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0001860742
Bausch and Lomb Corp
0001860742
2024-11-01
2024-11-01
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM 8-K
____________________________
CURRENT REPORT
Pursuant to Section 13 or
15(d)
of the Securities Exchange
Act of 1934
November 1, 2024
Date of Report (Date of the
earliest event reported)
____________________________
Bausch + Lomb Corporation
(Exact Name of Registrant
as Specified in Its Charter)
____________________________
Canada |
001-41380 |
98-1613662 |
(State or Other Jurisdiction of
Incorporation or Organization) |
(Commission
File Number) |
(I.R.S. Employer
Identification Number) |
520 Applewood Crescent
Vaughan, Ontario
Canada L4K 4B4
(Address of Principal Executive
Offices) (Zip Code)
(905) 695-7700
(Registrant’s telephone
number, including area code)
N/A
(Former name or former address,
if changed since last report)
____________________________
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common Shares, No Par Value |
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BLCO |
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New York Stock Exchange |
Toronto Stock Exchange |
Indicate by check mark whether the registrant is an
emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark
if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On November 1, 2024, the Company entered into an
amendment (the “Second Incremental Amendment”) to the credit and guaranty agreement, dated as of May 10, 2022 (as amended
by the First Incremental Amendment, dated as of September 29, 2023, as further amended by the Second Incremental Amendment, the “Credit
Agreement”), by and among the Company, certain subsidiaries of the Company as subsidiary guarantors, the lenders party thereto and
JPMorgan Chase Bank, N.A., in its capacity as second incremental term facility administrative agent, pursuant to which the Company borrowed
$400,000,000 of new term loans (the “Second Incremental Term Loans”).
The Second Incremental Term Loans incurred pursuant
to the Second Incremental Amendment will mature on May 10, 2027 and will amortize in quarterly installments (commencing with the fiscal
quarter ending March 31, 2025) equal to (x) for the first eight installments, 0.625% of the original principal amount of the Second Incremental
Term Loans and (y) for each installment thereafter, 1.875% of the original principal amount of the Second Incremental Term Loans, with
the balance payable on the maturity date of the Second Incremental Term Loans. The proceeds of the Second Incremental Term Loans were
used in part to repay revolving loans outstanding under the Credit Agreement and the remainder will be used for general corporate purposes.
The Second Incremental Term Loans bear interest at a rate per annum equal to, at the borrower’s option, either (a) a base rate determined
by reference to the higher of (1) the rate of interest quoted by The Wall Street Journal as the “Prime Rate,” (2) the federal
funds effective rate plus 1/2 of 1.00% or (3) term SOFR for a period of one month plus 1.00% (or if such rate shall not be ascertainable,
1.00%) or (b) term SOFR for the interest period relevant to such borrowing, in each case plus an applicable margin. The applicable interest
rate margins for the Second Incremental Term Loans are 2.25% per annum with respect to base rate borrowings and 3.25% per annum with respect
to term SOFR borrowings. Except as amended by the Second Incremental Amendment, the terms of the Credit Agreement were not otherwise amended.
The foregoing description of the Second Incremental
Amendment is not complete and is qualified in its entirety by reference to the full text of the Credit Agreement, as amended by the Second
Incremental Amendment, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The information included in Item 1.01 above is
incorporated by reference into this Item 2.03.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
Signatures
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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BAUSCH + LOMB CORPORATION |
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By: |
/s/ Sam Eldessouky |
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Name: |
Sam Eldessouky |
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Title: |
Executive Vice President, Chief Financial Officer |
Date: November 1, 2024
Exhibit
10.1
Execution
Version
SECOND
INCREMENTAL AMENDMENT (this “Amendment”), dated as of November 1 2024, among Bausch + Lomb Corporation, a corporation
incorporated under the Canada Business Corporations Act (the “Borrower”), certain subsidiaries of the Borrower,
as Subsidiary Guarantors, the New Term Lenders party hereto and JPMorgan Chase Bank, N.A. (“JPM”), in its capacity
as administrative agent for the First Incremental Term Lenders and the New Term Lenders (in such capacity, the “Incremental
Term Facilities Administrative Agent”).
WHEREAS,
the Borrower, Subsidiary Guarantors, the Lenders party thereto, the Issuing Banks, Citibank, N.A., in its capacities as the Swingline
Lender and Revolving Facility Administrative Agent, Goldman Sachs Bank USA, in its capacity as Term Facility Administrative Agent, JPM,
in its capacity as First Incremental Term Facility Administrative Agent and Citibank, N.A., in its capacity as Collateral Agent, are
party to the Credit and Guaranty Agreement dated as of May 10, 2022 (as amended by the First Incremental Amendment dated as of September
29, 2023 and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit
Agreement”, as amended by this Amendment, the “Amended Credit Agreement”).
WHEREAS,
pursuant to Section 2.22 of the Credit Agreement, the Borrower has requested Incremental Term Loans in an aggregate principal amount
not exceeding $400,000,000 (the “New Term Facility” and the loans thereunder, “New Term Loans”),
the proceeds of which shall be used (i) to consummate the Second Incremental Amendment Refinancing, (ii) to pay fees and expenses in
connection with the Second Incremental Transactions and (iii) for general corporate purposes or other actions or purposes permitted under
the Amended Credit Agreement.
WHEREAS,
the Persons holding New Term Commitments (as defined below) are severally willing to make New Term Loans (the “New Term Lenders”)
on the Second Amendment Effective Date (as defined below) in an aggregate principal amount equal to their respective New Term Commitments,
subject to the terms and conditions set forth in this Amendment.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms. Capitalized terms used and not
otherwise defined herein have the meanings assigned to them in the Amended Credit Agreement.
SECTION
2. New Term Loans.
(a)
Subject to the terms and conditions set forth herein, each New Term Lender severally agrees
to make New Term Loans to the Borrower on the Second Amendment Effective Date in an aggregate principal amount equal to its New Term
Commitment, which shall be made available to the Incremental Term Facilities Administrative Agent in immediately available funds in accordance
with the Amended Credit Agreement. The “New Term Commitment” of any New Term Lender will be the amount set forth opposite
such New Term Lender’s name on Schedule 1 hereto.
(b)
The New Term Loans shall comprise a new Class of Term Loans, and shall otherwise be subject
to the provisions of the Amended Credit Agreement and the other Loan Documents. Amounts paid or prepaid in respect of the New Term Loans
may not be re-borrowed.
(c)
On the Second Amendment Effective Date, each New Term Lender party hereto irrevocably consents
to this Amendment and all modifications to the Credit Agreement contemplated hereby.
(d)
Upon the occurrence of the Second Amendment Effective Date, each New Term Lender shall have
the rights and obligations of a Lender under the Amended Credit Agreement and under any other applicable Loan Documents.
(e)
The Borrower and each other Loan Party acknowledges and agrees that (i) the New Term Loans
shall constitute Obligations and have all the benefits thereof and the Borrower shall be liable for all Obligations with respect to all
New Term Loans made to the Borrower pursuant to this Amendment and (ii) all such Obligations shall constitute Guaranteed Obligations
and shall be secured by the Liens granted to the Collateral Agent for the benefit of the Secured Parties and entitled to the benefits
of the Collateral Documents and the Guarantee.
SECTION
3. Amendments. In accordance with Section 2.22 and
Section 10.02 of the Credit Agreement and effective as of the Second Amendment Effective Date, the Credit Agreement is 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 conformed copy of the Amended Credit Agreement attached as Annex A hereto.
SECTION
4. Representations and Warranties. To induce the
other parties hereto to enter into this Amendment, the Borrower and each other Loan Party each represents and warrants to the other parties
hereto on the Second Amendment Effective Date that:
(a)
(i) the execution, delivery and performance by such Loan Party of this Amendment (and the Amended
Credit Agreement) are within such Loan Party’s corporate or other organizational power and has been duly authorized by all necessary
corporate or other organizational action of each such Loan Party; and (ii) this Amendment has been duly executed and delivered by such
Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to the
Legal Reservations; and
(b)
the execution and delivery of this Amendment (and the Amended Credit Agreement) by each Loan
Party and the performance by such Loan Party thereof (i) do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except (A) such as have been obtained or made and are in full force and effect (except to
the extent not required to be obtained or made pursuant to the Collateral and Guarantee Requirement), (B) in connection with the Perfection
Requirements or (C) such consents, approvals, registrations, filings, or other actions the failure to obtain or make which would not
be reasonably expected to have a Material Adverse Effect, (ii) will not violate any (A) of such Loan Party’s Organizational Documents
or (B) Requirements of Law applicable to such Loan Party which, in the case of this clause (ii)(B), would reasonably be expected to have
a Material Adverse Effect, and (iii) will not violate or result in a default under (A) the Amended Credit Agreement or (B) any other
material Contractual Obligation in respect of Indebtedness having an aggregate principal amount exceeding the Threshold Amount to which
such Loan Party is a party which, in the case of this clause (iii)(B), would reasonably be expected to result in a Material Adverse Effect.
SECTION
5. Second Amendment Effective Date. This Amendment
shall become effective as of the first date (the “Second Amendment Effective Date”) on which each of the following
conditions shall have been satisfied (or waived by the New Term Lenders), it being understood and agreed that the Second Amendment Effective
Date is November 1, 2024:
(a)
the Incremental Term Facilities Administrative Agent shall have received a counterpart signature
page of this Amendment duly executed by the Borrower and each Loan Party, the Incremental Term Facilities Administrative Agent and each
New Term Lender;
(b)
the Incremental Term Facilities Administrative Agent (or its counsel) shall have received a
certificate signed by a Responsible Officer of each Loan Party referred to in clause (a), in substantially the form delivered on the
Closing Date (i) certifying that the articles of formation (or equivalent document) of such Loan Party, certified by the appropriate
Governmental Authority of the state of formation of such Loan Party, and the operating agreement (or equivalent document) of such Loan
Party, either (A) has not been amended since the Closing Date or (B) is attached as an exhibit to such certificate and that such documents
or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments
thereto as of such date) and certified as true and complete as of a recent date by the appropriate Governmental Authority of the state
of formation of such Loan Party, (ii) certifying that attached thereto are the resolutions of (x) the board of directors or other comparable
managing body, (y) the supervisory board and/or (z) the shareholders (as applicable) of such Loan Party approving the Amendment, the
transactions contemplated therein and authorizing execution and delivery thereof, certified by a Responsible Officer of such Loan Party
as of the Second Amendment Effective Date to be true and correct and in force and effect as of such date, (iii) certifying as to the
incumbency and genuineness of the signatures of the officers or other authorized signatories of such Loan Party executing this Amendment
and (iv) attaching the good standing certificates described in clause (d) of this Section 5;
(c)
the Incremental Term Facilities Administrative Agent (or its counsel) shall have received,
on behalf of itself and the New Term Lenders on the Second Amendment Effective Date, a customary written opinion of (i) Davis Polk &
Wardwell LLP, in its capacity as special New York counsel for the Borrower and the other Loan Parties, (ii) Morris, Nichols, Arsht &
Tunnell LLP, in its capacity as Delaware counsel for the Borrower and the other Loan Parties, (iii) Osler, Hoskin & Harcourt LLP,
in its capacity as special Canada counsel for the Borrower and the other Loan Parties, (iv) Buren, N.V., in its capacity as Dutch counsel
for the Borrower and the other Loan Parties and (v) Arthur Cox LLP, in its capacity as special Ireland counsel for the Borrower and the
other Loan Parties, in each case, dated the Second Amendment Effective Date and addressed to the Incremental Term Facilities Administrative
Agent and the New Term Lenders;
(d)
the Incremental Term Facilities Administrative Agent (or its counsel) shall have received a
certificate of good standing (to the extent such concept exists in the relevant jurisdiction) with respect to each Loan Party referred
to in clause (a) above certified as of a recent date by the appropriate Governmental Authority of the state of formation;
(e)
the Incremental Term Facilities Administrative Agent shall have received, at least three Business
Days prior to the Second Amendment Effective Date, all documentation and other information about any Loan Party required by U.S. regulatory
authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT
Act, and if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership
Certification in relation to the Borrower, as is reasonably requested in writing by the Incremental Term Facilities Administrative Agent
at least ten Business Days (as defined in the Acquisition Agreement) prior to the Second Amendment Effective Date;
(f)
all fees and expenses required to be paid by (or on behalf of) the Borrower to the Agents (including
pursuant to Section 10.03 of the Amended Credit Agreement and pursuant to Section 8 hereof) or any arranger pursuant to any engagement
letter with the Borrower on or before the Second Amendment Effective Date, in each case, in connection with the Second Incremental Transactions
shall have been (or shall substantially contemporaneously be) paid in full in cash (and in the case of expenses, to the extent invoiced
at least three Business Days prior to the Second Amendment Effective Date (except as otherwise reasonably agreed by the Borrower));
(g)
the Incremental Term Facilities Administrative Agent shall have received a Borrowing Request
in respect of the New Term Loans to be made on the Second Amendment Effective Date;
(h)
at the time of and immediately after giving effect to the incurrence of the New Term Loans, no Event of Default or Default shall
have occurred and be continuing, and the Incremental Term Facilities Administrative Agent shall have received a certificate of Borrower
signed by a Responsible Officer thereof certifying to the same;
(i)
the Second Incremental Amendment Refinancing shall have been, or substantially concurrently
as of the Second Amendment Effective Date, shall be consummated;
(j)
the Incremental Term Facilities Administrative Agent shall have received a solvency certificate,
in the form attached to the Credit Agreement as Exhibit I, dated as of the Second Amendment Effective Date from the chief financial officer
(or other officer with reasonably equivalent responsibilities) of the Borrower; and
(k)
the representations and warranties of the Loan Parties set forth in the Amended Credit Agreement
and the other Loan Documents shall be true and correct in all material respects on and as of the Second Amendment Effective Date with
the same effect as though such representations and warranties had been made on and as of the Second Amendment Effective Date and excluding
the representations and warranties set forth in Section 3.11(b) of the Amended Credit Agreement; provided that, to the extent
that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects
as of such date or such period.
For
purposes of determining whether the conditions specified in this Section 5 have been satisfied on the date hereof, by funding
the New Term Loans, the Incremental Term Facilities Administrative Agent and each New Term Lender that has executed this Amendment shall
be deemed to have consented to, waived, approved or accepted, or to be satisfied with, each document or other matter required hereunder.
By
its execution and delivery of this Amendment, the Agents, the New Term Lenders and each other party hereto shall be deemed to have consented
to, approved or accepted, or be satisfied with, each document or other matter required hereunder to be consented to or approved by or
acceptable or satisfactory to such Agent, New Term Lender or other party hereto. The Incremental Term Facilities Administrative Agent
shall post a notice of effectiveness and occurrence of the Second Amendment Effective Date, which shall be conclusive and binding upon
all of the Lenders and all of the other parties to the Loan Documents and each of their successors and assigns; provided that,
failure to give any such notice shall not affect the effectiveness, validity or enforceability of this Amendment or the Amended Credit
Agreement. The parties hereto hereby agree that notwithstanding any other provision hereof, the Second Amendment Effective Date is November
1, 2024.
SECTION
6. Effect of Amendment.
(a)
It is the intention of each of the parties hereto that the Credit Agreement be amended pursuant
to this Amendment, so as to preserve the validity, perfection and priority of all Liens securing the Obligations and that, after giving
effect to this Amendment all Obligations shall be secured by the Collateral and Liens granted under the Collateral Documents and that
this Amendment does not constitute a novation or termination of the Credit Agreement, the other Loan Documents or the obligations under
the Credit Agreement or the other Loan Documents.
(b)
Except as expressly set forth herein, this Amendment shall not by implication or otherwise
limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or Agents under the Credit Agreement,
the Amended Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or the Amended Credit Agreement or any other provision of the
Credit Agreement, the Amended Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects
and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement,
the Amended Credit Agreement or any other Loan Document in similar or different circumstances.
(c)
From and after the Second Amendment Effective Date, (i) each reference in the Amended Credit
Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import,
and each reference to the “Credit Agreement” in any other Loan Document shall be deemed a reference to the Amended Credit
Agreement and (ii) each reference in any Loan Document to the “Term Lenders”, “Additional Loans”, “Additional
Term Loans”, “Term Loans” or “Term Facility” shall be deemed a reference to (or include, as applicable)
the New Term Lenders, the New Term Loans or the New Term Facility.
(d)
This Amendment shall constitute a “Loan Document” for all purposes of the Credit
Agreement, the Amended Credit Agreement and the other Loan Documents and shall be deemed to be an “Incremental Facility Amendment”,
as defined in the Credit Agreement.
(e)
Each party hereto acknowledges that this Amendment constitutes all notices or requests required
to be delivered to it under Section 2.22 of the Credit Agreement.
(f)
[Reserved].
(g)
The Incremental Term Facilities Administrative Agent and each New Term Lender party hereto
agree that amortization payments with respect to the New Term Loans shall commence on the last Business Day of the first full fiscal
quarter ending after the Second Amendment Effective Date.
(h)
Each Loan Party party hereto hereby expressly acknowledges the terms of this Amendment and
affirms or reaffirms, as applicable, as of the date hereof, the covenants, agreements and guarantees contained in each Loan Document
to which it (or the applicable Loan Party) is a party, including, in each case, such covenants, agreements and guarantees as in effect
immediately after giving effect to this Amendment and the transactions contemplated hereby.
(i)
Each Loan Party party hereto, by its signature below, hereby affirms and confirms, subject
to the taking of actions required by applicable local law requirements, and notwithstanding anything to the contrary in the Loan Documents
(including, for the avoidance of doubt, with respect to the effectiveness of the Collateral Documents and validity and perfection of
Liens pending the taking of such actions), (i) its (or the applicable Loan Party’s) obligations (including any guarantee obligations)
under each of the Loan Documents to which it (or the applicable Loan Party) is a party and (ii) the pledge of and/or grant of a security
interest in its (or the applicable Loan Party’s) assets as Collateral to secure such Obligations, all as provided in the Collateral
Documents, and each party hereto acknowledges and agrees that such guarantee, pledge and/or grant continue in full force and effect in
respect of, and to secure, or upon the effectiveness of any amendment or supplement thereto entered into in connection with this Amendment,
will continue in full force and effect in respect of, and will secure, such Obligations under the Amended Credit Agreement and the other
Loan Documents. Furthermore, each Loan Party incorporated in the Netherlands hereby confirms that any guarantee, pledge of and/or security
interest created by it under
the
Collateral Documents has always been intended to extend to the obligations of the Secured Parties under the Loan Documents as amended
and restated from time to time, including as amended by this Amendment, and shall so extend thereto in accordance with the terms of the
Loan Documents.
SECTION
7. [Reserved].
SECTION
8. Expenses. The Borrower agrees to reimburse each
of the Incremental Term Facilities Administrative Agent for its reasonable and documented out-of-pocket expenses incurred by it in connection
with this Amendment, including the reasonable and documented fees, charges and disbursements of Simpson Thacher & Bartlett LLP, counsel
for the Incremental Term Facilities Administrative Agent.
SECTION
9. Amendments; Severability. (a) Once effective,
this Amendment may not be amended nor may any provision hereof be waived except pursuant to Section 10.02 of the Amended Credit Agreement.
(b) If
any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining
provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION
10. GOVERNING LAW; Waiver of Jury Trial; Jurisdiction. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK. The provisions of Sections 10.10 and 10.11 of the Amended Credit Agreement, are incorporated
herein by reference, mutatis mutandis.
SECTION
11. Headings. Section headings herein are included
for convenience of reference only and shall not affect the interpretation of this Amendment.
SECTION
12. Counterparts. This Amendment may be executed
in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Delivery by facsimile or other electronic imaging means of an executed counterpart of a signature page to this Amendment shall be effective
as delivery of an original executed counterpart of this Amendment. The words “execution,” “signed,” “signature,”
“delivery,” and words of like import in this Amendment or any other document to be signed in connection with this Amendment
and the transactions contemplated hereby shall be deemed to include electronic signatures or electronic records, each of which shall
be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based
on the Uniform Electronic Transactions Act.
[Remainder of
page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto
duly authorized as of the date first written above.
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BAUSCH + LOMB CORPORATION, as the Borrower |
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By: |
/s/ Sam Eldessouky |
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Name: |
Sam Eldessouky |
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Title: |
Chief Financial Officer |
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BAUSCH & LOMB AMERICAS INC. |
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By: |
/s/ Bob Bailey |
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Name: |
Bob Bailey |
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Title: |
Vice President |
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ALDEN OPTICAL LABORATORIES, INC. |
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By: |
/s/ Sam Eldessouky |
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Name: |
Sam Eldessouky |
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Title: |
President |
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BAUSCH & LOMB INCORPORATED |
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By: |
/s/ Bob Bailey |
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Name: |
Bob Bailey |
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Title: |
Vice President |
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BAUSCH + LOMB FINANCING LLC |
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By: |
/s/ Sam Eldessouky |
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Name: |
Sam Eldessouky |
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Title: |
President |
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[Signature Page
to Second Incremental Amendment]
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BAUSCH + LOMB IRELAND LIMITED |
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By: |
/s/ Olive McDaid |
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Name: |
Olive McDaid |
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Title: |
Director |
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BAUSCH + LOMB NETHERLANDS B.V. |
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By: |
/s/ Peter van Leeuwen |
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Name: |
Peter van Leeuwen |
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Title: |
Authorized signatory |
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[Signature Page
to Second Incremental Amendment]
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JPMORGAN CHASE BANK, N.A., |
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as Incremental Term Facilities Administrative Agent and New
Term Lender |
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By: |
/s/ Ling Li |
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Name: |
Ling Li |
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Title: |
Executive Director |
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[Signature Page
to Second Incremental Amendment]
GOLDMAN SACHS BANK USA, |
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as New Term Lender |
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By: |
/s/ Thomas Manning |
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Name: |
Thomas Manning |
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Title: |
Authorized Signatory |
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[Signature Page
to Second Incremental Amendment]
SCHEDULE
1
New
Term Lender |
New
Term Commitment |
JPMorgan
Chase Bank, N.A. |
$200,000,000 |
Goldman
Sachs Bank USA |
$200,000,000 |
Total |
$400,000,000 |
ANNEX
A
AMENDMENTS
TO CREDIT AGREEMENT
[Attached]
Conformed for
the First Incremental Amendment dated September 29, 2023
Conformed for
the Second Incremental Amendment dated November 1, 2024
CREDIT
AND GUARANTY AGREEMENT
dated as of May
10, 2022
among
BAUSCH + LOMB CORPORATION,
as the Borrower,
CERTAIN SUBSIDIARIES
OF BAUSCH + LOMB CORPORATION,
as Subsidiary Guarantors,
THE FINANCIAL INSTITUTIONS
PARTY HERETO,
as Lenders and Issuing Banks,
CITIBANK, N.A.,
as Revolving Facility Administrative Agent and Swingline Lender,
GOLDMAN SACHS BANK
USA,
as
Term Facility Administrative Agent
JPMORGAN CHASE BANK,
N.A.,
as
First Incremental Term FacilityFacilities
Administrative Agent
CITIBANK, N.A.,
as Collateral Agent,
and
GOLDMAN SACHS BANK
USA, MORGAN STANLEY SENIOR FUNDING, INC., CITIBANK, N.A., JPMORGAN CHASE BANK, N.A. and BARCLAYS BANK PLC,
as Joint Lead Arrangers
and Joint Bookrunners,
GOLDMAN
SACHS BANK USA and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Co-Syndication Agents for the Revolving Facility,
JPMORGAN CHASE BANK,
N.A. and BARCLAYS BANK PLC,
as Documentation Agents for the Revolving Facility,
HSBC BANK USA, NATIONAL
ASSOCIATION,
DEUSTCHE BANK SECURITIES
INC., TRUIST BANK, DNB MARKETS, INC.,
BANK OF AMERICA, N.A. and WELLS FARGO BANK, N.A.,
as Co-Managers for the Term Facility
TABLE OF CONTENTS
Page
Article 1 |
DEFINITIONS |
|
Section 1.01. |
Defined Terms |
|
Section 1.02. |
Classification of Loans and Borrowings |
8082 |
Section 1.03. |
Terms Generally |
8082 |
Section 1.04. |
Accounting Terms; GAAP |
8284 |
Section 1.05. |
Representations and Warranties |
8688 |
Section 1.06. |
Timing of Payment and Performance |
8688 |
Section 1.07. |
Times of Day |
8688 |
Section 1.08. |
Currency Equivalents Generally |
8688 |
Section 1.09. |
Cashless Rollovers |
8789 |
Section 1.10. |
Additional Alternate Currencies |
8889 |
Section 1.11. |
Security Principles |
8890 |
Section 1.12. |
Additional Borrowers |
8990 |
|
|
|
Article 2 |
THE CREDITS |
|
Section 2.01. |
Commitments |
9092 |
Section 2.02. |
Loans and Borrowings |
9192 |
Section 2.03. |
Requests for Borrowings |
9293 |
Section 2.04. |
Swingline Loans |
9395 |
Section 2.05. |
Letters of Credit |
9496 |
Section 2.06. |
[Reserved] |
100102 |
Section 2.07. |
Funding of Borrowings |
100102 |
Section 2.08. |
Type; Interest Elections |
101102 |
Section 2.09. |
Termination and Reduction of Commitments |
102103 |
Section 2.10. |
Repayment of Loans; Evidence of Debt |
103104 |
Section 2.11. |
Prepayment of Loans |
105106 |
Section 2.12. |
Fees |
112114 |
Section 2.13. |
Interest |
114116 |
Section 2.14. |
Alternate Rate of Interest |
115117 |
Section 2.15. |
Increased Costs |
116118 |
Section 2.16. |
Break Funding Payments |
117119 |
Section 2.17. |
Taxes |
118120 |
Section 2.18. |
Payments Generally; Allocation of Proceeds; Sharing of Payments |
122124 |
Section 2.19. |
Mitigation Obligations; Replacement of Lenders |
124126 |
Section 2.20. |
Illegality |
125127 |
Section 2.21. |
Defaulting Lenders |
126128 |
Section 2.22. |
Incremental Credit Extensions |
129131 |
Section 2.23. |
Extensions of Loans and Revolving Credit Commitments |
134136 |
Section 2.24. |
Benchmark Replacement |
137139 |
Section 2.25. |
Sustainability Adjustments |
142144 |
Article 3 |
REPRESENTATIONS AND WARRANTIES |
|
Section 3.01. |
Organization; Powers |
144146 |
Section 3.02. |
Authorization; Enforceability |
144146 |
Section 3.03. |
Governmental Approvals; No Conflicts |
144146 |
Section 3.04. |
Financial Condition; No Material Adverse Effect |
144146 |
Section 3.05. |
Properties |
145147 |
Section 3.06. |
Litigation and Environmental Matters |
145147 |
Section 3.07. |
Compliance with Laws |
145147 |
Section 3.08. |
Investment Company Status |
145147 |
Section 3.09. |
[Reserved] |
146148 |
Section 3.10. |
ERISA |
146148 |
Section 3.11. |
Disclosure |
146148 |
Section 3.12. |
Solvency |
146148 |
Section 3.13. |
Capitalization and Subsidiaries |
147149 |
Section 3.14. |
Security Interest in Collateral |
147149 |
Section 3.15. |
Labor Disputes |
147149 |
Section 3.16. |
Federal Reserve Regulations |
147149 |
Section 3.17. |
USA PATRIOT Act, Sanctions and Anti-Corruption Laws |
147149 |
Section 3.18. |
Canadian Employee Benefit Plans |
148150 |
|
|
|
Article 4 |
CONDITIONS |
|
Section 4.01. |
Closing Date |
149151 |
Section 4.02. |
Each Credit Extension |
151153 |
|
|
|
Article 5 |
AFFIRMATIVE COVENANTS |
|
Section 5.01. |
Financial Statements and Other Reports |
152154 |
Section 5.02. |
Existence |
155157 |
Section 5.03. |
Payment of Taxes |
155157 |
Section 5.04. |
Maintenance of Properties |
155157 |
Section 5.05. |
Insurance |
156158 |
Section 5.06. |
Inspections |
156158 |
Section 5.07. |
Maintenance of Book and Records |
157159 |
Section 5.08. |
Compliance with Laws |
157159 |
Section 5.09. |
Hazardous Materials Activity |
157159 |
Section 5.10. |
Designation of Subsidiaries |
158160 |
Section 5.11. |
Use of Proceeds |
158160 |
Section 5.12. |
Covenant to Guarantee Loan Document Obligations and Give Security |
159161 |
Section 5.13. |
[Reserved] |
161163 |
Section 5.14. |
Guarantors |
161163 |
Section 5.15. |
Further Assurances |
162164 |
Section 5.16. |
Conduct of Business |
162164 |
Section 5.17. |
Post-Closing Actions |
162164 |
Section 5.18. |
Annual Lender Call |
163165 |
Section 5.19. |
Canadian Employee Benefit Plan |
163165 |
Section 5.20. |
[Reserved] |
163165 |
Article 6 |
NEGATIVE COVENANTS |
|
Section 6.01. |
Indebtedness |
163165 |
Section 6.02. |
Liens |
168170 |
Section 6.03. |
No Further Negative Pledges |
174176 |
Section 6.04. |
Restricted Payments; Restricted Debt Payments |
176178 |
Section 6.05. |
[Reserved] |
180182 |
Section 6.06. |
Investments |
181183 |
Section 6.07. |
Fundamental Changes; Disposition of Assets |
185187 |
Section 6.08. |
Sale and Lease-Back Transactions |
190192 |
Section 6.09. |
Transactions with Affiliates |
190192 |
Section 6.10. |
[Reserved] |
192194 |
Section 6.11. |
[Reserved] |
192194 |
Section 6.12. |
Amendments of or Waivers with Respect to Restricted Debt |
193195 |
Section 6.13. |
[Reserved] |
193195 |
Section 6.14. |
[Reserved] |
193195 |
Section 6.15. |
First Lien Leverage Ratio |
193195 |
Section 6.16. |
Establishment of Defined Benefit Plan |
194196 |
Section 6.17. |
Indebtedness |
194196 |
Section 6.18. |
Liens |
196198 |
Section 6.19. |
Fundamental Changes |
198200 |
Section 6.20. |
Restricted Payments |
198200 |
Section 6.21. |
Financial Covenants |
199201 |
Section 6.22. |
Defined Terms |
199201 |
|
|
|
Article 7 |
LOAN GUARANTEE |
|
Section 7.01. |
Guarantee of the Loan Document Obligations |
203205 |
Section 7.02. |
Contribution by Guarantors; Indemnification; Subordination |
203205 |
Section 7.03. |
Payment by Subsidiary Guarantors |
203205 |
Section 7.04. |
Liability of Guarantors Absolute |
204206 |
Section 7.05. |
Waivers by Guarantors |
205207 |
Section 7.06. |
Guarantors’ Rights of Subrogation, Contribution, etc. |
206208 |
Section 7.07. |
Subordination of Other Obligations |
207209 |
Section 7.08. |
Continuing Guarantee |
207209 |
Section 7.09. |
Authority of Subsidiary Guarantors or Borrower |
207209 |
Section 7.10. |
Financial Condition of Borrower |
207209 |
Section 7.11. |
Bankruptcy, etc. |
207209 |
Section 7.12. |
Discharge of Loan Guarantee upon Sale of Subsidiary Guarantor |
208210 |
Section 7.13. |
Guarantee Limitations |
208210 |
|
|
|
Article 8 |
EVENTS OF DEFAULT |
|
Section 8.01. |
Events of Default |
208210 |
Section 8.02. |
Events of Default (On and After Investment Grade Trigger Date) |
212214 |
Section 8.03. |
Defined Terms |
215217 |
|
|
|
Article 9 |
THE ADMINISTRATIVE AGENTS AND THE COLLATERAL AGENT |
|
Section 9.01. |
Appointment |
215217 |
Section 9.02. |
Enforcement |
217219 |
Section 9.03. |
Bankruptcy |
219221 |
Section 9.04. |
Reliance |
220222 |
Section 9.05. |
Delegation |
220222 |
Section 9.06. |
Resignation |
220222 |
Section 9.07. |
Arrangers |
222224 |
Section 9.08. |
Release of Loan Guarantees; Collateral |
222224 |
Section 9.09. |
Intercreditor Agreements |
223225 |
Section 9.10. |
Indemnification by Lenders |
223225 |
Section 9.11. |
Withholding Taxes |
223226 |
Section 9.12. |
Quebec |
224226 |
Section 9.13. |
Certain Foreign Collateral Matters |
225227 |
|
|
|
Article 10 |
MISCELLANEOUS |
|
Section 10.01. |
Notices |
225227 |
Section 10.02. |
Waivers; Amendments |
227229 |
Section 10.03. |
Expenses; Indemnity |
235238 |
Section 10.04. |
Waiver of Claim |
237239 |
Section 10.05. |
Successors and Assigns |
237239 |
Section 10.06. |
Survival |
244246 |
Section 10.07. |
Counterparts; Integration; Effectiveness |
244247 |
Section 10.08. |
Severability |
245247 |
Section 10.09. |
Right of Setoff |
245247 |
Section 10.10. |
Governing Law; Jurisdiction; Consent to Service of Process |
245248 |
Section 10.11. |
Waiver of Jury Trial |
246249 |
Section 10.12. |
Headings |
246249 |
Section 10.13. |
Confidentiality |
246249 |
Section 10.14. |
No Fiduciary Duty |
247250 |
Section 10.15. |
Several Obligations |
248250 |
Section 10.16. |
USA PATRIOT Act |
248251 |
Section 10.17. |
Disclosure |
248251 |
Section 10.18. |
Appointment for Perfection |
248251 |
Section 10.19. |
Interest Rate Limitation |
248251 |
Section 10.20. |
Judgment Currency |
249251 |
Section 10.21. |
Conflicts |
249252 |
Section 10.22. |
Release of Guarantors |
249252 |
Section 10.23. |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
250253 |
Section 10.24. |
Certain ERISA Matters |
250253 |
Section 10.25. |
Acknowledgement Regarding Any Supported QFCs |
251254 |
Section 10.26. |
Erroneous Payments |
252255 |
Section 10.27. |
Canadian AML and Sanctions Legislation |
256258 |
Section 10.28. |
Criminal Code (Canada) |
256259 |
|
|
|
Article 11 |
PARALLEL DEBT |
|
Section 11.01. |
Purpose; Governing Law |
256259 |
Section 11.02. |
Parallel Debt |
257259 |
Section 11.03. |
Additional Parallel Debt Provisions |
257260 |
SCHEDULES: |
|
|
|
|
|
Schedule 1.01(a)(i) |
– |
Commitment Schedule |
Schedule 1.01(a)(ii) |
– |
Letter of Credit Commitment Schedule |
Schedule 1.01(b) |
– |
Existing Letters of Credit |
Schedule 1.01(c) |
– |
[Reserved] |
Schedule 1.01(d) |
– |
Agreed Security Principles |
Schedule 1.01(e) |
– |
Immaterial Subsidiaries |
Schedule 1.01(f) |
– |
Subsidiary Guarantors |
Schedule 3.05 |
– |
Fee Owned Real Estate Assets |
Schedule 3.06 |
– |
Litigation and Environmental Matters |
Schedule 3.18 |
– |
Canadian Employee Benefit Plans |
Schedule 5.10 |
– |
Unrestricted Subsidiaries |
Schedule 5.17 |
– |
Post-Closing Actions |
Schedule 6.01 |
– |
Existing Indebtedness |
Schedule 6.02 |
– |
Existing Liens |
Schedule 6.03 |
– |
Negative Pledges |
Schedule 6.06 |
– |
Existing Investments |
Schedule 6.07 |
– |
Certain Dispositions |
Schedule 6.09 |
– |
Affiliate Transactions |
Schedule 7.13 |
– |
Guarantee Limitations |
Schedule 9.13 |
– |
Certain Foreign Collateral Matters |
|
|
|
EXHIBITS: |
|
|
|
|
|
Exhibit A-1 |
– |
Form of Assignment and Assumption |
Exhibit A-2 |
– |
Form of Affiliated Lender Assignment and Assumption |
Exhibit B |
– |
Form of Borrowing Request |
Exhibit C |
– |
Form of Compliance Certificate |
Exhibit D |
– |
Form of Interest Election Request |
Exhibit E |
– |
[Reserved] |
Exhibit F |
– |
Form of Intercompany Note |
Exhibit G |
– |
Form of Promissory Note |
Exhibit H-1 |
– |
Form of Trademark Security Agreement |
Exhibit H-2 |
– |
Form of Patent Security Agreement |
Exhibit H-3 |
– |
Form of Copyright Security Agreement |
Exhibit I |
– |
Form of Solvency Certificate |
Exhibit J |
– |
[Reserved] |
Exhibit K |
– |
Form of Letter of Credit Request |
Exhibit L1-L4 |
– |
Forms of U.S. Tax Compliance Certificate |
Exhibit M |
– |
Form of Prepayment Notice |
Exhibit N |
– |
Form of Counterpart Agreement |
Exhibit O |
– |
Form of Substitute Affiliate Lender Nomination |
CREDIT AND GUARANTY
AGREEMENT
CREDIT
AND GUARANTY AGREEMENT, dated as of May 10, 2022 (this “Agreement”), by and among BAUSCH + LOMB CORPORATION, a corporation
incorporated under the Canada Business Corporations Act (the “Borrower”), CERTAIN SUBSIDIARIES OF THE BORROWER,
as Subsidiary Guarantors, the Lenders from time to time party hereto, CITIBANK, N.A. (“Citi”), in its capacities as
the Swingline Lender and as administrative agent for the Revolving Lenders (in its capacity as administrative agent, the “Revolving
Facility Administrative Agent”), GOLDMAN SACHS BANK USA (“Goldman Sachs”) in its capacity as administrative
agent for the Initial Term Lenders (the “Term Facility Administrative Agent”), JPMorgan Chase Bank, N.A. (“JPM”)
in its capacity as administrative Agentagent
for the First Incremental Term Lenders and the Second Incremental
Term Lenders (the “First Incremental Term FacilityFacilities
Administrative Agent” and, together with the Term Facility Administrative Agent and the Revolving Facility Administrative
Agent, the “ Administrative Agents” and each, an “Administrative Agent”) and CITIBANK, N.A., in
its capacity as collateral agent for the Lenders (in its capacity as collateral agent, the “Collateral Agent”), with
the persons listed on the cover page hereof as joint lead arrangers, joint bookrunners and co-manager (in such capacities and, together
with the First Incremental Arrangers and the Second Incremental Arrangers,
collectively, the “Arrangers”).
