent such original certificated Equity Interests orother certificates and stock or other transfer powers evidencing the Equity Interests of such Subsidiary.(b) Additional First Tier Foreign Subsidiaries and CFC Holdcos. In each case,subject to the limitation set forth in clause (d) below, notify the Administrative Agent promptly after anyPerson becomes a First Tier Foreign Subsidiary or a CFC Holdco, and, except during a Collateral ReleasePeriod, promptly thereafter (and, in any event, within sixty (60) days after such notification, as such timeperiod may be extended by the Administrative Agent in its sole discretion), cause (i) the applicable CreditParty to deliver to the Administrative Agent Security Documents pledging sixty-five percent (65%) of thetotal outstanding voting Equity Interests (and one hundred percent (100%) of any non-voting EquityInterests) of any such new First Tier Foreign Subsidiary that is a CFC or any such CFC Holdco and 100%of the Equity Interests of any First Tier Foreign Subsidiary that is not a CFC and a consent theretoexecuted by such new First Tier Foreign Subsidiary (including, without limitation, if applicable, originalcertificated Equity Interests (or the equivalent thereof pursuant to the Applicable Laws and practices ofany relevant foreign jurisdiction) evidencing the Equity Interests of such new First Tier ForeignSubsidiary or CFC Holdco, as applicable, together with an appropriate undated stock or other transferpower for each certificate duly executed in blank by the registered owner thereof), (ii) such Person todeliver to the Administrative Agent such opinions, documents and certificates of the type referred to inSection 6.1(b) as may be reasonably requested by the Administrative Agent, (iii) such Person to deliver to102
the Administrative Agent such updated Schedules to the Loan Documents as requested by theAdministrative Agent with regard to such Person and (iv) such Person to deliver to the AdministrativeAgent such other documents as may be reasonably requested by the Administrative Agent, all in form,content and scope reasonably satisfactory to the Administrative Agent.(c) Merger Subsidiaries. Notwithstanding the foregoing, to the extent any newSubsidiary is created solely for the purpose of consummating a merger transaction pursuant to a PermittedAcquisition, and such new Subsidiary at no time holds any assets or liabilities other than any mergerconsideration contributed to it contemporaneously with the closing of such merger transaction, such newSubsidiary shall not be required to take the actions set forth in Section 8.14(a) or (b), as applicable, untilthe consummation of such Permitted Acquisition (at which time, the surviving entity of the respectivemerger transaction shall be required to so comply with Section 8.14(a) or (b), as applicable, within ten(10) Business Days of the consummation of such Permitted Acquisition, as such time period may beextended by the Administrative Agent in its sole discretion).(d) Exclusions. The provisions of this Section 8.14 (solely to the extent relating toCollateral) shall not apply to assets as to which the Administrative Agent and the Borrower shallreasonably determine that the costs and burdens of obtaining a security interest therein or perfectionthereof outweigh the value of the security afforded thereby.(e) [Reserved.](f) Subsidiaries Providing Credit Support. Notwithstanding anything in this Sectionto the contrary, any Subsidiary that provides a guarantee, except during a Collateral Release Period, apledge of its assets or any other credit support of any kind for any Incremental Equivalent Debt shall takeall actions required of Domestic Subsidiaries that are to become Subsidiary Guarantors pursuant to clause(a) of this Section.Section 8.15 Use of Proceeds.(a) The Borrower shall use the proceeds of the Extensions of Credit under theRevolving Credit Facility and the Swingline Facility for (x) working capital and general corporatepurposes of the Borrower and its Subsidiaries and (y) with respect to such proceeds of Extensions ofCredit under the Revolving Credit Facility on the Closing Date, to finance the Transactions and pay feesand expenses in connection therewith; provided that no more than $375,000,000 of Revolving CreditLoans may be borrowed on the Closing Date.(b) [Reserved.](c) The Borrower shall use the proceeds of any Incremental Term Loan and anyIncremental Revolving Credit Increase as permitted pursuant to Section 5.13, as applicable.(d) The Borrower will not request any Extension of Credit, and the Borrower shallnot use, and shall ensure that its Subsidiaries and its or their respective directors, officers, employees andagents shall not use, directly or knowingly indirectly the proceeds of any Extension of Credit, directly orindirectly, (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment orgiving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws orAnti-Money Laundering 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, in violation of103
Applicable Law, or (iii) in any manner that would otherwise result in the violation of any Sanctionsapplicable to any party hereto.Section 8.16 Compliance with Anti-Corruption Laws; Beneficial Ownership Regulation, Anti-Money Laundering Laws and Sanctions. The Borrower will (a) maintain in effect and enforce policiesand procedures designed to ensure compliance by the Borrower, its subsidiaries and their respectivedirectors, officers, employees and agents with all Anti-Corruption Laws, Anti-Money Laundering Lawsand applicable Sanctions, (b) notify the Administrative Agent and each Lender that previously received aBeneficial Ownership Certification (or a certification that the Borrower qualifies for an express exclusionto the “legal entity customer” definition under the Beneficial Ownership Regulation) of any change in theinformation provided in the Beneficial Ownership Certification that would result in a change to the list ofbeneficial owners identified therein (or, if applicable, the Borrower ceasing to fall within an expressexclusion to the definition of “legal entity customer” under the Beneficial Ownership Regulation) and (c)promptly upon the reasonable request of the Administrative Agent or any Lender, provide theAdministrative Agent or directly to such Lender, as the case may be, any information or documentationrequested by it for purposes of complying with the Beneficial Ownership Regulation.Section 8.17 Further Assurances. Execute any and all further documents, financingstatements, agreements and instruments, and take all such further actions (including the filing andrecording of financing statements and other documents), which may be required under any ApplicableLaw, or which the Administrative Agent or the Required Lenders may reasonably request, to effectuatethe transactions contemplated by the Loan Documents or, except during a Collateral Release Period, togrant, preserve, protect or perfect the Liens created or intended to be created by the Security Documentsor the validity or priority of any such Lien, all at the expense of the Credit Parties. The Borrower alsoagrees to provide to the Administrative Agent, from time to time upon the reasonable request by theAdministrative Agent, evidence reasonably satisfactory to the Administrative Agent as to the perfectionand priority of the Liens created or intended to be created by the Security Documents.Section 8.18 Lines of Business. Engage to any material extent only in businesses conductedby the Borrower and its Subsidiaries as of the Closing Date and business activities reasonably related,incidental, complementary or ancillary thereto or that are reasonable extensions thereof (the “PermittedBusiness”).Section 8.19 Fiscal Year End. Maintain the Fiscal Year end that it has as of the Closing Date.Section 8.20 Collateral Reinstatement. Notwithstanding Section 11.10(ii), if, after aCollateral Trigger Date occurs, the Collateral Release Period shall automatically terminate and allCollateral and Security Documents, and all Liens granted or purported to be granted therein, releasedpursuant to Section 11.10(ii) or otherwise in connection with the occurrence of the Collateral ReleaseDate shall be automatically reinstated on the same terms as of the Collateral Trigger Date and the CreditParties shall take all actions and deliver all documents (collectively, the “New Security Documents”)reasonably requested by the Administrative Agent to create and perfect the Liens of the AdministrativeAgent in such Collateral, in form and substance reasonably satisfactory to the Administrative Agent,within 90 days of such Collateral Trigger Date (or such longer period as the Administrative Agent mayagree in its reasonable discretion). 104
Section 8.21 Post-Closing Actions. The Borrower agrees that it will, or will cause its relevantSubsidiaries to, complete each of the actions described on Schedule 8.21 as soon as commerciallyreasonable and by no later than 45 days following the Closing Date (or such later date as theAdministrative Agent may agree in its sole discretion).ARTICLE IXNEGATIVE COVENANTSUntil all of the Obligations (other than contingent, indemnification obligations not then due) havebeen paid and satisfied in full in cash, all Letters of Credit have been terminated or expired (or been CashCollateralized) and the Commitments terminated, the Credit Parties will not, and will not permit any oftheir respective Subsidiaries to:Section 9.1 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:(a) the Obligations;(b) Indebtedness (i) owing under Hedge Agreements entered into in order to manageexisting or anticipated interest rate, exchange rate or commodity price risks and not for speculativepurposes and (ii) owing under Secured Cash Management Agreements;(c) Indebtedness existing on the Closing Date and listed on Schedule 9.1, and anyPermitted Refinancing Indebtedness in respect thereof in excess of $1,000,000;(d) Attributable Indebtedness with respect to Capital Lease Obligations andIndebtedness incurred in connection with purchase money Indebtedness in an aggregate principal amountat any time outstanding not to exceed the greater of (x) $50,000,000 and (y) 20.00% of LTM EBITDA;(e) Indebtedness of a Person existing at the time such Person became a Subsidiary orassets were acquired from such Person in connection with an Investment permitted pursuant to Section9.3; provided that (i) such Indebtedness was not incurred in connection with, or in contemplation of, suchPerson becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor anySubsidiary thereof (other than such Person or any other Person that such Person merges with or thatacquires the assets of such Person) shall have any liability or other obligation with respect to suchIndebtedness, (iii) the Administrative Agent shall have received satisfactory written evidence that theBorrower would be in compliance with the financial covenants set forth in Section 9.13 on a Pro FormaBasis after giving effect to the incurrence any such Indebtedness and (iv) the sum of (I) such Indebtednessincurred by Non-Guarantor Subsidiaries under this Section 9.1(e) and (II) any Indebtedness incurred byNon-Guarantor Subsidiaries under Section 9.1(r) shall not exceed an aggregate principal amount at anytime outstanding equal to the greater of (x) $50,000,000 and (y) 20.00% of LTM EBITDA;(f) Indebtedness secured by real property of the Borrower and/or one or more of itsSubsidiaries in an aggregate principal amount at any time outstanding not to exceed the greater of (x)$75,000,000 and (y) 30.00% of LTM EBITDA;(g) (i) Guarantees by any Credit Party of Indebtedness of any other Credit Party nototherwise prohibited pursuant to this Section 9.1 and (ii) Guarantees by any Credit Party of Indebtednessof any Non-Guarantor Subsidiary to the extent permitted pursuant to Section 9.3 (other than clause (h)thereof); provided further that any Guarantee of Permitted Refinancing Indebtedness shall only bepermitted if it meets the requirements of the definition of “Permitted Refinancing Indebtedness”;105
(h) unsecured intercompany Indebtedness:(i) owed by any Credit Party to another Credit Party;(ii) owed by any Credit Party to any Non-Guarantor Subsidiary (providedthat such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to theAdministrative Agent); (iii) owed by any Non-Guarantor Subsidiary to any other Non-GuarantorSubsidiary; and (iv) owed by any Non-Guarantor Subsidiary to any Credit Party to the extentpermitted pursuant to Section 9.3;(i) Indebtedness arising from the honoring by a bank or other financial institution ofa check, draft or other similar instrument drawn against insufficient funds in the ordinary course ofbusiness; (j) [Reserved];(k) Indebtedness under performance guarantees and bonds, customs bonds, suretybonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensationclaims, in each case incurred in the ordinary course of business, and reimbursement obligations in respectof any of the foregoing;(l) Indebtedness of Foreign Subsidiaries and Non-Guarantor Subsidiaries in anaggregate principal amount at any time outstanding not to exceed the greater of (x) $50,000,000 and (y)20.00% of LTM EBITDA;(m) Indebtedness under Permitted Receivables Facilities incurred in the ordinarycourse of business or consistent with past practices;(n) Indebtedness in the form of secured or unsecured notes and/or term loans (and/orcommitments in respect thereof) issued or incurred by the Borrower or any Subsidiary Guarantor in lieuof Incremental Term Loans (such notes or loans, “Incremental Equivalent Debt”); provided that, subject,where applicable, to Section 1.10, (i) the original principal amount of such Incremental Equivalent Debtto be incurred shall not: (a) exceed the Incremental Facilities Limit (determined after giving effect to allIncremental Loans, Incremental Loan Commitments and Incremental Equivalent Debt incurred orestablished in reliance on the relevant clauses of Incremental Facilities Limit), (b) in the case suchIncremental Equivalent Debt is secured by a Lien on the Collateral that is junior in priority to the Lien onthe Collateral securing the Obligations, exceed the principal amount of Indebtedness permitted to beincurred pursuant to clause (III) of the Incremental Facilities Limit (after replacing the reference to “2.75to 1.00” in such clause (III) therein with “3.25 to 1.00”) or (c) in the case of unsecured IncrementalEquivalent Debt, without netting the proceeds of such Incremental Equivalent Debt, cause the Borrowerto not be in compliance with Section 9.13(b) as of the last day of the most recent Reference Period (aftergiving effect to such Incremental Equivalent Debt and all Incremental Equivalent Debt, Incremental LoanCommitments, Incremental Term Loans and Incremental Revolving Credit Increases and IncrementalRevolving Credit Commitments previously incurred or established and assuming, for such purposes, thatany such Incremental Revolving Credit Commitments and Incremental Revolving Credit Increases havebeen fully drawn and funded); provided further that (A) any Incremental Equivalent Debt shall not beincurred or guaranteed by any Subsidiaries of the Borrower that are not Subsidiary Guarantors, (B) in the106
case of any such secured Incremental Equivalent Debt (1) such Indebtedness is not secured by any assetsthat are not Collateral and (2) such indebtedness is subject to a Customary Intercreditor Agreement,(C) the terms and conditions of such Indebtedness (excluding pricing, interest rate margins, discounts,premiums, rate floors, delayed draw mechanics, currency types and denominations, prepayment orredemption terms or provisions, fees and (subject to clause (D) below) maturity and amortizationschedule, which shall be determined by the Borrower, and except for covenants and other provisionsapplicable only to periods after the Latest Maturity Date), at the option of the Borrower, shall (x) reflectmarket terms and conditions (taken as a whole) at the time of incurrence, issuance or effectiveness, as thecase may be (as determined in good faith by the Borrower), (y) not be materially more restrictive to theBorrower and its Subsidiaries (when taken as a whole) than the terms and conditions of the LoanDocuments (when taken as a whole) or (z) be reasonably satisfactory to the Administrative Agent (itbeing understood that to the extent that any covenant or provision is added for the benefit of any suchIndebtedness, the terms and conditions of such indebtedness will be deemed not to be more restrictivethan the terms and conditions of the Loan Documents if such covenant or provision is also added to theLoan Documents) and (D) except with respect to any Incremental Equivalent Debt consisting of acustomary bridge facility (so long as the Indebtedness outstanding under any such customary bridgefacility is automatically converted into or exchanged for long-term Indebtedness that satisfies theimmediately succeeding requirements as to maturity date and Weighted Average Life to Maturity and anysuch conversion or exchange is subject only to customary conditions), the maturity date of any suchIncremental Equivalent Debt shall be no earlier than the Latest Maturity Date, the Weighted Average Lifeto Maturity of any such Incremental Equivalent Debt shall not be shorter than the then remainingWeighted Average Life to Maturity of the Revolving Credit Facility and such Incremental EquivalentDebt shall not have any mandatory prepayment or redemption features (other than customary asset saleevents, insurance and condemnation proceeds events, change of control offers or events of default and, inthe case of loans, excess cash flow sweeps) that could result in prepayments or redemptions of suchindebtedness prior to the Latest Maturity Date (provided that this clause (D) shall not prevent thisincurrence of an Incremental Equivalent Debt if the proceeds thereof are placed into escrow and onlypermitted to be released upon certain conditions and such Incremental Equivalent Debt is prepayable ifsuch conditions are not satisfied); and any Permitted Refinancing Indebtedness in respect of theIndebtedness referred to in this clause (n);(o) Indebtedness in an amount equal to the aggregate Net Cash Proceeds of issuancesof Qualified Equity Interests of the Borrower, except to the extent such Net Cash Proceeds have beenused for the Cumulative Available Amount;(p) Indebtedness in the form of earn-out obligations in an aggregate principal amountat any time outstanding not to exceed $50,000,000;(q) Indebtedness of any Credit Party or any Subsidiary thereof not otherwisepermitted pursuant to this Section 9.1 in an aggregate principal amount at any time outstanding not toexceed the greater of (x) $100,000,000 and (y) 40.00% of LTM EBITDA; and(r) (A) unsecured Indebtedness of any Credit Party or any Subsidiary thereof nototherwise permitted pursuant to this Section, in an aggregate principal amount, so long as (i) no SpecifiedEvent of Default has occurred or is continuing resulting therefrom, (ii) on a Pro Forma Basis, theBorrower is in compliance with Section 9.13 (without, when determining such compliance, netting theproceeds of such Indebtedness) and (iii) such unsecured Indebtedness satisfies the requirements ofSection 9.1(n)(D) above as if such Indebtedness were Incremental Equivalent Debt, and (B) any PermittedRefinancing Indebtedness in respect of the Indebtedness referred to in the immediately preceding clause(A); provided the sum of (I) such Indebtedness incurred by Non-Guarantor Subsidiaries under thisSection 9.1(r) and (II) any Indebtedness incurred by Non-Guarantor Subsidiaries under Section 9.1(e)107
shall not exceed an aggregate principal amount at any time outstanding equal to the greater of (x)$50,000,000 and (y) 20.00% of LTM EBITDA;(s) Indebtedness of any Credit Party that is secured by a Lien on the Collateral that isjunior to the Lien on the Collateral securing the Obligations; provided that (A) the Secured Net LeverageRatio of the Borrower is less than or equal to 3.25 to 1.00 on a Pro Forma Basis after giving effect thereto(but in calculating the Secured Net Leverage Ratio when determining the permissibility of any incurrenceof Indebtedness pursuant to this Section 9.1(s), excluding any proceeds of such Indebtedness to beincurred pursuant to clause (ii) of the definition of “Secured Net Leverage Ratio”), (B) such Indebtednessmeets the requirements of Section 9.1(n)(A), (B) and (D) above as if such Indebtedness were IncrementalEquivalent Debt and (C) such Indebtedness shall be subject to a Customary Intercreditor Agreement. Forthe avoidance of doubt, any original issue discount or upfront fee or accreted value thereof will not bedeemed to be Indebtedness pursuant to this Section 9.1(s); and(t) to the extent constituting Indebtedness, all obligations under that certainNonqualified Deferred Compensation Plan of the Borrower filed as Exhibit 10.1 to the Borrower’sCurrent Report on Form 8-K filed on February 11, 2011 and any similar deferred compensation plan thatreplaces such plan.The Borrower shall be permitted to allocate and reallocate any Indebtedness (other than theObligations) among any combination of applicable categories in this Section 9.1 upon and at any timeafter the original incurrence thereof. The accrual of interest, the accretion of accreted value and thepayment of interest on any Indebtedness to the extent such payment of interest is in the form of additionalamounts of such Indebtedness on which such interest is being so paid shall not be deemed to be anincurrence of Indebtedness for purposes of this Section 9.1; provided that in each case the amount of suchinterest and/or accreted value shall be included in the calculation of “Consolidated Interest Expense” tothe extent required by the definition of such term.Section 9.2 Liens. Create, incur, assume or suffer to exist, any Lien on or with respect to anyof its Property, whether now owned or hereafter acquired, except:(a) Liens created pursuant to the Loan Documents (including, without limitation,Liens in favor of the Swingline Lender and/or the Issuing Lenders, as applicable, on Cash Collateralgranted pursuant to the Loan Documents);(b) Liens in existence on the Closing Date and described on Schedule 9.2, and thereplacement, renewal or extension thereof (including Liens incurred, assumed or suffered to exist inconnection with any Permitted Refinancing Indebtedness permitted pursuant to Section 9.1(c) (solely tothe extent that such Liens were in existence on the Closing Date and described on Schedule 9.2));provided that the scope of any such Lien shall not be increased, or otherwise expanded, to cover anyadditional property (except in the case of a replacement property subject to a replacement lease) or type ofasset, as applicable, beyond that in existence on the Closing Date, except for products and proceeds of theforegoing; (c) Liens for taxes, assessments and other governmental charges or levies (excludingany Lien imposed pursuant to any of the provisions of ERISA or Environmental Laws) (i) not yet due andpayable or as to which the period of grace (not to exceed thirty (30) days), if any, related thereto has notexpired or (ii) which are being contested in good faith and by appropriate proceedings if adequatereserves are maintained to the extent required by GAAP;108