RECITALS
A.
The Borrower has requested that the Lenders make available to the Borrower term loans in an aggregate principal amount of $2,500,000,000,
the proceeds of which shall be used by the Borrower (i) to fund the Repayment, (ii) to pay fees and expenses in connection with the Transactions
and (iii) the remainder thereafter (if any) for general corporate purposes.
B.
The Borrower has requested that the Lenders make available to the Borrower a revolving credit facility with aggregate Commitments in
an amount equal to $500,000,000, the proceeds of which shall be used by the Borrower for the purposes permitted under, and otherwise
in accordance with and subject to the terms of, this Agreement.
C.
Accordingly, the parties hereto agree as follows:
Article
1
DEFINITIONS
Section
1.01. Defined Terms.
As used in this Agreement, the following terms have the meanings specified below:
“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at
a rate determined by reference to the Alternate Base Rate.
“Acceptable
Intercreditor Agreement” means a Market Intercreditor Agreement or another intercreditor agreement that is reasonably satisfactory
to the Administrative Agents and the Borrower (which may, if applicable, consist of a payment “waterfall”).
“ACH”
means automated clearing house transfers.
“Acquisition”
means the Borrower’s direct or indirect acquisition of the assets associated with Xiidra and the other Purchased Assets (as defined
in the Acquisition Agreement) and the issued and outstanding stock of Kedalion Therapeutics, Inc., in each case, as set forth in the
Acquisition Agreement.
“Acquisition
Agreement” means that certain Stock and Asset Purchase Agreement dated as of June 30, 2023 by and among, among others, Novartis
Pharma AG and Novartis Finance Corporation and Bausch + Lomb Ireland Limited.
“Additional
Agreement” has the meaning assigned to such term in Section 9.09.
“Additional
Borrower” has the meaning assigned to such term in Section 1.12(a).
“Additional
Commitment” means any commitment hereunder added pursuant to Sections 2.22, 2.23 or 10.02(c).
“Additional
Credit Facilities” means any credit facilities added pursuant to Sections 2.22, 2.23 or 10.02(c).
“Additional
Lender” has the meaning assigned to such term in Section 2.22(b).
“Additional
Letter of Credit Facility” means any facility established by the Borrower and/or any Restricted Subsidiary outside of this
Agreement to obtain letters of credit, bank guarantees, bankers acceptances or other similar instruments required by customers, suppliers,
landlords, regulators or Governmental Authorities or otherwise in the ordinary course of business.
“Additional
Loans” means any Additional Revolving Loans and any Additional Term Loans.
“Additional
Revolving Credit Commitment” means any revolving credit commitment added pursuant to Sections 2.22, 2.23 or 10.02(c)(ii).
“Additional
Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of
all Additional Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure and Swingline
Exposure, in each case, attributable to its Additional Revolving Credit Commitment.
“Additional
Revolving Facility” means any revolving credit facility added pursuant to Sections 2.22, 2.23 or 10.02(c)(ii).
“Additional
Revolving Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure.
“Additional
Revolving Loans” means any revolving loan added pursuant to Sections 2.22, 2.23 or 10.02(c)(ii).
“Additional
Term Loan Commitment” means any term loan commitment added pursuant to Sections 2.22, 2.23 or 10.02(c)(i).
“Additional
Term Loans” means any term loan added pursuant to Sections 2.22, 2.23 or 10.02(c)(i).
“Adjustment
Date” means the date of delivery of financial statements required to be delivered pursuant to Section 5.01(a) or Section
5.01(b), as applicable.
“Administrative
Agent” and “Administrative Agents” have the meaning assigned to such term in the preamble to this Credit
and Guaranty Agreement.
“Administrative
Questionnaire” has the meaning assigned to such term in Section 2.22(d).
“Adverse
Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation
or arbitration (whether or not purportedly on behalf of the Borrower or any of its Restricted Subsidiaries) at law or in equity, or before
or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of the Borrower or any of its Restricted
Subsidiaries, threatened in writing, against or affecting the Borrower or any of its Restricted Subsidiaries or any property of the Borrower
or any of its Restricted Subsidiaries.
“Affected
Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that
Person. None of the Revolving Facility Administrative Agent, the Term Facility Administrative Agent, the First
Incremental Term FacilityFacilities
Administrative Agent, any Arranger, any Lender (other than any Affiliated Lender) or any of their respective Affiliates shall
be considered an Affiliate of the Borrower or any subsidiary thereof.
“Affiliated
Lender” means the Borrower and/or any of its Subsidiaries.
“Affiliated
Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with
the consent of any party whose consent is required by Section 10.05) and accepted by the Term Facility Administrative Agent or
First Incremental Term FacilityFacilities
Administrative Agent, as applicable, in the form of Exhibit A-2 or any other form approved by the Term Facility Administrative
Agent or First Incremental Term FacilityFacilities
Administrative Agent, as applicable, and the Borrower.
“Agents”
means each of the Administrative Agents, the Collateral Agent and any other Person appointed under the Loan Documents to service in an
agent or similar capacity.
“Agreed
Security Principles” means the principles set forth in Schedule 1.01(d).
“Agreement”
has the meaning assigned to such term in the preamble to this Credit and Guaranty Agreement.
“Aggregate
Payments” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate
amount of all payments and distributions made (including the greater of the book value or fair market value of any assets sold) on or
before such date by such Contributing Guarantor in respect of the Loan Guarantee or its obligations under any other Loan Document (including
in respect of this Agreement), minus (2) the aggregate amount of all payments received on or before such date by such Contributing
Guarantor from the other Contributing Guarantors as contributions under this Agreement. The amounts payable as contributions hereunder
shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such
day plus 0.50%, (b) to the extent ascertainable, the Eurocurrency Rate for Dollars (which rate shall be calculated based upon
an Interest Period of one month and shall be determined on a daily basis based on the rate determined on such day for such Interest Period
at 11:00 a.m.) plus 1.00%, (c) the Prime Rate and (d) if the Eurocurrency Rate for Dollars is not ascertainable, (xw)
for Initial Revolving Loans, 1.00%, (yx)
for Initial Term Loans, 1.50%, (y) for First Incremental Term Loans, 1.00%
and (z) for FirstSecond
Incremental Term Loans, 1.00%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective
Rate or the Eurocurrency Rate, as the case may be, shall be effective from and including the effective date of such change in the Prime
Rate, the Federal Funds Effective Rate or the Eurocurrency Rate, as the case may be. If the Alternate Base Rate is being used as an alternate
rate of interest pursuant to Section 2.14 or Section 2.24 with respect to any Loans (other than Initial Term Loans and,
First Incremental Term Loans and Second Incremental Term Loans),
then the Alternate Base Rate shall be the greater of clauses (a), (b) and (d) above and shall be determined without reference to clause
(c) above.
“Alternate
Currency” means in the case of Revolving Loans and Letters of Credit, Canadian Dollars, Euros, Sterling and each other currency
that is approved in accordance with Section 1.10.
“Alternative
Currency Daily Rate” means, for any day, with respect to any Credit Extension:
(a) denominated
in Sterling, (x) SONIA for the day that is five RFR Business Days prior to (A) if such day is an RFR Business Day, such day or (B) if
such day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Interest Day, in each case, as such SONIA is
published by the SONIA Administrator on the SONIA Administrator’s Website plus (y) the SONIA Adjustment;
(b) denominated
in any other Alternate Currency, other than Canadian Dollars (to the extent such Loans denominated in such currency will bear interest
at a daily rate), the daily rate per annum as designated with respect to such Alternate Currency at the time such Alternate Currency
is approved by the Applicable Administrative Agent and the relevant Lenders pursuant to Section
1.10 plus the adjustment (if any) determined by the Applicable Administrative Agent and the relevant Lenders;
provided, that,
if any Alternative Currency Daily Rate shall be less than zero percent (0%), such rate shall be deemed zero percent (0%) for purposes
of this Agreement. Any change in any Alternative Currency Daily Rate shall be effective from and including the date of such change without
further notice.
“Alternative
Currency Daily Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency
Daily Rate.” All Alternative Currency Daily Rate Loans must be denominated in an Alternative Currency.
“Alternative
Currency Loan” means an Alternative Currency Daily Rate Loan or a Eurocurrency Rate Loan (other than a Eurocurrency Rate Loan
Denominated in Dollars).
“Applicable
Charges” has the meaning assigned to such term in Section 10.19.
“Applicable
Administrative Agent” means (i) the Revolving Facility Administrative Agent, with respect to the Revolving Facility, (ii) the
Term Facility Administrative Agent, with respect to the Term Facility comprising Initial Term Loans, (iii) the First
Incremental Term FacilityFacilities
Administrative Agent, with respect to the Term FacilityFacilities
comprising First Incremental Term Loans and/or Second Incremental
Term Loans and/or (iv) with respect to any other Term Facility
comprising Additional
Term Loans, the agent appointed with respect thereto, in each case (whether any of them or any combination of them) as the context may
require.
“Applicable
Percentage” means (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which
is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under
such Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan
Commitments of all Term Lenders under such Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate
amount of the Revolving Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class;
provided that for purposes of Section 2.21 and otherwise herein, when there is a Defaulting Lender, such Defaulting Lender’s
Revolving Credit Commitment shall be disregarded for any relevant calculation. In the case of clause (b), in the event that the
Revolving Credit Commitments of any Class have expired or been terminated, the Applicable Percentage of any Revolving Lender of such
Class shall be determined on the basis of the Revolving Credit Exposure of such Revolving Lender with respect to such Class, giving effect
to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.
“Applicable
Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Applicable
Rate” means:
(a)
For any day prior to the Investment Grade Trigger Date, (a) for Initial Term Loans (i) in the case of ABR Loans, 2.25% per annum and
(ii) in the case of Eurocurrency Rate Loans, 3.25% per annum, and (b) for Revolving Loans, the applicable rate per annum set forth below
under the caption “ABR and Canadian Prime Rate Spread” or “Eurocurrency Rate, Alternative Currency Daily Rate and BA
Rate Spread”, based upon the Consolidated Leverage Ratio as of the last day of the most recently ended Test Period; provided
that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after the Closing Date, the
“Applicable Rate” for any Revolving Loans shall be the applicable rate per annum set forth below in Category 1.
Category |
Consolidated
Leverage Ratio |
Eurocurrency
Rate, Alternative Currency Daily Rate and BA Rate Spread |
ABR
and Canadian Prime Rate Spread |
1 |
≥ 3.00x |
2.750% |
1.750% |
2 |
≥ 2.75x but < 3.00x |
2.500% |
1.500% |
3 |
≥ 2.25x but < 2.75x |
2.250% |
1.250% |
4 |
≥ 1.75x but < 2.25x |
2.000% |
1.000% |
5 |
< 1.75x |
1.750% |
0.750% |
Prior to the Investment
Grade Trigger Date, the Applicable Rate for Revolving Loans shall be adjusted quarterly on a prospective basis on each Adjustment Date
based upon the Consolidated Leverage Ratio in accordance with the table above; provided that (a) if financial statements are not
delivered when required pursuant to Section 5.01(a) or (b), as applicable, the “Applicable Rate” for Revolving
Loans shall be the rate per annum set forth above in Category 1 until such financial statements are delivered in compliance with
Section 5.01(a) or (b), as applicable and (b) the “Applicable Rate” for Revolving Loans shall be the rate per
annum set forth above in Category 1 as of the first Business Day after an Event of Default shall
have occurred and
be continuing, and shall continue to so apply to (but excluding) the date on which such Event of Default is cured or waived (and thereafter
the Applicable Rate otherwise determined in accordance with this definition shall apply).
In the event that
the Revolving Facility Administrative Agent and the Borrower determine that any financial statements previously delivered were incorrect
or inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy,
if corrected, would have led to the application of a higher Applicable Rate for any period (an “Applicable Period”) than
the Applicable Rate applied for such Applicable Period, then (i) the Borrower shall as soon as practicable deliver to the Revolving Facility
Administrative Agent the corrected financial statements for such Applicable Period, (ii) the Applicable Rate shall be determined as if
the pricing level for such higher Applicable Rate were applicable for such Applicable Period and (iii) the Borrower shall within three
(3) Business Days thereof pay to the Revolving Facility Administrative Agent the accrued additional amount owing as a result of such
increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the Revolving Facility Administrative
Agent in accordance with this Agreement. This paragraph shall not limit the rights of Administrative Agents and Lenders with respect
to Section 2.13 and Article 8.
(b)
On and following the Investment Grade Trigger Date, for Revolving Loans, the following percentages per annum, based upon the Debt Rating
as set forth below:
Pricing
Level |
Debt
Rating |
Facility
Fee |
Applicable
Rate For Eurocurrency Rate Loans, BA Rate Loans and Alternative Currency Daily Rate Loans |
Applicable
Rate for ABR Loans, Canadian Prime Rate Loans and Swingline
Loans |
1 |
> BBB+ / Baa1 |
0.110% |
1.015% |
0.015% |
2 |
BBB / Baa2 |
0.125% |
1.125% |
0.125% |
3 |
BBB- / Baa3 |
0.175% |
1.200% |
0.200% |
4 |
BB+ / Ba1 |
0.250% |
1.375% |
0.375% |
5 |
£BB
/ Ba2 |
0.275% |
1.475% |
0.475% |
Each
change in the Applicable Rate in this clause (b) resulting from a publicly announced change in the Debt Rating shall be effective during
the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date
of the next such change and, in the case of a downgrade, during the period commencing on the date of the public announcement thereof
and ending on the date immediately preceding the effective date of the next such change.
As
used in this clause (b), “Debt Rating” means, as of any date of determination, the rating as determined by any of
S&P or Moody’s (collectively, the “Debt Ratings”) of the Borrower’s senior unsecured non-credit-enhanced
long-term Indebtedness for borrowed money (the “Subject Debt”); provided that, solely for purposes of determining
the Applicable Rate, if a Debt Rating is issued by each of S&P and Moody’s, then the higher of such Debt Ratings shall apply
(with Pricing Level 1 being the highest and Pricing Level 5 being the lowest), unless there is a split in Debt Ratings of more than one
level, in which case the level that is one level lower than the higher Debt Rating shall apply. If the rating
system of S&P
or Moody’s shall change, the Borrower, the Revolving Facility Administrative Agent and the Required Lenders shall negotiate in
good faith to amend this definition to reflect such changed rating system and, pending the effectiveness of such amendment, the Debt
Rating shall be determined by reference to the rating most recently in effect prior to such change. If and for so long as either S&P
or Moody’s (but not both) has ceased to rate the Subject Debt, then the Debt Rating shall be determined by reference to the Remaining
Debt Rating. If and for so long as both S&P and Moody’s have ceased to rate the Subject Debt, then, the Debt Rating will be
Pricing Level 5. For the purpose of the foregoing, “Remaining Debt Rating” means, at any time that one of S&P
or Moody’s, but not both, is rating the Subject Debt, the rating assigned by such rating agency from time to time.
(c)
For First Incremental Term Loans (i) in the case of ABR Loans, 3.00% per annum and (ii) in the case of Eurocurrency Rate Loans, 4.00%
per annum.
(d)
For Second Incremental Term Loans, (i) in the case of ABR Loans, 2.25% per annum and (ii) in the case of Eurocurrency Rate Loans, 3.25%
per annum.
The Applicable Rate
for any other Class of Additional Revolving Loans or Additional Term Loans shall be as set forth in the applicable Refinancing Amendment,
Incremental Facility Amendment or Extension Amendment.
“Applicable
SOFR Adjustment” means (a) other than in the case of the First Incremental Term Loans, 0.10% and (b) in the case of the First
Incremental Term Loans, 0.00%.
“Approved
Commercial Bank” means a commercial bank with a consolidated combined capital surplus of at least $5,000,000,000.
“Approved
Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered,
advised or managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers,
advises or manages such Lender.
“Approved
Jurisdiction” shall mean each of (i) the Grand Duchy of Luxembourg, Ireland and the Netherlands, (ii) a jurisdiction of another
approved or existing Borrower and (iii) any other jurisdiction agreed to by the Borrower and each Revolving Lender.
“Arrangers”
has the meaning assigned to such term in the preamble to this Agreement.
“Assignment
Agreement” means, collectively, each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.
“Assignment
and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 10.05), and accepted by the Applicable Administrative Agent in the form of Exhibit A-1
or any other form approved by the Applicable Administrative Agent and the Borrower.
“Auction”
has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Agent” means (a) with respect to the Initial Term Loans, the Term Facility Administrative Agent or any of its Affiliates, (b)
with respect to the First Incremental Term Loans, the First and
Second Incremental Term FacilityLoans,
the Incremental Term Facilities Administrative Agent
or any of its Affiliates
or (c) any other financial institution or advisor engaged by the Borrower (whether or not an Affiliate of the Term Facility Administrative
Agent or the First Incremental Term FacilityFacilities
Administrative Agent) to act as an arranger in connection with any Auction pursuant to the definition of “Dutch Auction”.
“Auction
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Notice” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Party” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction
Response Date” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Availability
Period” means the period from and including the Closing Date to but excluding the earliest of (a) the date of termination of
the Initial Revolving Credit Commitments pursuant to Section 2.09, (b) the date of termination of the Initial Revolving Credit
Commitment of each Initial Revolving Lender to make Initial Revolving Loans and the obligation of each Issuing Bank to issue Letters
of Credit pursuant to Section 7.01 and (c) the Initial Revolving Credit Maturity Date.
“Available
Amount” means, at any time, an amount equal to, without duplication:
(a) the
sum of:
(i) the
greater of $310,000,000 and 41.5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; plus
(ii) the
CNI Growth Amount; provided that such amount shall not be available (A) for any Restricted Payment pursuant to Section 6.04(a)(iii)(A)
if any Event of Default shall then exist or would result therefrom or (B) for any Restricted Debt Payment pursuant to Section
6.04(b)(vi)(A) if any Event of Default shall then exist or would result therefrom, in each case at the time of determination pursuant
to Section 1.04(e); plus
(iii) the
amount of any capital contributions or other proceeds of any issuance of Capital Stock (other than any amounts (w) constituting a Cure
Amount, (x) constituting an Available Excluded Contribution Amount or proceeds of an issuance of Disqualified Capital Stock, (y) received
from the Borrower or any Restricted Subsidiary or (z) consisting of the proceeds of any loan or advance made pursuant to Section
6.06(h)(ii)) received as Cash equity by the Borrower or any of its Restricted Subsidiaries, plus the fair market value, as determined
by the Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower or any Restricted
Subsidiary as a capital contribution or in return for any issuance of Capital Stock (other than any amounts (w) constituting a Cure Amount,
(x) constituting an Available Excluded Contribution Amount or proceeds of any issuance of Disqualified Capital Stock or (y) received
from the Borrower or any Restricted Subsidiary), in each case, during the period from and including the day immediately following the
Closing Date through and including such time; plus
(iv) the
aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of the Borrower or any Restricted Subsidiary
issued after the
Closing Date
(other than Indebtedness or such Disqualified Capital Stock issued to the Borrower or any Restricted Subsidiary), which has been converted
into or exchanged for Capital Stock of the Borrower or any Restricted Subsidiary that does not constitute Disqualified Capital Stock,
together with the fair market value of any Cash or Cash Equivalents (as determined by the Borrower in good faith) and the fair market
value (as determined by the Borrower in good faith) of any property or assets received by the Borrower or such Restricted Subsidiary
upon such exchange or conversion, in each case, during the period from and including the day immediately following the Closing Date through
and including such time; plus
(v) the
net proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately following
the Closing Date through and including such time in connection with the Disposition to any Person (other than the Borrower or any Restricted
Subsidiary) of any Investment made pursuant to Section 6.06(r)(i); plus
(vi) to
the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such
Investment, the proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately
following the Closing Date through and including such time in connection with cash returns, cash profits, cash distributions and similar
cash amounts, including cash principal repayments of loans and interest payments on loans, in each case received in respect of any Investment
made after the Closing Date pursuant to Section 6.06(r)(i) or, without duplication, otherwise received by the Borrower or any
Restricted Subsidiary from an Unrestricted Subsidiary (including any proceeds received on account of any issuance of Capital Stock by
any Unrestricted Subsidiary (other than solely on account of the issuance of Capital Stock to the Borrower or any Restricted Subsidiary));
plus
(vii) an
amount equal to the sum of (A) the amount of any Investments by the Borrower or any Restricted Subsidiary made pursuant to Section
6.06(r)(i) in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary, (B) the amount of any Investments
by the Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary or any Joint Venture
that is not a Restricted Subsidiary that has been merged, consolidated or amalgamated with or into, or is liquidated, wound up or dissolved
into, the Borrower or any Restricted Subsidiary and (C) the fair market value (as determined by the Borrower in good faith) of the property
or assets of any Unrestricted Subsidiary or any Joint Venture that is not a Restricted Subsidiary that have been transferred, conveyed
or otherwise distributed to the Borrower or any Restricted Subsidiary, in each case, during the period from and including the day immediately
following the Closing Date through and including such time; plus
(viii) the
amount of any Declined Proceeds; plus
(ix) the
amount of any Retained Asset Sale Proceeds; minus
(b) an
amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt Payments
made pursuant to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section 6.06(r)(i), in each case, after
the Closing Date and prior to such time or contemporaneously therewith.
“Available
Excluded Contribution Amount” means the aggregate amount of Cash or Cash Equivalents or the fair market value of other assets
or property (as determined by the Borrower in good faith, but excluding any (x) Cure Amounts and (y) amounts that are applied to increase
the Available Amount) received by the Borrower or any of its Restricted Subsidiaries after the Closing Date from:
(1) contributions
in respect of Qualified Capital Stock (other than any amounts or other assets received from the Borrower or any of its Restricted Subsidiaries),
and
(2) the
sale of Qualified Capital Stock of the Borrower or any of its Restricted Subsidiaries (other than (x) to the Borrower or any Restricted
Subsidiary of the Borrower, (y) pursuant to any management equity plan or stock option plan or any other management or employee benefit
plan or (z) with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)),
in each case, designated
as an Available Excluded Contribution Amount pursuant to a certificate of a Responsible Officer on or promptly after the date the relevant
capital contribution is made or the relevant proceeds are received, as the case may be, and which are excluded from the calculation of
the Available Amount.
“BA
Rate” means, for any date, a per annum rate of interest equal to the Canadian Dollar bankers’ acceptances rate, or comparable
or successor rate approved by the Applicable Administrative Agent, determined by it at or about 10:00 a.m. (Toronto, Ontario time) on
the applicable day (or the preceding Business Day, if the applicable day is not a Business Day) for a term comparable to the BA Rate
Loan, as published on the Refinitiv Benchmark Services (UK) Limited CDOR Page (or, if such page is not available, any other commercially
available source designated by the Applicable Administrative Agent from time to time); provided that in no event shall the BA
Rate be less than zero.
“BA
Rate Loan” means a Loan denominated in Canadian Dollars and bearing interest at a rate determined by reference to the BA Rate.
“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any
liability of an Affected Financial Institution.
“Bail-In
Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country
from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the
United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom
relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than
through liquidation, administration or other insolvency proceedings).
“Banking
Services” means each and any of the following bank services: commercial credit cards, stored value cards, debit cards, purchasing
cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including
depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee
credit card programs, cash pooling services, foreign exchange and currency management services and any arrangements or services similar
to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts.
“Banking
Services Obligations” means any and all obligations of the Borrower or any Restricted Subsidiary, whether absolute or contingent
and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions
therefor) (a) under any arrangement that is in effect on the Closing Date between the Borrower or any Restricted Subsidiary and a counterparty
that is (or is an Affiliate of) any Administrative Agent, any Lender or any Arranger as of the Closing Date or any other Person reasonably
acceptable to the Administrative Agents or (b) under any arrangement that is entered into after the Closing Date by the Borrower or any
Restricted Subsidiary with any counterparty that is (or is an Affiliate of) any Administrative Agent, any Lender or any Arranger at the
time such arrangement is entered into or any other Person reasonably acceptable to the Administrative Agents, in each case, in connection
with Banking Services, it being understood that each counterparty thereto shall be deemed (A) to appoint each of the Administrative Agents
and the Collateral Agent as its agent under the applicable Loan Documents and (B) to agree to be bound by the provisions of Article
9, Section 10.03 and Section 10.10 and each Acceptable Intercreditor Agreement, in each case as if it were a Lender.
“Bankruptcy
Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
“Base
ECF Prepayment Amount” has the meaning assigned to such term in Section 2.11(b)(i)(A).
“BHA”
means Bausch Health Americas, Inc., a Delaware corporation.