(d) the claims of materialmen, mechanics, carriers, warehousemen, processors orlandlords for labor, materials, supplies or rentals incurred in the ordinary course of business, which (i) arenot overdue for a period of more than thirty (30) days, or if more than thirty (30) days overdue, no actionhas been taken to enforce such Liens and such Liens are being contested in good faith and by appropriateproceedings if adequate reserves are maintained to the extent required by GAAP and (ii) do not,individually or in the aggregate, materially impair the use thereof in the operation of the business of theBorrower or any of its Subsidiaries;(e) deposits or pledges made in the ordinary course of business in connection with,or to secure payment of, obligations under workers’ compensation, unemployment insurance and othertypes of social security or similar legislation, or to secure the performance of bids, trade contracts andleases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related tojudgments or litigation), performance bonds, customs bonds and other obligations of a like natureincurred in the ordinary course of business, in each case, so long as no foreclosure sale or similarproceeding has been commenced with respect to any portion of the Collateral on account thereof;(f) encumbrances or other matters in the nature of zoning restrictions, easements andrights or restrictions of record on the use of real property, which in the aggregate are not substantial inamount or which do not, in any case, materially impair the use thereof in the ordinary conduct ofbusiness; (g) Liens arising from the filing of precautionary UCC financing statements relatingsolely to personal property leased pursuant to Operating Leases entered into in the ordinary course ofbusiness of the Borrower and its Subsidiaries;(h) Liens securing Indebtedness permitted under Section 9.1(d); provided that (i)such Liens shall be created substantially simultaneously with the acquisition, repair, construction,improvement or lease, as applicable, of the related Property, (ii) such Liens do not at any time encumberany property other than the Property financed or improved by such Indebtedness, (iii) the amount ofIndebtedness secured thereby is not increased and (iv) the principal amount of Indebtedness secured byany such Lien shall at no time exceed one hundred percent (100%) of the original price for the purchase,repair, construction, improvement or lease amount (as applicable) of such Property at the time ofpurchase, repair, construction, improvement or lease (as applicable);(i) Liens securing judgments for the payment of money not constituting an Event ofDefault under Section 10.1(m) or securing appeal or other surety bonds relating to such judgments;(j) Liens on Property (i) of any Subsidiary which are in existence at the time thatsuch Subsidiary is acquired pursuant to a Permitted Acquisition and (ii) of the Borrower or any of itsSubsidiaries existing at the time such tangible property or tangible assets are purchased or otherwiseacquired by the Borrower or such Subsidiary thereof pursuant to a transaction permitted pursuant to thisAgreement; provided that, with respect to each of the foregoing clauses (i) and (ii), (A) such Liens are notincurred in connection with, or in anticipation of, such Permitted Acquisition, purchase or otheracquisition, (B) such Liens are applicable only to specific Property, (C) such Liens are not “blanket” or allasset Liens, (D) such Liens do not attach to any other Property of the Borrower or any of its Subsidiariesand (E) the Indebtedness secured by such Liens is permitted under Section 9.1(e) of this Agreement;(k) Liens on assets of Foreign Subsidiaries and Non-Guarantor Subsidiaries;provided that (i) such Liens do not extend to, or encumber, assets that constitute Collateral or the EquityInterests of the Borrower or any of the Subsidiaries, and (ii) such Liens extending to the assets of any109
Foreign Subsidiary or Non-Guarantor Subsidiary secure only Indebtedness incurred by such ForeignSubsidiary or such Non-Guarantor Subsidiary, as applicable, pursuant to Section 9.1(c), (e), (l) or (o);(l) (i) Liens of a collecting bank arising in the ordinary course of business underSection 4210 of the Uniform Commercial Code in effect in the relevant jurisdiction and (ii) Liens of anydepositary bank in connection with statutory, common law and contractual rights of setoff andrecoupment with respect to any deposit account of the Borrower or any Subsidiary thereof;(m) (i) contractual or statutory Liens of landlords to the extent relating to the propertyand assets relating to any lease agreements with such landlord, and (ii) contractual Liens of suppliers(including sellers of goods) or customers granted in the ordinary course of business to the extent limitedto the property or assets relating to such contract;(n) any interest or title of a licensor, sublicensor, lessor or sublessor with respect toany assets under any license or lease agreement entered into in the ordinary course of business which donot (i) secure any Indebtedness;(o) Liens on real property securing Indebtedness permitted under Section 9.1(f);(p) Liens on the Collateral securing Indebtedness incurred pursuant to Section 9.1(s);(q) Liens on Receivables Related Assets created in connection with PermittedReceivables Facilities permitted under Section 9.1(m); and(r) Liens not otherwise permitted hereunder on assets other than the Collateralsecuring Indebtedness or other obligations in the aggregate principal amount at any time outstanding notto exceed the greater of (x) $100,000,000 and (y) 40.00% of LTM EBITDA.The Borrower shall be permitted to allocate and reallocate any Liens (other than Liens securingthe Obligations) among any combination of applicable categories in this Section 9.2 upon and at any timeafter the original creation thereof. Any Liens in respect of the accrual of interest, the accretion of accretedvalue and the payment of interest on any Indebtedness to the extent such payment of interest is in theform of additional amounts of such Indebtedness on which such interest is being so paid shall not bedeemed to be an incurrence of Indebtedness for purposes of this Section 9.1; provided that in each casethe amount of such interest and/or accreted value shall be included in the calculation of “ConsolidatedInterest Expense” to the extent required by the definition of such term.Section 9.3 Investments. Make any Investment, except:(a) Investments:(i) existing on the Closing Date in Subsidiaries existing on the ClosingDate; (ii) (A) existing on the Closing Date (other than Investments in Subsidiariesexisting on the Closing Date), (B) required to be made to effectuate the Transactions or (C) described onSchedule 9.3; (iii) made after the Closing Date by any Credit Party in any other CreditParty; 110
(iv) made after the Closing Date by any Non-Guarantor Subsidiary in anyother Non-Guarantor Subsidiary;(v) made after the Closing Date by any Non-Guarantor Subsidiary in anyCredit Party; and (vi) made after the Closing Date by any Credit Party in any Non-GuarantorSubsidiary in an aggregate amount at any time outstanding not to exceed the greater of (x) $50,000,000and (y) 20.00% of LTM EBITDA (provided that any Investments in the form of loans or advances madeby any Credit Party to any Non-Guarantor Subsidiary pursuant to this clause (v) shall be evidenced by ademand note in form and substance reasonably satisfactory to the Administrative Agent and shall bepledged and delivered to the Administrative Agent pursuant to the Security Documents);(b) Investments in cash and Cash Equivalents;(c) Investments by the Borrower or any Subsidiary consisting of CapitalExpenditures on behalf of Borrower or such Subsidiary, respectively, permitted by this Agreement;(d) deposits made in the ordinary course of business to secure the performance ofleases or other obligations as permitted by Section 9.2;(e) Hedge Agreements permitted pursuant to Section 9.1;(f) purchases of assets in the ordinary course of business;(g) Investments by the Borrower or any Subsidiary thereof in the form of PermittedAcquisitions; (h) Investments in the form of loans and advances to officers, directors andemployees in the ordinary course of business in an aggregate amount not to exceed at any timeoutstanding $2,500,000 (determined without regard to any writedowns or write-offs of such loans oradvances); (i) Investments in the form of Restricted Payments permitted pursuant to Section9.6; (j) Guarantees (i) permitted pursuant to Section 9.3(a), (k), (p), (q) or (r), (ii) ofSubsidiaries to the extent such Guarantees are not of Indebtedness for borrowed money and are granted inthe ordinary course of business consistent with past practice, and (iii) to the extent constitutingInvestments, of performance under customary performance guarantees;(k) Investments in joint ventures or Unrestricted Subsidiaries; provided that theaggregate amount of all such Investments shall not at any time exceed the greater of (x) $50,000,000 and(y) 20.00% of LTM EBITDA;(l) Investments in Subsidiaries in connection with internal reorganizations and/orrestructurings and activities related to legal entity rationalization initiatives; provided that, after givingeffect to any such reorganization, restructuring or activity, neither the value of the Guarantees under theSubsidiary Guaranty Agreement, taken as a whole, is materially reduced, nor the security interest of the111
Administrative Agent in the Collateral, taken as a whole, is materially impaired (as reasonably determinedby the Borrower);(m) Investments (including debt obligations) received in connection with thebankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, andother disputes with, customers or suppliers arising in the ordinary course of business;(n) Investments consisting of notes receivable of, or other credit extensions to,customers and suppliers who are not Affiliates of the Borrower arising in the ordinary course of business;(o) Investments of Receivables Related Assets in Receivables Subsidiaries made inconnection with a Permitted Receivables Facility;(p) Investments not otherwise permitted pursuant to this Section 9.3 in an aggregateamount at any time outstanding not to exceed the greater of (x) $125,000,000 and (y) 50.00% of LTMEBITDA; provided that, subject to Section 1.10, immediately before and immediately after giving proforma effect to any such Investments and any Indebtedness incurred in connection therewith, no Defaultor Event of Default shall have occurred and be continuing;(q) Investments not otherwise permitted pursuant to this Section 9.3 in an aggregateamount not to exceed the Cumulative Available Amount; and(r) so long as (i) the Total Net Leverage Ratio calculated on a Pro Forma Basis shallbe less than or equal to 3.25 to 1.00 and (ii) no Specified Event of Default shall have occurred and becontinuing or result therefrom, Investments not otherwise permitted pursuant to this Section 9.3.For purposes of determining the amount of any Investment outstanding for purposes of this Section 9.3,such amount shall be deemed to be the amount of such Investment when made, purchased or acquired(without adjustment for subsequent increases or decreases in the value of such Investment) less anyamount realized in respect of such Investment upon the sale, collection or return of capital (not to exceedthe original amount invested). The Borrower shall be permitted to allocate and reallocate any Investmentamong any combination of applicable categories in this Section 9.3 upon and at any time after the originalmaking thereof.Section 9.4 Fundamental Changes. Merge, consolidate or enter into any similar combinationwith, or enter into any Asset Disposition of all or substantially all of its assets (whether in a singletransaction or a series of transactions) with, any other Person or liquidate, wind-up or dissolve itself (orsuffer any liquidation or dissolution) except:(a) (i) any Wholly-Owned Subsidiary of the Borrower may be merged, amalgamatedor consolidated with or into the Borrower (provided that the Borrower shall be the continuing or survivingentity) or (ii) any Wholly-Owned Subsidiary of the Borrower may be merged, amalgamated orconsolidated with or into any Subsidiary Guarantor (provided that the Subsidiary Guarantor shall be thecontinuing or surviving entity or simultaneously with such transaction, the continuing or surviving entityshall become a Subsidiary Guarantor and the Borrower shall comply with Section 8.14 in connectiontherewith); (b) (i) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may be merged,amalgamated or consolidated with or into, or be liquidated into, any other Non-Guarantor Subsidiary and(ii) any Non-Guarantor Subsidiary that is a Domestic Subsidiary may be merged, amalgamated or112
consolidated with or into, or be liquidated into, any other Non-Guarantor Subsidiary that is a DomesticSubsidiary; (c) any Subsidiary may dispose of all or substantially all of its assets (uponvoluntary liquidation, dissolution, winding up or otherwise) to the Borrower or any Subsidiary Guarantor;provided that, with respect to any such disposition by any Non-Guarantor Subsidiary, the considerationfor such disposition shall not exceed the fair value of such assets;(d) (i) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may dispose of allor substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to anyother Non-Guarantor Subsidiary and (ii) any Non-Guarantor Subsidiary that is a Domestic Subsidiarymay dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up orotherwise) to any other Non-Guarantor Subsidiary that is a Domestic Subsidiary;(e) Asset Dispositions permitted by Section 9.5 (other than clause (b) thereof);(f) any Wholly-Owned Subsidiary of the Borrower may merge with or into thePerson such Wholly-Owned Subsidiary was formed to acquire in connection with any acquisitionpermitted hereunder (including, without limitation, any Permitted Acquisition permitted pursuant toSection 9.3(g)); provided that in the case of any merger involving a Wholly-Owned Subsidiary that is aDomestic Subsidiary, (i) a Subsidiary Guarantor shall be the continuing or surviving entity or (ii)simultaneously with such transaction, the continuing or surviving entity shall become a SubsidiaryGuarantor and the Borrower shall comply with Section 8.14 in connection therewith; and(g) any Person may merge into the Borrower or any of its Wholly-OwnedSubsidiaries in connection with a Permitted Acquisition permitted pursuant to Section 9.3(g); providedthat (i) in the case of a merger involving the Borrower or a Subsidiary Guarantor, the continuing orsurviving Person shall be the Borrower or such Subsidiary Guarantor and (ii) the continuing or survivingPerson shall be the Borrower or a Wholly-Owned Subsidiary of the Borrower.Section 9.5 Asset Dispositions. Make any Asset Disposition except:(a) the sale of inventory in the ordinary course of business;(b) the transfer of assets to the Borrower or any Subsidiary Guarantor pursuant toany other transaction permitted pursuant to Section 9.4;(c) (i) the write-off, discount, sale or other disposition of defaulted or past-duereceivables and similar obligations in the ordinary course of business and not undertaken as part of anaccounts receivable financing transaction and (ii) the sale or other disposition of Receivables RelatedAssets in connection with a Permitted Receivables Facility permitted under Section 9.1(m);(d) the disposition or unwinding of any Hedge Agreement;(e) dispositions of Investments in cash and Cash Equivalents;(f) the transfer by any Credit Party of its assets to any other Credit Party;113
(g) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party(provided that in connection with any new transfer, such Credit Party shall not pay more than an amountequal to the fair market value of such assets as determined in good faith at the time of such transfer);(h) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary(i) the sale or other disposition of obsolete, worn-out or surplus assets no longerused or usable in the business of the Borrower or any of its Subsidiaries;(j) non-exclusive licenses and sublicenses of intellectual property rights in theordinary course of business;(k) leases, subleases, licenses or sublicenses of real or personal property granted bythe Borrower or any of its Subsidiaries to others in the ordinary course of business not detracting in anymaterial respect from the value of such real or personal property or interfering in any material respectwith the business of the Borrower or any of its Subsidiaries;(l) Asset Dispositions in connection with Insurance and Condemnation Events;(m) Asset Dispositions not otherwise permitted pursuant to this Section 9.5; providedthat the aggregate amount of all property disposed of in reliance on this clause (m) during any Fiscal Yearshall not exceed the greater of (x) $25,000,000 and (y) 10.00% of LTM EBITDA;(n) Asset Dispositions not otherwise permitted pursuant to this Section 9.5; providedthat if the fair market value of such Asset Disposition is in excess of $25,000,000, (x) the considerationreceived shall be no less than seventy-five (75%) in cash or shall convert to cash or Cash Equivalentswithin 180 days from receipt or (y) if the consideration received shall be less than seventy-five (75%) incash or Cash Equivalents or shall not convert to cash or Cash Equivalents within 180 days from receipt, inan aggregate amount of up to $20,000,000 at any one time outstanding; and(o) Asset Dispositions pursuant to Sale Leaseback Transactions not otherwisepermitted pursuant to this Section 9.5 in an aggregate amount (measured by the fair market value (asreasonably determined in good faith by the Borrower) of the real property subject thereto) for all suchSale Leaseback Transactions in the aggregate since the Closing Date not exceeding $75,000,000.Section 9.6 Restricted Payments. Declare or pay any Restricted Payments; provided that:(a) so long as no Default or Event of Default has occurred and is continuing orwould result therefrom, the Borrower or any of its Subsidiaries may pay dividends in shares of its ownQualified Equity Interests on a ratable basis to holders of its Equity Interests (and may pay cash in lieu offractional Qualified Equity Interests);(b) any Subsidiary of the Borrower may pay cash dividends to the Borrower or anySubsidiary Guarantor (and, if applicable, to other holders of its outstanding Qualified Equity Interests ona pro rata basis);(c) (i) any Non-Guarantor Subsidiary that is a Domestic Subsidiary may makeRestricted Payments to any other Non-Guarantor Subsidiary that is a Domestic Subsidiary (and, ifapplicable, to other holders of its outstanding Equity Interests on a ratable basis) and (ii) any Non-114
Guarantor Subsidiary that is a Foreign Subsidiary may make Restricted Payments to any other Non-Guarantor Subsidiary (and, if applicable, to other holders of its outstanding Equity Interests on a ratablebasis); (d) the Borrower or any of its Subsidiaries may redeem, retire or otherwise acquireshares of its Equity Interests or options or other equity or phantom equity in respect of its Equity Interestsfrom present or former officers, employees, directors or consultants (or their family members or trusts orother entities for the benefit of any of the foregoing) or make severance payments to such Persons inconnection with the death, disability or termination of employment or consultancy of any such officer,employee, director or consultant in an aggregate amount not to exceed $10,000,000 in any Fiscal Year(plus any unused amount from any preceding Fiscal Years with any unused amounts to be deemed to beused prior to any amounts from the current Fiscal Year) (inclusive of but not limited to repurchases underany 401(k) plan);(e) the Borrower may pay regularly scheduled dividends and board approved sharerepurchases in respect of its common Equity Interests in an aggregate amount of up to the greater of (i)6.0% of the Borrower’s market capitalization per Fiscal Year and (ii) $200,000,000 in any Fiscal Year;(f) so long as (i) the Total Net Leverage Ratio calculated on a Pro Forma Basis isless than or equal to 3.00 to 1.00 and (ii) no Event of Default has occurred and is continuing or wouldresult therefrom, the Borrower or any of its Subsidiaries may declare or make any Restricted Payments;(g) so long as no Event of Default has occurred and is continuing or would resulttherefrom, the Borrower or any of its Subsidiaries may make other Restricted Payments in an aggregateamount not to exceed the greater of (x) $25,000,000 and (y) 10.00% of LTM EBITDA during the term ofthis Agreement; and(h) the Borrower or any of its Subsidiaries may make any Restricted Paymentdeclared on a date on which such Restricted Payment was permitted under this Agreement if suchRestricted Payment is made in accordance with the terms of such declaration on a date within sixty (60)days after the date of such declaration.Section 9.7 [Reserved].Section 9.8 [Reserved].Section 9.9 [Reserved].Section 9.10 [Reserved].Section 9.11 [Reserved].Section 9.12 [Reserved].Section 9.13 Financial Covenants. Subject to Section 1.13:(a) Minimum Consolidated Interest Coverage Ratio. As of the last day of anyReference Period ending after the Closing Date, permit the Consolidated Interest Coverage Ratio for suchReference Period to be less than 2.00 to 1.00. 115
(b) Maximum Total Net Leverage Ratio. As of the last day of any Reference Periodending after the Closing Date, permit the Total Net Leverage Ratio to be greater than 4.00 to 1.00;provided that, solely with respect to this Section 9.13(b), upon the consummation of a QualifiedAcquisition, the then applicable Total Net Leverage Ratio shall increase to 4.50 to 1.00 as of the end ofthe Reference Period in which such Qualified Acquisition is consummated and as of the end of theimmediately following three (3) Reference Periods ending thereafter.ARTICLE XDEFAULT AND REMEDIESSection 10.1 Events of Default. Each of the following shall constitute an Event of Default:(a) Default in Payment of Principal of Loans and Reimbursement Obligations. TheBorrower or any other Credit Party shall default in any payment of principal of any Loan orReimbursement Obligation when and as due (whether at maturity, by reason of acceleration or otherwise).(b) Other Payment Default. The Borrower shall default in the payment when and asdue (whether at maturity, by reason of acceleration or otherwise) of interest on (i) any Loan orReimbursement Obligation and such default shall continue for a period of five (5) Business Days or (ii)the payment of any other Obligation and such default shall continue for a period of ten (10) BusinessDays. (c) Misrepresentation. Any representation, warranty, certification or statement offact made or deemed made by or on behalf of any Credit Party or any Subsidiary thereof in thisAgreement, in any other Loan Document, or in any document delivered in connection herewith ortherewith that is subject to materiality or Material Adverse Effect qualifications, shall be incorrect ormisleading in any respect when made or deemed made or any representation, warranty, certification orstatement of fact made or deemed made by or on behalf of any Credit Party or any Subsidiary thereof inthis Agreement, any other Loan Document, or in any document delivered in connection herewith ortherewith that is not subject to materiality or Material Adverse Effect qualifications, shall be incorrect ormisleading in any material respect when made or deemed made; provided that if any suchmisrepresentation is capable of being cured, an Event of Default due to such misrepresentation shall notoccur until 30 days after such misrepresentation has occurred.(d) Default in Performance of Certain Covenants. Any Credit Party or anySubsidiary thereof shall default in the performance or observance of any covenant or agreement containedin Section 8.3(a), 8.4 (in the case of Section 8.4, to the extent relating to the Borrower only and not anySubsidiary) or Article IX; provided that a Default or an Event of Default with respect to Section 9.13 shallnot apply to any Incremental Term Loan or Incremental Term Loan Commitments unless all amountsunder the Revolving Credit Facility have been declared due and payable and the Revolving CreditCommitments under the Revolving Credit Facility have been terminated, in each case as a result of suchviolation or breach of Section 9.13.(e) Default in Performance of Other Covenants and Conditions. Any Credit Party orany Subsidiary thereof shall default in the performance or observance of any term, covenant, condition oragreement contained in this Agreement (other than as specifically provided for in this Section 10.1) orany other Loan Document and such default shall continue for a period of thirty (30) days after the earlierof (i) the Administrative Agent’s delivery of written notice thereof to the Borrower and (ii) a ResponsibleOfficer of any Credit Party having obtained knowledge thereof.116
(f) Indebtedness Cross-Default. Any Credit Party or any Subsidiary thereof shall (i)default in the payment of any Indebtedness (other than the Loans or any Reimbursement Obligation) theaggregate principal amount (including undrawn committed or available amounts), or with respect to anyHedge Agreement, the Hedge Termination Value, of which is in excess of the Threshold Amount beyondthe period of grace if any, provided in the instrument or agreement under which such Indebtedness wascreated, or (ii) default in the observance or performance of any other agreement or condition relating toany Indebtedness (other than the Loans or any Reimbursement Obligation) the aggregate principalamount (including undrawn committed or available amounts), or with respect to any Hedge Agreement,the Hedge Termination Value, of which is in excess of the Threshold Amount or contained in anyinstrument or agreement evidencing, securing or relating thereto or any other event shall occur orcondition exist, the effect of which default or other event or condition is to cause, or to permit the holderor holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, withthe giving of notice and/or lapse of time, if required, any such Indebtedness to (A) become due, or to berepurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity (any applicable graceperiod having expired) or (B) be cash collateralized.(g) [Reserved.](h) Change in Control. Any Change in Control shall occur.(i) Voluntary Bankruptcy Proceeding. Any Credit Party or any Subsidiary thereofshall (i) commence a voluntary case under any Debtor Relief Laws, (ii) file a petition seeking to takeadvantage of any Debtor Relief Laws, (iii) consent to or fail to contest in a timely and appropriate mannerany petition filed against it in an involuntary case under any Debtor Relief Laws, (iv) apply for or consentto, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possessionby, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic orforeign, (v) admit in writing its inability to pay its debts as they become due, (vi) make a generalassignment for the benefit of creditors, or (vii) take any corporate action for the purpose of authorizingany of the foregoing.(j) Involuntary Bankruptcy Proceeding. A case or other proceeding shall becommenced against any Credit Party or any Material Subsidiary thereof in any court of competentjurisdiction seeking (i) relief under any Debtor Relief Laws, or (ii) the appointment of a trustee, receiver,custodian, liquidator or the like for any Credit Party or any Subsidiary thereof or for all or any substantialpart of their respective assets, domestic or foreign, and such case or proceeding shall continue withoutdismissal or stay for a period of sixty (60) consecutive days, or an order granting the relief requested insuch case or proceeding (including, but not limited to, an order for relief under such federal bankruptcylaws) shall be entered.(k) Failure of Agreements. Any provision of the Subsidiary Guaranty Agreement (tothe extent relating to a material Subsidiary Guarantor) shall for any reason cease to be valid and bindingon such Subsidiary Guarantor or any such Subsidiary Guarantor shall so state in writing, or any LoanDocument shall for any reason, except during a Collateral Release Period, cease to create a valid andperfected first priority Lien (subject to Permitted Liens) on, or security interest in, any of the Collateralpurported to be covered thereby, in each case other than in accordance with the express terms hereof orthereof. (l) ERISA Events. The occurrence of any of the following events: (i) any CreditParty or any ERISA Affiliate fails to make full payment when due of all amounts which, under theprovisions of any Pension Plan or Sections 412 or 430 of the Code, any Credit Party or any ERISA117
Affiliate is required to pay as contributions thereto and such unpaid amounts are in excess of an amountthat could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (ii)a Termination Event or (iii) any Credit Party or any ERISA Affiliate makes a complete or partialwithdrawal from any Multiemployer Plan and the Multiemployer Plan notifies such Credit Party orERISA Affiliate that such entity has incurred a withdrawal liability requiring payments in excess of anamount that could reasonably be expected, individually or in the aggregate, to have a Material AdverseEffect. (m) Judgment. One or more final judgments, orders or decrees shall be enteredagainst any Credit Party or any Subsidiary thereof by any court and continues without having beendischarged, vacated or stayed for a period of thirty (30) consecutive days after the entry thereof and suchjudgments, orders or decrees are either (i) for the payment of money, individually or in the aggregate (tothe extent not paid or covered by insurance as to which the relevant insurance company hasacknowledged coverage), in an amount equal to or in excess of the Threshold Amount or (ii) forinjunctive relief and could reasonably be expected, individually or in the aggregate, to have a MaterialAdverse Effect.Section 10.2 Remedies. Upon the occurrence and during the continuance of an Event ofDefault, the Administrative Agent may, or upon the request of the Required Lenders (or, to the extent setforth below, the Required Revolving/TLA Lenders or Required Revolving Credit Lenders), theAdministrative Agent shall, by notice to the Borrower:(a) Acceleration; Termination of Credit Facility. Terminate the Commitment anddeclare the principal of and interest on the Loans and the Reimbursement Obligations at the timeoutstanding, and all other amounts owed to the Lenders and to the Administrative Agent under thisAgreement or any of the other Loan Documents and all other Obligations, to be forthwith due andpayable, whereupon the same shall immediately become due and payable without presentment, demand,protest or other notice of any kind, all of which are expressly waived by each Credit Party, anything inthis Agreement or the other Loan Documents to the contrary notwithstanding, and terminate the CreditFacility and any right of the Borrower to request borrowings or Letters of Credit thereunder; provided that(A) upon the occurrence of an Event of Default specified in Section 10.1(i) or (j), the Credit Facility shallbe automatically terminated and all Obligations shall automatically become due and payable withoutpresentment, demand, protest or other notice of any kind, all of which are expressly waived by eachCredit Party, anything in this Agreement or in any other Loan Document to the contrary notwithstandingand (B) to the extent that such Event of Default shall have arisen from a breach of failure to comply withSection 9.13 (and no other Event of Default is then occurring or continuing), the actions described in thisSection 10.2(a) shall only be permitted to be taken with the consent of the Required Revolving/TLALenders and the Required Lenders shall not otherwise have any rights to direct such actions to be taken.(b) Letters of Credit. With respect to all Letters of Credit with respect to whichpresentment for honor shall not have occurred at the time of an acceleration pursuant to the precedingparagraph, at the request of the Required Revolving Credit Lenders and not at the demand or request ofthe Required Lenders, demand that the Borrower deposit in a Cash Collateral account opened by theAdministrative Agent an amount equal to one hundred and two (102%) of the aggregate then undrawnand unexpired amount of such Letters of Credit; provided, however, that the obligation to provide suchdeposits shall become due and payable, without presentment, demand, protest or other notice of any kind,upon the occurrence of an Event of Default specified in Section 10.1(i) or (j). Amounts held in such CashCollateral account shall be applied by the Administrative Agent to the payment of drafts drawn undersuch Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired orbeen fully drawn upon, if any, shall be applied to repay the other Secured Obligations in accordance with118
Section 10.4. After all such Letters of Credit shall have expired or been fully drawn upon, theReimbursement Obligation shall have been satisfied and all other Secured Obligations shall have beenpaid in full, the balance, if any, in such Cash Collateral account shall be returned to the Borrower.(c) General Remedies. Exercise on behalf of the Secured Parties all of its otherrights and remedies under this Agreement, the other Loan Documents and Applicable Law, in order tosatisfy all of the Secured Obligations.(d) Rescission. (I) Any action taken under Section 10.2(a) due to the continuance ofan Event of Default (other than (A) an Event of Default that has arisen under Section 10.1(i) or 10.1(j) or(B) that has arisen from a failure to comply or a breach of Section 9.13) may be rescinded with the writtenconsent of the Required Lenders and (II) any action taken under Section 10.2(a) due to the continuance ofan Event of Default that has arisen from a failure to comply with or a breach of Section 9.13 may berescinded with the written consent of only the Required Revolving/TLA Lenders.Section 10.3 Rights and Remedies Cumulative; Non-Waiver; Etc.(a) The enumeration of the rights and remedies of the Administrative Agent and theLenders set forth in this Agreement is not intended to be exhaustive and the exercise by theAdministrative Agent and the Lenders of any right or remedy shall not preclude the exercise of any otherrights or remedies, all of which shall be cumulative, and shall be in addition to any other right or remedygiven hereunder or under the other Loan Documents or that may now or hereafter exist at law or in equityor by suit or otherwise. No delay or failure to take action on the part of the Administrative Agent or anyLender in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single orpartial exercise of any such right, power or privilege preclude any other or further exercise thereof or theexercise of any other right, power or privilege or shall be construed to be a waiver of any Event ofDefault. No course of dealing between the Borrower, the Administrative Agent and the Lenders or theirrespective agents or employees shall be effective to change, modify or discharge any provision of thisAgreement or any of the other Loan Documents or to constitute a waiver of any Event of Default.(b) Notwithstanding anything to the contrary contained herein or in any other LoanDocument, the authority to enforce rights and remedies hereunder and under the other Loan Documentsagainst the Credit Parties or any of them shall be vested exclusively in, and all actions and proceedings atlaw in connection with such enforcement shall be instituted and maintained exclusively by, theAdministrative Agent in accordance with Section 10.2 for the benefit of all the Lenders and the IssuingLenders; provided that the foregoing shall not prohibit (a) the Administrative Agent from exercising on itsown behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent)hereunder and under the other Loan Documents, (b) any Issuing Lender or the Swingline Lender fromexercising the rights and remedies that inure to its benefit (solely in its capacity as an Issuing Lender orSwingline Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lenderfrom exercising setoff rights in accordance with Section 12.4 (subject to the terms of Section 5.6), or (d)any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during thependency of a proceeding relative to any Credit Party under any Debtor Relief Law; and provided furtherthat if at any time there is no Person acting as Administrative Agent hereunder and under the other LoanDocuments, then (i) the Required Lenders shall have the rights otherwise ascribed to the AdministrativeAgent pursuant to Section 10.2 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of thepreceding proviso and subject to Section 5.6, any Lender may, with the consent of the Required Lenders,enforce any rights and remedies available to it and as authorized by the Required Lenders.Section 10.4 Crediting of Payments and Proceeds. In the event that the Obligations have beenaccelerated pursuant to Section 10.2 or the Administrative Agent or any Lender has exercised any remedy119
set forth in this Agreement or any other Loan Document, all payments received on account of the SecuredObligations and all net proceeds from the enforcement of the Secured Obligations shall, subject to theprovisions of Sections 5.14 and 5.15, be applied by the Administrative Agent as follows:(a) First, to payment of that portion of the Secured Obligations constituting fees,indemnities, expenses and other amounts, including attorney fees, payable to the Administrative Agent inits capacity as such;(b) Second, to payment of that portion of the Secured Obligations constituting fees(other than Commitment Fees and Letter of Credit fees payable to the Revolving Credit Lenders),indemnities and other amounts (other than principal and interest) payable to the Lenders, the IssuingLenders and the Swingline Lender under the Loan Documents, including attorney fees, ratably among theLenders, the Issuing Lenders and the Swingline Lender in proportion to the respective amounts describedin this clause (b) payable to them;(c) Third, to payment of that portion of the Secured Obligations constituting accruedand unpaid Commitment Fees, Letter of Credit fees payable to the Revolving Credit Lenders and intereston the Loans and Reimbursement Obligations, ratably among the Lenders, the Issuing Lenders and theSwingline Lender in proportion to the respective amounts described in this clause (c) payable to them;(d) Fourth, to payment of that portion of the Secured Obligations constituting unpaidprincipal of the Loans and Reimbursement Obligations and Secured Hedge Obligations and Secured CashManagement Obligations then owing and to Cash Collateralize any L/C Obligations then outstanding,ratably among holders of such obligations in proportion to the respective amounts described in this clause(d); and (e) Last, the balance, if any, after all of the Secured Obligations have been paid infull, to the Borrower or as otherwise required by Applicable Law.Notwithstanding the foregoing, Secured Cash Management Obligations and Secured HedgeObligations shall be excluded from the application described above if the Administrative Agent has notreceived written notice thereof, together with such supporting documentation as the Administrative Agentmay request, from the applicable holders thereof following such acceleration or exercise of remedies andat least three (3) Business Days prior to the application of the proceeds thereof. Each holder of SecuredCash Management Obligations or Secured Hedge Obligations that, in either case, is not a party to thisAgreement that has given the notice contemplated by the preceding sentence shall, by such notice, bedeemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to theterms of Article XI for itself and its Affiliates as if a “Lender” party hereto.Section 10.5 Administrative Agent May File Proofs of Claim. In case of the pendency of anyproceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party, theAdministrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then bedue and payable as herein expressed or by declaration or otherwise and irrespective of whether theAdministrative Agent shall have made any demand on any Credit Party) shall be entitled and empowered(but not obligated) by intervention in such proceeding or otherwise:(a) to file and prove a claim for the whole amount of the principal and interest owingand unpaid in respect of the Loans, L/C Obligations and all other Secured Obligations that are owing andunpaid and to file such other documents as may be necessary or advisable in order to have the claims of120
the Lenders, the Issuing Lenders and the Administrative Agent (including any claim for the reasonablecompensation, expenses, disbursements and advances of the Lenders, the Issuing Lenders and theAdministrative Agent and their respective agents and counsel and all other amounts due the Lenders, theIssuing Lenders and the Administrative Agent under Sections 3.1(j), 5.3 and 12.3) allowed in suchjudicial proceeding; and(b) to collect and receive any monies or other property payable or deliverable on anysuch claims and to distribute the same;(c) and any custodian, receiver, assignee, trustee, liquidator, sequestrator or othersimilar official in any such judicial proceeding is hereby authorized by each Lender and each IssuingLender to make such payments to the Administrative Agent and, in the event that the AdministrativeAgent shall consent to the making of such payments directly to the Lenders and the Issuing Lenders, topay to the Administrative Agent any amount due for the reasonable compensation, expenses,disbursements and advances of the Administrative Agent and its agents and counsel, and any otheramounts due the Administrative Agent under Sections 3.1(j), 5.3 and 12.3.Section 10.6 [Reserved].Section 10.7 [Reserved]. ARTICLE XITHE ADMINISTRATIVE AGENTSection 11.1 Appointment and Authority.(a) Each of the Lenders and each Issuing Lender hereby irrevocably appoints Bankof America to act on its behalf as the Administrative Agent hereunder and under the other LoanDocuments and authorizes the Administrative Agent to take such actions on its behalf and to exercisesuch powers as are delegated to the Administrative Agent by the terms hereof or thereof, together withsuch actions and powers as are reasonably incidental thereto. The provisions of this Article XI are solelyfor the benefit of the Administrative Agent, the Lenders and the Issuing Lenders, and neither theBorrower nor any other Credit Party shall have rights as a third party beneficiary of any of suchprovisions. It is understood and agreed that the use of the term “agent” herein or in any other LoanDocuments (or any other similar term) with reference to the Administrative Agent is not intended toconnote any fiduciary or other implied (or express) obligations arising under agency doctrine of anyApplicable Law. Instead such term is used as a matter of market custom, and is intended to create orreflect only an administrative relationship between contracting parties.(b) The Administrative Agent shall also act as the “collateral agent” under the LoanDocuments, and each of the Lenders (including in its capacities as a potential holder of Secured HedgeObligations and Secured Cash Management Obligations) and the Issuing Lenders hereby irrevocablyappoint and authorize the Administrative Agent to act as the agent of such Lender and the Issuing Lenderfor purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of theCredit Parties to secure any of the Obligations, together with such powers and discretion as are reasonablyincidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents,sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to this Article XI forpurposes of holding or enforcing any Lien on the Collateral (or any portion thereof granted under theCollateral Documents, or for exercising any rights and remedies thereunder at the direction of theAdministrative Agent), shall be entitled to the benefits of all provisions of this Article XI and Article XII121