“Beneficial
Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial
Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit
Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b)
a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42)
or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan”
or “plan”.
“BHA”
means Bausch Health Americas, Inc., a Delaware corporation.
“BIA”
means the Bankruptcy and Insolvency Act (Canada).
“Board”
means the Board of Governors of the Federal Reserve System of the U.S.
“Borrower”
means, as the context may require, Bausch + Lomb Corporation, any Successor Borrower and/or any Additional Borrower.
“Borrowing”
means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of Eurocurrency Rate Loans
and BA Rate Loans, denominated in a single currency and as to which a single Interest Period is in effect.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form
attached hereto as Exhibit B or such other form that is reasonably acceptable to the Applicable Administrative Agent and the Borrower.
“Business
Day” means (a) any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized
or required by law to remain closed and (b) when
used in connection
with a Eurocurrency Rate Loan, Alternative Currency Daily Rate Loans or BA Rate Loan (i) denominated in Dollars, the term “Business
Day” shall also exclude any day that is not a U.S. Government Securities Business Day, (ii) denominated in Canadian Dollars, the
term “Business Day” shall also exclude any day on which banks are not open for dealings in Canadian Dollar deposits in the
Toronto interbank market, (iii) denominated in Euros, the term “Business Day” shall also exclude any day that is not a TARGET
Day, (iv) denominated in Sterling, the term “Business Day” shall also exclude any day on which banks are closed for general
business in London and (v) denominated in an Alternate Currency, the term “Business Day” shall also exclude any day on which
banks are not open for dealings in deposits in such Alternate Currency in the applicable interbank market and in the principal financial
center for that currency.
“Canadian
AML and Sanctions Legislation” means the Proceeds of Crime (Money Laundering and Terrorist Financing Act (Canada)),
the Criminal Code (Canada), the Security of Information Act (Canada), the Special Economic Measures Act (Canada), the Freezing Assets
of Corrupt Foreign Officials Act (Canada) and other applicable Canadian anti-money laundering, anti-terrorist financing, government sanction
and “know your client” applicable laws within Canada, including any regulations, guidelines or orders thereunder.
“Canadian
Dollars” or “C$” refers to the lawful money of Canada.
“Canadian
Employee Benefit Plans” means all plans, arrangements, agreements, programs, policies, practices or undertakings, whether oral
or written, formal or informal, funded or unfunded, insured or uninsured, registered or unregistered to which a Canadian Loan Party is
a party or bound or in which their employees participate or under which a Canadian Loan Party has, or will have, any liability or contingent
liability, or pursuant to which payments are made, or benefits are provided to, or an entitlement to payment or benefits may arise with
respect to any of their employees or former employees, directors or officers, individuals working on contract with a Canadian Loan Party
or other individuals providing services to a Canadian Loan Party of a kind normally provided by employees (or any spouses, dependents,
survivors or beneficiaries of any such person), but does not include the Canada Pension Plan that is maintained by the Government of
Canada or any Employee Benefit Plan.
“Canadian
Loan Party” means the Borrower and each other Loan Party that (i) is organized under the laws of Canada or a province or territory
thereof, (ii) carries on business in Canada or (iii) has any title or interest in or to material property in Canada.
“Canadian
Pension Plan” means all Canadian Employee Benefit Plans that are required to be registered under Canadian provincial or federal
pension benefits standards legislation.
“Canadian
Pension Plan Termination Event” means an event which would entitle a Person (without the consent of a Canadian Loan Party)
to wind up or terminate a Canadian Pension Plan in full or in part, or the institution of any steps by any Person to withdraw from, terminate
participation in, wind up or order the termination or wind-up of, in full or in part, any Canadian Pension Plan, or the receipt by a
Canadian Loan Party of correspondence from a Governmental Authority relating to a potential or actual, partial or full, termination or
wind-up of any Canadian Pension Plan, or an event respecting any Canadian Pension Plan which would result in the revocation of the registration
of such Canadian Pension Plan or which could otherwise reasonably be expected to adversely affect the tax status of any such Canadian
Pension Plan.
“Canadian
Pledge and Security Agreement” means the Pledge and Security Agreement, dated as of or about the date hereof, by each applicable
Canadian Loan Party, as same may be amended, restated, supplemented or otherwise modified from time to time.
“Canadian
Prime Rate” means, for any day, the greater of (a) the rate of interest last quoted by The Wall Street Journal as the “Canadian
Prime Rate” or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Bank
of Canada as its prime rate and (b) the annual rate of interest equal to the sum of (i) the one-month BA Rate in effect on such day and
(ii) 1.00%, with any such rate to be adjusted automatically, without notice, as of the opening of business on the effective date of any
change in such rate, provided that in no event shall the Canadian Prime Rate be less than zero.
“Canadian
Prime Rate Loan” means a Loan denominated in Canadian Dollars and bearing interest at a rate determined by reference to the
Canadian Prime Rate.
“Capital
Expenditures” means, as applied to any Person for any period, the aggregate amount, without duplication, of all expenditures
(whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Finance Leases)
that in accordance with GAAP, are, or are required to be, included as capital expenditures on the consolidated statement of cash flows
for such Person for such period.
“Capital
Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership
interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but
excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing (including Convertible
Indebtedness) and any Packaged Rights.
“Captive
Insurance Subsidiary” means any Restricted Subsidiary of the Borrower that is subject to regulation as an insurance company
(or any Restricted Subsidiary thereof).
“Cash”
or “cash” means money, currency or a credit balance in any Deposit Account, in each case determined in accordance
with GAAP.
“Cash
Equivalents” means, as at any date of determination, (a) marketable securities (i) issued or directly and unconditionally
guaranteed or insured as to interest and principal by the U.S., U.K., Canada, a member state of the European Union or Japan or any political
subdivision of any of the foregoing or (ii) issued by any agency or instrumentality of the U.S., U.K., Canada, a member state of the
European Union or Japan or any political subdivision of any of the foregoing, the obligations of which are backed by the full faith and
credit of the U.S., U.K., Canada, a member state of the European Union or Japan or any political subdivision of any of the foregoing,
in each case maturing within two years after such date and, in each case, including repurchase agreements and reverse repurchase agreements
relating thereto; (b) marketable direct obligations issued by any state of the U.S. or any province of Canada or any political subdivision
of any such state or province or any public instrumentality thereof or by any foreign government, in each case maturing within two years
after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s
(or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally
recognized statistical rating agency) and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (c)
commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof,
a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall
be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money market
deposits, time deposit accounts, certificates of deposit or bankers’ acceptances (or similar instruments) issued or accepted by
any Lender or by any bank organized under, or authorized to operate as a bank under, the laws of the U.S., any state thereof or the District
of Columbia or any political
subdivision thereof
or any foreign bank or its branches or agencies and that has capital and surplus of not less than $75,000,000 and, in each case, repurchase
agreements and reverse repurchase agreements relating thereto; (e) securities with maturities of six months or less from the date of
acquisition backed by standby letters of credit issued by any commercial bank having capital and surplus of not less than $75,000,000;
(f) Indebtedness or Preferred Capital Stock issued by Persons with a rating of at least BBB- from S&P or at least Baa3 from Moody’s
(or, if at the time, neither is issuing comparable ratings, then a comparable rating of another nationally recognized statistical rating
agency) with maturities of 12 months or less from the date of acquisition; (g) bills of exchange issued in the U.S., U.K., Canada, a
member state of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized
equivalent); (h) shares of any money market mutual fund that has (i) substantially all of its assets invested in the types of investments
referred to in clauses (a) through (g) above, (ii) net assets of not less than $250,000,000 and (iii) a rating of at least A-2 from S&P
or at least P-2 from Moody’s (or, if at any time either S&P or Moody’s are not rating such fund, an equivalent rating
from another nationally recognized statistical rating agency); (i) solely with respect to any Captive Insurance Subsidiary, any investment
that such Captive Insurance Subsidiary is not prohibited to make in accordance with applicable law; (j) any cash equivalents (as determined
in accordance with GAAP); and (k) shares or other interests of any investment company, money market mutual fund or other money market
or enhanced high yield fund that invests 95% or more of its assets in instruments of the types specified in clauses (a) through
(j) above (which investment company or fund may also hold Cash pending investment or distribution).
The
term “Cash Equivalents” shall also include (x) credit card receivables, (y) Investments of the type and maturity described
in the definition of “Cash Equivalents” of foreign obligors, which Investments or obligors (or the parent companies thereof)
have the ratings (if any) described in such clauses or equivalent ratings from comparable foreign rating agencies and (z) other short-term
Investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments analogous
to the Investments described in the definition of “Cash Equivalents” and in this paragraph.
“CBCA”
means the Canada Business Corporations Act.
“CCAA”
means the Companies’ Creditors Arrangement Act (Canada).
“CFC”
means a controlled foreign corporation as defined in Section 957 of the Code.
“Change
in Law” means (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation
or in the interpretation, implementation or application thereof by any Governmental Authority after the Closing Date or (c) compliance
by any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or such Issuing Bank
or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such request, guideline
or directive to comply with any law, rule or regulation that was in effect on the Closing Date). For purposes of this definition and
Section 2.15, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements
and directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements
or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or
similar authority) or U.S. or applicable foreign regulatory authorities, in each case pursuant to Basel III, shall in each case described
in clauses (a), (b) and (c) above, be deemed to be a Change in Law, regardless of the date enacted, adopted, issued
or implemented.
“Change
of Control” means at any time, (i) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act or the Securities Act (Ontario)), but excluding (x) any Employee Benefit Plan and/or Person acting as the trustee, agent
or other fiduciary or administrator therefor, (y) any underwriter in connection with any public offering and (z) the Parent or any of
its Subsidiaries, or any other entity that (as an intermediate step for the purpose of consummating the distribution and other transactions
contemplated thereby) shall hold the such Capital Stock in accordance with the Plan of Arrangement, shall have acquired beneficial ownership
of 40% or more on a fully diluted basis of the voting and/or economic interest in the Capital Stock of the Borrower or (ii) the majority
of the seats (other than vacant seats) on the board of directors (or similar governing body) of the Borrower shall cease to be occupied
by Persons who either (a) were members of the board of directors (or similar governing body) of the Borrower immediately following the
Closing Date or (b) were nominated for election by the board of directors (or similar governing body) of the Borrower, a majority of
whom were members of the board of directors (or similar governing body) of the Borrower immediately following the Closing Date or whose
election or nomination for election was previously approved by a majority of such members.
Notwithstanding
the foregoing, a passive holding company or special purpose acquisition vehicle or a Subsidiary thereof shall not be considered a “Person”
and instead the equityholders of such passive holding company or special purpose acquisition vehicle (other than any other passive holding
company or special purpose acquisition vehicle) shall be considered for purposes of the foregoing.
Notwithstanding
the preceding clauses or any provision of Section 13d-3 of the Exchange Act as in effect on the Closing Date, (i) a Person or group shall
be deemed not to beneficially own Capital Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant
agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of
the Capital Stock in connection with the transactions contemplated by such agreement and (ii) a Person or group will not be deemed to
beneficially own the Capital Stock of another Person as a result of its ownership of the Capital Stock or other securities of such other
Person’s parent entity (or related contractual rights) unless (A) it owns 50% or more of the total voting power of the Capital
Stock entitled to vote for the election of directors or board of managers of such parent entity and (B) such directors or managers elected
by the Person or group have a majority of the aggregate votes on the board of directors (or similar body) of such parent entity.
“Charge”
means any fee, loss, charge, expense, cost, accrual or reserve of any kind.
“Class”,
when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial
Term Loans, Additional Term Loans of any series established as a separate “Class” pursuant to Sections 2.22, 2.23
or 10.02(c)(i), Initial Revolving Loans or Additional Revolving Loans of any series established as a separate “Class”
pursuant to Sections 2.22, 2.23 or 10.02(c)(ii) or Swingline Loans, (b) any Commitment, refers to whether such Commitment
is an Initial Term Loan Commitment, an Additional Term Loan Commitment of any series established as a separate “Class” pursuant
to Sections 2.22, 2.23 or 10.02(c)(i), an Initial Revolving Credit Commitment or an Additional Revolving Credit
Commitment of any series established as a separate “Class” pursuant to Sections 2.22, 2.23 or 10.02(c)(ii),
(c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure, refers
to whether such Revolving Credit Exposure is attributable to a Revolving Credit Commitment of a particular Class (or Revolving Loans
incurred or Letters of Credit issued under a Revolving Credit Commitment of a particular Class).
“Closing
Date” means the first date on which each condition set forth in Section 4.01 is satisfied or waived (in accordance with Section
10.02), which is the date of this Agreement.
“Closing
Date Collateral Document” means the U.S. Security Agreement and the Canadian Pledge and Security Agreement.
“CNI
Growth Amount” means, at any date of determination, an amount (which amount shall not be less than zero) equal to 50% of Consolidated
Net Income for the cumulative period from the first day of the Fiscal Quarter of the Borrower during which the Closing Date occurs to
and including the last day of the most recently ended Fiscal Quarter of the Borrower prior to such date for which consolidated financial
statements required pursuant to Section 5.01(a)
or (b) have been delivered or, at the Borrower’s
election, are internally available (treated as one accounting period).
“Code”
means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral”
means any and all property of any Loan Party subject to a Lien under any Collateral Document and any and all other property of any Loan
Party, now existing or hereafter acquired, that is or becomes subject to a Lien pursuant to any Collateral Document to secure the Obligations.
For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset, unless specifically consented to in
writing by the Borrower.
“Collateral
Agent” has the meaning assigned to such term in the preamble to this Credit and Guaranty Agreement.
“Collateral
and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or
any other Loan Document (including any Acceptable Intercreditor Agreement), (y) the time periods (and extensions thereof) set forth in
Section 5.12 or Section 5.17, as applicable and (z) the Agreed Security Principles (with respect to Restricted Subsidiaries
organized in a jurisdiction other than Canada or the United States), the requirement that:
(a) in
the case of any Person that becomes (or is required to become) a Loan Party after the Closing Date, (i) each Administrative Agent shall
have received (A) a Counterpart Agreement or such other documents in form reasonably acceptable to the Administrative Agents, in each
case, to cause such person to Guarantee the Obligations and become a Subsidiary Guarantor, (B) supplements to the applicable Collateral
Documents (or, at the option of the Loan Party, new Collateral Documents in substantially similar form or such other form reasonably
satisfactory to the Collateral Agent), if applicable, in the form specified therefor or otherwise reasonably acceptable to the Collateral
Agent, (C) an executed joinder to any Acceptable Intercreditor Agreement that is then applicable in substantially the form attached as
an exhibit thereto and (D) such other foreign law guarantees, Collateral Documents and opinions as may be reasonably requested by the
Administrative Agents with respect to any Foreign Subsidiary which becomes (or is required to become) a Loan Party (subject in all respects
to the Agreed Security Principles) and (ii) except as otherwise contemplated by this Agreement or any Collateral Document, all original
securities, instruments and chattel paper required to be delivered to the Collateral Agent pursuant to the terms of the Collateral Documents,
shall have been delivered to the Collateral Agent (or its bailee pursuant to the terms of any Acceptable Intercreditor Agreement) and
all documents and instruments, including Uniform Commercial Code financing statements (or equivalent filings in foreign jurisdictions),
and filings with the United States Copyright Office and the United States Patent and Trademark Office covering United States issued patents
and registered trademarks and copyrights (and pending applications for the foregoing) (or equivalent filings in foreign jurisdictions)
and all other actions reasonably requested by the Collateral Agent (including those required by applicable Requirements of Law) or otherwise
required pursuant to a Collateral Document to be delivered, filed, registered or recorded to create the Liens intended to be created
by the Collateral Documents (in each case,
including
any supplements thereto) and perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents,
shall have been delivered, filed, registered or recorded or delivered to the Collateral Agent for filing, registration or the recording
concurrently with, or promptly following, the execution and delivery of each such Collateral Document;
(b) with
respect to any Material Real Estate Asset acquired by a Loan Party organized under the laws of the United States (or any state thereof)
after the Closing Date, the Collateral Agent shall have received with respect to any Material Real Estate Asset (other than an Excluded
Asset), a Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary and appropriate
(as reasonably determined by the Collateral Agent and the Borrower):
(i) evidence
that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding UCC
or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent
may deem reasonably necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of the Collateral
Agent for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or equivalent fixture filings have been duly
recorded or filed, as applicable and (C) all filing and recording taxes and fees have been paid or otherwise provided for in a manner
reasonably satisfactory to the Collateral Agent;
(ii) a
fully paid policy of lender’s title insurance (a “Mortgage Policy”) in an amount reasonably acceptable to the
Collateral Agent (not to exceed the fair market value of such Material Real Estate Asset (as determined by the Borrower in good faith))
issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to the Collateral
Agent, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described therein with the ranking
or the priority which it is expressed to have in such Mortgage, subject only to Permitted Liens and other Liens acceptable to the Collateral
Agent, together with such endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request to the extent the
same are available in the applicable jurisdiction;
(iii) a
customary legal opinion of local counsel for the relevant Loan Party in the jurisdiction in which such Material Real Estate Asset is
located and, if applicable, in the jurisdiction of formation of the relevant Loan Party, in each case as the Collateral Agent may reasonably
request; and
(iv) (A)
a new survey or a copy of any existing survey currently in the possession of the Borrower or any of its Subsidiaries if such existing
survey is, together with a no-change affidavit, sufficient for the relevant title insurance company to remove the standard survey exception
and issue the survey-related endorsements, (B) to the extent applicable, an appraisal (if required under the Financial Institutions Reform
Recovery and Enforcement Act of 1989, as amended) and (C) a “Life-of-Loan” flood determination under Regulation H of the
Board (together with evidence of flood insurance for any such Flood Hazard Property).
Notwithstanding
any provision of any Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the
Loan Document Obligations evidenced hereby in connection with the delivery of a mortgage or UCC or PPSA fixture filing pursuant to clause
(b) above, then, to the extent permitted by, and in accordance with, applicable Requirements of Law, the amount of
such mortgage tax
or similar tax or charge shall be calculated based on the lesser of (x) the amount of the Loan Document Obligations allocated to the
applicable Material Real Estate Asset and (y) the fair market value of the applicable Material Real Estate Asset at the time the Mortgage
is entered into and determined in a manner reasonably acceptable to Administrative Agents and the Borrower.
Notwithstanding
anything contained in this Agreement to the contrary, no Mortgage shall be executed and delivered with respect to any real property located
in the United States unless and until each Revolving Lender has received, at least twenty business days prior to such execution and delivery,
a life of loan flood zone determination and such other documents as it may reasonably request to complete its flood insurance due diligence
and has confirmed to the Revolving Facility Administrative Agent that flood insurance due diligence and flood insurance compliance has
been completed to its satisfaction.
“Collateral
Documents” means, collectively, each document, agreement or instrument pursuant to which a Lien securing any of the Obligations
is granted (or purported to be granted), and any supplement to any of the foregoing delivered to the Administrative Agents and/or the
Collateral Agent pursuant to the definition of “Collateral and Guarantee Requirement”.
“Commercial
Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection
with the purchase of any materials, goods or services by the Borrower or any of its Restricted Subsidiaries in the ordinary course of
business of such Person.
“Commitment”
means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Initial Revolving Credit Commitment and Additional
Commitment, as applicable, in effect as of such time.
“Commitment
Fee” has the meaning assigned for such term in Section 2.12(a).
“Commitment
Schedule” means the Schedule attached hereto as Schedule 1.01(a).
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Compliance
Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Confidential
Information” has the meaning assigned to such term in Section 10.13(g).
“Connection
Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are
franchise Taxes or branch profits Taxes.
“Consolidated
Adjusted EBITDA” means, as to any Person for any period, an amount determined for such Person and its Restricted Subsidiaries
on a consolidated basis equal to the total of (a) Consolidated Net Income for such period plus (b) the sum, without duplication, of (to
the extent deducted in calculating Consolidated Net Income, other than in respect of clauses (v), (viii), (x), (xii),
(xiv), (xix) and (xx) below) the amounts of:
(i) Consolidated
Interest Expense (including (A) fees and expenses paid to the Administrative Agents and the Collateral Agent in connection with their
services hereunder, (B) other bank, administrative agency (or trustee) and financing fees (including rating agency fees), (C) costs of
surety bonds in connection with financing activities (whether amortized or immediately expensed) and (D) commissions, discounts and other
fees and charges owed with respect to revolving commitments, letters of credit,
bank guarantees,
bankers’ acceptances or any similar facilities or financing and hedging agreements);
(ii) Taxes
paid and any provision for Taxes, including income, profits, capital, foreign, federal, state, local, Canadian federal and provincial,
sales, franchise and similar Taxes, property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties
and interest related to any such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as
a result of any Tax distribution) of such Person paid or accrued during the relevant period;
(iii) (A)
depreciation, (B) amortization (including amortization of goodwill, software and other intangible assets), (C) any impairment Charge
(including any bad debt expense) and (D) any asset write-off and/or write-down;
(iv) any
non-cash Charge, including the excess of rent expense over actual Cash rent paid, including the benefit of lease incentives (in the case
of a charge) during such period due to the use of straight line rent for GAAP purposes, and any non-cash Charge pursuant to any management
equity plan, stock option plan or any other management or employee benefit plan, agreement or any stock subscription or shareholder agreement
(provided that if any such non-Cash Charge represents an accrual or reserve for potential Cash items in any future period, such
Person may determine not to add back such non-Cash Charge in the then-current period);
(v) [reserved];
(vi) [reserved];
(vii) the
amount of management, monitoring, consulting, transaction, advisory, termination and similar fees and related indemnities and expenses
(including reimbursements) paid or accrued and payments to outside directors of the Borrower actually paid by or on behalf of, or accrued
by, such Person or any of its subsidiaries; provided that such payment is permitted under this Agreement;
(viii) any
increase in deferred revenue;
(ix) the
amount of earn-out, non-compete and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation
or otherwise) and adjustments thereof and purchase price (or similar) adjustments incurred in connection with (A) acquisitions and Investments
completed prior to the Closing Date, (B) any acquisition or other Investment permitted by this Agreement, in each case, which is paid
or accrued during the applicable period and (C) the Separation Transactions;
(x) pro
forma adjustments, including pro forma “run rate” cost savings, operating expense reductions, operational improvements and
cost synergies (collectively, “Expected Cost Savings”) (net of actual amounts realized) that are reasonably identifiable,
factually supportable (or certified by a Responsible Officer of the Borrower in good faith) and projected by the Borrower in good faith
to result from actions that have been taken or with respect to which substantial steps have been taken or are expected to be taken (in
the good faith determination of such Person) related to any permitted asset sale, acquisition (including the commencement of activities
constituting a business line),
combination,
Investment, Disposition (including the termination or discontinuance of activities constituting a business line), operating improvement,
restructuring, cost savings initiative, any similar initiative (including the effect of arrangements or efficiencies from the shifting
of production of one or more products from one manufacturing facility to another) and/or specified transaction, in each case prior to,
on or after the Closing Date (any such operating improvement, restructuring, cost savings initiative or similar initiative or specified
transaction, a “Cost Saving Initiative”) (in each case, calculated on a Pro Forma Basis as though such Expected Cost
Savings and/or Cost Saving Initiative had been realized in full on the first day of such period); provided that the results of
such Expected Cost Savings and/or Cost Saving Initiatives are projected by the Borrower in good faith to result from actions that have
been taken or with respect to which steps have been taken or are expected to be taken (in the good faith determination of the Borrower)
within 24 months after the date of any such operating improvement, restructuring, cost savings initiative or similar initiative or specified
transaction; provided further that the aggregate amount added to or included in Consolidated Adjusted EBITDA pursuant to this clause
(x) shall not, for any Test Period, exceed an amount equal to 25% of Consolidated Adjusted EBITDA for such Test Period, calculated after
giving effect to any such add-backs or inclusion;
(xi) Milestone
Payments and Upfront Payments;
(xii) any
Charge with respect to any liability or casualty event, business interruption or any product recall, (i) so long as such Person has submitted
in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts under its relevant
insurance policy within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back
to the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts included in a prior
period under the preceding clause (i), to the extent such Charge is covered by insurance, indemnification or otherwise reimbursable
by a third party (whether or not then realized so long as the Borrower in good faith expects to receive proceeds arising out of such
insurance, indemnification or reimbursement obligation within the next four Fiscal Quarters) (it being understood that if the amount
received in cash under any such agreement in any period exceeds the amount of expense paid during such period, any excess amount received
may be carried forward and applied against any expense in any future period);
(xiii) unrealized
net losses in the fair market value of any arrangements under Hedge Agreements;
(xiv) the
amount of any Cash actually received by such Person (or the amount of the benefit of any netting arrangement resulting in reduced Cash
expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that any non-Cash gain relating
to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause (c)(i)
below for any previous period and not added back;
(xv) the
amount of any “bad debt” expense related to revenue earned prior to the Closing Date;
(xvi) any
net Charge included in the Borrower’s consolidated financial statements due to the application of Accounting Standards Codification
Topic 810 (“ASC 810”);
(xvii) the
amount of any non-controlling interest or minority interest Charge consisting of income attributable to minority equity interests of
third parties in any non-Wholly-Owned Subsidiary;
(xviii) fees,
costs, expenses and other Charges incurred, or reserves taken, in connection with the Separation Transactions;
(xix) the
amount of any earned or billed amounts or other revenue that is attributable to services performed during such period but is not included
in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating Consolidated Adjusted
EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually recognized;
and
(xx) at
the option of the Borrower, any other adjustments, exclusions and add-backs (x) that are consistent with Regulation S-X or (y) that are
identified or set forth in any quality of earnings analysis or report prepared by financial advisors reasonably acceptable to the Administrative
Agents (it being understood that the “Big Four” accounting firms are acceptable) and delivered to the Administrative Agents
in connection with any acquisition or other Investment not prohibited hereunder;
minus (c) without
duplication, to the extent such amounts increase Consolidated Net Income:
(i) non-Cash
gains or income; provided that if any non-Cash gain or income represents an accrual or deferred income in respect of potential
Cash items in any future period, such Person may determine not to deduct such non-Cash gain or income in the current period;
(ii) unrealized
net gains in the fair market value of any arrangements under Hedge Agreements;
(iii) [reserved];
(iv) the
amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above (as described in such clause) to the extent
the relevant business interruption insurance proceeds were not received within the time period required by such clause;
(v) to
the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (b)(iv)
above, the cash payment in respect thereof in the relevant future period;
(vi) the
excess of actual Cash rent paid over rent expense during such period due to the use of straight line rent for GAAP purposes;
(vii) any
Consolidated Net Income included in the Borrower’s consolidated financial statements due to the application of ASC 810; and
(viii)
the amount of any non-controlling interest or minority interest gains from losses attributable to minority equity interests of third
parties in any non-wholly owned Restricted Subsidiary;
(d) increased
or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards Codification
Topic 460 or any comparable regulation.
“Consolidated
First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total
Debt outstanding on such date that is secured by a first priority Lien on any asset or property of such Person or its Restricted Subsidiaries
that constitutes Collateral; provided that “Consolidated First Lien Debt” shall be calculated after applying or excluding
(as applicable) the Netted Amounts.
“Consolidated
Leverage Ratio” means, for any Test Period, the ratio of (a) Consolidated Total Debt net of the Unrestricted Cash Amount up
to $750,000,000 to (b) Consolidated Adjusted EBITDA for such Test Period; provided that, in connection with any acquisition that
is a Significant Acquisition, at any time after the date a definitive agreement for such Significant Acquisition shall have been executed
(or, in the case of a Significant Acquisition in the form of a tender offer or similar transaction, after the offer shall have been launched)
and prior to the consummation of such Significant Acquisition (or termination of the definitive documentation in respect thereof (or
such later date as such indebtedness ceases to constitute Acquisition Indebtedness as set forth in the definition of “Acquisition
Indebtedness”)), (i) any Acquisition Indebtedness to the extent the proceeds of such Acquisition Indebtedness are held in escrow
or held on the balance sheet of the Borrower or any of its Subsidiaries shall be excluded from the determination of the Consolidated
Leverage Ratio and (ii) none of the proceeds of such Acquisition Indebtedness shall constitute Unrestricted Cash Amounts of the Borrower
or its Subsidiaries that can be netted from Consolidated Total Debt pursuant to clause (a) of this definition.
“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum of (a) consolidated total interest expense
of such Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including (without
duplication), amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain payment, financial assurance
or similar bonds, any interest capitalized during construction, any non-cash interest payment, the interest component of any deferred
payment obligation, the interest component of any payment under any Finance Lease (regardless of whether accounted for as interest expense
under GAAP), any commission, discount and/or other fee or charge owed with respect to any letter of credit, bank guarantee and/or bankers’
acceptance or any similar facilities, any fee and/or expense paid to the Administrative Agents and/or the Collateral Agent in connection
with their services hereunder, any other bank, administrative agency (or trustee) and/or financing fee and any cost associated with any
surety bond in connection with financing activities (whether amortized or immediately expensed)), plus (b) any cash dividend or
distribution paid or payable in respect of Disqualified Capital Stock during such period other than to such Person or any Loan Party,
plus (c) any net losses, obligations or payments arising from or under any Hedge Agreement and/or other derivative financial instrument
issued by such Person for the benefit of such Person or its subsidiaries, in each case determined on a consolidated basis for such period.
For purposes of this definition, interest in respect of any Finance Lease shall be deemed to accrue at an interest rate reasonably determined
by such Person to be the rate of interest implicit in such Finance Lease in accordance with GAAP (or, if not implicit, as otherwise determined
in accordance with GAAP).
“Consolidated
Leverage Ratio” means, for any Test Period, the ratio of (a) Consolidated Total Debt net of the Unrestricted Cash Amount up
to $750,000,000 to (b) Consolidated Adjusted EBITDA for such Test Period; provided that, in connection with any acquisition that
is a Significant Acquisition, at
any time after the
date a definitive agreement for such Significant Acquisition
shall have been executed (or, in the case of a Significant Acquisition in the form of a tender offer or similar transaction, after the
offer shall have been launched) and prior to the consummation of such Significant Acquisition (or termination of the definitive documentation
in respect thereof (or such later date as such indebtedness ceases to constitute Acquisition Indebtedness as set forth in the definition
of “Acquisition Indebtedness”)), (i) any Acquisition Indebtedness to the extent the proceeds of such Acquisition Indebtedness
are held in escrow or held on the balance sheet of the Borrower or any of its Subsidiaries shall be excluded from the determination of
the Consolidated Leverage Ratio and (ii) none of the proceeds of such Acquisition Indebtedness shall constitute Unrestricted Cash Amounts
of the Borrower or its Subsidiaries that can be netted from Consolidated Total Debt pursuant to clause (a) of this definition.