(including Section 12.3(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateralagent” under the Loan Documents) as if set forth in full herein with respect thereto.(c) The Administrative Agent is hereby authorized by the Lenders and other SecuredParties to (i) enter into any Customary Intercreditor Agreement (to the extent contemplated by an explicitreference thereto in Section 9.1(n) or Section 9.1(s)) and (ii) the parties hereto acknowledge that suchCustomary Intercreditor Agreement will be binding upon them. Each Lender and other Secured Party (a)understands, acknowledges and agrees that Liens will be created on Collateral pursuant to the SecurityDocuments, which Liens may be subject to the terms and conditions of a Customary IntercreditorAgreement entered into by the Administrative Agent, (b) hereby agrees that it will be bound by and willtake no actions contrary to the provisions of any such Customary Intercreditor Agreement and (c) herebyauthorizes and instructs the Administrative Agent to enter into any such Customary IntercreditorAgreement contemplated by this Agreement.Section 11.2 Rights as a Lender. The Person serving as the Administrative Agent hereundershall have the same rights and powers in its capacity as a Lender as any other Lender and may exercisethe same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unlessotherwise expressly indicated or unless the context otherwise requires, include the Person serving as theAdministrative Agent hereunder in its individual capacity. Such Person and its Affiliates may acceptdeposits from, lend money to, own securities of, act as the financial advisor or in any other advisorycapacity for and generally engage in any kind of business with the Borrower or any Subsidiary or otherAffiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty toaccount therefor to the Lenders.Section 11.3 Exculpatory Provisions. The Administrative Agent or the Arranger, as applicable,shall not have any duties or obligations except those expressly set forth herein and in the other LoanDocuments, and its duties hereunder shall be administrative in nature. Without limiting the generality ofthe foregoing, the Administrative Agent or the Arranger, as applicable:(a) shall not be subject to any fiduciary or other implied duties, regardless ofwhether a Default has occurred and is continuing;(b) shall not have any duty to take any discretionary action or exercise anydiscretionary powers, except discretionary rights and powers expressly contemplated hereby or by theother Loan Documents that the Administrative Agent is required to exercise as directed in writing by theRequired Lenders (or such other number or percentage of the Lenders as shall be expressly provided forherein or in the other Loan Documents), provided that the Administrative Agent shall not be required totake any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent toliability or that is contrary to any Loan Document or Applicable Law, including for the avoidance ofdoubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that mayeffect a forfeiture, modification or termination of property of a Defaulting Lender in violation of anyDebtor Relief Law;(c) shall not have any duty or responsibility to disclose, and shall not be liable forthe failure to disclose, to any Lender or any Issuing Lender, any credit or other information concerningthe business, prospects, operations, property, financial and other condition or creditworthiness of any ofthe Credit Parties or any of their Affiliates, that is communicated to, obtained or in the possession of, theAdministrative Agent, Arranger or any of their Related Parties in any capacity, except for notices, reportsand other documents expressly required to be furnished to the Lenders by the Administrative Agentherein; 122
(d) shall not be liable for any action taken or not taken by it (i) with the consent or atthe request of the Required Lenders (or such other number or percentage of the Lenders as shall benecessary, or as the Administrative Agent shall believe in good faith shall be necessary, under thecircumstances as provided in Section 12.2 and Section 10.2) or (ii) in the absence of its own grossnegligence or willful misconduct, as determined by a court of competent jurisdiction by a final andnonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of anyDefault unless and until notice describing such Default is given to the Administrative Agent by theBorrower, a Lender or an Issuing Lender;(e) shall not be responsible for or have any duty to ascertain or inquire into (i) anystatement, warranty or representation made in or in connection with this Agreement or any other LoanDocument, (ii) the contents of any certificate, report or other document delivered hereunder or thereunderor in connection herewith or therewith, (iii) the performance or observance of any of the covenants,agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv)the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document orany other agreement, instrument or document, or the creation, perfection or priority of any Lien purportedto be created by the Security Documents, (v) the value or the sufficiency of any Collateral or (v) thesatisfaction of any condition set forth in Article VI or elsewhere herein, other than to confirm receipt ofitems expressly required to be delivered to the Administrative Agent; and(f) shall not be responsible or have any liability for, or have any duty to ascertain,inquire into, monitor or enforce, compliance with the provisions of this Agreement relating toDisqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shallnot (x) be obligated to ascertain, monitor or inquire as to whether any Lender or prospective Lender is aDisqualified Institution or (y) have any liability with respect to or arising out of any assignment of Loans,or disclosure of confidential information, to any Disqualified Institution.Section 11.4 Reliance by the Administrative Agent. The Administrative Agent shall beentitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,consent, statement, instrument, document or other writing (including any electronic message, Internet orintranet website posting or other distribution) believed by it to be genuine and to have been signed, sentor otherwise authenticated by the proper Person. The Administrative Agent also may rely upon anystatement made to it orally or by telephone and believed by it to have been made by the proper Person,and shall not incur any liability for relying thereon. In determining compliance with any conditionhereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit,that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Lender, the AdministrativeAgent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless theAdministrative Agent shall have received notice to the contrary from such Lender or such Issuing Lenderprior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent mayconsult with legal counsel (who may be counsel for the Borrower), independent accountants and otherexperts selected by it, and shall not be liable for any action taken or not taken by it in accordance with theadvice of any such counsel, accountants or experts.Section 11.5 Delegation of Duties. The Administrative Agent may perform any and all of itsduties and exercise its rights and powers hereunder or under any other Loan Document by or through anyone or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any suchsub-agent may perform any and all of its duties and exercise its rights and powers by or through theirrespective Related Parties. The exculpatory provisions of this Article XI shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply totheir respective activities in connection with the syndication of the credit facilities provided for herein aswell as activities as Administrative Agent. The Administrative Agent shall not be responsible for the123
negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdictiondetermines in a final and nonappealable judgment that the Administrative Agent acted with grossnegligence or willful misconduct in the selection of such sub-agents.Section 11.6 Resignation of Administrative Agent.(a) The Administrative Agent may at any time give notice of its resignation to theLenders, the Issuing Lenders and the Borrower. Upon receipt of any such notice of resignation, theRequired Lenders shall have the right, in consultation with the Borrower, to appoint a successor, whichshall be a bank with an office in the United States, or an Affiliate of any such bank with an office in theUnited States. If no such successor shall have been so appointed by the Required Lenders and shall haveaccepted such appointment within 30 days after the retiring Administrative Agent gives notice of itsresignation, (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation EffectiveDate”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of theLenders and the Issuing Lenders, appoint a successor Administrative Agent meeting the qualifications setforth above, provided that in no event shall any such successor Administrative Agent be a DefaultingLender or Disqualified Institution. Whether or not a successor has been appointed, such resignation shallbecome effective in accordance with such notice on the Resignation Effective Date.(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant toclause (d) of the definition thereof, the Required Lenders may, to the extent permitted by Applicable Law,by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, inconsultation with the Borrower, appoint a successor. If no such successor shall have been so appointedby the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day asshall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shallnonetheless become effective in accordance with such notice on the Removal Effective Date.(c) With effect from the Resignation Effective Date or the Removal Effective Date(as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties andobligations hereunder and under the other Loan Documents (except that in the case of any collateralsecurity held by the Administrative Agent on behalf of the Lenders or the Issuing Lenders under any ofthe Loan Documents, the retiring Administrative Agent shall continue to hold such collateral securityuntil such time as a successor Administrative Agent is appointed) and (2) except for any indemnitypayments or other amounts then owed to the retiring or removed Administrative Agent, all payments,communications and determinations provided to be made by, to or through the Administrative Agent shallinstead be made by or to each Lender and each Issuing Lender directly, until such time, if any, as theRequired Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptanceof a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to andbecome vested with all of the rights, powers, privileges and duties of the retiring (or removed)Administrative Agent (other than as provided in Section 5.11(i) and other than any rights to indemnitypayments or other amounts owed to the retiring or removed Administrative Agent as of the ResignationEffective Date or the Removal Effective Date, as applicable), and the retiring or removed AdministrativeAgent shall be discharged from all of its duties and obligations hereunder or under the other LoanDocuments (if not already discharged therefrom as provided above in this Section 11.6) . The feespayable by the Borrower to a successor Administrative Agent shall be the same as those payable to itspredecessor unless otherwise agreed between the Borrower and such successor. After the retiring orremoved Administrative Agent’s resignation or removal hereunder and under the other Loan Documents,the provisions of this Article XI and Section 12.3 shall continue in effect for the benefit of such retiring orremoved Administrative Agent, its sub-agents and their respective Related Parties in respect of anyactions taken or omitted to be taken by any of them (i) while the retiring or removed AdministrativeAgent was acting as Administrative Agent and (ii) after such resignation or removal for as long as any of124
them continues to act in any capacity hereunder or under the other Loan Documents, including (a) actingas collateral agent or otherwise holding any collateral security on behalf of any of the Lenders and (b) inrespect of any actions taken in connection with transferring the agency to any successor AdministrativeAgent. (d) Any resignation by Bank of America as Administrative Agent pursuant to thisSection 11.6 shall also constitute its resignation as an Issuing Lender and a Swingline Lender. If Bank ofAmerica resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of anIssuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of itsresignation as an Issuing Lender and all L/C Obligations with respect thereto, including the right torequire the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amountspursuant to Section 3.1(c). If Bank of America resigns as a Swingline Lender, it shall retain all the rightsof a Swingline Lender provided for hereunder with respect to Swingline Loans made by it andoutstanding as of the effective date of such resignation, including the right to require the Lenders to makeBase Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.2(b).Upon the appointment by the Borrower of a successor Issuing Lender or Swingline Lender hereunder(which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shallsucceed to and become vested with all of the rights, powers, privileges and duties of the retiring IssuingLender or Swingline Lender, as applicable, (b) the retiring Issuing Lender and Swingline Lender shall bedischarged from all of their respective duties and obligations hereunder or under the other LoanDocuments, and (c) the successor Issuing Lender shall issue letters of credit in substitution for the Lettersof Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory toBank of America to effectively assume the obligations of Bank of America with respect to such Letters ofCredit. Section 11.7 Non-Reliance on Administrative Agent, the Arranger and Other Lenders. EachLender and each Issuing Lender expressly acknowledges that none of the Administrative Agent nor theArranger has made any representation or warranty to it, and that no act by the Administrative Agent or theArranger hereafter taken, including any consent to, and acceptance of any assignment or review of theaffairs of any Credit Party of any Affiliate thereof, shall be deemed to constitute any representation orwarranty by the Administrative Agent or the Arranger to any Lender or each Issuing Lender as to anymatter, including whether the Administrative Agent or the Arranger have disclosed material informationin their (or their Related Parties’) possession. Each Lender and each Issuing Lender represents to theAdministrative Agent and the Arranger that it has, independently and without reliance upon theAdministrative Agent, the Arranger, any other Lender or any of their Related Parties and based on suchdocuments and information as it has deemed appropriate, made its own credit analysis of, appraisal of,and investigation into, the business, prospects, operations, property, financial and other condition andcreditworthiness of the Credit Parties and their Subsidiaries, and all applicable bank or other regulatoryLaws relating to the transactions contemplated hereby, and made its own decision to enter into thisAgreement and to extend credit to the Borrower hereunder. Each Lender and each Issuing Lender alsoacknowledges that it will, independently and without reliance upon the Administrative Agent, theArranger, any other Lender or any of their Related Parties and based on such documents and informationas it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals anddecisions in taking or not taking action under or based upon this Agreement, any other Loan Document orany related agreement or any document furnished hereunder or thereunder, and to make suchinvestigations as it deems necessary to inform itself as to the business, prospects, operations, property,financial and other condition and creditworthiness of the Credit Parties. Each Lender and each IssuingLender represents and warrants that (i) the Loan Documents set forth the terms of a commercial lendingfacility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course andis entering into this Agreement as a Lender or Issuing Lender for the purpose of making, acquiring orholding commercial loans and providing other facilities set forth herein as may be applicable to such125
Lender or Issuing Lender, and not for the purpose of purchasing, acquiring or holding any other type offinancial instrument, and each Lender and each Issuing Lender agrees not to assert a claim incontravention of the foregoing. Each Lender and each Issuing Lender represents and warrants that it issophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provideother facilities set forth herein, as may be applicable to such Lender or such Issuing Lender, and either it,or the Person exercising discretion in making its decision to make, acquire and/or hold such commercialloans or to provide such other facilities, is experienced in making, acquiring or holding such commercialloans or providing such other facilities.Section 11.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none ofthe Arrangers listed on the cover page hereof shall have any powers, duties or responsibilities under thisAgreement or any of the other Loan Documents, except in its capacity, as applicable, as theAdministrative Agent, a Lender or an Issuing Lender hereunder.Section 11.9 Administrative Agent May File Proofs of Claim; Credit Bidding. In case of thependency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to anyCredit Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/CObligation shall then be due and payable as herein expressed or by declaration or otherwise andirrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall beentitled and empowered, by intervention in such proceeding or otherwise (a) to file and prove a claim forthe whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligationsand all other Obligations that are owing and unpaid and to file such other documents as may be necessaryor advisable in order to have the claims of the Lenders, the Issuing Lenders and the Administrative Agent(including any claim for the reasonable compensation, expenses, disbursements and advances of theLenders, the Issuing Lenders and the Administrative Agent and their respective agents and counsel and allother amounts due the Lenders, the Issuing Lenders and the Administrative Agent under Sections 3.1(i)and (j), 5.3 and 12.3) allowed in such judicial proceeding; and (b) to collect and receive any monies orother property payable or deliverable on any such claims and to distribute the same; and any custodian,receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceedingis hereby authorized by each Lender and each Issuing Lender to make such payments to theAdministrative Agent and, if the Administrative Agent shall consent to the making of such paymentsdirectly to the Lenders and the Issuing Lenders, to pay to the Administrative Agent any amount due forthe reasonable compensation, expenses, disbursements and advances of the Administrative Agent and itsagents and counsel, and any other amounts due the Administrative Agent under Sections 5.3 and 12.3.Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize orconsent to or accept or adopt on behalf of any Lender or any Issuing Lender any plan of reorganization,arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or anyIssuing Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender or anyIssuing Lender or in any such proceeding.The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of theRequired Lenders, to credit bid all or any portion of the Obligations (including accepting some or all ofthe Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu offoreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisitionvehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of theBankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the BankruptcyCode of the United States, or any similar Laws in any other jurisdictions to which a Credit Party issubject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (orwith the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise)in accordance with any Applicable Law. In connection with any such credit bid and purchase, the126
Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis(with Obligations with respect to contingent or unliquidated claims receiving contingent interests in theacquired assets on a ratable basis that would vest upon the liquidation of such claims in an amountproportional to the liquidated portion of the contingent claim amount used in allocating the contingentinterests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of theacquisition vehicle or vehicles that are used to consummate such purchase). In connection with any suchbid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make abid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (providedthat any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles,including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly,by the vote of the Required Lenders, irrespective of the termination of this Agreement and without givingeffect to the limitations on actions by the Required Lenders contained in clauses (a) through (l) ofSection 12.2 of this Agreement), and (iii) to the extent that Obligations that are assigned to an acquisitionvehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better,because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt creditbid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to theLenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle onaccount of the Obligations that had been assigned to the acquisition vehicle shall automatically becancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.Section 11.10 Collateral and Guaranty Matters. (i) Without limiting the provisions of Section11.9, each of the Lenders (including in its capacities as a potential holder of Secured Cash ManagementObligations and a potential holder of Secured Hedge Obligations) and the Issuing Lenders irrevocablyauthorize the Administrative Agent:(a) to release any Lien on any property granted to or held by the AdministrativeAgent under any Loan Document (i) upon termination of the Commitments and payment in full of allObligations (other than contingent indemnification obligations) and the expiration or termination of allLetters of Credit (other than Letters of Credit as to which other arrangements satisfactory to theAdministrative Agent and the applicable Issuing Lender shall have been made), (ii) that is sold orotherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder toa Person that is not a Credit Party, (iii) that constitutes “Excluded Property” (as such term is defined inthe Collateral Agreement), or (iv) if approved, authorized or ratified in writing in accordance with Section12.2; (b) to release any Subsidiary Guarantor from its obligations under the SubsidiaryGuaranty Agreement if such Subsidiary shall become an Excluded Subsidiary; and(c) to subordinate any Lien on any property granted to or held by the AdministrativeAgent under any Loan Document to the holder of any Lien on such property that is permitted by Section9.2(h); and(ii) if the Collateral Release Date occurs then all of the Liens granted to the Administrative Agentpursuant to the Security Documents on the Collateral, shall be automatically released and terminated atsuch time (the “Collateral Release”).Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing theAdministrative Agent’s authority to release or subordinate its interest in particular types or items ofproperty, or to release any Subsidiary Guarantor from its obligations under the Guarantee pursuant to thisSection 11.10. In each case as specified in this Section 11.10, the Administrative Agent will, at theBorrower’s expense, execute and deliver to the applicable Credit Party such documents as such Credit127
Party may reasonably request to evidence the release of such item of Collateral from the assignment andsecurity interest granted under the Collateral Documents or to subordinate its interest in such item, or torelease such Subsidiary Guarantor from its obligations under the Guarantee, in each case in accordancewith the terms of the Loan Documents and this Section 11.10; provided that such Credit Party shall havefurnished the Administrative Agent an executed certificate of a Responsible Officer confirming that suchrelease or subordination is permitted by the Loan Documents.The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into anyrepresentation or warranty regarding the existence, value or collectability of the Collateral, the existence,priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by anyCredit Party in connection therewith, nor shall the Administrative Agent be responsible or liable to theLenders for any failure to monitor or maintain any portion of the Collateral.Section 11.11 Secured Hedge Obligations and Secured Cash Management Obligations. Exceptas otherwise expressly set forth in any Loan Document, no holder of Secured Cash ManagementObligations or Secured Hedge Obligations that obtains the benefits of Section 10.4, the SubsidiaryGuaranty Agreement or any Collateral by virtue of the provisions hereof or of the Subsidiary GuarantyAgreement or any Collateral Document shall have any right to notice of any action or to consent to, director object to any action hereunder or under any other Loan Document or otherwise in respect of theCollateral (including the release or impairment of any Collateral) other than in its capacity as a Lenderand, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding anyother provision of this Article XI to the contrary, the Administrative Agent shall not be required to verifythe payment of, or that other satisfactory arrangements have been made with respect to, Obligationsarising under Secured Cash Management Obligations and Secured Hedge Obligations unless theAdministrative Agent has received written notice of such Obligations, together with such supportingdocumentation as the Administrative Agent may request, from the applicable holder of Secured CashManagement Obligations or Secured Hedge Obligations, as the case may be.Section 11.12 Certain ERISA Matters.(a) Each Lender (x) represents and warrants, as of the date such Person became aLender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to thedate such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not,for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least oneof the following is and will be true:(i) such Lender is not using “plan assets” (within the meaning of Section3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into,participation in, administration of and performance of the Loans, the Letters of Credit, the Commitmentsor this Agreement; (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional assetmanagers), PTE 95-60 (a class exemption for certain transactions involving insurance company generalaccounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooledseparate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collectiveinvestment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house assetmanagers), is applicable with respect to such Lender’s entrance into, participation in, administration ofand performance of the Loans, the Letters of Credit, the Commitments and this Agreement;128
(iii) (A) such Lender is an investment fund managed by a “QualifiedProfessional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such QualifiedProfessional Asset Manager made the investment decision on behalf of such Lender to enter into,participate in, administer and perform the Loans, the Letters of Credit, the Commitments and thisAgreement, (C) the entrance into, participation in, administration of and performance of the Loans, theLetters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections(b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements ofsubsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into,participation in, administration of and performance of the Loans, the Letters of Credit, the Commitmentsand this Agreement, or (iv) such other representation, warranty and covenant as may be agreed inwriting between the Administrative Agent, in its sole discretion, and such Lender.(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause(a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty andcovenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further(x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y)covenants, from the date such Person became a Lender party hereto to the date such Person ceases being aLender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to orfor the benefit of the Borrower or any other Credit Party, that the Administrative Agent is not a fiduciarywith respect to the assets of such Lender involved in such Lender’s entrance into, participation in,administration of and performance of the Loans, the Letters of Credit, the Commitments and thisAgreement (including in connection with the reservation or exercise of any rights by the AdministrativeAgent under this Agreement, any Loan Document or any documents related hereto or thereto).Section 11.13 Recovery of Erroneous Payments. Without limitation of any other provision inthis Agreement, if at any time the Administrative Agent makes a payment hereunder in error to anyLender or any Issuing Lender (the “Lender Recipient Party”), whether or not in respect of an Obligationdue and owing by the Borrower at such time, where such payment is a Rescindable Amount, then in anysuch event, each Lender Recipient Party receiving a Rescindable Amount shall repay to theAdministrative Agent forthwith on demand the Rescindable Amount received by such Lender RecipientParty in immediately available funds in the currency so received, with interest thereon, for each day fromand including the date such Rescindable Amount is received by it to but excluding the date of payment tothe Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by theAdministrative Agent in accordance with banking industry rules on interbank compensation. Each LenderRecipient Party irrevocably waives any and all defenses, including any “discharge for value” (underwhich a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respectof a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. TheAdministrative Agent shall inform each Lender Recipient Party promptly upon determining that anypayment made to such Lender Recipient Party comprised, in whole or in part, a Rescindable Amount.Section 11.14 Withholding Tax. To the extent required by any Applicable Law, theAdministrative Agent may withhold from any payment to any Lender an amount equivalent to anyapplicable withholding Tax. Without limiting or expanding the provisions of Section 5.11, each Lendershall indemnify the Administrative Agent against, and shall make payable in respect thereof within 30days after demand therefor, all Taxes and all related losses, claims, liabilities and expenses (includingfees, charges and disbursements of any counsel for the Administrative Agent) incurred by or assertedagainst the Administrative Agent by the IRS or any other Governmental Authority as a result of thefailure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account ofany Lender for any reason (including, without limitation, because the appropriate documentation was not129
delivered or not property executed, or because such Lender failed to notify the Administrative Agent of achange in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective).A certificate as to the amount of such payment or liability delivered to any Lender by the AdministrativeAgent shall be conclusive absent manifest error. Each Lender hereby authorizes the AdministrativeAgent to set off and apply any and all amounts at any time owing to such Lender under this Agreement orany other Loan Document or from any other sources against any amount due the Administrative Agentunder this Section 11.14. The agreements in this Section 11.14 shall survive the resignation and/orreplacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lenderand the repayment, satisfaction or discharge of all other obligations under any Loan Document. For theavoidance of doubt, the term “Lender” shall, for purposes of this Section 11.14, include any IssuingLender. ARTICLE XIIMISCELLANEOUSSection 12.1 Notices.(a) Notices Generally. Except in the case of notices and other communicationsexpressly permitted to be given by telephone (and except as provided in paragraph (b) below), all noticesand other communications provided for herein shall be in writing and shall be delivered by hand orovernight courier service, mailed by certified or registered mail or sent by facsimile as follows:If to the Borrower:Dorman Products, Inc.3400 E. Walnut StreetColmar, PA 18915Attention of: Chief Financial OfficerE-mail: dhession@dormanproducts.comWith copies to:Dorman Products, Inc.3400 E. Walnut StreetColmar, PA 18915Attention of: General CounselE-mail: jbraun@dormanproducts.comIf to Bank of America as Administrative Agent:Agent’s Office (for Payments and Requests for Credit Extensions):Bank of America, N.A.Kesha MartinezBuilding C2380 Performance DrMail Code: TX2-984-03-23Richardson, Texas 75082Telephone: 469.201.8836 130
Facsimile: 214.290.9416Electronic Mail: kesha.martinez@bofa.comUSD Payment Instructions:Bank of America, N.A.ABA# 026009593New York, New YorkAccount No.: 1366072250600Attn: Wire Clearing Acct for Syn Loans - LIQRef: Dorman Products, Inc.Other Notices as Administrative Agent and Collateral Agent:Don B. PinzonBank of America, N.A.222 Broadway, 14th FloorAgency Management GroupMail Code: NY3-222-14-03New York, New York 10038Telephone: 646.556.3280Facsimile: 212.901.7843Electronic Mail: don.b.pinzon@bofa.comTrade Services Contact:Michael GrizzantiBank of America, N.A.1 Fleet WayMail Code: PA6-580-02-30Scranton, PA, 18507Telephone: 570.496.9621Facsimile: 806.755.8743Electronic Email: michael.a.grizzanti@bofa.comCredit Contact:Kevin DoboszBank of America, N.A.Four Penn Center1600 JFK Blvd., Suite 1100Mail Code: PA7-188-11-01Philadelphia, PA 19103Telephone: 267.675.0197Facsimile: 212.909.8581Electronic Mail: kevin.dobosz@bofa.comIf to any Lender: 131
To the address of such Lender set forth on the Register with respect to deliveries of notices andother documentation that may contain material non-public information.Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall bedeemed to have been given when received; notices sent by facsimile shall be deemed to have been givenwhen sent (except that, if not given during normal business hours for the recipient, shall be deemed tohave been given at the opening of business on the next business day for the recipient). Notices deliveredthrough electronic communications to the extent provided in paragraph (b) below, shall be effective asprovided in said paragraph (b).(b) Electronic Communications. Notices and other communications to the Lendersand the Issuing Lenders hereunder may be delivered or furnished by electronic communication (includinge-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent;provided that the foregoing shall not apply to notices to any Lender or any Issuing Lender pursuant toArticle II or III if such Lender or such Issuing Lender, as applicable, has notified the AdministrativeAgent that is incapable of receiving notices under such Article by electronic communication. TheAdministrative Agent or the Borrower may, in its discretion, agree to accept notices and othercommunications 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 theintended recipient (such as by the “return receipt requested” function, as available, return e-mail or otherwritten acknowledgement), and (ii) notices or communications posted to an Internet or intranet websiteshall be deemed received upon the deemed receipt by the intended recipient at its e-mail address asdescribed in the foregoing clause (i) of notification that such notice or communication is available andidentifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice,email or other communication is not sent during the normal business hours of the recipient, such notice,email or other communication shall be deemed to have been sent at the opening of business on the nextbusiness day for the recipient.(c) Administrative Agent’s Office. The Administrative Agent hereby designates itsoffice located at the address set forth above, or any subsequent office which shall have been specified forsuch purpose by written notice to the Borrower and Lenders, as the Administrative Agent’s Officereferred to herein, to which payments due are to be made and at which Loans will be disbursed andLetters of Credit requested.(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, anyIssuing Lender or the Swingline Lender may change its address or facsimile number for notices and othercommunications hereunder by notice to the other parties hereto. Any Lender may change its address orfacsimile number for notices and other communications hereunder by notice to the Borrower, theAdministrative Agent, each Issuing Lender and the Swingline Lender.(e) Platform.(i) Each Credit Party, each Lender and each Issuing Lender agrees that theAdministrative Agent may, but shall not be obligated to, make the Borrower Materials available to theIssuing Lenders and the other Lenders by posting the Borrower Materials on the Platform.(ii) The Platform is provided “as is” and “as available.” The Agent Parties(as defined below) do not warrant the accuracy or completeness of the Borrower Materials or theadequacy of the Platform, and expressly disclaim liability for errors or omissions in the Borrower132
Materials. No warranty of any kind, express, implied or statutory, including any warranty ofmerchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom fromviruses or other code defects, is made by any Agent Party in connection with the Borrower Materials orthe Platform. Although the Platform is secured pursuant to generally-applicable security procedures andpolicies implemented or modified by the Administrative Agent and its Related Parties, each of theLenders, the Issuing Lenders and the Borrower acknowledges and agrees that distribution of informationthrough an electronic means is not necessarily secure in all respects, the Administrative Agent or any ofits Related Parties (collectively, the “Agent Parties”) are not responsible for approving or vetting therepresentatives, designees or contacts of any Lender or Issuing Lender that are provided access to thePlatform and that there may be confidentiality and other risks associated with such form of distribution.Each of the Borrower, each Lender and each Issuing Lender party hereto understands and accepts suchrisks. In no event shall the Agent Parties have any liability to any Credit Party, any Lender or any otherPerson or entity for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contractor otherwise) arising out of any Credit Party’s or the Administrative Agent’s transmission ofcommunications through the Internet (including the Platform), except to the extent that such losses,claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by final andnon-appealable judgment to have resulted from the gross negligence or willful misconduct of such AgentParty; provided that in no event shall any Agent Party have any liability to any Credit Party, any Lender,any Issuing Lender or any other Person for indirect, special, incidental, consequential or punitivedamages, losses or expenses (as opposed to actual damages, losses or expenses).(f) Private Side Designation. Each Public Lender agrees to cause at least oneindividual at or on behalf of such Public Lender to at all times have selected the “Private SideInformation” or similar designation on the content declaration screen of the Platform in order to enablesuch Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures andApplicable Law, including United States Federal and state securities Applicable Laws, to make referenceto Borrower Materials that are not made available through the “Public Side Information” portion of thePlatform and that may contain material non-public information with respect to the Borrower or itssecurities for purposes of United States Federal or state securities Applicable Laws.Section 12.2 Amendments, Waivers and Consents. Except as set forth below or as specificallyprovided in any Loan Document, any term, covenant, agreement or condition of this Agreement or any ofthe other Loan Documents may be amended or waived by the Lenders, and any consent given by theLenders, if, but only if, such amendment, waiver or consent is in writing signed by the Required Lenders(or (x) by the Administrative Agent with the consent of the Required Lenders, (y) in the case anyamendment or waiver contemplated in clause (b)(A) below, shall only require the consent of the RequiredRevolving/TLA Lenders or (z) in the case any amendment or waiver contemplated in clause (b)(B) below,shall only require the consent of the Required Revolving Credit Lenders), acknowledged by theAdministrative Agent and delivered to the Administrative Agent and, in the case of an amendment, signedby the Borrower; provided that no amendment, waiver or consent shall:(a) without the prior written consent of each Revolving Credit Lender (and for thepurposes of clause (i), each Term Loan Lender), amend, modify or waive (i) Section 6.2 or any otherprovision of this Agreement if the effect of such amendment, modification or waiver is to require theLenders (pursuant to, in the case of any such amendment to a provision hereof other than Section 6.2, anysubstantially concurrent request by the Borrower for a borrowing of Term Loans, Revolving Credit Loansor issuance of Letters of Credit) to make Term Loans, Revolving Credit Loans when such Lenders wouldnot otherwise be required to do so, (ii) the amount of the Swingline Commitment or (iii) the amount of theL/C Sublimit; 133