“Consolidated
Net Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the
Subject Person and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP; provided that there shall be excluded, without duplication,
(a) (i)
any net income (loss) of any Person if such Person is not the Borrower or a Restricted Subsidiary, except that Consolidated Net Income
will be increased by the amount of dividends, distributions or other payments made in Cash or Cash Equivalents (or converted into Cash
or Cash Equivalents) or that could have been made during such period (as determined in good faith by the Borrower) by such Person to
the Borrower or any other Restricted Subsidiary (subject, in the case of any such Restricted Subsidiary that is not a Loan Party, to
the limitations contained in clause (ii) below) and (ii) solely for the purpose of determining the amount available for Restricted Payments
under Section 6.04(a)(iii)(A) or the amount of Excess Cash Flow, any net income (loss) of any Restricted Subsidiary (other than
a Loan Party) if such Subsidiary is subject to restrictions on the payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Borrower or a Loan Party by operation of its Organizational Documents or any agreement, instrument,
judgment, decree, order, statute or governmental rule or regulation applicable thereto (other than (x) any restriction that has been
waived or otherwise released and (y) any restriction set forth in the Loan Documents, the documents related to any Incremental Loans
and/or Incremental Equivalent Debt and the documents relating to any Replacement Debt or Refinancing Indebtedness in respect of any of
the foregoing), except that Consolidated Net Income will be increased by the amount of dividends, distributions or other payments made
in Cash or Cash Equivalents (or converted into Cash or Cash Equivalents) or that could have been made in Cash or Cash Equivalents during
such period (as determined in good faith by the Borrower) by the Restricted Subsidiary (subject, in the case of a dividend, distribution
or other payment to another Restricted Subsidiary, to the limitations in this clause (ii));
(b) any
gain or Charge attributable to any asset Disposition (including asset retirement costs or sales or issuances of Capital Stock) or of
returned or surplus assets outside the ordinary course of business (as determined in good faith by such Person);
(c) (i)
any gain or Charge from (A) any extraordinary or exceptional item (as determined in good faith by such Person) and/or (B) any non-recurring,
special or unusual item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any actual
or prospective legal settlement, fine, judgment or order, including ordinary legal expenses related thereto (in the case of this clause
(ii) (other than with respect to ordinary legal expenses), not to exceed (x) for the period beginning with the Closing Date and ending
on December 31, 2022, $500,000,000 and (y) in any Fiscal Year (beginning with the Fiscal Year commencing on January 1, 2023) thereafter,
$500,000,000, with unused amounts in clauses (x)
and (y)
each carried forward to the immediately succeeding Fiscal Year, provided that such amount carried forward shall not exceed $500,000,000
and such carried over amounts shall be deemed first applied in such succeeding Fiscal Year);
(d) (i)
any unrealized or realized net foreign currency translation or transaction gains or Charges impacting net income (including currency
re-measurements of Indebtedness, any net gains or Charges resulting from Hedge Agreements for currency exchange risk associated with
the above or any other currency related risk, any gains or Charges relating to translation of assets and liabilities denominated in a
foreign currency and those resulting from intercompany Indebtedness), (ii) any realized or unrealized gain or Charge in respect of (x)
any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to,
in the case of this clause (y), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives
and Hedging and (iii) unrealized gains or losses in respect of any Hedge Agreement and any ineffectiveness recognized in earnings related
to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge
transactions, in respect of Hedge Agreements;
(e) any
net gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other than,
at the option of the Borrower, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination thereof),
(ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the option of
the Borrower, relating to assets or properties held for sale or pending the divestiture or discontinuation thereof) and/or (iii) any
facility that has been closed during such period;
(f) any
net income or Charge (less all fees and expenses related thereto) attributable to (i) the early extinguishment or cancellation of
Indebtedness or (ii) any Derivative Transaction;
(g) (i)
any Charge incurred as a result of, in connection with or pursuant to any management equity plan, profits interest or stock option plan
or any other management or employee benefit plan or agreement, any pension plan (including any post-employment benefit scheme which has
been agreed with the relevant pension trustee), any stock subscription or shareholders agreement, any employee benefit trust, any employee
benefit scheme, any distributor equity plan or any similar equity plan or agreement (including any deferred compensation arrangement
or trust), (ii) any Charge incurred in connection with the rollover, acceleration or payout of Capital Stock held by management of the
Borrower and/or any of its subsidiaries, in each case under this clause (ii), to the extent that any such cash Charge is funded
with net Cash proceeds contributed to the Subject Person as a capital contribution or as a result of the sale or issuance of Qualified
Capital Stock of the Subject Person and (iii) the amount of payments made to optionholders of such Person in connection with, or as a
result of, any distribution being made to equityholders of such Person, which payments are being made to compensate such optionholders
as though they were equityholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted hereunder;
(h) any
Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the closing of any acquisition that is
required to be established, adjusted or incurred, as applicable, as a result of such acquisition in accordance with GAAP or (ii) as a
result of any change in, or the adoption or modification of, accounting principles or policies;
(i) any
(A) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly in
connection with any early
extinguishment
of Indebtedness, (B) goodwill or other asset impairment charges, write-offs or write-downs, (C) amortization of intangible assets and
(D) other amortization (including amortization of goodwill, software, deferred or capitalized financing fees, debt issuance costs, commissions
and expenses and other intangible assets);
(j) (A)
the effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its subsidiaries) in component
amounts required or permitted by GAAP (including, without limitation, in the inventory (including any impact of changes to inventory
valuation policy methods, including changes in capitalization of variances), property and equipment, lease, rights fee arrangements,
software, goodwill, intangible asset (including customer molds), in-process research and development, deferred revenue, advanced billing
and debt line items thereof), resulting from the application of recapitalization accounting or acquisition or purchase accounting, as
the case may be, in relation to any consummated acquisition or similar Investment or the amortization or write-off of any amounts thereof
(including any write-off of in process research and development) and/or (B) the cumulative effect of any change in accounting principles
or policies (effected by way of either a cumulative effect adjustment or as a retroactive application, in each case, in accordance with
GAAP) (except that, if the Borrower determines in good faith that the cumulative effects thereof are not material to the interests of
the Lenders, the effects of any change in any such principles or policies may be included in any subsequent period after the Fiscal Quarter
in which such change, adoption or modification was made);
(k) the
income or loss of any Person accrued prior to the date on which such Person became a Restricted Subsidiary of such Subject Person or
is merged into or consolidated with such Subject Person or any Restricted Subsidiary of such Subject Person or the date that such other
Person’s assets are acquired by such Subject Person or any Restricted Subsidiary of such Subject Person (except to the extent required
for any calculation of Consolidated Adjusted EBITDA on a Pro Forma Basis in accordance with Section 1.04);
(l) any
deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release
of any valuation allowance related to any such item;
(m) (i)
any non-cash deemed finance Charges in respect of any pension liabilities or other provisions and (ii) income (loss) attributable to
deferred compensation plans or trusts;
(n) earn-out,
non-compete and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise) and
adjustments thereof and purchase price adjustments, including in connection with any acquisition or Investment permitted hereunder or
in respect of any acquisition consummated prior to the Closing Date;
(o) [reserved];
(p) (A)
Transaction Costs and Charges or other costs incurred in connection with the Separation Transactions, (B) any Charge incurred (1) in
connection with any transaction (in each case, regardless of whether consummated), whether or not permitted under this Agreement, including
any issuance and/or incurrence of Indebtedness and/or any issuance and/or offering of Capital Stock, any Investment, any acquisition,
any Disposition, any recapitalization, any merger, consolidation or amalgamation, any option buyout or any repayment, redemption, refinancing,
amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums
and prepayment penalties) or any similar
transaction
or in connection with becoming a standalone company (including duplicative integration costs or similar duplicate or increased costs
in respect of any transition services agreement) and/or (2) in connection with any public offering (whether or not consummated), (C)
the amount of any Charge that is actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions
or similar agreements or insurance (it being understood that if the amount received in cash under any such agreement in any period exceeds
the amount of expense paid during such period, any excess amount received may be carried forward and applied against any expense in any
future period); provided that in respect of any reimbursable Charge that is added back in reliance on clause (C) above,
such relevant Person in good faith expects to receive reimbursement for such Charge within the next four Fiscal Quarters (with a deduction
in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal Quarters) and/or
(D) Public Company Costs;
(q) any
Charge incurred or accrued in connection with any single or one-time event (as determined in good faith by such Person), including in
connection with (A) the Transactions and/or any acquisition consummated after the Closing Date (including legal, accounting and other
professional fees and expenses incurred in connection with acquisitions and other Investments made prior to the Closing Date), (B) the
closing, consolidation or reconfiguration of any facility during such period or (C) one-time consulting costs;
(r) any
Charge attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives
(including Cost Saving Initiatives), cost rationalization programs, operating expense reductions and/or cost synergies and/or similar
initiatives and/or programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning,
recommissioning or reconfiguration of fixed assets for alternative uses, any office or facility opening and/or pre-opening), including
the following: any inventory optimization program and/or any curtailment, any business optimization Charge, any restructuring Charge
(including any Charge relating to any tax restructuring), any Charge relating to the closure or consolidation of any office or facility
(including but not limited to rent termination costs, moving costs and legal costs), any systems implementation Charge, any severance
Charge, any one time compensation Charge, any Charge relating to entry into a new market, any Charge relating to rights fee arrangements
(including any early terminations thereof), any Charge relating to any strategic initiative or contract, any signing Charge, any Charge
relating to any entry into new markets or contracts (including, without limitation, any renewals, extensions or other modifications thereof)
or new product introductions or exiting a market, contract or product, any retention or completion Charge or bonus, any recruiting Charge,
any lease run-off Charge, any expansion and/or relocation Charge, any Charge associated with any modification or curtailment to any pension
and post-retirement employee benefit plan (including any settlement of pension liabilities), any software or other intellectual property
development Charge, any Charge associated with new systems design, any implementation Charge, any transition Charge, any Charge associated
with improvements to IT or accounting functions, losses related to temporary decreases in work volume and expenses related to maintaining
underutilized personnel, any transition Charge, any project startup Charge, any Charge in connection with new operations, any Charge
in connection with unused warehouse space, any Charge relating to a new contract, any consulting Charge, any corporate development Charge,
any employee ramp up Charges and/or any Charges related to underutilized personnel (including duplicative personnel);
(s) non-cash
compensation Charges and/or any other non-cash Charges arising from the granting of any stock, stock option or similar arrangement (including
any profits interest or phantom stock), the granting of any restricted stock, stock appreciation right and/or similar
arrangement
(including any repricing, amendment, modification, substitution or change of any such stock option, restricted stock, stock appreciation
right, profits interest, phantom stock or similar arrangement or the vesting of any warrant); and
(t) to
the extent such amount would otherwise increase Consolidated Net Income, Taxes paid (including pursuant to any Tax sharing arrangement)
in cash (including, to the extent paid in cash, Taxes arising out of any tax examination).
In
addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, Consolidated
Net Income will include the proceeds of business interruption insurance in an amount representing the earnings for the applicable period
that such proceeds are intended to replace (whether or not received so long as the Borrower in good faith expects to receive such proceeds
within the next four Fiscal Quarters (with a deduction in the applicable future period for any amount so added back to the extent not
so received within the next four Fiscal Quarters)).
“Consolidated
Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt
outstanding on such date that is secured by a Lien on any asset or property of such Person or its Restricted Subsidiaries; provided
that “Consolidated Secured Debt” shall be calculated after applying or netting (as applicable) the Netted Amounts.
“Consolidated
Total Assets” means, as to any Person, at any date, all amounts that would, in conformity with GAAP, be set forth opposite
the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.
“Consolidated
Total Debt” means, as to any Person at any date of determination, the aggregate principal amount of all third party debt for
borrowed money (including LC Disbursements that have not been reimbursed within three Business Days and the outstanding principal balance
of all Indebtedness of such Person represented by notes, bonds and similar instruments), Finance Leases and purchase money Indebtedness
(but excluding in each case, for the avoidance of doubt, undrawn letters of credit), in each case as reflected on a balance sheet of
such Person prepared in accordance with GAAP; provided that “Consolidated Total Debt”, “Consolidated First Lien
Debt” and “Consolidated Secured Debt” shall in each case (but without duplication) be calculated (for all purposes
hereunder, including as a component of the definitions of Consolidated First Lien Debt, Consolidated Secured Debt and Total Leverage
Ratio, and any applications of such definitions) (i) net of the Unrestricted Cash Amount, (ii) to exclude any obligation, liability
or Indebtedness of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person
in trust or escrow the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation,
liability or Indebtedness, and thereafter such funds and evidences of such obligation, liability or Indebtedness or other security so
deposited are not included in the calculation of the Unrestricted Cash Amount, (iii) to exclude obligations under any Derivative Transaction,
or under any Indebtedness that is non-recourse to the Borrower and its Restricted Subsidiaries and (iv) to exclude obligations under
any Non-Finance Lease Obligation (items (i) through (iv) of this proviso, the “Netted Amounts”). For the avoidance
of doubt, Consolidated Total Debt shall be calculated in accordance with GAAP, pursuant to the terms of Section 1.04(a)(i).
“Consolidated
Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Consolidated
Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end
of such period; provided that there shall be excluded (a) the effect of reclassification during such period between
current assets and
long term assets and current liabilities and long term liabilities (with a corresponding restatement of the prior period to give effect
to such reclassification), (b) the effect of any Disposition of any Person, facility or line of business or acquisition of any Person,
facility or line of business during such period, (c) the effect of any fluctuations in the amount of accrued and contingent obligations
under any Hedge Agreement and (d) the application of purchase or recapitalization accounting.
“Contractual
Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties
is bound or to which it or any of its properties is subject.
“Contributing
Guarantor” has the meaning assigned to such term in Section 7.02(a).
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Convertible
Indebtedness” means Indebtedness of the Borrower or any Restricted Subsidiary (which may be guaranteed by the Guarantors or
any Restricted Subsidiary) permitted to be incurred hereunder that is either (a) convertible into or exchangeable for Capital Stock of
the Borrower (and cash in lieu of fractional shares) or cash (in an amount determined by reference to the price of such Capital Stock
or a market measure of such Capital Stock), or a combination thereof or (b) sold as units with call options, warrants or rights to purchase
(or substantially equivalent derivative transactions) that are exercisable for Qualified Capital Stock of the Borrower or cash (in an
amount determined by reference to the price of such Qualified Capital Stock).
“Copyright”
means all copyrights, rights and interests in copyrights, works protectable by copyright, copyright registrations and copyright applications.
“Cost
Saving Initiative” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Counterpart
Agreement” means a Counterpart Agreement substantially in the form of Exhibit N delivered by a Loan Party pursuant
to Section 5.12 or a similar agreement, in form and substance reasonably acceptable to the Administrative Agents, pursuant to
which any Loan Party becomes a Guarantor hereunder. Such Counterpart Agreement may, if reasonably requested by the Borrower, include
limitations on guarantees applicable to such Restricted Subsidiary and required or advisable under applicable Requirements of Law.
“Covered
Agreement” has the meaning assigned to such term in Section 6.03(d).
“Credit
Extension” means each of (i) the making of a Revolving Loan or Swingline Loan or (ii) the issuance, amendment, modification,
renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase
the Stated Amount of the relevant Letter of Credit).
“Credit
Facilities” means the Revolving Facility and the Term Facility.
“Current
Assets” means, at any date, all assets of the Borrower and its Restricted Subsidiaries which under GAAP would be classified
as current assets (excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for third parties
by the Borrower and/or any
Restricted Subsidiary),
(ii) permitted loans to third parties, (iii) deferred bank fees and derivative financial instruments related to Indebtedness, (iv) the
current portion of current and deferred Taxes and (v) assets held for sale or pension assets).
“Current
Liabilities” means, at any date, all liabilities of the Borrower and its Restricted Subsidiaries which under GAAP would be
classified as current liabilities, other than (i) current maturities of long term debt, (ii) outstanding revolving loans and
letter of credit exposure, (iii) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due
and unpaid), (iv) obligations in respect of derivative financial instruments related to Indebtedness, (v) the current portion
of current and deferred Taxes, (vi) liabilities in respect of unpaid earnouts, (vii) accruals relating to restructuring reserves,
(viii) liabilities in respect of funds of third parties on deposit with the Borrower and/or any Restricted Subsidiary, (ix) the
current portion of any Finance Lease and the current portion of any Non-Finance Lease Obligation that is otherwise required to be capitalized,
(x) any liabilities recorded in connection with stock based awards, partnership interest based awards, awards of profits interests, deferred
compensation awards and similar initiative based compensation awards or arrangements and (xi) the current portion of any other long
term liability for borrowed money.
“Customary
Term A Loans” means any term loans that are syndicated primarily to Persons regulated as banks in the primary syndication thereof,
that, when made, have scheduled amortization of at least 2.5% per year prior to maturity, and that contain other provisions customary
for “term A loans,” as reasonably determined by the Borrower in consultation with the Applicable Administrative Agent.
“Debtor
Relief Laws” means the Bankruptcy Code of the U.S., the BIA, the CCAA, the WURA and the CBCA, and all other liquidation, conservatorship,
bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, statutory management
administration, reorganization, corporate arrangement or restructuring or similar debtor relief laws of the U.S. or any other applicable
jurisdiction from time to time in effect and affecting the rights of creditors generally.
“Declined
Proceeds” has the meaning assigned to such term in Section 2.11(b)(vvi).
“Default”
means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Defaulting
Lender” means any Lender that has (a) defaulted in its obligations under this Agreement, including without limitation, to make
a Loan within two Business Days of the date required to be made by it hereunder or to fund its participation in a Letter of Credit or
Swingline Loan required to be funded by it hereunder within two Business Days of the date such obligation arose or such Loan, Letter
of Credit or Swingline Loan was required to be made or funded, (b) notified any Administrative Agent, any Issuing Bank or the Swingline
Lender or any Loan Party in writing that it does not intend to satisfy any such obligation or has made a public statement to the effect
that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend
credit generally (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states
that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent,
together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c)
failed, within two Business Days after the request of any Administrative Agent or the Borrower, to confirm in writing that it will comply
with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters
of Credit and Swingline Loans; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt
of such written confirmation by any Administrative Agent, (d) become (or any parent company thereof has become) insolvent or been determined
by any Governmental Authority having regulatory authority over such Person or its assets, to
be insolvent, or the
assets or management of which has been taken over by any Governmental Authority, (e) become (or any parent company thereof has become)
the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit
of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken
any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless
in the case of any Lender subject to this clause (e), the Borrower and each Administrative Agent shall each have determined that such
Lender intends, and has all approvals required to enable it (in form and substance satisfactory to the Borrower and each Administrative
Agent), to continue to perform its obligations as a Lender hereunder or (f) become (or any parent company thereof has become) the subject
of a Bail-In Action; provided that no Lender shall be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition
of any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such action does not result in
or provide such Lender with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of
attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contract
or agreement to which such Lender is a party.
“Defined
Benefit Plan” means any Canadian Employee Benefit Plan which contains a “defined benefit provision,” as defined
in subsection 147.1(1) of the Income Tax Act (Canada).
“Delaware
Divided LLC” means any Delaware LLC formed upon the consummation of a Delaware LLC Division.
“Delaware
LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware
LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of
the Delaware Limited Liability Company Act.
“Deposit
Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or
like organization, excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced
by an instrument or negotiable certificate of deposit (within the meaning of the UCC).
“Derivative
Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement,
interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar
credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency
interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that
gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked option,
any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) any commodity
(including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked
contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided, that (i) no phantom
stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees,
members of management, managers or consultants of the Borrower or its subsidiaries shall constitute a Derivative Transaction and (ii)
no Packaged Right, Permitted Bond Hedge Transaction or Permitted Warrant Transaction shall, in each case, constitute a Derivative Transaction.
“Designated
Loans” has the meaning assigned to such term in Section 1.12(e).
“Designating
Lender” has the meaning assigned to such term in Section 1.12(e).
“Designated
Non-Cash Consideration” means the fair market value (as determined by the Borrower in good faith) of non-Cash consideration
received by the Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) and/or Section
6.08 that is designated as Designated Non-Cash Consideration (which amount will be reduced by the amount of Cash or Cash Equivalents
received in connection with a subsequent sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
“Discount
Range” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Disposition”
or “Dispose” means the sale, lease, sublease, Exclusive License or other disposition of any property of any Person,
including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division. The fair market value of any assets
or other property Disposed of shall be determined by the Borrower in good faith and shall be measured at the time provided for in Section
1.04(e). Notwithstanding any other provision of this Agreement, no license (or sub-license) transaction that is not an Exclusive
License of property or assets of the Borrower or a Restricted Subsidiary to another Person shall constitute a Disposition.
“Disposition
Consideration” means (a) for any Disposition (other than an Exclusive License), the fair market value of any assets sold, leased,
subleased or otherwise disposed of and (b) for any Exclusive License, the aggregate cash payment paid to the Borrower or any Restricted
Subsidiary on or prior to the consummation of the Exclusive License (and which, for the avoidance of doubt, shall not include any licensing
royalty, earnout, milestone payment, contingent payment or any other deferred payment that may be payable thereafter).
“Disqualified
Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, prior
to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such redemption
is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued
shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) debt securities or (ii) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time
prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such conversion
or exchange is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date at the time such Capital
Stock is issued shall constitute Disqualified Capital Stock), (c) contains any mandatory repurchase obligation or any other repurchase
obligation at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, which may come into effect
prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such repurchase
obligation is in part, only such part coming into effect prior to 91 days following such Latest Maturity Date at the time such Capital
Stock is issued shall constitute Disqualified Capital Stock) or (d) provides for the scheduled payments of dividends in Cash prior to
91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided that any Capital Stock that would
not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for
which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Capital
Stock upon the occurrence of any change of control, public offering or any Disposition occurring prior to 91 days following the Latest
Maturity Date at the time such Capital
Stock is issued shall
not constitute Disqualified Capital Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock
pursuant to such provisions prior to the Termination Date.
Notwithstanding
the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members
of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or
consultants, in each case in the ordinary course of business of the Borrower or any Restricted Subsidiary, such Capital Stock shall not
constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable
statutory or regulatory obligations and (B) no Capital Stock held by any Permitted Payee shall be considered Disqualified Capital Stock
because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock
appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that
may be in effect from time to time.
“Disqualified
Person” has the meaning assigned to such term in Section 10.05(f).
“Disregarded
U.S. Subsidiary” means any U.S. Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness of
one or more Specified Foreign Subsidiaries or other Disregarded U.S. Subsidiaries.
“Dollars”
or “$” refers to lawful money of the U.S.
“Dollar
Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount and (b) with respect to
any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Applicable Administrative
Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or other relevant date of
determination) for the purchase of Dollars with such other currency.
“Dollars”
or “$” refers to lawful money of the U.S.
“Drug
Acquisition” means any acquisition (including any license or any acquisition of any license) solely or primarily of all or
any portion of the rights in respect of one or more drugs or pharmaceutical products, whether in development or on market (including
related IP Rights), but not of Capital Stock in any Person or any operating business unit.
“Dutch
Auction” means an auction (an “Auction”) conducted by any Affiliated Lender (any such Person, the “Auction
Party”) in order to purchase Initial Term Loans (or any Additional Term Loans), in accordance with the following procedures
(as may be modified by such Affiliated Lender and the applicable “auction agent” in connection with a particular Auction
transaction); provided that no Auction Party shall initiate any Auction unless (I) at least five Business Days have passed since
the consummation of the most recent purchase of Term Loans pursuant to an Auction conducted hereunder; or (II) at least three Business
Days have passed since the date of the last Failed Auction (or equivalent) which was withdrawn:
(a) Notice
Procedures. In connection with any Auction, the Auction Party will provide notification to the Auction Agent (for distribution to
the relevant Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”). Each Auction
Notice shall be in a form reasonably acceptable to the Auction Agent and shall (i) specify the maximum aggregate principal amount of
the Term Loans subject to the Auction, in a minimum amount of $10,000,000 and whole increments of $1,000,000 in excess thereof (or, in
any case, such lesser
amount of
such Term Loans then outstanding or which is otherwise reasonably acceptable to the Auction Agent and the Term Facility Administrative
Agent or the First Incremental Term FacilityFacilities
Administrative Agent, as applicable (if different from the Auction Agent)) (the “Auction Amount”), (ii) specify
the discount to par (which may be a range (the “Discount Range”) of percentages of the par principal amount of the
Term Loans subject to such Auction), that represents the range of purchase prices that the Auction Party would be willing to accept in
the Auction, (iii) be extended, at the sole discretion of the Auction Party, to (x) each Lender and/or (y) each Lender with respect to
any Term Loan on an individual Class basis and (iv) remain outstanding through the Auction Response Date. The Auction Agent will promptly
provide each appropriate Lender with a copy of the Auction Notice and a form of the Return Bid to be submitted by a responding Lender
to the Auction Agent (or its delegate) by no later than 5:00 p.m. on the date specified in the Auction Notice (or such later date as
the Auction Party may agree with the reasonable consent of the Auction Agent) (the “Auction Response Date”).
(b) Reply
Procedures. In connection with any Auction, each Lender holding the relevant Term Loans subject to such Auction may, in its sole
discretion, participate in such Auction and may provide the Auction Agent with a notice of participation (the “Return Bid”)
which shall be in a form reasonably acceptable to the Auction Agent, and shall specify (i) a discount to par (that must be expressed
as a price at which it is willing to sell all or any portion of such Term Loans) (the “Reply Price”), which (when
expressed as a percentage of the par principal amount of such Term Loans) must be within the Discount Range and (ii) a principal amount
of such Term Loans, which must be in whole increments of $1,000,000 (or, in any case, such lesser amount of such Term Loans of such Lender
then outstanding or which is otherwise reasonably acceptable to the Auction Agent) (the “Reply Amount”). Lenders may
only submit one Return Bid per Auction, but each Return Bid may contain up to three bids only one of which may result in a Qualifying
Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Auction Agent, an
Assignment and Assumption with the dollar amount of the Term Loans to be assigned to be left in blank, which amount shall be completed
by the Auction Agent in accordance with the final determination of such Lender’s Qualifying Bid pursuant to clause (c) below.
Any Lender whose Return Bid is not received by the Auction Agent by the Auction Response Date shall be deemed to have declined to participate
in the relevant Auction with respect to all of its Term Loans.
(c) Acceptance
Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Agent prior to the applicable Auction Response Date,
the Auction Agent, in consultation with the Auction Party, will determine the applicable price (the “Applicable Price”)
for the Auction, which will be the lowest Reply Price for which the Auction Party can complete the Auction at the Auction Amount; provided
that, in the event that the Reply Amounts are insufficient to allow the Auction Party to complete a purchase of the entire Auction
Amount (any such Auction, a “Failed Auction”), the Auction Party shall either, at its election, (i) withdraw the Auction
or (ii) complete the Auction at an Applicable Price equal to the highest Reply Price. The Auction Party shall purchase the relevant Term
Loans (or the respective portions thereof) from each Lender with a Reply Price that is equal to or lower than the Applicable Price (“Qualifying
Bids”) at the Applicable Price; provided that if the aggregate proceeds required to purchase all Term Loans subject
to Qualifying Bids would exceed the Auction Amount for such Auction, the Auction Party shall purchase such Term Loans at the Applicable
Price ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements specified by the Auction Agent
in its discretion). If a Lender has submitted a Return Bid containing multiple bids at different Reply Prices, only the bid with the
lowest Reply Price that is equal to or less than the Applicable Price will be deemed to be the Qualifying Bid of such Lender (e.g., a
Reply Price of $100 with a discount to par of 1.00%, when compared to an Applicable Price of $100 with a
2.00% discount
to par, will not be deemed to be a Qualifying Bid, while, however, a Reply Price of $100 with a discount to par of 2.50% would be deemed
to be a Qualifying Bid). The Auction Agent shall promptly, and in any case within five Business Days following the Auction Response Date
with respect to an Auction, notify (I) the Borrower of the respective Lenders’ responses to such solicitation, the effective date
of the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount of the Term Loans and
the tranches thereof to be purchased pursuant to such Auction, (II) each participating Lender of the effective date of the purchase of
Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount and the tranches of Term Loans to be purchased
at the Applicable Price on such date, (III) each participating Lender of the aggregate principal amount and the tranches of the Term
Loans of such Lender to be purchased at the Applicable Price on such date and (IV) if applicable, each participating Lender of any rounding
and/or proration pursuant to the second preceding sentence. Each determination by the Auction Agent of the amounts stated in the foregoing
notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error.
(d) Additional
Procedures.
(i) Once
initiated by an Auction Notice, the Auction Party may not withdraw an Auction other than a Failed Auction. Furthermore, in connection
with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will
be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.
(ii) To
the extent not expressly provided for herein, each purchase of Term Loans pursuant to an Auction shall be consummated pursuant to procedures
consistent with the provisions in this definition, established by the Auction Agent acting in its reasonable discretion and as reasonably
agreed by the Borrower.
(iii) In
connection with any Auction, the Borrower and the Lenders acknowledge and agree that the Auction Agent may require as a condition to
any Auction, the payment of customary fees and expenses by the Auction Party in connection therewith as agreed between the Auction Party
and the Auction Agent.
(iv) Notwithstanding
anything in any Loan Document to the contrary, for purposes of this definition, each notice or other communication required to be delivered
or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s (or its
delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication
actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business
Day.
(v) The
Borrower and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this definition by
itself or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to such
Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall
apply to each Affiliate of the Auction Agent and its respective activities in connection with any purchase of Term Loans provided for
in this definition as well as activities of the Auction Agent.
“ECF
Deductions” has the meaning assigned to such term in Section 2.11(b)(i)(B).
“ECF
Prepayment Amount” has the meaning assigned to such term in Section 2.11(b)(i).
“EEA
Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition or (c) any financial institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA
Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA
Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective
Yield” means, as to any Indebtedness, the effective yield applicable thereto calculated by the Term Facility Administrative
Agent or the First Incremental Term FacilityFacilities
Administrative Agent, as applicable, in consultation with the Borrower in a manner consistent with generally accepted financial
practices, taking into account (a) interest rate margins, (b) interest rate floors (subject to the proviso set forth below), (c) any
amendment to the relevant interest rate margins and interest rate floors prior to the applicable date of determination and (d) original
issue discount and upfront or similar fees (based on an assumed four-year average life to maturity or lesser remaining average life to
maturity), but excluding (i) any advisory, arrangement, commitment, consent, structuring, success, underwriting, ticking, unused line
fees, amendment fees and/or any similar fees payable in connection therewith (regardless of whether any such fees are paid to or shared
in whole or in part with any lender) and (ii) any other fee that is not paid directly by the Borrower generally to all relevant lenders
ratably (or, if only one lender (or affiliated group of lenders) is providing such Indebtedness, are fees of the type not customarily
shared with lenders generally); provided, that with respect to any Indebtedness that includes a “floor”, that (A)
to the extent that the Eurocurrency Rate (for an Interest Period of three months) or Alternate Base Rate (in each case without giving
effect to any floor specified in the definitions thereof on the date on which the Effective Yield is being calculated) is less than such
floor, the amount of such difference will be deemed added to the interest rate margin applicable to such Indebtedness for purposes of
calculating the Effective Yield and (B) to the extent that the Eurocurrency Rate (for an Interest Period of three months) or Alternate
Base Rate (in each case, without giving effect to any floor specified in the definitions thereof) is greater than such floor, the floor
will be disregarded in calculating the Effective Yield.
“Eligible
Assignee” means (a) any Lender, (b) any commercial bank, insurance company, finance company, financial institution, any fund
that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate
of any Lender, (d) any Approved Fund of any Lender or (e) to the extent permitted under Section 10.05(g), any Affiliated Lender;
provided that in any event, “Eligible Assignee” shall not include (i) any natural person or any investment vehicle
established primarily for the benefit of a natural person, (ii) any Defaulting Lender or (iii) except as permitted under Section 10.05(g),
the Borrower or any of its Affiliates.
“Employee
Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (regardless of whether such
plan is subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed to by, the Borrower or any
of its Restricted Subsidiaries.
“Environmental
Claim” means any written investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order
or other order, decree or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant
to or in connection with any actual or alleged violation of any Environmental Law or (b) in connection with any actual or alleged Release
or threat of Release of any Hazardous Materials.