(b) (A) without the prior written consent of the Required Revolving/TLA Lenders,amend, modify or waive any terms of Section 9.13, 10.2(a)(B) or 10.2(d)(II) (including, as to its use inSection 9.13, Section 10.2(a)(B) or 10.2(d)(II), as the case may be, any defined term used therein) orDefault or Event of Default related thereto and (B) without the prior written consent of the RequiredRevolving Credit Lenders, amend, modify or waive any terms of Section 3.1(b)(i)(B), 10.2(b) or the lastsentence of Section 3.1(j) (including, as to its use in Section 3.1(b)(i)(B), 10.2(b) or the last sentence ofSection 3.1(j), as the case may be, any defined term used therein) or Default or Event of Default relatedthereto; (c) increase or extend the Commitment of any Lender (or reinstate any Commitmentterminated pursuant to Section 10.2) or increase the amount of Loans of any Lender, in any case, withoutthe written consent of such Lender;(d) waive, extend or postpone any date fixed by this Agreement or any other LoanDocument for any payment or mandatory prepayment of principal, interest, fees or other amounts due tothe Lenders (or any of them) hereunder or under any other Loan Document without the written consent ofeach Lender directly and adversely affected thereby;(e) reduce the principal of, or the rate of interest specified herein on, any Loan orReimbursement Obligation, or (subject to clause (iv) of the proviso set forth in the paragraph below) anyfees or other amounts payable hereunder or under any other Loan Document without the written consentof each Lender directly and adversely affected thereby; provided that only the consent of the RequiredLenders shall be necessary to waive any obligation of the Borrower to pay interest or letter of creditcommissions at the rate set forth in Section 5.1(b) during the continuance of an Event of Default;(f) change Section 5.6 or Section 10.4 (or amend any other term of the LoanDocuments that would have the effect of changing Section 5.6 or Section 10.4) in a manner that wouldalter the pro rata sharing of payments or order of application required thereby without the written consentof each Lender directly and adversely affected thereby;(g) [Reserved.](h) except as otherwise permitted by this Section 12.2 change any provision of thisSection 12.2 or reduce the percentages specified in the definitions of “Required Lenders”, “RequiredRevolving Credit Lenders” or “Required Revolving/TLA Lenders” or any other provision hereofspecifying the number or percentage of Lenders required to amend, waive or otherwise modify any rightshereunder or make any determination or grant any consent hereunder, without the written consent of eachLender directly and adversely affected thereby;(i) consent to the assignment or transfer by any Credit Party of such Credit Party’srights and obligations under any Loan Document to which it is a party (except as permitted pursuant toSection 9.4), in each case, without the written consent of each Lender;(j) release (i) all of the Subsidiary Guarantors or (ii) Subsidiary Guarantorscomprising substantially all of the credit support for the Secured Obligations, in any case, from anySubsidiary Guaranty Agreement (other than as authorized in Section 11.11), without the written consentof each Lender; (k) release all or substantially all of the Collateral from the Liens created by theSecurity Documents (provided that, during the Collateral Release Period, the Administrative Agent mayperform any action related to the automatic release of all or substantially all of the Collateral from the134
Liens created by the Security Documents without consent of any Lender) or release any SecurityDocument (other than as authorized in Section 11.11 or as otherwise specifically permitted orcontemplated in this Agreement or the applicable Security Document) without the written consent of eachLender; or (l) subordinate a material portion of the Liens securing the Secured Obligations tothe Liens securing any Indebtedness (other than as specifically permitted or contemplated in thisAgreement or the applicable Security Document or under any debtor-in-possession financing) orsubordinate a material portion of the Secured Obligations in contractual right of payment to anyIndebtedness, in each case without the written consent of each Lender directly and adversely affectedthereby (other than as explicitly permitted in this Agreement or the applicable Security Document orunder any debtor-in-possession financing);provided further that (i) no amendment, waiver or consent shall, unless in writing and signed by eachaffected Issuing Lender in addition to the Lenders required above, affect the rights or duties of suchIssuing Lender under this Agreement or any Letter of Credit Application relating to any Letter of Creditissued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed bythe Swingline Lender in addition to the Lenders required above, affect the rights or duties of theSwingline Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writingand signed by the Administrative Agent in addition to the Lenders required above, affect the rights orduties of the Administrative Agent under this Agreement or any other Loan Document; (iv) each Letter ofCredit Application may be amended, or rights or privileges thereunder waived, in a writing executed onlyby the parties thereto; provided that a copy of such amended Letter of Credit Application shall bepromptly delivered to the Administrative Agent upon such amendment or waiver, (v) any waiver,amendment or modification of this Agreement that by its terms affects the rights or duties under thisAgreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holdingLoans or Commitments of any other Class) may be effected by an agreement or agreements in writingentered into by the Borrower and the requisite percentage in interest of the affected Class of Lenders thatwould be required to consent thereto under this Section 12.2 if such Class of Lenders were the only Classof Lenders hereunder at the time, (vi) the Administrative Agent and the Borrower shall be permitted toamend any provision of the Loan Documents (and such amendment shall become effective without anyfurther action or consent of any other party to any Loan Document) if the Administrative Agent and theBorrower shall have jointly identified an obvious error or any error, ambiguity, defect or inconsistency oromission of a technical or immaterial nature in any such provision and (vii) the Administrative Agent(and, if applicable, the Borrower) may, without the consent of any Lender, enter into amendments ormodifications to this Agreement or any of the other Loan Documents or to enter into additional LoanDocuments in order to implement any Conforming Changes or otherwise effectuate the terms of Section5.8(c) in accordance with the terms of Section 5.8(c). Notwithstanding anything to the contrary herein,no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consenthereunder, except that (A) the Revolving Credit Commitment of such Lender may not be increased orextended without the consent of such Lender, and (B) any amendment, waiver, or consent hereunderwhich requires the consent of all Lenders or each affected Lender that by its terms disproportionately andadversely affects any such Defaulting Lender relative to other affected Lenders shall require the consentof such Defaulting Lender.Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably authorizesthe Administrative Agent on its behalf, and without further consent of any Lender (but with the consent ofthe Borrower and the Administrative Agent), to (x) amend and restate this Agreement and the other LoanDocuments if, upon giving effect to such amendment and restatement, such Lender shall no longer be aparty to this Agreement (as so amended and restated), the Commitments of such Lender shall haveterminated, such Lender shall have no other commitment or other obligation hereunder and shall have135
been paid in full all principal, interest and other amounts owing to it or accrued for its account under thisAgreement and the other Loan Documents and (y) to enter into amendments or modifications to thisAgreement (including, without limitation, amendments to this Section 12.2) or any of the other LoanDocuments or to enter into additional Loan Documents as the Administrative Agent reasonably deemsappropriate in order to effectuate the terms of Section 5.13 (including, without limitation, as applicable,(1) to permit the Incremental Term Loans and the Incremental Revolving Credit Increases to share ratablyin the benefits of this Agreement and the other Loan Documents, (2) to include the Incremental TermLoan Commitments and the Incremental Revolving Credit Increase, as applicable, or outstandingIncremental Term Loans and outstanding Incremental Revolving Credit Increase, as applicable, in anydetermination of (i) Required Lenders, Required Revolving Credit Lenders or Required Revolving/TLALenders, as applicable or (ii) similar required lender terms applicable thereto); provided that noamendment or modification shall result in any increase in the amount of any Lender’s Commitment orany increase in any Lender’s Commitment Percentage, in each case, without the written consent of suchaffected Lender and (3) to make amendments to any outstanding tranche of Term Loans to permit anyIncremental Term Loan Commitments and Incremental Term Loans to be “fungible” (including, withoutlimitation, for purposes of the Code) with such tranche of Term Loans, including, without limitation,increases in the Applicable Margin or any fees payable to such outstanding tranche of Term Loans orproviding such outstanding tranche of Term Loans with the benefit of any call protection or covenantsthat are applicable to the proposed Incremental Term Loan Commitments or Incremental Term Loans;provided that any such amendments or modifications to such outstanding tranche of Term Loans shall notdirectly adversely affect the Lenders holding such tranche of Term Loans without their consent.Section 12.3 Expenses; Indemnity.(a) Costs and Expenses. The Borrower and any other Credit Party, jointly andseverally, shall pay (i) all reasonable out of pocket costs and expenses incurred by the AdministrativeAgent, the Arrangers and their respective Affiliates (including, without limitation, the reasonable legalfees, charges and disbursements of counsel for the Administrative Agent and the Arrangers but limited tothe reasonable and documented out of pocket fees, charges and disbursements of one counsel to theAdministrative Agent and, if reasonably necessary, a single local counsel in each relevant jurisdiction andwith respect to each relevant specialty, due diligence expenses and all printing, reproduction, documentdelivery, travel, CUSIP, SyndTrak, and communication costs, incurred in connection with thepreparation, review, negotiation, execution, delivery, enforcement and administration of this Agreement),in connection with the syndication of the Credit Facility, the preparation, negotiation, execution, deliveryand administration of this Agreement and the other Loan Documents or any amendments, modificationsor waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby orthereby shall be consummated), (ii) all reasonable out of pocket expenses incurred by any Issuing Lenderin connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demandfor payment thereunder and (iii) all out of pocket expenses incurred by the Administrative Agent, anyLender, any Issuing Lender or any agent (including the fees, charges and disbursements of any counselfor the Administrative Agent, any Lender, any Issuing Lender or any agent but limited to the reasonableand documented out of pocket fees, charges and disbursements of one counsel to the respectiveAdministrative Agent, Lender or Issuing Lender, and, if reasonably necessary, a single local counsel ineach relevant jurisdiction and with respect to each relevant specialty and in the case of any actual orperceived conflict of interest where the Administrative Agent, any Lender, any Issuing Lender or anyagent affected by such conflict informs the Borrower of such conflict and thereafter retains its owncounsel, of another firm of counsel for such affected Person), in connection with the enforcement orprotection of its rights (A) in connection with this Agreement and the other Loan Documents, includingits rights under this Section 12.3, or (B) in connection with the Loans made or Letters of Credit issued136
hereunder, including all such out of pocket expenses incurred during any workout, restructuring ornegotiations in respect of such Loans or Letters of Credit.(b) Indemnification by the Borrower. The Borrower shall indemnify theAdministrative Agent (and any sub-agent thereof), each Lender, each Issuing Lender and each agent, andeach Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)against, and hold each Indemnitee harmless from, and shall pay or reimburse any such Indemnitee for,any and all losses, claims (including, intra-party claims), penalties, damages, liabilities and related costsand expenses (including, without limitation, the reasonable legal fees, charges and disbursements of anycounsel for any Indemnitee, but limited to the reasonable and documented out-of-pocket fees, charges anddisbursements of one counsel to all Indemnitees (taken as a whole) and, if reasonably necessary, a singlelocal counsel in each relevant jurisdiction and with respect to each relevant specialty and in the case ofany actual or perceived conflict of interest where the Administrative Agent, any Lender, any IssuingLender, or any agent and each Related Party affected by such conflict informs the Borrower of suchconflict and thereafter retains its own counsel, of another firm of counsel for such affected Person), andshall indemnify and hold harmless, each Indemnitee from, and shall pay or reimburse any suchIndemnitee for, all fees and time charges and disbursements for attorneys who may be employees of anyIndemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including theBorrower or any other Credit Party), arising out of, in connection with, or as a result of (i) the executionor delivery of this Agreement, any other Loan Document or any agreement or instrument contemplatedhereby or thereby, the performance by the parties hereto of their respective obligations hereunder orthereunder or the consummation of the transactions contemplated hereby or thereby (including, withoutlimitation, the Transactions), (ii) any Loan or Letter of Credit or the use or proposed use of the proceedstherefrom (including any refusal by any Issuing Lender to honor a demand for payment under a Letter ofCredit if the documents presented in connection with such demand do not strictly comply with the termsof such Letter of Credit), (iii) any presence or release of Hazardous Materials on or from any propertyowned or operated by any Credit Party or any subsidiary thereof, or any Environmental Liability relatedin any way to any Credit Party or any subsidiary, (iv) any actual or prospective claim, litigation,investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any othertheory, whether brought by a third party or by any Credit Party or any subsidiary thereof, and regardlessof whether any Indemnitee is a party thereto, or (v) any claim, investigation, litigation or other proceeding(whether or not the Administrative Agent or any Lender is a party thereto) and the prosecution anddefense thereof, arising out of or in any way connected with the Loans, this Agreement, any other LoanDocument, or any documents contemplated by or referred to herein or therein or the transactionscontemplated hereby or thereby, including without limitation, reasonable attorneys and consultant’s fees;provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,claims, penalties, damages, liabilities or related costs and expenses (A) are determined by a court ofcompetent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence orwillful misconduct of such Indemnitee or (B) result from any claim brought against such Indemnitee in itsrole as agent or arranger by any other Indemnitee that is not based on an act or omission by the Borroweror any of its Affiliates. This Section 12.3(b) shall not apply with respect to Taxes other than any Taxesthat represent losses, claims, damages, etc. arising from any non-Tax claim.(c) Reimbursement by Lenders. To the extent that the Borrower for any reason failsto indefeasibly pay any amount required under clause (a) or (b) of this Section 12.3 to be paid by it to theAdministrative Agent (or any sub-agent thereof), any Issuing Lender, the Swingline Lender or anyRelated Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent(or any such sub-agent), such Issuing Lender, the Swingline Lender or such Related Party, as the casemay be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expenseor indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time,or if the Total Credit Exposure has been reduced to zero, then based on such Lender’s share of the Total137
Credit Exposure immediately prior to such reduction) of such unpaid amount (including any such unpaidamount in respect of a claim asserted by such Lender); provided that with respect to such unpaid amountsowed to any Issuing Lender or the Swingline Lender solely in its capacity as such, only the RevolvingCredit Lenders shall be required to pay such unpaid amounts, such payment to be made severally amongthem based on such Revolving Credit Lenders’ Revolving Credit Commitment Percentage (determined asof the time that the applicable unreimbursed expense or indemnity payment is sought or, if the RevolvingCredit Commitment has been reduced to zero as of such time, determined immediately prior to suchreduction); provided further that the unreimbursed expense or indemnified loss, claim, damage, liabilityor related expense, as the case may be, was incurred by or asserted against the Administrative Agent (orany such sub-agent), such Issuing Lender or the Swingline Lender in its capacity as such, or against anyRelated Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), suchIssuing Lender or the Swingline Lender in connection with such capacity. The obligations of the Lendersunder this clause (c) are subject to the provisions of Section 5.7.(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted byApplicable Law, the Borrower and each other Credit Party shall not assert, and hereby waives, any claimagainst any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages(as opposed to direct or actual damages) arising out of, in connection with, or as a result of, thisAgreement, any other Loan Document or any agreement or instrument contemplated hereby, thetransactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceedsthereof. No Indemnitee referred to in clause (b) above shall be liable for any damages arising from theuse by unintended recipients of any information or other materials distributed by it throughtelecommunications, electronic or other information transmission systems in connection with thisAgreement or the other Loan Documents or the transactions contemplated hereby or thereby.(e) Payments. All amounts due under this Section 12.3 shall be payable promptlyafter demand therefor.(f) Survival. Each party’s obligations under this Section 12.3 shall survive thetermination of the Loan Documents and payment of the obligations hereunder.Section 12.4 Right of Setoff. If an Event of Default shall have occurred and be continuing,each Lender, each Issuing Lender, the Swingline Lender and each of their respective Affiliates is herebyauthorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to setoffand apply any and all deposits (general or special, time or demand, provisional or final, in whatevercurrency) at any time held and other obligations (in whatever currency) at any time owing by suchLender, such Issuing Lender, the Swingline Lender or any such Affiliate to or for the credit or the accountof the Borrower or any other Credit Party against any and all of the obligations of the Borrower or suchCredit Party now or hereafter existing under this Agreement or any other Loan Document to such Lender,such Issuing Lender or the Swingline Lender or any of their respective Affiliates, irrespective of whetheror not such Lender, such Issuing Lender, the Swingline Lender or any such Affiliate shall have made anydemand under this Agreement or any other Loan Document and although such obligations of theBorrower or such Credit Party may be contingent or unmatured or are owed to a branch or office of suchLender, such Issuing Lender, the Swingline Lender or such Affiliate different from the branch, office orAffiliate holding such deposit or obligated on such indebtedness; provided that in the event that anyDefaulting Lender or any Affiliate thereof shall exercise any such right of setoff, (x) all amounts so setoffshall be paid over immediately to the Administrative Agent for further application in accordance with theprovisions of Section 5.15 and, pending such payment, shall be segregated by such Defaulting Lender orAffiliate of a Defaulting Lender from its other funds and deemed held in trust for the benefit of theAdministrative Agent, the Issuing Lenders, the Swingline Lender and the Lenders, and (y) the DefaultingLender or its Affiliate shall provide promptly to the Administrative Agent a statement describing in138