“Environmental
Laws” means any and all applicable foreign or domestic, federal, state, provincial or local (or any subdivision thereof), statutes,
ordinances, orders, decrees, rules, regulations, judgments, Governmental Authorizations, or any other applicable binding requirements
of Governmental Authorities or the common law relating to (a) pollution or the protection of the environment or natural resources, occupational
safety and health and industrial hygiene (to the extent relating to the exposure to hazardous materials) or other environmental matters
or (b) any Hazardous Materials Activity or any exposure to any hazardous material.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate” means any trade or business (whether or not incorporated) that is (a) a member of a controlled group of corporations
within the meaning of Section 414(b) of the Code with the Borrower or any of its Restricted Subsidiaries or (b) a member of a group
of trades or businesses under common control within the meaning of Section 414(c) of the Code with the Borrower or any of its Restricted
Subsidiaries or (c) for purposes of provisions relating to Section 302 of ERISA or Section 412 of the Code, treated as a “single
employer” with the Borrower or any of its Restricted Subsidiaries under Section 414(m) or (o) of the Code.
“ERISA
Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the 30-day notice period has been waived), (b) the failure of any Pension
Plan to satisfy a minimum funding standard under Section 412 of the Code, (c) the filing of any request for, or receipt of, a minimum
funding waiver under Section 412 of the Code with respect to any Pension Plan, (d) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress termination described
in Section 4041(c) of ERISA, (e) the withdrawal by the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate from any Pension
Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to the Borrower or any
of its Restricted Subsidiaries pursuant to Section 4063 or 4064 of ERISA, (f) the institution by the PBGC of proceedings to terminate
any Pension Plan, (g) the imposition of liability on the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate pursuant
to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA, (h) a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) of the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate from
any Multiemployer Plan if there is any potential liability under Title IV of ERISA for Borrower or any of its Restricted Subsidiaries,
(i) the receipt by the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate of notice from any Multiemployer Plan that
it is insolvent pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA
or (j) the incurrence of liability or the imposition of a Lien pursuant to Section 436 or 430(k) of the Code or pursuant to Title IV
of ERISA with respect to any Pension Plan.
“EU
Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“EURIBO
Screen Rate” means rate per annum determined by the Revolving Facility Administrative Agent to be the Euro interbank offered
rate administered by the European Money Markets
Institute (or any
other person which takes over the administration of that rate) for deposits in Euros (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement
Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate
from time to time in place of Thomson Reuters as of 11:00 a.m. Brussels time two TARGET Days prior to the commencement of such Interest
Period. If such page or service ceases to be available, the Revolving Facility Administrative Agent may specify another page or
service displaying the relevant rate after consultation with the Borrower.
“Euro”
or “€” means the single currency of the European Union as constituted by the Treaty on European Union.
“Eurocurrency
Rate” means:
(i)
for any Interest Period as to any Eurocurrency Rate Loan denominated in Dollars, the Term SOFR with tenor equal to such Interest Period,
plus the Applicable SOFR Adjustment for such Interest Period; and
(ii)
for any Interest Period as to any Eurocurrency Rate Loan denominated in Euros, the EURIBO Screen Rate with tenor equal to such Interest
Period (or if the EURIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”)
then the “Eurocurrency Rate” with respect to such Eurocurrency Rate Loan denominated in Euros for such Interest Period shall
be the Interpolated Rate);
provided
that (a) solely with respect to the Initial Revolving Loans, if any such rate determined pursuant to the preceding clauses (i) or
(ii) is less than zero, the Eurocurrency Rate will be deemed to be zero, (b) solely with respect to the Initial Term Loans, if any such
rate determined pursuant to the preceding clauses (i) or (ii) is less than 0.50%, the Eurocurrency Rate will be deemed to be 0.50% and
(c) solely with respect to the First Incremental Term Loans and the Second
Incremental Term Loans, if any such rate determined pursuant to the preceding clauses (i) or (ii) is less than zero, the Eurocurrency
Rate will be deemed to be zero.
“Event
of Default” has the meaning assigned to such term in Section 8.01.
“Excess
Cash Flow” means, for any Excess Cash Flow Period, an amount (if positive) equal to:
(a) the
sum, without duplication, of the amounts for such period of the following:
(i) Consolidated
Adjusted EBITDA for such period without giving effect to clause (b)(x) of the definition thereof, plus
(ii) the
Consolidated Working Capital Adjustment for such period, plus
(iii) cash
gains of the type described in clauses (b), (c), (d), (e) and (f) of the definition of “Consolidated
Net Income”, to the extent not otherwise included in calculating Consolidated Adjusted EBITDA (except to the extent such gains
consist of proceeds utilized in calculating Net Proceeds falling under paragraph (a) of the definition thereof or Net Insurance/Condemnation
Proceeds subject to Section 2.11(b)(ii)), plus
(iv) to
the extent not otherwise included in the calculation of Consolidated Adjusted EBITDA for such period, cash payments received by the Borrower
or any of its
Restricted
Subsidiaries with respect to amounts deducted from Excess Cash Flow in a prior period pursuant to clause (b)(iv) below, minus
(b) the
sum, without duplication, of the amounts for such period (or, in the case of clauses (b)(i), (b)(ii), (b)(iv), (b)(vi),
(b)(vii), (b)(viii), (b)(ix), (b)(x) and (b)(xi) at the option of the Borrower, amounts after such
period to the extent paid prior to the date of the applicable Excess Cash Flow payment) of the following:
(i) the
aggregate principal amount of (A) all optional prepayments of, or other Cash payments to reduce the outstanding amount of, Indebtedness
(other than any (1) optional prepayment of, or other Cash payments to reduce the outstanding amount of, Indebtedness that is deducted
in calculating the amount of any Excess Cash Flow payment in accordance with Section 2.11(b)(i) or (2) revolving Indebtedness
except to the extent any related commitment is permanently reduced in connection with such repayment), (B) all mandatory prepayments
and scheduled repayments of Indebtedness and (C) the aggregate amount of any premiums, make-whole or penalty payments actually paid in
Cash by the Borrower and/or any Restricted Subsidiary that are or were required to be made in connection with any prepayment of Indebtedness,
in each case, except to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(ii) amounts
added back under (A) clauses (b)(i) and (b)(ii) of the definition of “Consolidated Adjusted EBITDA” to the extent paid or
payable in Cash or (B) clause (xvii) of the definition of “Consolidated Adjusted EBITDA”, plus
(iii) any
foreign transactional or translation losses paid or payable in Cash (including any currency re-measurement of Indebtedness, any net gain
or loss resulting from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency
translation or transaction or any other currency-related risk) to the extent included in calculating Consolidated Adjusted EBITDA, plus
(iv) amounts
added back under (A) clauses (b)(viii), (b)(x), (b)(xii), (b)(xiv), (b)(xv), (b)(xviii), (b)(xix)
or (b)(xx) of the definition of “Consolidated Adjusted EBITDA” or (B) the last paragraph of the definition of
Consolidated Net Income with respect to business interruption insurance, in each case to the extent such amounts have not yet been received
by the Borrower or its Restricted Subsidiaries, plus
(v) an
amount equal to (A) all Charges either (1) excluded in calculating Consolidated Net Income or (2) added back in calculating Consolidated
Adjusted EBITDA, in each case, to the extent paid or payable in Cash and (B) all non-Cash credits included in calculating Consolidated
Net Income or Consolidated Adjusted EBITDA, plus
(vi) to
the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding the amount deducted) in calculating
Consolidated Net Income, the aggregate amount of Charges paid or payable in Cash by the Borrower and its Restricted Subsidiaries during
such period, other than to the extent financed with long-term funded Indebtedness (other than revolving Indebtedness), plus
(vii) Cash
payments (other than in respect of Taxes, which are governed by clause (ii) above) made during such period for any liability the accrual
of which in a prior
period did
not reduce Consolidated Adjusted EBITDA and therefore increased Excess Cash Flow in such prior period (provided there was no other
deduction to Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except to the extent financed with long term
funded Indebtedness (other than revolving Indebtedness), plus
(viii) amounts
paid in Cash (except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)) during such period
on account of (A) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA in
a prior period and (B) reserves or amounts established in purchase accounting to the extent such reserves or amounts are added back to,
or not deducted from, Consolidated Net Income, plus
(ix) the
amount of any payment of Cash to be amortized or expensed over a future period and recorded as a long-term asset, plus
(x) the
amount of any Tax obligation of the Borrower and/or any Restricted Subsidiary that is estimated in good faith by the Borrower as due
and payable (but is not currently due and payable) by the Borrower and/or any Restricted Subsidiary as a result of the repatriation of
any dividend or similar distribution of net income of any Foreign Subsidiary to the Borrower and/or any Restricted Subsidiary, plus
(xi) Cash
payments in respect of any Restricted Payments set forth in Sections 6.04(a)(iii), 6.04(a)(vi) and/or 6.04(a)(xiii)
(or otherwise consented to by the Required Lenders) or any distributions, dividends or other similar payments made to the holders
of any minority interest in any Restricted Subsidiary (other than any Restricted Payments, distributions, dividends or other similar
payments that are deducted in calculating the amount of any Excess Cash Flow payment in accordance with Section 2.11(b)(i)); plus
(xii) the
aggregate amount of any extraordinary, exceptional, unusual, special or non-recurring cash Charges paid or payable during such period
(whether or not incurred in such Excess Cash Flow Period) that were excluded in calculating Consolidated Adjusted EBITDA (including any
component definition used therein) for such period.
“Excess
Cash Flow Period” means each full Fiscal Year of the Borrower ending after the Closing Date (commencing, for the avoidance
of doubt, with the Fiscal Year ending on December 31, 2023).
“Exchange
Act” means the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.
“Excluded
Account” shall be as defined in each applicable Collateral Document.
“Excluded
Assets” shall mean certain property excluded from the Collateral, including:
(1) any
lease, license, contract or agreement to which any Loan Party is a party, and any of its rights or interest thereunder (or, with respect
to clause (i), any other asset), if and to the extent that a security interest is prohibited by or in violation of (or would result in
a loss of material rights under) (i) any law, rule or regulation applicable to such Loan Party, or (ii) a term, provision or condition
of any such lease, license, contract or agreement (unless such law, rule,
regulation,
term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to
Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other
applicable law (including the Bankruptcy Code, the PPSA or principles of equity));
provided, however, that the Collateral shall include (and such security interest shall attach) immediately at such time as the
contractual or legal prohibition (or condition causing such violation, breach, termination or loss of right) shall no longer be applicable
and to the extent severable, shall attach immediately to any portion of such lease, license, contract or agreement not subject to the
prohibitions specified in clause (i) or (ii) above; provided further that the exclusions referred to in this clause (1) shall
not include any proceeds of any such lease, license, contract or agreement unless such proceeds result in the consequences described
in this clause (1) after giving effect to the first proviso in this clause (1);
(2) any
Excluded Securities;
(3) any
“intent to use” (or similar) application for registration of a trademark filed pursuant to Section 1(b) of the Lanham Act,
15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment
to Allege Use” pursuant to Section 1 of the Lanham Act with respect thereto (or similar notice or filing), to the extent, if any,
that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability
of any registration that issues from such intent to use application under applicable Federal law;
(4) any
motor vehicles and any other asset subject to certificates of title to the extent that a Lien thereon cannot be perfected by the filing
of “all assets” financing statements or similar filings under the UCC or any other equivalent law, including the PPSA in
the applicable Loan Party’s jurisdiction of organization or, if applicable, where such asset is situated;
(5) any
Letter-of-Credit Rights (other than any Letter-of-Credit-Rights constituting a Supporting Obligation (as defined in the UCC) for a receivable
or other Collateral in which the Collateral Agent has a valid and perfected security interest) to the extent that a Lien thereon cannot
be perfected by the filing of “all assets” financing statements or similar filings under the UCC or any other equivalent
law, including the PPSA in the applicable Loan Party’s jurisdiction of organization;
(6) Excluded
Accounts;
(7) any
assets owned by any Loan Party on the date hereof or hereafter acquired and any proceeds thereof (or related assets) that are subject
to a Lien securing Indebtedness incurred in connection with a Finance Lease, purchase money Indebtedness or other Indebtedness incurred
to finance the acquisition of such assets permitted to be incurred pursuant to this Agreement to the extent and for so long as the contract
or other agreement in which such Lien is granted (or the documentation providing for applicable purchase money Indebtedness) validly
prohibits the creation of any other Lien on such assets and proceeds in a manner permitted by Section 6.03;
(8) any
property or assets in circumstances where the cost, burden or consequences (including adverse tax consequences) of obtaining or perfecting
a security interest in such property or assets (including on account of any need to obtain consents or approvals, and the effect of the
ability of the relevant Loan Party to conduct its operations and business in the ordinary course), as determined in good faith by the
Borrower and the Administrative Agents in
writing
(which may be via email), are excessive in relation to the practical benefit afforded to the Secured Parties;
(9) any
property constituting or that is the proceeds of aircraft, aircraft engines, satellites, ships or railroad rolling stock (unless any
such property or assets are pledged as collateral in respect of any Incremental Equivalent Debt that is secured on a pari passu basis
with the Obligations) to the extent that a Lien thereon cannot be perfected by the filing of “all assets” financing statements
or similar filings under the UCC or any other equivalent law, including the PPSA in the applicable Loan Party’s jurisdiction of
organization or, if applicable, where such asset is situated;
(10) any
real property or real property interest that is not a Material Real Estate Asset;
(11) any
governmental or regulatory license or state, provincial, municipal or local franchise, charter, consent, permit or authorization to the
extent the granting of a security interest therein is prohibited or restricted thereby or by applicable Requirements of Law; provided,
however, that any such asset will only constitute an Excluded Asset under this clause (11) to the extent such prohibition
or restriction would not be rendered ineffective pursuant to applicable anti-assignment provisions of the UCC of any relevant jurisdiction,
the PPSA or other similar applicable law; and
(12) any
asset or property (including Capital Stock) the grant or perfection of a security interest in which would result in material adverse
tax or regulatory consequences to any Loan Party or any of its subsidiaries as determined by the Borrower in good faith in writing (which
may be via email) following consultation with the Administrative Agents; provided that this clause (12), as related to
material adverse tax consequences, shall not apply to any asset or property that is owned by the Borrower or any of its Subsidiaries
on the Closing Date and that is not an Excluded Asset on the Closing Date (determined without regard to this clause (12));
provided
that for so long as any series of notes set forth on Schedule 6.02 shall remain outstanding, “Excluded Assets”
shall not include any asset subject to a Lien securing such notes (for the avoidance of doubt, after giving effect to the exclusion of
any asset from such Lien (or the Borrower’s (or its Subsidiary’s) entitlement to require the release of such Lien) by reference
to the terms of this Agreement).
“Excluded
Proceeds” has the meaning assigned to such term in Section 2.11(b)(ii).
“Excluded
Security” shall mean (i) any Capital Stock or other security representing voting Capital Stock in any Specified Foreign Subsidiary
or Disregarded U.S. Subsidiary, other than 65% of the issued and outstanding voting Capital Stock of such Specified Foreign Subsidiary
or Disregarded U.S. Subsidiary (as applicable), (ii) any interest in a joint venture or non-wholly owned Subsidiary to the extent and
for so long as the attachment of the security interest created hereby therein would violate any joint venture agreement, organization
document, shareholders agreement or equivalent agreement relating to such joint venture or non-wholly owned Subsidiary; provided that
Capital Stock in Subsidiaries of the Borrower the minority interest in which is held by management, directors or employees of the Borrower
or its Subsidiaries or consists of rolled-over equity shall not be considered Excluded Securities, (iii) any Capital Stock the pledge
of which in support of the Loan Document Obligations is otherwise prohibited by applicable law, (iv) any Capital Stock in the entities
listed on a schedule to the Security Agreement solely to the extent that the transfer or assignment of such Capital Stock is prohibited
by contractual requirements applicable to the grantor holding such Capital Stock, including the requirements of the organizational documents
of the issuer of such Capital Stock; provided that the Capital Stock in any such
entity shall no longer
constitute an Excluded Security for purposes of the indenture if at any time the prohibitions on transfer or assignment of such Capital
Stock are no longer applicable to such Person, (v) the Capital Stock of any Captive Insurance Subsidiary, Unrestricted Subsidiary, broker-dealer
subsidiary, not-for-profit subsidiary or special purpose entity used for any permitted securitization facility, (vi) any Margin Stock,
(vii) any Capital Stock issued by any Foreign Subsidiary (other than any Subsidiary incorporated or organized under the laws of the Canada,
any province or territory thereof, Ireland or the Netherlands) and (viii) any Capital Stock that would otherwise be an Excluded Asset.
“Excluded
Subsidiary” means:
(a) any
Restricted Subsidiary that is not a Wholly-Owned Subsidiary,
(b) any
Immaterial Subsidiary,
(c) any
Restricted Subsidiary that is prohibited or restricted by law, rule or regulation or contractual obligation existing on the Closing Date
or at the time such Restricted Subsidiary becomes a Subsidiary (in the case of contractual obligations not existing on the Closing Date,
pursuant to a contractual obligation not entered into expressly in contemplation of such Restricted Subsidiary becoming a Subsidiary)
from providing a Loan Guarantee or that would require a governmental (including regulatory) or third party consent, approval, license
or authorization (in the case of contractual obligations, pursuant to a contractual obligation existing on the Closing Date or at the
time such Restricted Subsidiary becomes a Subsidiary and not entered into expressly in contemplation of such Restricted Subsidiary becoming
a Subsidiary) to provide a Loan Guarantee (including under any financial assistance, corporate benefit, thin capitalization, capital
maintenance, liquidity maintenance or similar legal principles) unless such consent has been received, it being understood that the Borrower
and its subsidiaries shall have no obligation to obtain any such consent, approval, license or authorization,
(d) any
not-for-profit subsidiary,
(e) any
Captive Insurance Subsidiary or any subsidiary that is a broker-dealer,
(f) any
special purpose entity (including a special purpose entity used for any permitted securitization or receivables facility or financing),
(g) any
Foreign Subsidiary (excluding any Subsidiary incorporated or organized under the laws of the Canada, any province or territory thereof,
Ireland or the Netherlands),
(h) any
Specified Foreign Subsidiary (including, for the avoidance of doubt, any Specified Foreign Subsidiary incorporated or organized under
the laws of the Canada, any province or territory thereof, Ireland or the Netherlands),
(i) (i)
any Disregarded U.S. Subsidiary and (ii) any Subsidiary that is a subsidiary of any Specified Foreign Subsidiary,
(j) any
Unrestricted Subsidiary,
(k) any
subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted by this Agreement that has assumed secured Indebtedness
not incurred in contemplation of such Permitted Acquisition or other Investment and any Restricted Subsidiary
thereof
that guarantees such secured Indebtedness, in each case to the extent the terms of such secured Indebtedness prohibit such subsidiary
from becoming a Guarantor,
(l)
any Restricted Subsidiary if the provision of a Loan Guarantee could reasonably be expected
to result in materially adverse tax or regulatory consequences to any Loan Party or any of its subsidiaries as determined by the Borrower
in good faith following consultation with the Administrative Agents, provided that this clause (k) shall not apply to any Restricted
Subsidiary that is a Subsidiary of the Borrower on the Closing Date and that is not an Excluded Subsidiary on the Closing Date (determined
without regard to this clause (k)), and
(m) any
other Restricted Subsidiary with respect to which, in the good faith judgment of the Administrative Agents and the Borrower, the burden
or cost of providing a Loan Guarantee outweighs the benefits afforded thereby.
“Excluded
Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of
the Loan Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or
any Loan Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity
Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure
for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations
thereunder (determined after giving effect to Section 3.20 of the Loan Guarantee and any other “keepwell”, support
or other agreement for the benefit of such Loan Party) at the time the Loan Guarantee of such Loan Party or the grant of such security
interest becomes effective with respect to such Swap Obligation. If any Swap Obligation arises under a master agreement governing more
than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Loan
Guarantee or security interest is or becomes illegal.
“Excluded
Taxes” means any of the following Taxes imposed on or with respect to any Administrative Agent, any Lender, any Issuing Bank
or required to be withheld or deducted from a payment to any Administrative Agent, any Lender or any Issuing Bank, (a) Taxes imposed
on (or measured by) its net income or, in the case of Canada, capital (however denominated) and franchise Taxes (i) as a result of such
recipient being organized or having its principal office or, in the case of any Lender, having its applicable lending office located
in such jurisdiction (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) any U.S. federal branch profits
Taxes or any similar Taxes imposed by any other jurisdiction described in clause (a) or that are Other Connection Taxes, (c) in
the case of a Lender, U.S. federal withholding Tax that is imposed on amounts payable to such Lender at the time such Lender becomes
a party to this Agreement (or designates a new lending office), except (i) pursuant to an assignment or designation of a new lending
office under Section 2.19 and (ii) to the extent that such Lender (or its assignor, if any) was entitled immediately prior to
the time of designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to such
withholding Tax pursuant to Section 2.17, (d) any Taxes imposed as a result of a failure by such Administrative Agent, Lender
or Issuing Bank to comply with Section 2.17(f), (e) any withholding Taxes imposed under FATCA and (f) any Canadian federal withholding
taxes imposed as a result of a Lender (i) not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with
a Loan Party, (ii) being a “specified shareholder” (within the meaning of Subsection 18(5) of the Income Tax Act (Canada))
of a Loan Party (or the corporate partner or member of a Loan Party that is a partnership), or (iii) not dealing at arm’s length
with such “specified shareholder” of a Loan Party (or the corporate partner or member of a Loan Party that is a partnership)
(other than where the non-arm’s length relationship arises, or where the Lender becomes a “specified shareholder” or
does not deal at arm’s length with such “specified shareholder”, solely as a result of the Lender having realized on
any security granted under any Loan Document).
“Exclusive
License” means any license to develop, commercialize, sell, market and promote any drug or pharmaceutical, surgical, medical
or aesthetic product (the “Licensed Property”) with a term greater than five (5) years (unless terminable prior to
such time without material penalty or premium by the licensor) and which provides for exclusive rights to develop, commercialize, sell,
market and promote such Licensed Property within the United States; provided that an “Exclusive License” shall not
include (a) any license to import, export, distribute or sell any such Licensed Property (as applicable) on an exclusive basis within
any particular geographic region or territory, (b) any licenses, which may be exclusive, to manufacture or package any such Licensed
Property (as applicable), (c) any license to manufacture, use, offer for sale or sell any authorized generic version of such Licensed
Property (as applicable) and (d) any license in connection with any companion diagnostics.
“Exclusive
License Investment Amount” means the aggregate cash paid by the Borrower or its Restricted Subsidiaries on or prior to the
consummation of an Exclusive License (and which, for the avoidance of doubt, shall not include any purchase price adjustment, licensing
payment, royalty, earnout, milestone payment, contingent payment or any other deferred payment).
“Existing
Letter of Credit” means each letter of credit set forth on Schedule 1.01(b).
“Expected
Cost Savings” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Extended
Revolving Credit Commitment” has the meaning assigned to such term in Section 2.23(a).
“Extended
Revolving Loans” has the meaning assigned to such term in Section 2.23(a)(i).
“Extended
Term Loans” has the meaning assigned to such term in Section 2.23(a)(ii).
“Extension”
has the meaning assigned to such term in Section 2.23(a).
“Extension
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Applicable Administrative Agent (to
the extent required by Section 2.23) and the Borrower, executed by each of (a) the Borrower(s), (b) the Applicable Administrative
Agent and (c) each Lender that has accepted the applicable Extension Offer pursuant hereto and in accordance with Section 2.23.
“Extension
Offer” has the meaning assigned to such term in Section 2.23(a).
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect
to Articles 5 and 6, hereof owned, leased, operated or used by the Borrower or any of its Restricted Subsidiaries or any
of their respective predecessors or Affiliates.
“Facility
Fee” has the meaning assigned to such term in Section 2.12(a).
“Failed
Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Fair
Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (i) the ratio of
(A) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (B) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors multiplied by (ii) the aggregate amount paid or distributed on or before such date
by all
Funding Guarantors
under the Loan Guarantee or any other Loan Document in respect of the Guaranteed Obligations.
“Fair
Share Contribution Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate
amount of the obligations of such Contributing Guarantor under the Loan Guarantee that would not render its obligations hereunder or
thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any
comparable applicable provisions of any Requirement of Law; provided that, solely for purposes of calculating the “Fair
Share Contribution Amount” with respect to any Contributing Guarantor for purposes of this Agreement, any assets or liabilities
of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations
of contribution hereunder shall not be considered as assets or liabilities of such Contributing Guarantor.
“FATCA”
means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any
agreement entered into pursuant to Section 1471(b)(1) of the Code as of the date of this Agreement (or any amended or successor version
described above), any intergovernmental agreement, treaty or convention among Governmental Authorities (and any related legislation,
rules or official administrative practice) implementing the foregoing.
“Federal
Assignment of Claims Act” means the Federal Assignment of Claims Act (41 U.S.C. § 15).
“Federal
Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s
federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set
forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York
as the federal funds effective rate; provided, that if the Federal Funds Effective Rate for any day is less than zero, the Federal
Funds Rate for such day will be deemed to be zero.
“Fee
Letter” means each Agency Fee Letter, dated as of May 10, 2022, by and among, inter alios, the Borrower and each Administrative
Agent.
“Finance
Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP (but subject to Section 1.04(c)), is or should be accounted for as a finance lease on the balance
sheet of that Person; provided, that for the avoidance of doubt, the amount of obligations attributable to any Finance Lease shall
be the amount thereof accounted for as a liability on such balance sheet (excluding the footnotes thereto) in accordance with GAAP; provided,
further, that the amount of obligations attributable to any Finance Lease shall exclude any capitalized operating lease liabilities
resulting from the adoption of ASC 842, Leases.
“Financial
Covenant” means, prior to the Investment Grade Trigger Date, the covenantcovenants
in Section 6.15 and, on and after the Investment Grade Trigger Date, the covenants in Section 6.21.
“Financial
Covenant Standstill” has the meaning assigned to such term in Section 8.01(c).
“First
Incremental Amendment” means that First Incremental Amendment, dated as of the First Incremental Amendment Date, among the
Borrower, the other Loan Parties party thereto, the Lenders
party thereto and
the, the Incremental Term Facilities Administrative Agent
and the Term Facility Administrative Agent.
“First
Incremental Amendment Date” means September 29, 2023.
“First
Incremental Arrangers” means JPM, Goldman Sachs, Citigroup Global Markets Inc. and Barclays Bank PLC, each in their capacity
as a joint lead arranger and bookrunner for the First Incremental Term Loans, and Wells Fargo Securities LLC, DNB Markets, Inc., HSBC
Securities (USA) Inc., Deutsche Bank Securities Inc. and Truist Securities, Inc., each in their capacity as a co-manager for the First
Incremental Term Loans.
“First
Incremental Fee Letter” means the Amended and Restated Takeout Agent Fee Letter, dated as of July 24, 2023, by and between
the Borrower and the First Incremental Term FacilityFacilities
Administrative Agent.
“First
Incremental Loan Installment Date” has the meaning assigned to such term in Section 2.10(a)(ii).
“First
Incremental Term Facility Administrative Agent”
has the meaning assigned to such term in the preamble to this Credit and Guaranty Agreement.
“First
Incremental Term Lender” means any Person with a commitment to make First Incremental Term Loans or an outstanding First Incremental
Term Loan.
“First
Incremental Term Loan Maturity Date” means the date that is five years after the First Incremental Amendment Date.
“First
Incremental Term Loan Soft Call Termination Date” has the meaning assigned to such term in Section 2.12(f)(ii).
“First
Incremental Term Loans” means the Term Loans funded pursuant to the First Incremental Amendment on the First Incremental Amendment
Date, the proceeds of which shall be used to consummate the First Incremental Transactions, to pay fees and expenses in connection with
the foregoing and for general corporate purposes or other actions or purposes permitted hereunder.
“First
Incremental Transactions” means the entering into of the First Incremental Amendment, the incurrence of the First Incremental
Term Loans, the consummation of the Acquisition, and the payment of all fees, expenses and other costs incurred in connection with the
foregoing.
“First
Lien Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“First Lien Leverage Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries.
“First
Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that,
subject to any Acceptable Intercreditor Agreement, such Lien is senior in priority to any other Lien to which such Collateral is subject,
other than any Permitted Lien.
“Fiscal
Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal
Year” means the fiscal year of the Borrower ending December 31 of each calendar year, as such fiscal year end may be adjusted
in accordance with the terms of this Agreement.
“Fitch”
means Fitch Ratings, Inc., or any successor to its rating agency business.
“Fixed
Amount” has the meaning assigned to such term in Section 1.04(g).
“Flood
Hazard Property” means any Material Real Estate Asset subject to a Mortgage if any building included in such Material Real
Estate Asset is located in an area designated by the Federal Emergency Management Agency as having special flood hazards.
“Flood
Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of
1973, (iii) the National Flood Insurance Reform Act of 1994, (iv) the Flood Insurance Reform Act of 2004 and (v) the Biggert-Waters Flood
Insurance Reform Act of 2012, each as now or hereafter in effect or any successor statute thereto, and in each case, together with all
statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing,
as amended or modified from time to time.
“Foreign
Subsidiary” means any Restricted Subsidiary that is not a U.S. Subsidiary.
“Funding
Account” has the meaning assigned to such term in Section 2.03(h).
“Funding
Guarantor” has the meaning assigned to such term in Section 7.02(a).
“GAAP”
means generally accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference
to GAAP is made.
“Governmental
Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the U.S.,
Canada, a province or territory of Canada, a foreign government or any political subdivision of either thereof.
“Governmental
Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental
Authority.
“Granting
Lender” has the meaning assigned to such term in Section 10.05(e).
“Guarantee”
of or by any Person (solely for purposes of this definition, the “Guarantor”) means any obligation, contingent or
otherwise, of the Guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation
of any other Person (the “Primary Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or
to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or liquidity of the Primary Obligor so as to enable the Primary
Obligor to pay such Indebtedness or other monetary obligation, (d) as an account party in respect of any letter of credit or letter of
guarantee issued to support such Indebtedness or monetary obligation, (e) entered into for the purpose of assuring in any other manner
the obligee in respect of such
Indebtedness or other
monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in
part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any other
Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or otherwise,
of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this
Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith.
“Guaranteed
Obligations” has the meaning assigned to such term in Section 7.01.
“Guarantor”
means (i) the Borrower (other than with respect to its own Obligations) and (ii) each Subsidiary Guarantor from time to time.
“Hazardous
Materials” means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated
by any Environmental Law due to its hazardous, toxic or similar characteristics, including any chemical, material, substance or waste
defined or listed as “hazardous” or “toxic” in any Environmental Law.
“Hazardous
Materials Activity” means the use, manufacture, storage, Release, threatened Release, discharge, generation, transportation,
processing, treatment, abatement, removal, investigation, remediation, disposal, disposition or handling of any Hazardous Material, and
any corrective action or response action with respect to any of the foregoing.
“Hedge
Agreement” means any agreement with respect to any Derivative Transaction between any Loan Party or any Restricted Subsidiary
and any other Person.
“Hedging
Obligations” means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“IFRS”
means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject
to the provisions of Section 1.04), to the extent applicable to the relevant financial statements.
“Immaterial
Subsidiary” means, as of any date, any Restricted Subsidiary of the Borrower (1) that does not have assets, when taken together
with each other Immaterial Subsidiary, in excess of 15% of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries
and (2) that does not contribute Consolidated Adjusted EBITDA, when taken together with the Consolidated Adjusted EBITDA contributed
by each other Immaterial Subsidiary, in excess of 15% of the Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries,
in each case, as of the last day of the most recently ended Test Period; provided that Immaterial Subsidiaries organized under
the laws of Canada or the United States shall not (A) have assets, in the aggregate, in excess of 5% of Consolidated Total Assets of
the Borrower and its Restricted Subsidiaries or (B) contribute Consolidated Adjusted EBITDA, in the aggregate, in excess of 5% of Consolidated
Adjusted EBITDA of the Borrower and its Restricted Subsidiaries; provided further, that at all times prior to the first delivery
of financial statements pursuant to Section 5.01(a) or (b), this definition shall be applied based on the equivalent pro
forma consolidated
financial statements
of the Borrower delivered pursuant to Section 4.01. For the avoidance of doubt, the Borrower may elect for a Restricted Subsidiary
that is an Immaterial Subsidiary to provide a Loan Guarantee, but not pledge any Collateral that would otherwise be required, in which
case such Immaterial Subsidiary shall continue to be counted as such for purposes of determinations hereunder. The Restricted Subsidiaries
on Schedule 1.01(e) are designated Immaterial Subsidiaries as of the Closing Date.
“Incremental
Cap” means:
(a) the
Shared Incremental Amount, plus
(b) in
the case of any Incremental Facility or Incremental Equivalent Debt that effectively extends the Maturity Date with respect to any Class
of Loans and/or commitments hereunder, an amount equal to the portion of the relevant Class of Loans or commitments that will be replaced
by such Incremental Facility or Incremental Equivalent Debt, plus
(c) in
the case of any Incremental Facility or Incremental Equivalent Debt that effectively replaces any Revolving Credit Commitment or Term
Loan terminated in accordance with Section 2.19 hereof, an amount equal to the relevant terminated Revolving Credit Commitment
or Term Loan, plus
(d) (i)
the amount of any optional prepayment of any Loan (including any Incremental Loan) in accordance with Section 2.11(a) and/or the
amount of any permanent reduction of any Revolving Credit Commitment, (ii) the amount of any optional prepayment, redemption, repurchase
or retirement of Incremental Equivalent Debt incurred pursuant to the Shared Incremental Amount, (iii) the amount of any optional prepayment,
redemption, repurchase or retirement of any Replacement Term Loans or Loans under any Replacement Revolving Facility (to the extent accompanied
by a permanent reduction in commitments) or any borrowing or issuance of Replacement Debt previously applied to the permanent prepayment
of any Loan hereunder or of any Incremental Equivalent Debt, (iv) the aggregate amount of any Indebtedness referred to in clauses (i)
through (iii) repaid or retired resulting from any assignment of such Indebtedness to (and/or assignment and/or purchase of such Indebtedness
by) the Borrower and/or any Restricted Subsidiary; provided that for each of clauses (i) through (iv), the relevant
prepayment, redemption, repurchase, retirement, assignment and/or purchase was not funded with the proceeds of any long-term Indebtedness
(other than revolving Indebtedness), plus
(e) an
unlimited amount so long as, in the case of this clause (e), on a Pro Forma Basis after giving effect to the incurrence of the
Incremental Facility or the Incremental Equivalent Debt, as applicable, and the application of the proceeds thereof (without netting
the cash proceeds thereof, but giving effect to any related Subject Transaction) and to any relevant Subject Transaction (and, in the
case of any Incremental Revolving Facility or Incremental Equivalent Debt in the form of revolving loans or a revolving facility then
being established, assuming a full drawing thereunder), (i) if such Indebtedness is secured by a Lien on any asset or property of the
Borrower or any Restricted Subsidiary, the Secured Leverage Ratio does not exceed 3.25:1.00 and (ii) if such Indebtedness is unsecured,
at the election of the Borrower, either (A) the Total Leverage Ratio does not exceed 4.25:1.00 or (B) the Interest Coverage Ratio is
not less than 2.00:1.00;
provided
that:
(1)
any Incremental Facility and/or Incremental Equivalent Debt may be incurred under one or more
of clauses (a) through (e) of this definition as selected by the Borrower in its
sole discretion
(provided that, in the case of clause (e), an Incremental Facility may be incurred only under clause (i) thereof),
(2)
if any Incremental Facility or Incremental Equivalent Debt is intended to be incurred or implemented
under clause (e) of this definition and any other clause of this definition in a single transaction or series of related transactions,
(A) the incurrence of the portion of such Incremental Facility or Incremental Equivalent Debt to be incurred or implemented under clause
(e) of this definition shall be calculated first without giving effect to any Incremental Facilities or Incremental Equivalent Debt to
be incurred or implemented under any other clause of this definition, but giving full pro forma effect to the use of proceeds of the
entire amount of such Incremental Facility or Incremental Equivalent Debt and the related transactions and (B) the incurrence of the
portion of such Incremental Facility or Incremental Equivalent Debt to be incurred or implemented under the other applicable clauses
of this definition shall be calculated thereafter,
(3)
any portion of any Incremental Facility or Incremental Equivalent Debt that is incurred or
implemented under clauses (a) through (d) of this definition, unless otherwise elected by the Borrower, shall automatically and without
need for action by any Person, be reclassified as having been incurred under clause (e) of this definition if, at any time after the
incurrence or implementation thereof, when financial statements required pursuant to Section 5.01(a) or (b) are delivered
or, at the Borrower’s election, become internally available, such portion of such Incremental Facility or Incremental Equivalent
Debt would, using the figures reflected in such financial statements, be (or have been) permitted under the First Lien Leverage Ratio,
Secured Leverage Ratio, Total Leverage Ratio or Interest Coverage Ratio test, as applicable, set forth in clause (e) of this definition,
and
(4) in
the case of any Incremental Equivalent Debt in the form of revolving loans or a revolving facility, if a full drawing thereunder is permitted
at the time the commitments in respect thereof are established (as determined in accordance with Section
1.04(e) and, if applicable, clause (e) above), then the obligors thereunder may thereafter borrow, repay, prepay and reborrow
amounts thereunder, in whole or in part, from time to time, without further compliance with the provisions of this definition.
“Incremental
Commitment” means any commitment made by a lender to provide all or any portion of any Incremental Facility or Incremental
Loans.
“Incremental
Equivalent Debt” means any Indebtedness that satisfies the following conditions:
(a)
the aggregate outstanding principal amount thereof does not exceed the Incremental Cap as in effect at the time of determination
(after giving effect to any reclassification on or prior to such date of determination),
(b)
(A) unless such Indebtedness is in the form of revolving loans or a revolving facility, the Weighted Average Life to Maturity
of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans or,
the First Incremental Term Loans or the Second Incremental
Term Loans and the final maturity date of such Indebtedness is no earlier than the Initial Term Loan Maturity Date or,
the First Incremental Term Loan Maturity Date or the Second Incremental
Term Loan Maturity Date and (B) if such Indebtedness is in the form of revolving loans or a revolving facility, such Indebtedness
shall mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit Maturity
Date, in each case as determined on the date of issuance or incurrence, as applicable, thereof; provided, that the foregoing limitations
shall not apply to (i)
customary bridge loans
with a maturity date not longer than one year; provided, that any loans, notes, securities or other Indebtedness (other than revolving
loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (b),
(ii) 364-day bridge loans and (iii) Customary Term A Loans,
(c)
subject to clause (b), such Indebtedness may otherwise have an amortization schedule as determined by the Borrower and
the lenders providing such Indebtedness,
(d)
if such Indebtedness is secured by assets that constitute Collateral, the holders of such Indebtedness (or a representative therefor)
shall be party to an Acceptable Intercreditor Agreement,
(e)
such Indebtedness may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment
of Term Loans made pursuant to Section 2.11(a) and (B) to the extent secured on a pari passu basis with the Initial Term Loans,
on a pro rata basis (but not on a greater than pro rata basis other than in the case of a prepayment with proceeds of Indebtedness refinancing
such Incremental Equivalent Debt) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b) or less than
a pro rata basis with the then-outstanding Term Facility, and
(f)
if any financial maintenance covenant is added to any such Indebtedness and such financial maintenance covenant is more favorable
to the lenders under such Indebtedness than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable
after the Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable financial
maintenance covenant (together with, at the election of the Borrower, any applicable “equity cure” (or equivalent) provisions
with respect thereto).
“Incremental
Facilities” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Facility Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Applicable Administrative Agent
(solely for purposes of giving effect to Section 2.22) and the Borrower executed by each of (a) the Borrower, (b) the Applicable
Administrative Agent and (c) each Lender that agrees to provide all or any portion of the Incremental Facility being incurred pursuant
thereto and in accordance with Section 2.22.
“Incremental
Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Revolving Facility” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Revolving Facility Lender” means, with respect to any Incremental Revolving Facility, each Revolving Lender providing any portion
of such Incremental Revolving Facility.
“Incremental
Revolving Loans” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Term Facilities Administrative Agent”
has the meaning assigned to such term in the preamble to this Credit and Guaranty Agreement.
“Incremental
Term Facility” has the meaning assigned to such term in Section 2.22(a).
“Incremental
Term Loans” has the meaning assigned to such term in Section 2.22(a).
“Incurrence-Based
Amounts” has the meaning assigned to such term in Section 1.04(g).
“Indebtedness”
as applied to any Person means, without duplication, (a) all indebtedness of such Person for borrowed money; (b) that portion of obligations
with respect to Finance Leases of such Person to the extent recorded as a liability on a balance sheet (excluding the footnotes thereto)
of such Person prepared in accordance with GAAP; (c) all obligations of such Person evidenced by bonds, debentures, notes or similar
instruments to the extent the same would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared
in accordance with GAAP; (d) any obligation of such Person owed for all or any part of the deferred purchase price of property or services
(excluding (w) any earn out obligation, purchase price adjustment or other similar obligation until such obligation (A) becomes a liability
on the balance sheet of such Person (excluding the footnotes thereto) in accordance with GAAP and (B) has not been paid within 60 days
after becoming due and payable following expiration of any dispute resolution mechanics set forth in the applicable agreement governing
the applicable transaction, (x) any such obligations incurred under ERISA or under any employee consulting agreements, (y) accrued expenses,
trade accounts payable, accruals for payroll and other liabilities accrued in the ordinary course of business (including on an intercompany
basis) and (z) liabilities associated with customer prepayments and deposits), which purchase price is (i) due more than twelve months
from the date of incurrence of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument; (e) all Indebtedness
(excluding prepaid interest thereon) of others secured by any Lien on any property or asset owned or held by such Person regardless of
whether the Indebtedness secured thereby has been assumed by such Person or is non-recourse to the credit of such Person; (f) the face
amount of any letter of credit issued for the account of such Person or as to which such Person is otherwise liable for reimbursement
of drawings; (g) the Guarantee by such Person of the Indebtedness of another; (h) all obligations of such Person in respect of any Disqualified
Capital Stock; and (i) all net obligations of such Person in respect of any Derivative Transaction, including any Hedge Agreement, whether
or not entered into for hedging or speculative purposes; provided that (i) in no event shall obligations under or in respect of
any Derivative Transaction or Non-Finance Lease Obligation be deemed “Indebtedness” for any calculation of the Consolidated
Leverage Ratio, Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio or any other
financial ratio under this Agreement and (ii) the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed
to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness (or such lower amount of maximum liability as is expressly
provided for under the documentation pursuant to which the respective Lien is granted) and (B) the fair market value of the property
encumbered thereby as determined by such Person in good faith.
For
all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or any Joint Venture (other than
any Joint Venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer
to the extent such Person would be liable therefor under applicable Requirements of Law or any agreement or instrument by virtue of such
Person’s ownership interest in such partnership or Joint Venture, except to the extent such Person’s liability for such Indebtedness
is otherwise limited and only to the extent such Indebtedness would otherwise be included in the calculation of Consolidated Total Debt;
provided that notwithstanding anything herein to the contrary, the term “Indebtedness” shall not include, and shall
be calculated without giving effect to, (x) the effects of Accounting Standards Codification Topic 815 and related interpretations to
the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting
for any embedded derivatives created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted
Indebtedness hereunder but for the application of this proviso shall not be deemed an incurrence of Indebtedness hereunder) and (y) the
effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise
increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivative created
by the terms of such Indebtedness (it being understood that any such amounts that would have constituted Indebtedness
hereunder but for
the application of this proviso shall not be deemed to be an incurrence of Indebtedness hereunder).
“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation
of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee”
has the meaning assigned to such term in Section 10.03(b).
“Information”
has the meaning assigned to such term in Section 3.11.
“Initial
Lenders” means the Arrangers and the affiliates of the Arrangers who are party to this Agreement as Lenders on the Closing
Date.
“Initial
Loan Installment Date” has the meaning assigned to such term in Section 2.10(a)(i).
“Initial
Revolving Credit Commitment” means, with respect to each Initial Revolving Lender, the commitment of such Lender to make Initial
Revolving Loans (and acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on the Commitment Schedule,
or in the Assignment Agreement pursuant to which such Lender assumed its Initial Revolving Credit Commitment, as applicable, as the same
may be (a) reduced from time to time pursuant to Section 2.09 or 2.19, (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.05 or (c) increased pursuant to Section 2.22. The aggregate
amount of the Initial Revolving Credit Commitments as of the Closing Date is $500,000,000.
“Initial
Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of
all Initial Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure and Swingline
Exposure, in each case, attributable to its Initial Revolving Credit Commitment.
“Initial
Revolving Credit Maturity Date” means the date that is five years after the Closing Date.
“Initial
Revolving Facility” means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of
credit thereunder.
“Initial
Revolving Lender” means any Lender with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.
“Initial
Revolving Loan” means any revolving loan made by the Initial Revolving Lenders to the Borrower pursuant to Section 2.01(a)(ii).
“Initial
Term Lender” means any Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial
Term Loan Commitment” means, with respect to each Term Lender, the commitment of such Term Lender to make Initial Term Loans
hereunder in an aggregate amount not to exceed the amount set forth opposite such Term Lender’s name on the Commitment Schedule,
as the same may be (a) reduced from time to time pursuant to Section 2.09 or Section 2.19 and (b) reduced or increased
from time to time pursuant to (x) assignments by or to such Term Lender pursuant to Section 10.05 or (y) an
Additional Term Loan
Commitment. The aggregate amount of the Term Lenders’ Initial Term Loan Commitments on the Closing Date is $2,500,000,000.
“Initial
Term Loan Maturity Date” means the date that is five years after the Closing Date.
“Initial
Term Loans” means the term loans made by the Initial Term Lenders to the Borrower pursuant to Section 2.01(a)(i).
“Initial
Term Loan Soft Call Termination Date” has the meaning assigned to such term in Section 2.12(f)(i).
“Intellectual
Property Security Agreement” means any agreement executed on or after the Closing Date confirming or effecting the grant of
any Lien on IP Rights owned by any Loan Party to the Collateral Agent, for the benefit of the Secured Parties, in accordance with this
Agreement, including any of the following: (a) a Trademark Security Agreement substantially in the form of Exhibit H-1 hereto,
(b) a Patent Security Agreement substantially in the form of Exhibit H-2 hereto or (c) a Copyright Security Agreement substantially
in the form of Exhibit H-3 hereto.
“Intercompany
Note” means a promissory note substantially in the form of Exhibit F or any other form approved by the Collateral Agent and
the Borrower.
“Interest
Coverage Ratio” means, as of any date of determination, the ratio for the most recently ended Test Period of (a) Consolidated
Adjusted EBITDA for such Test Period to (b) Ratio Interest Expense for such Test Period.
“Interest
Election Request” means a request by the Borrower in the form of Exhibit D hereto or another form reasonably acceptable
to the Applicable Administrative Agent to convert or continue a Borrowing in accordance with Section 2.08.
“Interest
Payment Date” means (a) with respect to any ABR Loan or Canadian Prime Rate Loan, the last Business Day of each March, June,
September and December (commencing with September 30, 2022) or the maturity date applicable to such Loan, (b) with respect to any Eurocurrency
Rate Loan or BA Rate Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurocurrency Rate Borrowing or BA Rate Borrowing with an Interest Period of more than three months’ duration, each day that
would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing
and the maturity date applicable to such Loan and (c) with respect to any Alternative Currency Daily Rate Loan, the last Business Day
of each month and the maturity date applicable to such Loan.
“Interest
Period” means with respect to any Eurocurrency Rate Borrowing or BA Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or (other than with respect to BA
Rate Borrowings) six months thereafter, as the Borrower may elect; provided that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business
Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such Borrowing.
“Interpolated
Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the
EURIBO Screen Rate) determined by the Revolving Facility Administrative Agent (which determination shall be conclusive and binding absent
manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the EURIBO Screen Rate (for
the longest period for which the EURIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the EURIBO
Screen Rate for the shortest period (for which the EURIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each
case, at such time.
“Investment”
means (a) any purchase or other acquisition by the Borrower or any of its Restricted Subsidiaries of any of the Securities of any other
Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition of inventory,
materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or
fixed assets of any other Person or any division, line of business, business unit or Product Line of any Person, (c) any loan, advance
(other than any advance to any current or former employee, officer, director, member of management, manager, consultant or independent
contractor of the Borrower or any Restricted Subsidiary for moving, entertainment and travel expenses, drawing accounts and similar expenditures
or payroll expenses or advances in the ordinary course of business) or capital contribution by the Borrower or any of its Restricted
Subsidiaries to any other Person and (d) any Exclusive License of a Product Line of a Person (other than the Borrower or any Restricted
Subsidiary) by the Borrower or any of its Restricted Subsidiaries from such Person. Subject to Section 5.10, the amount of any
Investment shall be the original cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment,
without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving
effect to any repayments of principal in the case of any Investment in the form of a loan and any return of capital (including any distributions
in connection with reduction or redemption of capital) or return on Investment in the case of any equity Investment (whether as a distribution,
dividend, redemption or sale). The original cost of an Exclusive License shall be the Exclusive License Investment Amount.
“Investment
Grade Trigger Date” means, automatically, the first day on which (i) the Borrower’s senior unsecured non-credit-enhanced
long term Indebtedness for borrowed money receives an investment grade rating from at least two of S&P, Moody’s and Fitch,
(ii) the Initial Term Loans and,
the First Incremental Term Loans and the Second Incremental
Term Loans have been repaid in full in cash and (iii) no Event of Default has occurred and is then continuing. The Borrower shall provide
the Revolving Facility Administrative Agent written notice of the occurrence of the Investment Grade Trigger Date.
“IP
Rights” has the meaning assigned to such term in Section 3.05(c).
“ISDA
CDS Definitions” has the meaning assigned to such term in Section 10.02(e).
“Issuing
Bank” means, as the context may require, (a) each of the Revolving Lenders with a Letter of Credit Commitment listed on Schedule
1.01(a)(ii) and (b) any other Revolving Lender that is appointed as an Issuing Bank in accordance with Section 2.05(i). Subject
to the reasonable consent of the Borrower (subject to the standards set forth in Section 10.05(b)), each Issuing Bank may, in
its discretion, arrange for one or more Letters of Credit to be issued by any Affiliate of such Issuing Bank, in which case the term
“Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“Joint
Venture” means, with respect to any Person, any other Person in which such Person owns Capital Stock (other than any Wholly-Owned
Subsidiary), and including, for the avoidance of doubt, any other Person in which such Person owns an interest in less than 100% of the
Capital Stock thereof. Unless
otherwise specified,
“Joint Venture” shall refer to any Person in which the Borrower or any Restricted Subsidiary owns Capital Stock (other than
any Wholly-Owned Subsidiary).
“Judgment
Conversion Date” has the meaning assigned to such term in Section 10.20(a).
“Judgment
Currency” has the meaning assigned to such term in Section 10.20(a).
“Junior
Indebtedness” means any Indebtedness for borrowed money of the Borrower or any of its Restricted Subsidiaries that is a Loan
Party (other than Indebtedness among the Borrower and/or its subsidiaries) that is expressly subordinated in right of payment to the
Loan Document Obligations.
“Latest
Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment
hereunder at such time.
“Latest
Revolving Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to
any revolving loan or revolving credit commitment hereunder at such time.
“Latest
Term Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any term
loan or term commitment hereunder at such time.
“LC
Collateral Account” has the meaning assigned to such term in Section 2.05(j)(i).
“LC
Disbursement” means a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“LC
Exposure” means, at any time, the Dollar Equivalent (if applicable) of the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit at such time and (b) the aggregate principal amount of all LC Disbursements that have not yet been reimbursed at such
time. The LC Exposure of any Revolving Lender at any time shall equal its Applicable Percentage of the aggregate LC Exposure at such
time.
“Legal
Reservations” means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good
faith and fair dealing.
“Lenders”
means the Term Lenders, the Revolving Lenders, any lender with an Additional Commitment or an outstanding Additional Loan and any other
Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to be a party hereto pursuant
to an Assignment Agreement or as a result of the application of Section 10.05(g).
“Letter
of Credit” means any Standby Letter of Credit or Commercial Letter of Credit issued pursuant to this Agreement (and shall be
deemed to include all Existing Letters of Credit).
“Letter
of Credit Commitment” means (i) with respect to any Issuing Bank listed on Schedule 1.01(a)(ii), the amount set forth
opposite such Issuing Bank’s name on such Schedule and (ii) with respect to any other Issuing Bank, the amount specified to be
such Issuing Bank’s “Letter of Credit Commitment” at the time such Issuing Bank becomes an Issuing Bank (as contemplated
by Section 2.05(i) all as separately increased pursuant to any written agreement between such Issuing Bank and the Borrower and
notified to the Revolving Facility Administrative Agent) in each case, as the same may be reduced from time to time pursuant to the terms
of this Agreement; provided that with the consent of the Borrower and the Revolving Facility Administrative Agent not to be unreasonably
withheld or delayed, any Issuing
Bank may assign in
whole or part a portion of its Letter of Credit Commitment to any other Revolving Lender who consents to such assignment.
“Letter-of-Credit
Right” has the meaning set forth in Article 9 of the UCC.
“Letter
of Credit Sublimit” means the aggregate amount of Letter of Credit Commitments, as adjusted from time to time in accordance
with Section 2.05(i), Section 2.10(c) or Section 2.22 hereof.
“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other
title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Finance Lease having substantially
the same economic effect as any of the foregoing), in each case, in the nature of security; provided that in no event shall an
operating lease in and of itself be deemed to constitute a Lien.
“Loan
Document Obligations” means all unpaid principal of and accrued and unpaid interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities and all other advances
to, debts, liabilities and obligations of the Loan Parties to the Lenders or to any Lender, any Administrative Agent, any Issuing Bank
or any indemnified party arising under the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter arising, including any Erroneous
Payment Subrogation Rights acquired by any Administrative Agent pursuant to Section 10.26 (it being understood and agreed that such Erroneous
Payment Subrogation Rights shall not be duplicative of or increase the Loan Document Obligations).
“Loan
Documents” means this Agreement, any Promissory Note, the Collateral Documents, any Acceptable Intercreditor Agreement and
any other document or instrument designated by the Borrower and any Applicable Administrative Agent as a “Loan Document”,
including any Incremental Facility Amendment (including the First Incremental Amendment and
Second Incremental Amendment), Refinancing Amendment or Extension Amendment or any other amendment hereto or thereto. Any reference
in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto.
“Loan
Guarantee” means the guarantee set forth in Article 7 hereof including pursuant to any Counterpart Agreement.
“Loan
Installment Date” has the meaning assigned to such term in Section 2.10(a).
“Loan
Parties” means the Borrower and each Subsidiary Guarantor.
“Loans”
means any Initial Term Loan, any Additional Term Loan, any Revolving Loan, any Swingline Loan and/or any Additional Revolving Loan.
“Margin
Stock” has the meaning assigned to such term in Regulation U.
“Market
Intercreditor Agreement” means an intercreditor or subordination agreement or arrangement (which may take the form of a “waterfall”
or similar provision) the terms of which are either (a) consistent with market terms governing intercreditor arrangements for the sharing
or subordination of
liens or arrangements
relating to the distribution of payments, as applicable, at the time the applicable agreement or arrangement is proposed to be established
in light of the type of Indebtedness subject thereto or (b) in the event a “Market Intercreditor Agreement” has been entered
into after the Closing Date meeting the requirement of preceding clause (a), the terms of which are, taken as a whole, not materially
less favorable to the Lenders, the Administrative Agents and the Issuing Banks than the terms of such Market Intercreditor Agreement
to the extent such agreement governs similar priorities, in each case of clause (a) or (b) as determined by the Borrower in good faith.
“Master
Separation Agreement” means that certain Master Separation Agreement (together with all schedules, exhibits and annexes thereto
(including as such may be executed or effected)) entered into between the Parent and the Borrower and any other Persons party thereto
(including as it may be amended from to time), in form and substance reasonably satisfactory to the Goldman Sachs and MSSF, in their
respective capacities as Arrangers (it being acknowledged and agreed that the drafts thereof most recently delivered to such Arrangers
prior to the date hereof, along with any modifications and supplements that are not materially adverse to the Lenders solely in their
capacities as such are reasonably satisfactory to such Arrangers).
“Material
Acquisition” means any Permitted Acquisition or other similar Investment (including any Investment in a Similar Business and
including any transaction in the form of a business combination) the aggregate consideration for which exceeds $750,000,000.
“Material
Adverse Effect” means a material adverse effect on (a) the business, financial condition or results of operations, in each
case, of the Borrower and its Restricted Subsidiaries, taken as a whole or (b) the material rights and remedies (taken as a whole) of
the Term Facility Administrative Agent, the First Incremental Term FacilityFacilities
Administrative Agent or the Revolving Facility Administrative Agent, as applicable, and the applicable Lenders under the applicable
Loan Documents.
“Material
Debt Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged
and delivered to the Collateral Agent (or its bailee) pursuant to the Collateral Documents.
“Material
Disposition” means any Disposition not prohibited hereunder the aggregate consideration for which exceeds $750,000,000.
“Material
Insurance/Condemnation Proceeds” means Net Insurance/Condemnation Proceeds in excess of $10,000,000 in any single transaction
or series of related transactions.
“Material
Intellectual Property” means any IP Rights (other than customer lists) owned by the Borrower and its Restricted Subsidiaries
that is material to the business of the Borrower and its Restricted Subsidiaries, taken as a whole (as determined by the Borrower in
good faith).
“Material
Real Estate Asset” means any “fee-owned” Real Estate Asset located in the United States or Canada, and the improvements
thereto, that (together with such improvements) has a fair market value (as determined by the Borrower in good faith after taking into
account any liabilities with respect thereto that impact such fair market value or, if not then readily determinable, a book value) in
excess of $50,000,000 (a) as of the Closing Date, with respect to any Real Estate Asset owned by any Loan Party as of the Closing Date,
or (b) as of the date of acquisition thereof, with respect to any Real Estate Asset acquired by any Loan Party after the Closing Date.
“Maturity
Date” means (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date, (b) with respect
to the Initial Term Loans, the Initial Term Loan Maturity Date, (c)
with respect to the
First Incremental Term Loans, the First Incremental Term Loan Maturity Date, (d) with respect to anythe
Second Incremental Term Loans, the Second Incremental Term Loan Maturity Date, (e) with respect to any Replacement Term Loans
or Replacement Revolving Facility, the final maturity date for such Replacement Term Loans or Replacement Revolving Facility, as the
case may be, as set forth in the applicable Refinancing Amendment, (ef)
with respect to any Incremental Facility, the final maturity date set forth in the applicable Incremental Facility Amendment and (fg)
with respect to any Extended Revolving Credit Commitment or Extended Term Loans, the final maturity date set forth in the applicable
Extension Amendment.
“Maximum
Rate” has the meaning assigned to such term in Section 10.19.
“MFN
Provision” has the meaning assigned to such term in Section 2.22(a)(v).
“Milestone
Payments” means payments made under contractual arrangements existing during the period of twelve months ending on the Closing
Date or contractual arrangements arising thereafter, in each case in connection with any Permitted Acquisition or similar Investment
to sellers (or licensors) of the assets or Capital Stock acquired (or licensed) therein based on the achievement of specified revenue,
profit or other performance targets (financial or otherwise).
“Minimum
Extension Condition” has the meaning assigned to such term in Section 2.23(b)(iii).
“Moody’s”
means Moody’s Investors Service, Inc.
“Mortgage”
means any mortgage, debenture, hypothecation, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien
in favor of the Collateral Agent, for the benefit of the Collateral Agent and the relevant Secured Parties, on any Material Real Estate
Asset constituting Collateral.
“Mortgage
Policy” has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“MSSF”
means Morgan Stanley Senior Funding, Inc.
“Multiemployer
Plan” means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA, that
is subject to the provisions of Title IV of ERISA, and in respect of which the Borrower, any of its Restricted Subsidiaries or any ERISA
Affiliate, makes or is obligated to make contributions or with respect to which any of them has any ongoing obligation or liability.
“Narrative
Report” means, with respect to the financial statements with respect to which it is delivered, a management discussion and
narrative report describing the operations of the Borrower and its Restricted Subsidiaries for the applicable Fiscal Quarter or Fiscal
Year and for the period from the beginning of the then current Fiscal Year to the end of the period to which the relevant financial statements
relate.
“Net
Insurance/Condemnation Proceeds” means an amount equal to: (a) any Cash payments or proceeds (including Cash Equivalents) received
by the Borrower or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder
of any assets of the Borrower or any of its Restricted Subsidiaries or (ii) as a result of the taking of any assets of the Borrower or
any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation, expropriation or otherwise, or
pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) in respect of the Loan
Parties or any of their respective subsidiaries,
Affiliates or direct
or indirect equityholders (i) any actual out-of-pocket costs and expenses incurred in connection with the adjustment, settlement or collection
of any claims in respect thereof, (ii) payment of the outstanding principal amount of, premium or penalty, if any, and interest and other
amounts on any Indebtedness (other than the Loans, any Indebtedness secured by a Lien on the Collateral that is pari passu with or expressly
subordinated to the Lien on the Collateral securing the Obligations and any unsecured Indebtedness incurred by a Loan Party) that is
required to be repaid or otherwise comes due or would be in default under the terms thereof as a result of such loss, taking or sale,
(iii) in the case of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position, (iv)
any selling costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, accountants’
fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, deed or mortgage recording
taxes, relocation expenses, currency hedging expenses, other expenses and brokerage, consultant and other customary fees actually incurred
in connection therewith and transfer and similar Taxes and the Borrower’s good faith estimate of income Taxes paid or payable (including
pursuant to Tax sharing arrangements or that are or would be imposed on intercompany distributions of such proceeds)) in connection with
any sale or taking of such assets as described in clause (a) of this definition, (v) any amounts provided as a reserve in accordance
with GAAP against any liabilities under any indemnification obligation or purchase price adjustments associated with any sale or taking
of such assets as referred to in clause (a) of this definition (provided that to the extent and at the time any such amounts
are released from such reserve, other than to make a payment for which such amount was reserved, such amounts shall constitute Net Insurance/Condemnation
Proceeds) and (vi) in the case of any covered loss or taking from any non-Wholly-Owned Subsidiary, the pro rata portion thereof (calculated
without regard to this clause (vi)) attributable to minority interests and not available for distribution to or for the account
of the Borrower or a Wholly-Owned Subsidiary as a result thereof.