reasonable detail the Secured Obligations owing to such Defaulting Lender or any of its Affiliates as towhich such right of setoff was exercised. The rights of each Lender, each Issuing Lender, the SwinglineLender and their respective Affiliates under this Section 12.4 are in addition to other rights and remedies(including other rights of setoff) that such Lender, such Issuing Lender, the Swingline Lender or theirrespective Affiliates may have. Each Lender, such Issuing Lender and the Swingline Lender agree tonotify the Borrower and the Administrative Agent promptly after any such setoff and application;provided that the failure to give such notice shall not affect the validity of such setoff and application.Section 12.5 Governing Law; Jurisdiction, Etc.(a) Governing Law. This Agreement and the other Loan Documents and any claim,controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising outof or relating to this Agreement or any other Loan Document (except, as to any Security Document, asexpressly set forth therein or where applicable local law is necessary for enforceability or perfection) andthe transactions contemplated hereby and thereby shall be governed by, and construed in accordance with,the law of the State of New York.(b) Submission to Jurisdiction. The Borrower and each other Credit Partyirrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding ofany kind or description, whether in law or equity, whether in contract or in tort or otherwise, against theAdministrative Agent, any Lender, any Issuing Lender, the Swingline Lender, or any Related Party of theforegoing in any way relating to this Agreement or any other Loan Document or the transactions relatinghereto or thereto, in any forum other than the courts of the State of New York sitting in New YorkCounty, and of the United States District Court of the Southern District of New York (except to the extentthe Administrative Agent or any Lender requires submission to any other jurisdiction in connection withthe exercise of any rights under any Security Document or the enforcement of any judgment), and anyappellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submitsto the exclusive jurisdiction of such courts and agrees that all claims in respect of any such action,litigation or proceeding may be heard and determined in such New York State court or, to the fullestextent permitted by Applicable Law, in such federal court. Each of the parties hereto agrees that a finaljudgment in any such action, litigation or proceeding shall be conclusive and may be enforced in otherjurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreementor in any other Loan Document shall affect any right that the Administrative Agent, any Agent, anyLender, any Issuing Lender or the Swingline Lender may otherwise have to bring any action orproceeding relating to this Agreement or any other Loan Document against the Borrower or any otherCredit Party or its properties in the courts of any jurisdiction.(c) Waiver of Venue. The Borrower and each other Credit Party irrevocably andunconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it may nowor hereafter have to the laying of venue of any action or proceeding arising out of or relating to thisAgreement or any other Loan Document in any court referred to in this Section 12.5. Each of the partieshereto hereby irrevocably waives, to the fullest extent permitted by Applicable Law, the defense of aninconvenient forum to the maintenance of such action or proceeding in any such court.(d) Service of Process. Each party hereto irrevocably consents to service of processin the manner provided for notices in Section 12.1. Nothing in this Agreement will affect the right of anyparty hereto to serve process in any other manner permitted by Applicable Law.Section 12.6 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLYWAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT ITMAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY139
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTOR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ONCONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THATNO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HASREPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, INTHE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND CONSENTAND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEENINDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION12.6. Section 12.7 Reversal of Payments. To the extent any Credit Party makes a payment orpayments to the Administrative Agent for the ratable benefit of any of the Secured Parties or to anySecured Party directly or the Administrative Agent or any Secured Party receives any payment orproceeds of the Collateral or any Secured Party exercises its right of setoff, which payments or proceeds(including any proceeds of such setoff) or any part thereof are subsequently invalidated, declared to befraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other partyunder any Debtor Relief Law, other Applicable Law or equitable cause, then, to the extent of suchpayment or proceeds repaid, the Secured Obligations or part thereof intended to be satisfied shall berevived and continued in full force and effect as if such payment or proceeds had not been received by theAdministrative Agent, and each Lender and each Issuing Lender severally agrees to pay to theAdministrative Agent upon demand its applicable ratable share (without duplication) of any amount sorecovered from or repaid by the Administrative Agent plus interest thereon at a per annum rate equal tothe Federal Funds Rate from the date of such demand to the date such payment is made to theAdministrative Agent.Section 12.8 Injunctive Relief. The Borrower recognizes that, in the event the Borrower failsto perform, observe or discharge any of its obligations or liabilities under this Agreement, any remedy oflaw may prove to be inadequate relief to the Lenders. Therefore, the Borrower agrees that the Lenders, atthe Lenders’ option, shall be entitled to temporary and permanent injunctive relief in any such casewithout the necessity of proving actual damages.Section 12.9 Successors and Assigns; Participations.(a) Successors and Assigns Generally. The provisions of this Agreement shall bebinding upon and inure to the benefit of the parties hereto and their respective successors and assignspermitted hereby, except that neither the Borrower nor any other Credit Party may assign or otherwisetransfer any of its rights or obligations hereunder without the prior written consent of the AdministrativeAgent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligationshereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this Section12.9, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section 12.9or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (e) ofthis Section 12.9 (and any other attempted assignment or transfer by any party hereto shall be null andvoid). 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 theextent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby, theRelated Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedyor claim under or by reason of this Agreement.(b) Assignments by Lenders. Any Lender may at any time assign to one or moreEligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a140
portion of its (i) Revolving Credit Commitment and the Revolving Credit Loans at the time owing to itand/or (ii) Amendment No. 1 Term Loan Commitment and the Amendment No. 1 Term Loans at the timeowing to it); provided that, in each case with respect to any Credit Facility, any such assignment shall besubject to the following conditions:(i) Minimum Amounts.(A) in the case of an assignment of the entire remaining amount ofthe assigning Lender’s Commitment and/or the Loans at the time owing to it (in each case withrespect to any Credit Facility) or contemporaneous assignments to related Approved Funds(determined after giving effect to such assignments) that equal at least the amount specified inparagraph (b)(i)(B) of this Section 12.9 in the aggregate or in the case of an assignment to aLender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned;and (B) in any case not described in paragraph (b)(i)(A) of this Section12.9, the aggregate amount of the Commitment (which for this purpose includes Loansoutstanding thereunder) or, if the applicable Commitment is not then in effect, the principaloutstanding balance of the Loans of the assigning Lender subject to each such assignment(determined as of the date the Assignment and Assumption with respect to such assignment isdelivered to the Administrative Agent (or, if “Trade Date” is specified in the Assignment andAssumption, as of such date)) shall not be less than $5,000,000, unless each of the AdministrativeAgent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwiseconsents (each such consent not to be unreasonably withheld or delayed); provided that theBorrower shall be deemed to have given its consent five (5) Business Days after the date writtennotice thereof has been delivered by the assigning Lender (through the Administrative Agent)unless such consent is expressly refused by the Borrower prior to such fifth (5th) Business Day;(ii) Proportionate Amounts. Each partial assignment shall be made as anassignment of a proportionate part of all the assigning Lender’s rights and obligations under thisAgreement with respect to the Loan or the Commitment assigned, except that this clause (ii) shall notprohibit any Lender from assigning all or a portion of its rights and obligations among separate classes ona non-pro rata basis; (iii) Required Consents. No consent shall be required for any assignmentexcept to the extent required by paragraph (b)(i)(B) of this Section 12.9 and, in addition:(A) the consent of the Borrower (such consent not to beunreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurredand is continuing at the time of such assignment, (y) such assignment is to a Lender, an Affiliateof a Lender or an Approved Fund or (z) the assignment is made in connection with the primarysyndication of the Credit Facility; provided that the Borrower shall be deemed to have consentedto any such assignment unless it shall object thereto by written notice to the Administrative Agentwithin five (5) Business Days after having received written notice thereof;(B) the consent of the Administrative Agent (such consent not to beunreasonably withheld or delayed) shall be required for assignments in respect of (i) theRevolving Credit Facility if such assignment is to a Person that is not a Lender with a RevolvingCredit Commitment, an Affiliate of such Lender or an Approved Fund with respect to such141
Lender or (ii) the Term Loans to a Person who is not a Lender, an Affiliate of a Lender or anApproved Fund; and (C) the consents of the Issuing Lenders and the Swingline Lendershall be required for any assignment in respect of the Revolving Credit Facility.(iv) Assignment and Assumption. The parties to each assignment shallexecute and deliver to the Administrative Agent an Assignment and Assumption, together with aprocessing and recordation fee of $3,500 for each assignment; provided that (A) only one such fee will bepayable in connection with simultaneous assignments to two or more related Approved Funds by aLender and (B) the Administrative Agent may, in its sole discretion, elect to waive such processing andrecordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to theAdministrative Agent an Administrative Questionnaire.(v) No Assignment to Certain Persons. No such assignment shall be made to(A) the Borrower or any of its subsidiaries or Affiliates (other than the Borrower or a Subsidiary ofBorrower in compliance with Section 12.9(h)) or (B) any Defaulting Lender or any of its Subsidiaries, orany Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Personsdescribed in this clause (B).(vi) No Assignment to Natural Persons. No such assignment shall be made toa natural Person (or a holding company, investment vehicle or trust for, or owned and operated for theprimary benefit of, a natural Person).(vii) Certain Additional Payments. In connection with any assignment ofrights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unlessand until, in addition to the other conditions thereto set forth herein, the parties to the assignment shallmake such additional payments to the Administrative Agent in an aggregate amount sufficient, upondistribution thereof as appropriate (which may be outright payment, purchases by the assignee ofparticipations or subparticipations, or other compensating actions, including funding, with the consent ofthe Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested,but not funded by, the Defaulting Lender, to each of which the applicable assignee and assignor herebyirrevocably consent), to (A) pay and satisfy in full all payment liabilities then owed by such DefaultingLender to the Administrative Agent, the Issuing Lenders, the Swingline Lender and each other Lenderhereunder (and interest accrued thereon), and (B) acquire (and fund as appropriate) its full pro rata shareof all Loans and participations in Letters of Credit and Swingline Loans in accordance with its RevolvingCredit Commitment Percentage. Notwithstanding the foregoing, in the event that any assignment ofrights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Lawwithout compliance with the provisions of this paragraph, then the assignee of such interest shall bedeemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of thisSection 12.9, from and after the effective date specified in each Assignment and Assumption, the assigneethereunder shall be a party to this Agreement and, to the extent of the interest assigned by suchAssignment and Assumption, have the rights and obligations of a Lender under this Agreement, and theassigning Lender thereunder shall, to the extent of the interest assigned by such Assignment andAssumption, be released from its obligations under this Agreement (and, in the case of an Assignment andAssumption covering all of the assigning Lender’s rights and obligations under this Agreement, suchLender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 5.8,5.9, 5.10, 5.11 and 12.3 with respect to facts and circumstances occurring prior to the effective date ofsuch assignment; provided that except to the extent otherwise expressly agreed by the affected parties, no142
assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunderarising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender ofrights or obligations under this Agreement that does not comply with this paragraph shall be treated forpurposes of this Agreement as a sale by such Lender of a participation in such rights and obligations inaccordance with paragraph (d) of this Section 12.9 (other than a purported assignment to a natural Personor the Borrower or any of the Borrower’s Subsidiaries or Affiliates, which shall be null and void).(c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices, a copy of each Assignment andAssumption and each Lender Joinder Agreement delivered to it and a register for the recordation of thenames and addresses of the Lenders, and the Commitment of, and principal amounts of (and statedinterest on) the Loans owing to, each Lender pursuant to the terms hereof from time to time (the“Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, theAdministrative Agent and the Lenders shall treat each Person whose name is recorded in the Registerpursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shallbe available for inspection by the Borrower and any Lender (but only to the extent of entries in theRegister that are applicable to such Lender), at any reasonable time and from time to time uponreasonable prior notice.(d) Participations. Any Lender may at any time, without the consent of, or notice to,the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person,or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, anatural Person, or the Borrower or any of the Borrower’s Subsidiaries or Affiliates) (each, a “Participant”)in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or aportion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligationsunder this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to theother parties hereto for the performance of such obligations and (iii) the Borrower, the AdministrativeAgent, the Issuing Lender, the Swingline Lender and the other Lenders shall continue to deal solely anddirectly with such Lender in connection with such Lender’s rights and obligations under this Agreement.For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 12.3(c) withrespect to any payments made by such Lender to its Participant(s).Any agreement or instrument pursuant to which a Lender sells such a participation shall providethat 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 instrumentmay provide that such Lender will not, without the consent of the Participant, agree to any amendment,modification or waiver described in Section 12.2(b), (c), (d), (e) or (f) that directly and adversely affectssuch Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections5.9, 5.10 and 5.11 (subject to the requirements and limitations therein, including the requirements underSection 5.11(g) (it being understood that the documentation required under Section 5.11(g) shall bedelivered to the participating Lender)) to the same extent as if it were a Lender and had acquired itsinterest by assignment pursuant to this Section 12.9(b); provided that such Participant (A) shall be subjectto the provisions of Section 5.12 as if it were an assignee under this Section 12.9(b); and (B) shall not beentitled to receive any greater payment under Sections 5.10 or 5.11, with respect to any participation, thanits participating Lender would have been entitled to receive, except to the extent such entitlement toreceive a greater payment results from a Change in Law that occurs after the Participant acquired theapplicable participation. Each Lender that sells a participation agrees, at the Borrower’s request andexpense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section5.12(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be143
entitled to the benefits of Section 12.4 as though it were a Lender; provided that such Participant shall besubject to Section 5.6 and Section 12.4 as though it were a Lender.Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agentof the Borrower, maintain a register on which it enters the name and address of each Participant and theprincipal amounts of (and stated interest on) each Participant’s interest in the Loans or other obligationsunder the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligationto disclose all or any portion of the Participant Register (including the identity of any Participant or anyinformation relating to a Participant’s interest in any commitments, loans, letters of credit or its otherobligations under any Loan Document) to any Person except to the extent that such disclosure isnecessary to establish that such commitment, loan, letter of credit or other obligation is in registered formunder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the ParticipantRegister shall be conclusive absent manifest error, and such Lender shall treat each Person whose name isrecorded in the Participant Register as the owner of such participation for all purposes of this Agreementnotwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in itscapacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.(e) Certain Pledges. Any Lender may at any time pledge or assign a security interestin all or any portion of its rights under this Agreement to secure obligations of such Lender, includingwithout limitation any pledge or assignment to secure obligations to a Federal Reserve Bank; providedthat no such pledge or assignment shall release such Lender from any of its obligations hereunder orsubstitute any such pledgee or assignee for such Lender as a party hereto.(f) Cashless Settlement. Notwithstanding anything to the contrary contained in thisAgreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connectionwith any refinancing, extension, loan modification or similar transaction permitted by the terms of thisAgreement, pursuant to a cashless settlement mechanism approved by the Borrower, the AdministrativeAgent and such Lender.(g) [Reserved].(h) Any Lender may, so long as no Event of Default has occurred and is continuing,at any time, assign all or a portion of its rights and obligations with respect to any Class of IncrementalTerm Loans under this Agreement to the Borrower or any Subsidiary through open market purchases on anon-pro rata basis; provided, further, that:(i) No Revolving Credit Loans or Revolving Credit Commitments by be soassigned to the Borrower or any of its Affiliates;(ii) if the assignee is the Borrower, (a) the principal amount of suchIncremental Term Loans, along with all accrued and unpaid interest thereon, so contributed, assigned ortransferred to the Borrower shall be deemed automatically cancelled and extinguished on the date of suchcontribution, assignment or transfer, (b) the aggregate outstanding principal amount of Incremental TermLoans of the remaining Lenders shall reflect such cancellation and extinguishing of the Incremental TermLoans then held by the Borrower and (c) the Borrower shall promptly provide notice to theAdministrative Agent of such contribution, assignment or transfer of such Incremental Term Loans, andthe Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicableIncremental Term Loans in the Register; and 144