“Net
Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds (including Cash
Equivalents and Cash proceeds subsequently received (as and when received) in respect of non-cash consideration initially received),
net of (with respect to any Loan Party or its subsidiaries, Affiliates or direct or indirect equity owners) (i) selling costs and out-of-pocket
expenses (including broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title
insurance premiums, and related search and recording charges, deed or mortgage recording Taxes, relocation expenses incurred as a result
thereof, foreign currency hedging expenses, other customary expenses and brokerage, consultant and other customary fees actually incurred
in connection therewith and transfer and similar Taxes and the Borrower’s good faith estimate of income Taxes paid or payable (including
pursuant to Tax sharing arrangements or that are or would be imposed on intercompany distributions of such proceeds) in connection with
such Disposition and the Borrower’s good faith estimate of payments to be made in respect of incentive equity, synthetic equity
or similar incentive awards in connection with such Disposition), (ii) amounts provided as a reserve in accordance with GAAP against
any liabilities under any indemnification obligation or purchase price adjustment associated with such Disposition (provided that
to the extent and at the time any such amounts are released from such reserve, other than to make a payment for which such amount was
reserved, such amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any, interest and other amounts
on any Indebtedness (other than the Loans, any other Indebtedness that is secured by a Lien on the Collateral that is pari passu with
or expressly subordinated to the Lien on the Collateral securing the Obligations and any unsecured Indebtedness incurred by a Loan Party)
that is required to be repaid or otherwise comes due or would be in default and is repaid or which is required to be paid in order to
obtain a necessary consent to such Disposition or by applicable law (other than any such Indebtedness that is assumed by the purchaser
of such asset), (iv) Cash escrows (until released from escrow to the Borrower or any of its Restricted Subsidiaries) from the sale price
for such Disposition and (v) in the case of any Disposition by any non-Wholly-Owned Subsidiary, the pro rata portion of the Net Proceeds
thereof (calculated without regard to this clause (v)) attributable to any minority interest and not available for distribution to or
for the account of the Borrower or a Wholly-Owned Subsidiary as a result thereof;
and (b) with respect
to any issuance or incurrence of Indebtedness or Capital Stock, the Cash proceeds thereof, net of all Taxes and fees, commissions, costs,
underwriting discounts and other fees and expenses incurred in connection therewith.
“Net
Short Lender” has the meaning assigned to such term in Section 10.02(e).
“Netted
Amounts” has the meaning assigned to such term in the definition of “Consolidated Total Debt.”
“Non-Consenting
Lender” has the meaning assigned to such term in Section 2.19(b)(iv).
“Non-Finance
Lease Obligation” of any Person means a lease obligation of such Person that is not an obligation in respect of a Finance Lease.
“Obligation
Currency” has the meaning assigned to such term in Section 10.20(a).
“Obligations”
means all Loan Document Obligations, together with (a) all Banking Services Obligations and (b) all Secured Hedging Obligations; provided
that Banking Services Obligations and Secured Hedging Obligations shall cease to constitute Obligations on and after the earlier
of (x) the Investment Grade Trigger Date and (y) the Termination Date.
“Obligee
Guarantor” has the meaning assigned to such term in Section 7.07.
“Organizational
Documents” means (a) with respect to any corporation, its certificate, memorandum or articles of incorporation, association,
amalgamation or organization and its by-laws, (b) with respect to any limited partnership, its certificate of limited partnership and
its partnership agreement, (c) with respect to any general partnership, its partnership agreement, (d) with respect to any limited liability
company, its articles of organization or certificate of formation, and its operating agreement or limited liability company agreement
and (e) with respect to any other form of entity, such other organizational documents required by local Requirements of Law or customary
under the jurisdiction in which such entity is organized to document the formation and governance principles of such type of entity.
In the event that any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified
by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only
be to a document of a type customarily certified by such governmental official.
“Other
Applicable Indebtedness” has the meaning assigned to such term in Section 2.11(b)(i).
“Other
Connection Taxes” means, with respect to any Lender or any Administrative Agent, Taxes imposed as a result of a present or
former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having
executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest
under, or engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or
Loan Document).
“Other
Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes arising
from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document, except
any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section
2.19).
“Outstanding
Amount” means the Dollar Equivalent of (a) with respect to any Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of such Loans occurring on such date, (b) with respect to
any Letter of Credit, the aggregate amount available to be drawn under such Letter of Credit after giving effect to any changes in the
aggregate amount available to be drawn under such Letter of Credit or the issuance or expiry of such Letter of Credit, including as a
result of any LC Disbursement and (c) with respect to any LC Disbursement on any date, the aggregate outstanding amount of such LC Disbursement
on such date after giving effect to any disbursements with respect to any Letter of Credit occurring on such date and any other changes
in the aggregate amount of such LC Disbursement as of such date, including as a result of any reimbursements by the Borrower of such
unreimbursed LC Disbursement.
“Packaged
Rights” means warrants, options or other rights or obligations to acquire shares of any class of the Capital Stock of the Borrower
or a Restricted Subsidiary (whether settled in Capital Stock, cash or any combination thereof), regardless of the issuer of such warrants,
options or other rights, that are initially issued as a unit with Capital Stock or Indebtedness of the Borrower or any Restricted Subsidiary
(which may be guaranteed by the Guarantors, the Borrower or any Restricted Subsidiary) permitted to be incurred hereunder, even if such
Capital Stock or Indebtedness is separable from such warrants, options or other rights by a holder thereof.
“Parallel
Debt” means in relation to an Underlying Debt an obligation to pay to the Collateral Agent an amount equal to (and in the same
currency as) the amount of the Underlying Debt.
“Parent”
means Bausch Health Companies Inc., a corporation continued under the laws of the province of British Columbia.
“Participant”
has the meaning assigned to such term in Section 10.05(c).
“Participant
Register” has the meaning assigned to such term in Section 10.05(c).
“Patent”
means patents and patent applications, together with all inventions, designs or improvement described or claimed therein, and all reissues,
reexaminations, divisions, continuations, renewals, extensions and continuations in part thereof.
“PBGC”
means the Pension Benefit Guaranty Corporation.
“Pension
Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that
is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and that the Borrower, any of its
Restricted Subsidiaries or any ERISA Affiliate, maintains or contributes to or has an obligation to contribute to, or otherwise has any
liability for.
“Perfection
Certificate” means the Perfection Certificate in the form agreed between the Borrower and the Administrative Agents and delivered
on the Closing Date.
“Perfection
Requirements” means (a) with respect to any Loan Party organized within the United States (i) the filing of appropriate financing
statements with the office of the Secretary of State or other appropriate office in the state of organization of each Loan Party, (ii)
the filing of Intellectual Property Security Agreements or other appropriate assignments or notices with the U.S. Patent and Trademark
Office and/or the U.S. Copyright Office, as applicable, (iii) the proper recording or filing, as applicable, of Mortgages and fixture
filings with respect to any Material Real Estate Asset constituting Collateral, in each case in favor of the Collateral Agent for the
benefit of the Secured Parties, (iv) the
delivery to the Collateral
Agent of any stock certificate or promissory note to the extent required to be delivered by the applicable Loan Documents, (v) the filing
of Intellectual Property Security Agreements with the Canadian Intellectual Property Office and (vi) other filings, recordings and registrations
necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Collateral Agent or to enforce the rights
of the Collateral Agent, the Administrative Agents and the Secured Parties under the Loan Documents, (b) with respect to any Loan Party
organized within Canada (i) the filing of appropriate PPSA financing statements in all applicable jurisdictions and applications for
registration at the applicable Quebec Registers, (ii) the filing of Intellectual Property Security Agreements with the Canadian Intellectual
Property Office, (iii) the proper recording or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real
Estate Asset located in Canada constituting Collateral, in each case in favor of the Collateral Agent for the benefit of the Secured
Parties, (iv) the delivery to the Collateral Agent of any stock certificate or promissory note to the extent required to be delivered
by the applicable Loan Documents, (v) the filing of Intellectual Property Security Agreements or other appropriate assignments or notices
with the U.S. Patent and Trademark Office and/or the U.S. Copyright Office, as applicable and (vi) other filings, recordings and registrations
necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Collateral Agent or to enforce the rights
of the Collateral Agent, the Administrative Agents and the Secured Parties under the Loan Documents and (c) subject to the Agreed Security
Principles and the other provisions of the Loan Documents, with respect to any Loan Party that is not organized within the United States
or Canada, (i) the filing of Intellectual Property Security Agreements or other appropriate assignments or notices with the U.S. Patent
and Trademark Office and/or the U.S. Copyright Office, as applicable, (ii) the filing of Intellectual Property Security Agreements with
the Canadian Intellectual Property Office and (iii) the taking of any actions required under applicable foreign Requirements of Law to
validly create or perfect the Liens on the Collateral granted by such Loan Party in favor of the Collateral Agent.
“Permitted
Acquisition” means (a) any acquisition by the Borrower or any of its Restricted Subsidiaries, whether by purchase, merger,
amalgamation or otherwise, of all or a substantial portion of the assets of, or any division, line of business, business unit or Product
Line (including research and development and related assets in respect of any Product Line, product or facility) of, any Person or of
a majority of the outstanding Capital Stock of any Person (and, in any event, including any Investment in (x) any Restricted Subsidiary
which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary
or (y) any Joint Venture for the purpose of increasing the Borrower’s or its relevant Restricted Subsidiary’s ownership interest
in such Joint Venture) or (b) any Exclusive License of a Product Line of a Person, in each case if (1) such Person is or becomes a Restricted
Subsidiary or (2) such Person, in one transaction or a series of related transactions, is amalgamated, merged or consolidated with or
into, or transfers, conveys or Exclusive Licenses all or a substantial portion of its assets (or such division, line of business, business
unit, Product Line or facility) to, or is liquidated into, the Borrower and/or any Restricted Subsidiary as a result of such transaction;
provided that (i) the target Person, assets, business or division in respect of such acquisition is a business permitted under
Section 5.16 and (ii) at the applicable time elected by the Borrower in accordance with Section 1.04(e), with respect to
such acquisition, no Specified Event of Default shall be continuing.
“Permitted
Bond Hedge Transaction” means any bond hedge or call or capped call option (or similar transaction) on or linked to the Borrower’s
Capital Stock and purchased in connection with the issuance of any Convertible Indebtedness; provided that the purchase price
for such Permitted Bond Hedge Transaction, less the proceeds received from the sale of any related Permitted Warrant Transaction, does
not exceed the net proceeds received from the sale of such Convertible Indebtedness.
“Permitted
Earlier Maturity Indebtedness Exception” means, with respect to any Incremental Term Facility, Incremental Equivalent Debt,
Refinancing Indebtedness or Replacement Term Loan permitted to be incurred hereunder, that up to the greater of $375,000,000 and 50%
of Consolidated
Adjusted EBITDA as
of the last day of the most recently ended Test Period in aggregate principal amount of such Indebtedness outstanding at such time (the
“Specified Debt”) may have a final maturity date that is earlier than, and a Weighted Average Life to Maturity that
is shorter than the remaining Weighted Average Life to Maturity of, the Indebtedness with respect to which the Specified Debt is otherwise
required to have a later final maturity date or Weighted Average Life.
“Permitted
Equity” means (a) common equity, (b) Qualified Capital Stock and (c) other preferred Capital Stock or other instruments having
terms reasonably acceptable to the Revolving Facility Administrative Agent.
“Permitted
Liens” means Liens permitted pursuant to Section 6.02.
“Permitted
Payee” means any future, current or former director, officer, member of management, manager, employee, independent contractor
or consultant (or any Affiliate or transferee of any of the foregoing) of the Borrower (or any Restricted Subsidiary).
“Permitted
Reorganization” means any transaction or undertaking, including Investments, in connection with internal reorganizations and
or restructurings (including in connection with tax planning and corporate reorganizations), so long as, after giving effect thereto,
(a) the Loan Parties shall comply with the Collateral and Guarantee Requirements and Section 5.12 and (b) the security interest
of the Secured Parties in the Collateral, taken as a whole, is not materially impaired (including by a material portion of the assets
that constitute Collateral immediately prior to such Permitted Reorganization no longer constituting Collateral) as a result of such
Permitted Reorganization; provided that the Borrower shall have delivered to the Administrate Agent an officer’s certificate executed
by a Responsible Officer of the Borrower certifying as to the best of such officer’s knowledge compliance with the requirements
set forth in clauses (a) and (b) above.
“Permitted
Treasury Arrangements” means Banking Services entered into in the ordinary course of business and any transactions between
or among the Borrower and its Subsidiaries that are entered into in the ordinary course of business in connection with such Banking Services.
“Permitted
Warrant Transaction” means any call option, warrant or right to purchase (or similar transaction), on or linked to the Borrower’s
or a Restricted Subsidiary’s Capital Stock, regardless of the issuer or seller thereof, issued substantially concurrently with
any purchase of a related Permitted Bond Hedge Transaction.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or any other entity.
“Plan
of Arrangement” means the plan of arrangement appended to that certain Arrangement Agreement (together with all schedules,
exhibits and annexes thereto (including as such may be executed or effected)) entered into between, among others, the Parent and the
Borrower, as it may be amended from time to time in accordance with its terms and those of the Arrangement Agreement.
“PPSA”
means the Personal Property Security Act (Ontario); provided, however, if the validity, attachment, perfection (or opposability),
effect of perfection or of non-perfection or priority of the Collateral Agent’s security interest in any Collateral are governed
by the personal property security laws or laws relating to personal or movable property of any jurisdiction other than Ontario (including
without limitation pursuant to the Civil Code of Quebec), “PPSA” shall also include those personal property security laws
or laws relating to movable property in such other jurisdiction for the purpose of the
provisions hereof
relating to such validity, attachment, perfection (or opposability), effect of perfection or of non-perfection or priority and for the
definitions related to such provisions.
“Preferred
Capital Stock” means any Capital Stock with preferential rights of payment of dividends or upon liquidation, dissolution or
winding up.
“Prepayment
Asset Sale” means any Disposition by the Borrower or its Restricted Subsidiaries made pursuant to Section 6.07(h).
“Primary
Obligor” has the meaning assigned to such term in the definition of “Guarantee”.
“Prime
Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if
The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal
Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer
quoted therein, any similar rate quoted therein (as determined by the Applicable Administrative Agent) or any similar release by the
Federal Reserve Board (as determined by the Applicable Administrative Agent).
“Pro
Forma Basis” or “pro forma effect” means, with respect to any determination of the Consolidated Leverage
Ratio, the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated
Adjusted EBITDA, Consolidated Net Income or Consolidated Total Assets (including component definitions thereof), that each Subject Transaction
shall be deemed to have occurred as of the first day of the applicable Test Period (or, in the case of Consolidated Total Assets (or
with respect to any determination pertaining to the balance sheet, including the acquisition of Cash and Cash Equivalents in connection
with an acquisition of a Person, business line, unit, division or Product Line), as of the last day of such Test Period) with respect
to any test or covenant for which such calculation is being made and that:
(a) (i)
in the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division and/or
Product Line of the Borrower or any Restricted Subsidiary or (B) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary,
income statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction, shall
be excluded as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination
is being made and (ii) in the case of any Permitted Acquisition, Investment and/or designation of an Unrestricted Subsidiary as a Restricted
Subsidiary described in the definition of the term “Subject Transaction”, income statement items (whether positive or negative)
attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test
Period with respect to any test or covenant for which the relevant determination is being made; provided that any pro forma adjustment
may be applied to any such test or covenant solely to the extent that such adjustment is consistent with, subject to the limitations
set forth in and without duplication with respect to the application of, the definition of “Consolidated Adjusted EBITDA”,
(b) any
Expected Cost Savings as a result of any Cost Saving Initiative shall be calculated on a pro forma basis as though such Expected Cost
Savings had been realized on the first day of the applicable Test Period and as if such Expected Cost Savings were realized in full during
the entirety of such period; provided that any pro forma adjustment may be applied to any such test or covenant solely to the
extent that such adjustment is consistent with, subject to the limitations set forth in and without duplication with respect to the application
of, the definition of “Consolidated Adjusted EBITDA”,
(c) any
retirement or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes)
shall be deemed to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the
relevant determination is being made,
(d) any
Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in connection therewith shall be deemed to have occurred
as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being
made; provided that (x) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest
for the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect
to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such
Indebtedness), (y) interest on any obligation with respect to any Finance Lease shall be deemed to accrue at an interest rate determined
by a Responsible Officer of the Borrower in good faith to be the rate of interest implicit in such obligation in accordance with GAAP
and (z) interest on any Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar
rate, a Eurocurrency interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if
none, then based upon such optional rate chosen by the Borrower, and
(e) the
acquisition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total Assets, whether pursuant to
any Subject Transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into the Borrower or any
of its subsidiaries, or the Disposition of any assets (including Cash and Cash Equivalents) included in calculating Consolidated Total
Assets described in the definition of “Subject Transaction” shall be deemed to have occurred as of the last day of the applicable
Test Period with respect to any test or covenant for which such calculation is being made.
For
purposes of determining pro forma compliance with Section 6.13 prior to the last day of the first Fiscal Quarter after the Closing
Date, the applicable level shall be the level cited in Section 6.15. Notwithstanding anything to the contrary set forth in the
immediately preceding paragraph, for the avoidance of doubt, when calculating the First Lien Leverage Ratio or Consolidated Leverage
Ratio, as applicable, for purposes of the definitions of “Applicable Rate”, “Required Excess Cash Flow Percentage”
and “Required Net Proceeds Percentage” and for purposes of Section 6.15 (other than for the purpose of determining
pro forma compliance with Section 6.15 as a condition to taking any action under this Agreement), the events described in the
immediately preceding paragraph that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
“Product
Line” means any product line (including rights in respect of any drug or pharmaceutical, surgical or aesthetic product) of
any Person.
“Projections”
means the projections of the Borrower and its Subsidiaries provided to the Arrangers on or about December 10, 2021.
“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.
“Promissory
Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of
Exhibit G hereto, evidencing the aggregate outstanding principal amount of Loans of such Borrower owed to such Lender resulting
from the Loans made by such Lender.
“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
Company Costs” means Charges associated with, or in anticipation of, or preparation for, compliance with the requirements of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and Charges relating to compliance with
the provisions of the Securities Act and the Exchange Act (and, in each case, any similar Requirement of Law under any other applicable
jurisdiction), as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange
companies with listed equity or debt securities, directors’ or managers’ compensation, fees and expense reimbursement, Charges
relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’
insurance, listing fees and all executive, legal and professional fees and costs related to the foregoing.
“Qualified
Capital Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Qualifying
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Qualifying
Lender” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Quebec
Registers” means the Register of Personal and Movable Real Rights and the Land Registry Office of Quebec.
“Ratio
Interest Expense” means, with respect to any Person for any period, (a) consolidated total cash interest expense of such Person
and its Restricted Subsidiaries for such period, (i) including the interest component of any payment under any Finance Lease (regardless
of whether accounted for as interest expense under GAAP) and (ii) excluding (A) amortization, accretion or accrual of deferred financing
fees, original issue discount, debt issuance costs, discounted liabilities, commissions, fees and expenses, (B) any expense arising from
any bridge, commitment, structuring and/or other financing fee (including fees and expenses associated with the Transactions and agency
and trustee fees), (C) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization
accounting or, if applicable, acquisition accounting, (D) fees and expenses associated with any Dispositions, acquisitions, Investments,
issuances of Capital Stock or Indebtedness (in each case, whether or not consummated), (E) costs associated with obtaining, or breakage
costs in respect of, any Hedge Agreement or any other derivative instrument other than any interest rate Hedge Agreement or interest
rate derivative instrument with respect to Indebtedness, (F) penalties and interest relating to Taxes, (G) any “additional interest”
or “liquidated damages” for failure to timely comply with registration rights obligations, (H) [reserved], (I) any payments
with respect to make-whole, prepayment or repayment premiums or other breakage costs of any Indebtedness, (J) any interest expense attributable
to the exercise of appraisal rights or other rights of dissenting shareholders and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto in connection with any acquisition or Investment permitted hereunder, (K) any lease, rental
or other expense in connection with a Non-Finance Lease Obligation and (L) for the avoidance of doubt, any non-cash interest expense
attributable to any movement in the mark to market valuation of any obligation under any Hedge Agreement or any other derivative instrument
and/or any payment obligation arising under any Hedge Agreement or derivative instrument other than any interest rate Hedge Agreement
or interest rate derivative instrument with respect to Indebtedness minus (b) cash interest income for such period. For purposes
of this definition, (x) interest in respect of any Finance Lease shall be deemed to accrue at an interest rate determined by such Person
in good faith to be the rate of interest implicit in such Finance Lease in accordance with GAAP and (y) for the avoidance of doubt, unless
already included in the calculation of interest expense, interest
expense shall be calculated
after giving effect to any payments made or received under any Hedge Agreement or any other derivative instrument with respect to Indebtedness.
“Real
Estate Asset” means, at any time of determination, all right, title and interest of any Loan Party in and to all real property
owned by such Loan Party and all real property leased or subleased by such Loan Party (in each case including, but not limited to, land,
improvements and fixtures thereon).
“Reclassifiable
Item” has the meaning assigned to such term in Section 1.03(b).
“Refinancing”
has the meaning assigned to such term in the recitals.
“Refinancing
Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Applicable Administrative Agent and
the Borrower executed by (a) the Borrower, (b) the Applicable Administrative Agent and (c) each Lender that agrees to provide all or
any portion of the Replacement Term Loans or the Replacement Revolving Facility, as applicable, being incurred pursuant thereto and in
accordance with Section 10.02(c).
“Refinancing
Indebtedness” has the meaning assigned to such term in Section 6.01(p).
“Refunding
Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Register”
has the meaning assigned to such term in Section 10.05(b).
“Regulated
Bank” means an Approved Commercial Bank that is (i) a U.S. depository institution the deposits of which are insured by the
Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of the U.S. Federal Reserve Act of 1913; (iii)
a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and under the supervision of the Board
under 12 CFR part 211; (iv) a non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii);
or (v) any other U.S. or non-U.S. depository institution or any branch, agency or similar office thereof supervised by a bank regulatory
authority in any jurisdiction.
“Regulation
U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Regulation
X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or
thereof.
“Reinvestment
Period” has the meaning assigned to such term in Section 2.11(b)(ii)(A).
“Related
Funds” means with respect to any Lender that is an Approved Fund, any other Approved Fund that is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
“Related
Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers,
officers, trustees, employees, partners, agents, advisors and other representatives of such Person and such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor environment.
“relevant
transaction” has the meaning assigned to such term in Section 1.08(a).
“Repayment”
means the payment by the Borrower to the Parent of cash consideration as (i) repayment of a promissory note issued by the Borrower and
payable to Parent in connection with the Separation Transactions and (ii) a return of share capital in an amount not to exceed $300,000,000.
“Replaced
Revolving Facility” has the meaning assigned to such term in Section 10.02(c).
“Replaced
Term Loans” has the meaning assigned to such term in Section 10.02(c).
“Replacement
Debt” means any Refinancing Indebtedness (whether borrowed in the form of secured or unsecured loans, issued in a public offering,
Rule 144A under the Securities Act or other private placement or bridge financing in lieu of the foregoing or otherwise) incurred
in respect of Indebtedness permitted under Section 6.01(a) (and any subsequent refinancing of such Replacement Debt).
“Replacement
Revolving Facility” has the meaning assigned to such term in Section 10.02(c).
“Replacement
Term Loans” has the meaning assigned to such term in Section 10.02(c).
“Reply
Amount” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Reply
Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Representatives”
has the meaning assigned to such term in Section 10.13.
“Repricing
Transaction” means each of (in each case, as applicable) (a) the optional prepayment (or mandatory prepayment pursuant to Section
2.11(b)(iiiiv)),
repayment, refinancing, substitution or replacement of all or a portion of the Initial Term Loans or First Incremental Term Loans, as
applicable, substantially concurrently with the incurrence by any Loan Party of any broadly syndicated Dollar denominated long-term term
“B” loans secured on a pari passu basis with the Initial Term Loans or the First Incremental Term Loans, as applicable, (including
any first-lien secured Replacement Term Loans) having an Effective Yield that is less than the Effective Yield applicable to the Initial
Term Loans or First Incremental Term Loans, as applicable, so prepaid, repaid, refinanced, substituted or replaced and (b) any amendment,
waiver or other modification to this Agreement that would have the effect of reducing the Effective Yield applicable to the Initial Term
Loans or First Incremental Term Loans, as applicable; provided that the primary purpose (as determined by the Borrower in good
faith) of such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification was to reduce the
Effective Yield applicable to the Initial Term Loans or First Incremental Term Loans, as applicable; provided, further, that in
no event shall any such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification in connection
with a Change of Control, Material Acquisition, Material Disposition or Transformative Transaction constitute a Repricing Transaction.
Any determination by the Term Facility Administrative Agent or the First Incremental
Term FacilityFacilities
Administrative Agent, as applicable, of the Effective Yield for purposes of the definition shall be conclusive and binding on
all Lenders, and the Term Facility Administrative Agent or the First Incremental Term
FacilityFacilities
Administrative Agent, as applicable, shall have no liability to any Person with respect to such determination absent bad faith, gross
negligence or willful misconduct.
“Required
Excess Cash Flow Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 2.65:1.00,
50%, (b) if the First Lien Leverage Ratio is less than or equal to 2.65:1.00 and greater than 2.40:1.00, 25% and (c) if the First Lien
Leverage Ratio is less than
or equal to 2.40:1.00,
0%; it being understood and agreed that, for purposes of this definition as it applies to the determination of the amount of Excess Cash
Flow that is required to be applied to prepay Subject Loans under Section
2.11(b)(i) for any Excess Cash Flow Period, the First Lien Leverage Ratio shall be determined on the scheduled date of prepayment
(after giving pro forma effect to such prepayment and to any other repayment or prepayment at or prior to the time such Excess Cash Flow
prepayment is due).
“Required
Lenders” means, at any time, Lenders having Loans or unused Commitments representing more than 50% of the sum of the total
Loans and such unused Commitments at such time.
“Required
Net Proceeds Percentage” means, as of any date of determination, (a) if the First Lien Leverage Ratio is greater than 2.65:1.00,
100%, (b) if the First Lien Leverage Ratio is less than or equal to 2.65:1.00 and greater than 2.40:1.00, 50% and (c) if the First Lien
Leverage Ratio is less than or equal to 2.40:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies
to the determination of the amount of Net Proceeds or Net Insurance/Condemnation Proceeds that are required to be applied to prepay Subject
Loans under Section 2.11(b)(ii) for any payment, the First Lien Leverage Ratio shall be determined on the date on which
such proceeds are received by the Borrower or applicable Restricted Subsidiary (giving pro forma effect to the subject Dispositions and/or
casualty events and the application of the relevant proceeds thereof).
“Required
Revolving Lenders” means, at any time, Lenders having Revolving Loans and unused Revolving Credit Commitments representing
more than 50% of the sum of the total Revolving Loans and such unused Revolving Credit Commitments at such time.
“Required
Second Incremental Term Lenders” means, at any time, Lenders having Second Incremental Term Loans representing more than 50%
of the sum of the total Second Incremental Term Loans at such time.
“Requirements
of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, Canadian federal, provincial
or municipal or other foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines,
ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation
or administration thereof by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case
whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such
Person or any of its property is subject.
“Resolution
Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible
Officer” of any Person means the chief executive officer, the president, the chief financial officer, the treasurer, any assistant
treasurer, any executive vice president, any senior vice president, any vice president or the chief operating officer of such Person
and any other individual or similar official thereof responsible for the administration of the obligations of such Person in respect
of this Agreement, and, as to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other
individual or similar official thereof with substantially equivalent responsibilities of a Loan Party and, solely for purposes of notices
given pursuant to Article 2, any other officer of the applicable Loan Party so designated by any of the foregoing officers in
a written notice to the Administrative Agents (including, for the avoidance of doubt, by electronic means). Any document delivered hereunder
that is signed by a Responsible Officer of any Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part
of such Loan Party,
and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Responsible
Officer Certification” means, with respect to the financial statements for which such certification is required, the certification
of a Responsible Officer of the Borrower that such financial statements fairly present, in all material respects, in accordance with
GAAP, the consolidated financial condition of the Persons covered by such financial statements as at the dates indicated and their consolidated
income and cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments and, in the
case of quarterly financial statements, the absence of footnotes.
“Restricted
Amount” has the meaning assigned to such term in Section 2.11(b)(ivv).
“Restricted
Debt” means any Junior Indebtedness to the extent the outstanding principal amount thereof is equal to or greater than the
Threshold Amount.
“Restricted
Debt Payments” has the meaning assigned to such term in Section 6.04(b).
“Restricted
Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Borrower
(or any direct or indirect parent of the Borrower), except a dividend payable solely in shares of Qualified Capital Stock (or in options,
warrants or other rights to purchase such Qualified Capital Stock) to the holders of such class, (b) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value of any shares of any class of the Capital Stock of the Borrower and
(c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of
any class of the Capital Stock of the Borrower now or hereafter outstanding (other than Convertible Indebtedness or Packaged Rights).
The amount of any Restricted Payment (other than Cash) shall be the fair market value, as determined in good faith by the Borrower on
the applicable date set forth in Section 1.04(e), of the assets or securities proposed to be transferred or issued by the Borrower
pursuant to such Restricted Payment. For the avoidance of doubt, any payment on account of any Indebtedness convertible into or exchangeable
for Capital Stock or on account of Packaged Rights shall be deemed not to be a Restricted Payment.
“Restricted
Subsidiary” means, prior to the Investment Grade Trigger Date, as to any Person, any subsidiary of such Person that is not
an Unrestricted Subsidiary. Unless otherwise specified, “Restricted Subsidiary” shall mean any Restricted Subsidiary of the
Borrower.
“Retained
Asset Sale Proceeds” means, at any date of determination, an amount determined on a cumulative basis, that is equal to the
aggregate cumulative sum of (a) all Net Proceeds and Net Insurance/Condemnation Proceeds received by the Borrower or any of its Restricted
Subsidiaries that are not or were not required to be applied to prepay Term Loans pursuant to Section 2.11(b)(ii) and (b)
all Excluded Proceeds (as defined in Section 2.11(b)(ii)).
“Return
Bid” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Revaluation
Date” means (a) with respect to any Revolving Loan denominated in an Alternate Currency, each of the following: (i) each date
of any Borrowing of such Revolving Loan, (ii) each date of any conversion or continuation of such Revolving Loan pursuant to the terms
of this Agreement, (iii) the last day of each Fiscal Quarter and (iv) the date of any voluntary reduction of a Revolving Credit Commitment
pursuant to Section 2.09(b); (b) with respect to any Letter of Credit denominated in any Alternate Currency, each of the following:
(i) each date of issuance of such a Letter of Credit, (ii) each date of an amendment of such a Letter of Credit that would have the effect
of increasing the face amount thereof and (iii) the last day of each Fiscal Quarter; (c) with respect to the unused Revolving Credit
Commitment of any
Lender pursuant to Section 2.12(a), such additional dates as the Revolving Facility Administrative Agent or the Required Revolving
Lenders shall reasonably require and (d) any additional date as the Revolving Facility Administrative Agent shall determine or the Required
Revolving Lenders shall require, in each case under this clause (d), at any time when an Event of Default has occurred and is
continuing.
“Revolving
Credit Commitment” means any Initial Revolving Credit Commitment and any Additional Revolving Credit Commitment.
“Revolving
Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of such Lender’s
Initial Revolving Credit Exposure and Additional Revolving Credit Exposure.
“Revolving
Facility” means the Initial Revolving Facility, any Incremental Revolving Facility, any facility governing any Extended Revolving
Credit Commitment or Extended Revolving Loans and any Replacement Revolving Facility.
“Revolving
Facility Administrative Agent” has the meaning assigned to such term in the preamble to this Credit and Guaranty Agreement.