(iii) purchases of Incremental Term Loans pursuant to this Section 12.2(h)shall not be funded with the proceeds of Revolving Credit Loans or Swingline Loans.Each Lender participating in any assignment to the Borrower or any of its Subsidiariesacknowledges and agrees that in connection with such assignment, (1) the Borrower orany of its Subsidiaries then may have, and later may come into possession of ExcludedInformation, (2) such Lender has independently and, without reliance on, the Borrower orany of its Subsidiaries, the Administrative Agent or any other Agent Party, made its ownanalysis and determination to participate in such assignment notwithstanding suchLender’s lack of knowledge of the Excluded Information, (3) none of the AdministrativeAgent or any other Agent Party shall have any liability to such Lender, and such Lenderhereby waives and releases, to the extent permitted by law, any claims such Lender mayhave against the Administrative Agent and any other Agent Party, under applicable Lawor otherwise, with respect to the nondisclosure of the Excluded Information and (4) thatthe Excluded Information may not be available to the Administrative Agent or the otherLenders.Section 12.10 Treatment of Certain Information; Confidentiality. Each of the AdministrativeAgent, the Lenders and the Issuing Lender agrees to maintain the confidentiality of the Information (asdefined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’respective Related Parties in connection with the Credit Facility, this Agreement, the transactionscontemplated hereby or in connection with marketing of services by such Affiliate or Related Party to theBorrower or any of its Subsidiaries (it being understood that the Persons to whom such disclosure is madewill be informed of the confidential nature of such Information and instructed to keep such Informationconfidential), (b) to the extent required or requested by, or required to be disclosed to, any regulatory orsimilar authority purporting to have jurisdiction over such Person or its Related Parties (including anyself-regulatory authority, such as the National Association of Insurance Commissioners) or in accordancewith the Administrative Agent’s, the Agent’s, the Issuing Lender’s or any Lender’s regulatory compliancepolicy if the Administrative Agent, the Agent, the Issuing Lender or such Lender, as applicable, deemssuch disclosure to be necessary for the mitigation of claims by those authorities against theAdministrative Agent, the Agent, the Issuing Lender or such Lender, as applicable, or any of its RelatedParties (in which case, the Administrative Agent, the Agent, the Issuing Lender or such Lender, asapplicable, shall use commercially reasonable efforts to, except with respect to any audit or examinationconducted by bank accountants or any governmental bank regulatory authority exercising examination orregulatory authority, promptly notify the Borrower, in advance, to the extent practicable and otherwisepermitted by Applicable Law), (c) as to the extent required by Applicable Laws or regulations or in anylegal, judicial, administrative proceeding or other compulsory process, (d) to any other party hereto, (e) inconnection with the exercise of any remedies under this Agreement, under any other Loan Document orunder any Secured Hedge Agreement or Secured Cash Management Agreement, or any action orproceeding relating to this Agreement, any other Loan Document or any Secured Hedge Agreement orSecured Cash Management Agreement, or the enforcement of rights hereunder or thereunder, (f) subjectto an agreement containing provisions substantially the same as those of this Section 12.10, to (i) anyassignee of or Participant in, or any prospective assignee of or Participant in, any of its rights andobligations under this Agreement, (ii) any actual or prospective party (or its Related Parties) to any swap,derivative or other transaction under which payments are to be made by reference to the Borrower and itsobligations, this Agreement or payments hereunder, (iii) to an investor or prospective investor in anApproved Fund that also agrees that Information shall be used solely for the purpose of evaluating aninvestment in such Approved Fund, (iv) to a trustee, collateral manager, servicer, backup servicer,noteholder or secured party in an Approved Fund in connection with the administration, servicing andreporting on the assets serving as collateral for an Approved Fund, (v) to a nationally recognized ratingagency that requires access to information regarding the Borrower and its Subsidiaries, the Loans and the145
Loan Documents in connection with ratings issued with respect to an Approved Fund or (vi) to any creditinsurance provider relating to the Borrower and its obligations under this Agreement (g) on a confidentialbasis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the CreditFacility or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance andmonitoring of CUSIP numbers with respect to the Credit Facility, (h) with the consent of the Borrower, (i)deal terms and other information customarily reported to Thomson Reuters, other bank market datacollectors and similar service providers to the lending industry and service providers to theAdministrative Agent and the Lenders in connection with the administration of the Loan Documents, (j)to the extent such Information (i) becomes publicly available other than as a result of a breach of thisSection 12.10 or (ii) becomes available to the Administrative Agent, any Lender, any Issuing Lender orany of their respective Affiliates from a third party that is not, to such Person’s knowledge, subject toconfidentiality obligations to the Borrower, (k) to the extent that such information is independentlydeveloped by such Person, or (l) for purposes of establishing a “due diligence” defense. For purposes ofthis Section 12.10, “Information” means all information received from any Credit Party or any subsidiarythereof relating to any Credit Party or any subsidiary thereof or any of their respective businesses, otherthan any such information that is available to the Administrative Agent, any Lender or any Issuing Lenderon a nonconfidential basis prior to disclosure by any Credit Party or any subsidiary thereof. Any Personrequired to maintain the confidentiality of Information as provided in this Section 12.10 shall beconsidered to have complied with its obligation to do so if such Person has exercised the same degree ofcare to maintain the confidentiality of such Information as such Person would accord to its ownconfidential information.Section 12.11 Performance of Duties. Each of the Credit Party’s obligations under thisAgreement and each of the other Loan Documents shall be performed by such Credit Party at its sole costand expense.Section 12.12 All Powers Coupled with Interest. All powers of attorney and otherauthorizations granted to the Lenders, the Administrative Agent and any Persons designated by theAdministrative Agent or any Lender pursuant to any provisions of this Agreement or any of the otherLoan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of theObligations remain unpaid or unsatisfied, any of the Commitments remain in effect or the Credit Facilityhas not been terminated.Section 12.13 Survival.(a) All representations and warranties set forth in Article VII and all representationsand warranties contained in any certificate, or any of the Loan Documents (including, but not limited to,any such representation or warranty made in or in connection with any amendment thereto) shallconstitute representations and warranties made under this Agreement. All representations and warrantiesmade under this Agreement shall be made or deemed to be made at and as of the Closing Date (exceptthose that are expressly made as of a specific date), shall survive the Closing Date and shall not be waivedby the execution and delivery of this Agreement, any investigation made by or on behalf of the Lendersor any borrowing hereunder.(b) Notwithstanding any termination of this Agreement, the indemnities to which theAdministrative Agent and the Lenders are entitled under the provisions of this Article XII and any otherprovision of this Agreement and the other Loan Documents shall continue in full force and effect andshall protect the Administrative Agent and the Lenders against events arising after such termination aswell as before. 146
Section 12.14 Titles and Captions. Titles and captions of Articles, Sections and subsections in,and the table of contents of, this Agreement are for convenience only, and neither limit nor amplify theprovisions of this Agreement.Section 12.15 Severability of Provisions. Any provision of this Agreement or any other LoanDocument which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, beineffective only to the extent of such prohibition or unenforceability without invalidating the remainder ofsuch provision or the remaining provisions hereof or thereof or affecting the validity or enforceability ofsuch provision in any other jurisdiction. In the event that any provision is held to be so prohibited orunenforceable in any jurisdiction, the Administrative Agent, the Lenders and the Borrower shall negotiatein good faith to amend such provision to preserve the original intent thereof in such jurisdiction (subjectto the approval of the Required Lenders).Section 12.16 Counterparts; Integration; Effectiveness; Electronic Execution.(a) Counterparts; Integration; Effectiveness. This Agreement may be executed incounterparts (and by different parties hereto in different counterparts), each of which shall constitute anoriginal, but all of which when taken together shall constitute a single contract. This Agreement and theother Loan Documents, and any separate letter agreements with respect to fees payable to theAdministrative Agent, the Issuing Lender, the Swingline Lender and/or any Arranger, constitute the entirecontract among the parties relating to the subject matter hereof and supersede any and all previousagreements and understandings, oral or written, relating to the subject matter hereof.(b) Electronic Execution. This Agreement and any document, amendment, approval,consent, information, notice, certificate, request, statement, disclosure or authorization related to thisAgreement (each, a “Communication”), including Communications required to be in writing, may, ifagreed by Bank of America, be in the form of an Electronic Record and may be executed using ElectronicSignatures, including, without limitation, facsimile and/or .pdf. The Borrower agrees that any ElectronicSignature (including, without limitation, facsimile or .pdf) on or associated with any Communicationshall be valid and binding on the Borrower to the same extent as a manual, original signature, and that anyCommunication entered into by Electronic Signature, will constitute the legal, valid and bindingobligation of the Borrower enforceable against the Borrower in accordance with the terms thereof to thesame extent as if a manually executed original signature was delivered to Bank of America. AnyCommunication may be executed in as many counterparts as necessary or convenient, including bothpaper and electronic counterparts, but all such counterparts are one and the same Communication. For theavoidance of doubt, the authorization under this paragraph may include, without limitation, use oracceptance by Bank of America of a manually signed paper Communication which has been convertedinto electronic form (such as scanned into PDF format), or an electronically signed Communicationconverted into another format, for transmission, delivery and/or retention. Bank of America may, at itsoption, create one or more copies of any Communication in the form of an imaged Electronic Record(“Electronic Copy”), which shall be deemed created in the ordinary course of Bank of America’sbusiness, and destroy the original paper document. All Communications in the form of an ElectronicRecord, including an Electronic Copy, shall be considered an original for all purposes, and shall have thesame legal effect, validity and enforceability as a paper record. Notwithstanding anything containedherein to the contrary, Bank of America is under no obligation to accept an Electronic Signature in anyform or in any format unless expressly agreed to by Bank of America pursuant to procedures approved byit; provided, further, without limiting the foregoing, (a) to the extent Bank of America has agreed toaccept such Electronic Signature, Bank of America shall be entitled to rely on any such ElectronicSignature purportedly given by or on behalf of any Credit Party without further verification and (b) upon147
the request of Bank of America any Electronic Signature shall be promptly followed by a manuallyexecuted, original counterpart.Section 12.17 Term of Agreement. This Agreement shall remain in effect from the ClosingDate through and including the date upon which all Obligations (other than contingent indemnificationobligations not then due) arising hereunder or under any other Loan Document shall have beenindefeasibly and irrevocably paid and satisfied in full, all Letters of Credit have been terminated orexpired (or been Cash Collateralized) or otherwise satisfied in a manner acceptable to the Issuing Lenderand the Revolving Credit Commitment has been terminated. No termination of this Agreement shallaffect the rights and obligations of the parties hereto arising prior to such termination or in respect of anyprovision of this Agreement which survives such termination.Section 12.18 USA PATRIOT Act; Anti-Money Laundering Laws. The Administrative Agentand each Lender hereby notifies the Borrower that pursuant to the requirements of the PATRIOT Act orany other Anti-Money Laundering Laws, each of them is required to obtain, verify and recordinformation that identifies each Credit Party, which information includes the name and address of eachCredit Party and other information that will allow such Lender to identify each Credit Party in accordancewith the PATRIOT Act or such Anti-Money Laundering Laws.Section 12.19 Independent Effect of Covenants. The Borrower expressly acknowledges andagrees that each covenant contained in Article VIII or IX hereof shall be given independent effect.Accordingly, the Borrower shall not engage in any transaction or other act otherwise permitted under anycovenant contained in Articles VIII or IX, before or after giving effect to such transaction or act, theBorrower shall or would be in breach of any other covenant contained in Article VIII or IX.Section 12.20 No Advisory or Fiduciary Responsibility.(a) In connection with all aspects of each transaction contemplated hereby, eachCredit Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i) thefacilities provided for hereunder and any related arranging or other services in connection therewith(including in connection with any amendment, waiver or other modification hereof or of any other LoanDocument) are an arm’s-length commercial transaction between the Borrower and its Affiliates, on theone hand, and the Administrative Agent, the Arrangers and the Lenders, on the other hand, and theBorrower is capable of evaluating and understanding and understands and accepts the terms, risks andconditions of the transactions contemplated hereby and by the other Loan Documents (including anyamendment, waiver or other modification hereof or thereof), (ii) in connection with the process leading tosuch transaction, each of the Administrative Agent, the Arrangers and the Lenders is and has been actingsolely as a principal and is not the financial advisor, agent or fiduciary, for the Borrower or any of itsAffiliates, stockholders, creditors or employees or any other Person, (iii) none of the AdministrativeAgent, the Arrangers or the Lenders has assumed or will assume an advisory, agency or fiduciaryresponsibility in favor of the Borrower with respect to any of the transactions contemplated hereby or theprocess leading thereto, including with respect to any amendment, waiver or other modification hereof orof any other Loan Document (irrespective of whether any Arranger or Lender has advised or is currentlyadvising the Borrower or any of its Affiliates on other matters) and none of the Administrative Agent, theArrangers or the Lenders has any obligation to the Borrower or any of its Affiliates with respect to thefinancing transactions contemplated hereby except those obligations expressly set forth herein and in theother Loan Documents, (iv) the Arrangers and the Lenders and their respective Affiliates may be engagedin a broad range of transactions that involve interests that differ from, and may conflict with, those of theBorrower and its Affiliates, and none of the Administrative Agent, the Arrangers or the Lenders has anyobligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship and(v) the Administrative Agent, the Arrangers and the Lenders have not provided and will not provide any148
legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby(including any amendment, waiver or other modification hereof or of any other Loan Document) and theCredit Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent theyhave deemed appropriate.(b) Each Credit Party acknowledges and agrees that each Lender, the Arrangers andany Affiliate thereof may lend money to, invest in, and generally engage in any kind of business with, anyof the Borrower, any Affiliate thereof or any other person or entity that may do business with or ownsecurities of any of the foregoing, all as if such Lender, Arranger or Affiliate thereof were not a Lender orArranger or an Affiliate thereof (or an agent or any other person with any similar role under the CreditFacilities) and without any duty to account therefor to any other Lender, the Arrangers, the Borrower orany Affiliate of the foregoing. Each Lender, the Arrangers and any Affiliate thereof may accept fees andother consideration from the Borrower or any Affiliate thereof for services in connection with thisAgreement, the Credit Facilities or otherwise without having to account for the same to any other Lender,the Arrangers, the Borrower or any Affiliate of the foregoing.Section 12.21 [Reserved].Section 12.22 Inconsistencies with Other Documents. In the event there is a conflict orinconsistency between this Agreement and any other Loan Document, the terms of this Agreement shallcontrol; provided that any provision of the Security Documents which imposes additional burdens on theBorrower or any of its Subsidiaries or further restricts the rights of the Borrower or any of its Subsidiariesor gives the Administrative Agent or Lenders additional rights shall not be deemed to be in conflict orinconsistent with this Agreement and shall be given full force and effect.Section 12.23 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangementor understanding among any such parties, each party hereto acknowledges that any liability of anyAffected Financial Institution arising under any Loan Document, to the extent such liability is unsecured,may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority andagrees and consents to, and acknowledges and agrees to be bound by:(a) the application of any Write-Down and Conversion Powers by the applicableResolution Authority to any such liabilities arising hereunder which may be payable to it by any partyhereto 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 otherinstruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridgeinstitution that may be issued to it or otherwise conferred on it, and that such shares or other instrumentsof ownership will be accepted by it in lieu of any rights with respect to any such liability under thisAgreement or any other Loan Document; or(iii) the variation of the terms of such liability in connection with the exerciseof the Write-Down and Conversion Powers of the applicable Resolution Authority.Section 12.24 Acknowledgement Regarding Any Supported QFCs. To the extent that the LoanDocuments provide support, through a guarantee or otherwise, for Hedge Agreements or any other149
agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such QFC, a“Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power ofthe FDIC under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform andConsumer Protection Act (together with the regulations promulgated thereunder, the “U.S. SpecialResolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisionsbelow applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be statedto be governed by the laws of the State of New York and/or of the United States or any other state of theUnited States): (a) In the event a Covered Entity that is party to a Supported QFC (each, a “CoveredParty”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of suchSupported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or undersuch Supported QFC and such QFC Credit Support, and any rights in property securing such SupportedQFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as thetransfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and suchQFC Credit Support (and any such interest, obligation and rights in property) were governed by the lawsof the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliateof a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, DefaultRights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC CreditSupport that may be exercised against such Covered Party are permitted to be exercised to no greaterextent than such Default Rights could be exercised under the U.S. Special Resolution Regime if theSupported QFC and the Loan Documents were governed by the laws of the United States or a state of theUnited States. Without limitation of the foregoing, it is understood and agreed that rights and remedies ofthe parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Partywith respect to a Supported QFC or any QFC Credit Support.(b) As used in this Section 12.24, the following terms have the following meanings:“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, andinterpreted in accordance with, 12 U.S.C. 1841(k)) of such party.“Covered Entity” means any of the following:(i) a “covered entity” as that term is defined in, and interpreted in accordance with,12 C.F.R. § 252.82(b);(ii) a “covered bank” as that term is defined in, and interpreted in accordance with,12 C.F.R. § 47.3(b); or(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12C.F.R. § 382.2(b).“Default Right” has the meaning assigned to that term in, and shall be interpreted inaccordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.“QFC” has the meaning assigned to the term “qualified financial contract” in, and shallbe interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).[Signature pages follow]150
DORMAN PRODUCTS, INC., as BorrowerBy: Name:Title:[Signature Page to Credit Agreement]
BANK OF AMERICA, N.A., as Administrative AgentBy: Name:Title:BANK OF AMERICA, N.A., as a Lender, an IssuingLender and Swingline LenderBy: Name:Title:[Signature Page to Credit Agreement]
[ ], as a Lender and an Issuing LenderBy: Name:Title:[Signature Page to Credit Agreement]