“Revolving
Facility Test Condition” means, as of any date of determination, without duplication, that the aggregate Outstanding Amount
of all Revolving Loans (including Swingline Loans) (excluding the amount of Revolving Loans borrowed (i) on the Closing Date and (ii)
to pay amounts due in connection with the Transactions (including any Transaction Costs)), in each case as of such date, exceeds an amount
equal to 40% of the Total Revolving Credit Commitment.
“Revolving
Lender” means any Initial Revolving Lender and any Additional Revolving Lender. Unless the context otherwise requires, the
term “Revolving Lenders” shall include the Swingline Lender.
“Revolving
Loans” means any Initial Revolving Loans and any Additional Revolving Loans.
“RFR
Business Day” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect
to, (a) Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London
and (b) any other Alternative Currency (to the extent such Loans denominated in such currency will bear interest at a daily rate), any
day other than those identified at the time such Alternative Currency is approved by the Applicable Administrative Agent and the relevant
Lenders pursuant to Section 1.10(a).
“S-1
Registration Statement” means that certain Registration Statement on Form S-1 filed by the Borrower with the U.S. Securities
and Exchange Commission, which is in form and substance reasonably satisfactory to the Goldman Sachs and MSSF, in their respective capacities
as Arrangers (it being acknowledged and agreed that the draft thereof most recently delivered to such Arrangers prior to the date hereof
and filed with the U.S. Securities and Exchange Commission on January 13, 2022, as amended on March 31, 2022, and as further amended
on April, 28, 2022, along with any replacement or supplements thereto that are not materially adverse to the Lenders solely in their
capacities as such, is reasonably satisfactory to such Arrangers).
“S&P”
means S&P Global Ratings.
“Sale
and Lease-Back Transaction” has the meaning assigned to such term in Section 6.08(b).
“Sanctioned
Country” means, at any time, a country, region or territory which is itself the subject or target of comprehensive Sanctions
(at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Syria, the so-called People’s Republic of Luhansk and the so-called
People’s Republic of Donetsk).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office
of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council,
the European Union, Her Majesty’s Treasury or Global Affairs Canada, (b) any Person located, organized or resident in a Sanctioned
Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clause (a).
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the Office of Foreign
Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European
Union, Her Majesty’s Treasury or the Government of Canada.
“Scheduled
Consideration” has the meaning assigned to such term in Section 2.11(b)(i)(7).
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
“Second
Incremental Amendment” means that Second Incremental Amendment, dated as of the Second Incremental Amendment Date, among the
Borrower, the other Loan Parties party thereto, the Lenders party thereto and the Incremental Term Facilities Administrative Agent.
“Second
Incremental Amendment Date” means November 1, 2024.
“Second
Incremental Amendment Refinancing” means the repayment by the Borrower on the Second Incremental Amendment Date of at least
$350,000,000 of principal amount of outstanding Revolving Loans under this Credit and Guaranty Agreement, together with accrued interest
thereon.
“Second
Incremental Arrangers” means JPM and Goldman Sachs, each in their capacity as a joint lead arranger and bookrunner for the
Second Incremental Term Loans.
“Second
Incremental Fee Letter” means the Agent Fee Letter, dated as of November 1, 2024, by and between the Borrower and the Incremental
Term Facilities Administrative Agent.
“Second
Incremental Loan Installment Date” has the meaning assigned to such term in Section 2.10(a)(iii).
“Second
Incremental Term Lender” means any Person with a commitment to make Second Incremental Term Loans or an outstanding Second
Incremental Term Loan.
“Second
Incremental Term Loan Maturity Date” means May 10, 2027.
“Second
Incremental Term Loans” means the Term Loans funded pursuant to the Second Incremental Amendment on the Second Incremental
Amendment Date.
“Second
Incremental Transactions” means the entering into of the Second Incremental Amendment, the incurrence of the Second Incremental
Term Loans and the consummation of the Second Incremental Amendment Refinancing.
“Secured
Hedging Obligations” means all Hedging Obligations (other than any Excluded Swap Obligations) under each Hedge Agreement that
(a) is in effect on the Closing Date between the Borrower or any Restricted Subsidiary of the Borrower and a counterparty that is an
Administrative Agent, a Lender, an Arranger or any Affiliate of an Administrative Agent, a Lender or an Arranger as of the Closing Date
or any other Person that is reasonably acceptable to the Administrative Agents or (b) is entered into after the Closing Date between
the Borrower or any Restricted Subsidiary of the Borrower and any counterparty that is (or is an Affiliate of) an Administrative Agent,
any Lender or any Arranger at the time such Hedge Agreement is entered into or any other Person that is reasonably acceptable to the
Administrative Agents, for which such Loan Party agrees to provide or procure security, it being understood that each counterparty thereto
shall be deemed (A) to appoint the Collateral Agent and the Administrative Agents as its agent under the applicable Loan Documents and
(B) to agree to be bound by the provisions of Article 9, Sections 10.03 and 10.10 and each Acceptable Intercreditor
Agreement as if it were a Lender.
“Secured
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Secured Debt as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term “Secured Leverage
Ratio” is used in this Agreement, in each case for the Borrower and its Restricted Subsidiaries.
“Secured
Parties” means (i) the Lenders, the Swingline Lender and each Issuing Bank, (ii) each Administrative Agent and the Collateral
Agent, (iii) each counterparty to a Hedge Agreement the obligations under which constitute Secured Hedging Obligations, (iv) each provider
of Banking Services the obligations under which constitute Banking Services Obligations, (v) the Agent and the Arrangers and (vi) the
beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document.
“Secured
Party Claim” means any amount which the Borrower or any other Loan Party owes to a Secured Party under or in connection with
the Loan Documents.
“Securities”
means any stock, shares, units, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase
or acquire, any of the foregoing; provided that the term “Securities” shall not include any earn-out agreement or
obligation or any employee bonus or other incentive compensation plan or agreement.
“Securities
Act” means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“Separation
Agreements” means the agreements pursuant to which the separation of the SpinCo Business will be effected, including the Master
Separation Agreement (together with all schedules, exhibits and annexes thereto (including as such may be executed or effected)) entered
into between the Parent and the Borrower and any other Persons party thereto (including as they may be amended from time to time).
“Separation
Transactions” means the (i) contribution to the Borrower by the Parent and certain of its Subsidiaries of the SpinCo Business
(and other transactions reasonably related thereto or in facilitation thereof), (ii) the SpinCo IPO, (iii) the payment by the Borrower
to the Parent of the Repayment in connection with the transactions contemplated by the Separation Agreements and (iv) consummation of
the transactions under the Separation Agreements (including the agreements and arrangements referred to in the Master Separation Agreement,
and including any transition services agreements and similar arrangements).
“Shared
Incremental Amount” means, as of any date of determination, (a) the greater of $753,000,000 and 100% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis minus (b) the aggregate principal
amount of all Incremental Facilities and/or Incremental Equivalent Debt originally incurred or issued in reliance on the Shared Incremental
Amount outstanding on such date, in each case after giving effect to any reclassification of any such Indebtedness as having been incurred
under clause (e) of the definition of “Incremental Cap” hereunder.
“Shared
RP Amount” means the amount of Restricted Payments that may be made at the time of determination pursuant to Sections 6.04(a)(ii)(A),
(a)(vii) and (a)(x) minus the aggregate amount of the Shared RP Amount utilized by the Borrower or any Restricted Subsidiary
to (a) make Investments pursuant to Section 6.06(q)(ii) or (b) make Restricted Debt Payments pursuant to Section 6.04(b)(iv).
“Significant
Acquisition” means any Acquisition (the “Subject Acquisition”) that has an Annualized Acquisition Cash Flow Value
(as defined below) for the period ended on the last day of the fiscal quarter most recently ended that is greater than five percent (5%)
of the Annualized EBITDA of the Borrower and its Subsidiaries, on a consolidated basis, for the same period. The “Annualized Acquisition
Cash Flow Value” is an amount equal to (a) the Annualized EBITDA of the assets comprising the Subject Acquisition less (b) the
Annualized EBITDA of any assets disposed of by the Borrower or any Subsidiary (other than to the Borrower or any Subsidiary) in connection
with the Subject Acquisition.
“Similar
Business” means any Person the majority of the revenues of which are derived from a business that would be permitted by Section
5.16 if the references to “Restricted Subsidiaries” in Section 5.16 were read to refer to such Person.
“SOFR”
means, with respect to any U.S. Government Securities Business Day, a rate per annum equal to the secured overnight financing rate for
such U.S. Government Securities Business Day published by the SOFR Administrator on the website of the SOFR Administrator, currently
at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator
from time to time) on the immediately succeeding U.S. Government Securities Business Day.
“SOFR
Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing
rate).
“SONIA”
means a rate equal to the Sterling Overnight Index Average as administered by the SONIA Administrator.
“SONIA
Adjustment” means 0.0326%.
“SONIA
Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA
Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any
successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“SPC”
has the meaning assigned to such term in Section 10.05(e).
“Specified
Event of Default” means an Event of Default pursuant to Section 8.01(a) or, with respect to the Borrower, Section
8.01(f) or (g).
“Specified
Foreign Subsidiary” means a Foreign Subsidiary that is a CFC with respect to which a U.S. Subsidiary that is a corporation
for U.S. federal income tax purposes owns (within the meaning of section 958(a) of the Code) more than 50% of the equity by vote or value.
“Specified
Person” has the meaning assigned to such term in Section 8.01(f).
“SpinCo
Business” means all or substantially all of Parent’s eye health and certain related consumer products business, as further
defined in the Master Separation Agreement (or other applicable Separation Agreement).
“SpinCo
IPO” means the initial public offering of common shares of the Borrower materially in accordance with the S-1 Registration
Statement and the corresponding Canadian Prospectus.
“Spot
Rate” means, for any currency, on any Revaluation Date or other relevant date of determination, the rate determined by the
Applicable Administrative Agent to be the rate quoted by the Applicable Administrative Agent as the spot rate for the purchase by the
Applicable Administrative Agent of such currency with another currency through its principal foreign exchange trading office at approximately
11:00 a.m. on the date that is two Business Days prior to the date as of which the foreign exchange computation is made (or on such other
day and time as may be mutually agreed by the Borrower and the Applicable Administrative Agent); provided that the Applicable
Administrative Agent may obtain such spot rate from another financial institution designated by the Applicable Administrative Agent if
the Applicable Administrative Agent does not have as of the date of determination a spot buying rate for any such currency.
“Standby
Letter of Credit” means any Letter of Credit other than any Commercial Letter of Credit.
“Stated
Amount” means, with respect to any Letter of Credit, at any time, the maximum amount available to be drawn thereunder, in each
case determined (x) as if any future automatic increases in the maximum available amount provided for in any such Letter of Credit had
in fact occurred at such time and (y) without regard to whether any conditions to drawing could then be met but after giving effect to
all previous drawings made thereunder.
“Sterling”
and “£” mean the lawful currency of the United Kingdom.
“Subject
Loans” means, as of any date of determination, (a) Initial Term Loans and (b) any Additional Term Loans that are subject to
ratable prepayment requirements in accordance with Section 2.11(b)(vii)
on such date (which shall include, for the avoidance of doubt, the First Incremental Term Loans and
the Second Incremental Term Loans).
“Subject
Person” has the meaning assigned to such term in the definition of “Consolidated Net Income”.
“Subject
Proceeds” has the meaning assigned to such term in Section 2.11(b)(ii).
“Subject
Transaction” means, with respect to any Test Period, (a) the Transactions, (b) any Permitted Acquisition or any other acquisition
or similar Investment, whether by purchase, merger, amalgamation or otherwise, of all or substantially all of the assets of, or any business
line, unit or division of, any Person or any facility, or of a majority of the outstanding Capital Stock of any Person (and in any event
including any Investment in (x) any Restricted Subsidiary the effect of which is to increase the Borrower’s or any Restricted Subsidiary’s
respective equity ownership in such Restricted Subsidiary or (y) any Joint Venture for the purpose of increasing the Borrower’s
or its relevant Restricted Subsidiary’s ownership interest in such Joint Venture), in each case that is permitted by this Agreement,
(c) any Disposition of all or substantially all of the assets or Capital Stock of a subsidiary (or any business unit, line of business
or division of the Borrower or a Restricted Subsidiary) not prohibited by this Agreement, (d) the designation of a Restricted Subsidiary
as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 5.10 hereof,
(e) any incurrence or repayment of Indebtedness (other than revolving Indebtedness), (f) any Cost Saving Initiative and/or (g) any other
event that by the terms of the Loan Documents requires pro forma compliance with a test or covenant hereunder or requires such test or
covenant to be calculated on a pro forma basis.
“Subsidiary”
or “subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the total voting power of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or
other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof
is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or
a combination thereof; provided that in determining the percentage of ownership interests of any Person controlled by another
Person, no ownership interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
Unless otherwise specified, “subsidiary” shall mean any subsidiary of the Borrower.
“Subsidiary
Guarantor” means (x) on the Closing Date, each subsidiary of the Borrower (other than any subsidiary that is an Excluded Subsidiary
on the Closing Date) listed on Schedule 1.01(f) as of the Closing Date and (y) thereafter, each subsidiary of the Borrower that
becomes a guarantor of the Obligations pursuant to the terms of this Agreement, in each case, until such time as the relevant subsidiary
is released from its obligations under the Loan Guarantee in accordance with the terms and provisions hereof. Notwithstanding the foregoing,
the Borrower may from time to time, upon notice to the Administrative Agents, elect to cause any subsidiary that would otherwise be an
Excluded Subsidiary to become a Subsidiary Guarantor hereunder (but shall have no obligation to do so), subject to the satisfaction of
guarantee and collateral requirements consistent with the Collateral and Guarantee Requirements or otherwise reasonably acceptable to
the Borrower and the Administrative Agents (which shall include, in the case of a Foreign Subsidiary, guarantee and collateral requirements
customary under local law, including customary local limitations). For the avoidance of doubt, in no event shall an Excluded Subsidiary
be a Subsidiary Guarantor unless the Borrower makes such an election with respect to the Excluded Subsidiary.
“Substitute
Affiliate Lender” has the meaning assigned to such term in Section 1.12(e).
“Substitute
Facility Office” has the meaning assigned to such term in Section 1.12(e).
“Successor
Borrower” has the meaning assigned to such term in Section 6.07(a)(i)(B).
“Swap
Obligations” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction
that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline
Exposure” means, at any time, the aggregate principal amount of Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be equal to its Applicable Percentage of the aggregate Swingline Exposure at such time.
“Swingline
Lender” means Citibank, N.A., in its capacity as lender of Swingline Loans hereunder, or any successor lender of Swingline
Loans hereunder.
“Swingline
Loan” means any Loan made pursuant to Section 2.04.
“TARGET
Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system
(or, if such payment system ceases to be operative, such other payment system (if any) determined by the Applicable Administrative Agent
to be a suitable replacement) is open for the settlement of payments in Euro.
“Taxes”
means any and all present and future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments,
fees or other charges imposed by any Governmental Authority, including any interest, additions to tax and penalties applicable thereto.
“Term
Commitment” means any Initial Term Loan Commitment and, if applicable, any Additional Term Loan Commitment.
“Term
Facility” means the Term Loans provided to or for the benefit of the Borrower pursuant to the terms of this Agreement.
“Term
Facility Administrative Agent” has the meaning assigned to such term in the preamble to this Credit and Guaranty Agreement.
“Term
Lender” means a Lender with a Term Commitment or an outstanding Term Loan.
“Term
Loan” means the Initial Term Loans and, if applicable, any Additional Term Loans.
“Term
SOFR” means,
(a) for
any calculation with respect to a Eurocurrency Rate Loan denominated in Dollars, the Term SOFR Reference Rate for a tenor comparable
to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2)
U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator;
provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR
Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator, then Term SOFR will be the Term SOFR Reference
Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which
such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government
Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination
Day, and
(b) for
any calculation with respect to an ABR Loan denominated in Dollars on any day, the Term SOFR Reference Rate for a tenor of one month
on the day (such day, the “ABR Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days
prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m.
(New York City time) on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published
by the Term SOFR Administrator, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator
on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by
the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government
Securities Business Days prior to such ABR SOFR Determination Day.
“Term
SOFR Administrator” means the CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR
Reference Rate selected by the Applicable Administrative Agent in its reasonable discretion).
“Term
SOFR Reference Rate” means the rate per annum determined by the Applicable Administrative Agent as the forward-looking term
rate based on SOFR.
“Termination
Date” has the meaning assigned to such term in the lead-in to Article 5.
“Test
Period” means, as of any date, (a) for purposes of determining actual compliance with Section 6.15, the period of four
consecutive Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b),
as applicable, have been delivered (or are required to have been delivered) and (b) for any other purpose, the period of four consecutive
Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable,
have been delivered (or are required to have been delivered) or, at the Borrower’s election, are internally available; it being
understood and agreed that prior to the first delivery (or required delivery) of financial statements under Section 5.01(a) or
Section 5.01(b), “Test Period” means the period of four consecutive Fiscal Quarters most recently ended for which
financial statements of the Borrower and its consolidated subsidiaries are available.
“Threshold
Amount” means the greater of $100,000,000 and 13.33% of Consolidated Adjusted EBITDA as of the last day of the most recently
ended Test Period.
“Total
Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Total Debt outstanding as of such date
to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended or the Test Period otherwise specified where the term
“Total Leverage Ratio” is used in this Agreement in each case for the Borrower and its Restricted Subsidiaries.
“Total
Revolving Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments as in effect at such
time. The Total Revolving Credit Commitment as of the Closing Date is $500,000,000.
“Trademark”
means all trademarks, trade names, trade dress and logos, registrations and applications for registration thereof and the goodwill of
the business symbolized by the foregoing, and all renewals of the foregoing.
“Transaction
Costs” means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable
or otherwise borne by the Borrower and/or its subsidiaries in connection with the Transactions and the transactions contemplated thereby.
“Transactions”
means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party
and the Borrowing of Loans hereunder, (b) the Repayment and (c) the payment of the Transaction Costs.
“Transformative
Transaction” means any transaction by the Borrower or any Restricted Subsidiary that is either (a) not permitted by the terms
of this Agreement immediately prior to the consummation of such transaction or (b) if permitted by the terms of this Agreement immediately
prior to the consummation of such transaction, would not provide the Borrower and its Restricted Subsidiaries with a durable capital
structure following such consummation, as determined by the Borrower acting in good faith.
“Treasury
Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Treasury
Regulations” means the U.S. federal income tax regulations promulgated under the Code.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Eurocurrency Rate, the Alternate Base Rate, the Alternative Currency Daily Rate, the Canadian
Prime Rate or the BA Rate.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required
to be applied in connection with the creation or perfection of security interests.
“UK
Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to
time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as
amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions
and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK
Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the
resolution of any UK Financial Institution.
“Underlying
Debt” means in relation to the Borrower or any other Loan Party and at any time, each obligation (whether present or future,
actual or contingent) owing by the Borrower or such Loan Party to a Secured Party under this Agreement or the other Loan Documents (including
for the avoidance of doubt any change or increase in those obligations pursuant to or in connection with any amendment or supplement
or restatement or novation of this Agreement or any other Loan Document, in each case whether or not anticipated as of the date of this
Agreement) excluding the Borrower’s or such Loan Party’s parallel debt obligations under Article 11 hereof.
“Unrestricted
Cash Amount” means, as to any Person on any date of determination, the amount of (a) unrestricted Cash and Cash Equivalents
of such Person and its Restricted Subsidiaries and (b) Cash and Cash Equivalents of such Person and its Restricted Subsidiaries that
are restricted in favor of the Credit Facilities and/or other permitted pari passu, senior or junior secured Indebtedness (which may
also include Cash and Cash Equivalents securing other Indebtedness that is secured by a Lien on Collateral along with the Credit Facilities
and/or any other permitted pari passu, senior or junior secured Indebtedness), in each case as determined in accordance with GAAP.
“Unrestricted
Subsidiary” means, until the Investment Grade Trigger Date, any subsidiary of the Borrower designated by the Borrower as an
Unrestricted Subsidiary on the Closing Date and listed on Schedule 5.10 hereto or after the Closing Date pursuant to Section
5.10.
“Unused
Revolving Credit Commitment” of any Lender, at any time, means the remainder of the Revolving Credit Commitment of such Lender
at such time, if any, less the sum of (a) the aggregate Outstanding Amount of Revolving Loans made by such Lender, (b) such Lender’s
LC Exposure at such time and (c) except for purposes of Section 2.12(a), such Lender’s Applicable Percentage of the aggregate
Outstanding Amount of Swingline Loans.
“Upfront
Payments” means any upfront or similar payments made during the period of twelve months ending on the Closing Date or arising
thereafter in connection with any drug or pharmaceutical product research and development or collaboration arrangements or the closing
of any Drug Acquisition.
“U.S.”
or “United States” means the United States of America.
“U.S.
Borrower” means any Additional Borrower that is a U.S. Person.
“U.S. Government
Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry
and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes
of trading in United States government securities.
“U.S.
Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S.
Security Agreement” means the Pledge and Security Agreement, dated as of or about the date hereof, among the Collateral Agent
and the Loan Parties party thereto, as same may be amended, restated, supplemented or otherwise modified from time to time.
“U.S.
Subsidiary” means any Restricted Subsidiary incorporated or organized under the laws of the U.S., any state thereof or the
District of Columbia.
“U.S. Tax
Compliance Certificate” has the meaning assigned to such term in Section 2.17(f)(iii)(B)(3).
“USA
PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a)
the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other
required scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal
amount of such Indebtedness; provided that the effect of (x) any prepayment made in respect of such Indebtedness shall be disregarded
in making such calculation and (y) any “AHYDO catch-up” payment that may be required to be made in respect of such Indebtedness
shall be disregarded in making such calculation.
“Wholly-Owned
Subsidiary” of any Person means a subsidiary of such Person 100% of the Capital Stock of which (other than directors’
qualifying shares or shares required by Requirements of Law to be owned by a resident of the relevant jurisdiction) are owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.
“Write-Down
and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such
EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and
conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the
applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial
Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities
or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had
been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation
that are related to or ancillary to any of those powers.
“WURA”
means the Winding-Up and Restructuring Act (Canada).
Section
1.02. Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Term Loan”)
or by Type (e.g., a “Eurocurrency Rate Loan”) or by Class and Type (e.g., a “Eurocurrency Rate Term Loan”). Borrowings
also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”) or by Type (e.g., a “Eurocurrency Rate
Borrowing”) or by Class and Type (e.g., a “Eurocurrency Rate Term Loan Borrowing”).
Section
1.03. Terms
Generally. (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” The words “ordinary
course of business” or “ordinary course” shall, with respect to any Person, be deemed to refer to items or actions
that are consistent with practice in or norms of the industry in which such Person operates or such Person’s past practice (it
being understood that the sale of accounts receivable (and related assets) pursuant to supply-chain, factoring or reverse factoring arrangements
entered into by the Borrower and its Restricted Subsidiaries shall be deemed to be in the ordinary course of business so long as such
accounts receivable (and related assets) are sold for Cash in an amount not less than 95% of the face amount thereof) (but, for the avoidance
of doubt, this shall not preclude any sale for less than a price to be determined to be in the ordinary course so long as it is in the
ordinary course of business)) (in each case, as determined by the Borrower in good
faith). Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein
or in any Loan Document (including any Loan Document) shall be construed as referring to such agreement, instrument or other document
as from time to time amended, restated, amended and restated, supplemented or otherwise modified or extended, replaced or refinanced
(subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements, supplements or modifications
or extensions, replacements or refinancings set forth herein), (ii) any reference to any Requirement of Law in any Loan Document shall
include all statutory and regulatory provisions consolidating, amending, replacing, supplementing, superseding or interpreting such Requirement
of Law, (iii) any reference herein or in any Loan Document to any Person shall be construed to include such Person’s successors
and permitted assigns, (iv) the words “herein,” “hereof” and “hereunder,” and words of similar import,
when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision
hereof, (v) all references herein or in any Loan Document to Articles, Sections, clauses, paragraphs, Exhibits and Schedules shall be
construed to refer to Articles, Sections, clauses and paragraphs of, and Exhibits and
Schedules to, such
Loan Document, (vi) in the computation of periods of time in any Loan Document from a specified date to a later specified date, the word
“from” means “from and including”, the words “to” and “until” mean “to but excluding”
and the word “through” means “to and including”, (vii) the words “asset” and “property”,
when used in any Loan Document, shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including Cash, securities, accounts and contract rights, (viii) the words “permitted” shall be construed
to also refer to actions or undertakings that are “not prohibited”, (ix) any reference to the end date for any fiscal quarter,
Fiscal Quarter, fiscal year or Fiscal Year shall mean the date on or around such specified date on which the applicable period actually
ends (as determined by the Borrower in good faith) and (x) the fair market value of any asset or property shall be determined by the
Borrower in good faith.
(a)
For purposes of determining compliance at any time with Sections 6.01, 6.02, 6.04, 6.06 and 6.07,
in the event that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment or Disposition or portion thereof,
as applicable, at any time meets the criteria of more than one of the categories of transactions or items permitted pursuant to any clause
of such Sections 6.01 (other than Section 6.01(a) (in the case of Indebtedness incurred on the Closing Date)), 6.02
(other than Sections 6.02(a) and (t)), 6.04, 6.06 and/or 6.07 (each of the foregoing, a “Reclassifiable
Item”), the Borrower, in its sole discretion, may, from time to time, divide, classify or reclassify such Reclassifiable Item
(or portion thereof) under one or more clauses of each such Section and will only be required to include such Reclassifiable Item (or
portion thereof) in any one category; provided that, upon delivery of any financial statements pursuant to Section 5.01(a) or
(b) following the initial incurrence or making of any such Reclassifiable Item, if such Reclassifiable Item could, based on such
financial statements, have been incurred or made in reliance on Section 6.01(z) (in the case of Indebtedness and Liens) or any
“ratio-based” basket or exception (in the case of all other Reclassifiable Items), such Reclassifiable Item shall automatically
be reclassified as having been incurred or made under the applicable provisions of Section 6.01(z) or such “ratio-based”
basket or exception, as applicable (in each case, subject to any other applicable provision of Section 6.01(z) or such “ratio-based”
basket or exception, as applicable). It is understood and agreed that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment,
Investment, Disposition and/or Affiliate transaction need not be permitted solely by reference to one category of permitted Indebtedness,
Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition and/or Affiliate transaction under Sections 6.01, 6.02,
6.04, 6.06, 6.07 or 6.09, respectively, but may instead be permitted in part under any combination thereof
or under any other available exception.
(b)
For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Loan Document)
and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the
Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (a) “personal property” shall
be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”,
(c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property”
shall be deemed to include “incorporeal property”, (e) “security interest”, “mortgage” and “lien”
shall be deemed to include a “hypothec”, “prior claim” and a “resolutory clause,” (f) all references
to filing, registering or recording under the Code or the PPSA shall be deemed to include publication under the Civil Code of Quebec,
(g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable”
or “set up” Liens as against third parties, (h) any “right of offset”, “right of setoff” or similar
expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal
movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall
be deemed to include a “mandatary,” (k) “construction liens” shall be deemed to include “legal hypothecs”,
(l) “joint and several” shall be deemed to include “solidary” and “jointly and severally” shall be
deemed to include “solidarily” (m) “gross negligence or willful misconduct” shall be deemed to be “intentional
or gross fault”, (n) “beneficial ownership” shall be
deemed to include
“ownership”, (o) “easement” shall be deemed to include “servitude”, (p) “priority” shall
be deemed to include “rank” or “prior claim”, as applicable, (q) “survey” shall be deemed to include
“certificate of location and plan”, (r) “fee simple title” shall be deemed to include “absolute ownership”,
(s) “leasehold interest” shall be deemed to include “rights resulting from a lease” and (t) “lease”
shall be deemed to include a “contract of leasing (crédit-bail)”. The parties hereto confirm that it is their wish
that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English
language only (except if another language is required under any applicable law) and that all other documents contemplated thereunder
or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment
que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue
anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent
être rédigés en langue anglaise seulement (sauf si une autre langue est requise en vertu d’une loi applicable).
Section
1.04. Accounting
Terms; GAAP.
(a)
(i) All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect
from time to time and, except as otherwise expressly provided herein, all terms of an accounting or financial nature that are used in
calculating the Consolidated Leverage Ratio, the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the
Interest Coverage Ratio, Consolidated Adjusted EBITDA, Consolidated Net Income or Consolidated Total Assets shall be construed and interpreted
in accordance with GAAP, as in effect from time to time; provided that (A) if any change to GAAP or in the application thereof
or any change as a result of the adoption or modification of accounting policies (including (x) the conversion to IFRS as described below
and (y) the impact of Accounting Standards Update 2016-12, Revenue from Contracts with Customers (Topic 606) or similar revenue recognition
policies or any change in the methodology of calculating reserves for returns, rebates and other chargebacks) is implemented or takes
effect after the date of delivery of the financial statements described in Section 3.04(a) and/or there is any change in the functional
currency reflected in the financial statements or (B) if the Borrower elects or is required to report under IFRS, the Borrower or the
Required Lenders may request to amend the relevant affected provisions hereof (whether or not the request for such amendment is delivered
before or after the relevant change or election) to eliminate the effect of such change or election, as the case may be, on the operation
of such provisions and (x) the Borrower and the Administrative Agents shall negotiate in good faith to enter into an amendment of the
relevant affected provisions (it being understood that no amendment or similar fee shall be payable to any Administrative Agent or any
Lender in connection therewith) to preserve the original intent thereof in light of the applicable change or election, as the case may
be and (y) the relevant affected provisions shall be interpreted on the basis of GAAP and the currency, in each case, as in effect and
applied immediately prior to the applicable change or election, as the case may be, until the request for amendment has been withdrawn
by the Borrower or the Required Lenders, as applicable, or this Agreement has been amended as contemplated hereby. Any consent required
from any Administrative Agent or any Required Lender with respect to the foregoing shall not be unreasonably withheld, conditioned or
delayed.
(ii) All
terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein
shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10-25 (previously referred to as
Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification, International Accounting Standard or
Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any
subsidiary at “fair value,” as defined therein, (ii) any treatment of Indebtedness in respect of convertible debt instruments
under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification, International Accounting Standard or
Financial Accounting Standard having a similar result or effect) to value any
such Indebtedness
in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal
amount thereof and (iii) the application of Accounting Standards Codification 480, 815, 805 and 718 (to the extent these pronouncements
under Accounting Standards Codification 718 result in recording an equity award as a liability on the consolidated balance sheet of the
Borrower and its Restricted Subsidiaries in the circumstance where, but for the application of the pronouncements, such award would have
been classified as equity). If the Borrower notifies the Administrative Agents that the Borrower is required to report under IFRS or
has elected to do so through an early adoption policy, “GAAP” shall mean international financial reporting standards pursuant
to IFRS (provided thereafter, the Borrower cannot elect to report under GAAP); provided, that any calculation or determination in this
Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the application of IFRS will
remain as previously calculated or determined in accordance with GAAP.
(b)
Notwithstanding anything to the contrary herein, but subject to Sections 1.04(d), (e) and (g), all financial
ratios and tests (including the Consolidated Leverage Ratio, the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage
Ratio, the Interest Coverage Ratio and the amount of Consolidated Total Assets, Consolidated Net Income and Consolidated Adjusted EBITDA)
(other than, for the avoidance of doubt, for purposes of calculating Excess Cash Flow) contained in this Agreement that are calculated
with respect to any Test Period during which any Subject Transaction occurs shall be calculated with respect to such Test Period and
such Subject Transaction on a Pro Forma Basis. Further, if since the beginning of any such Test Period and on or prior to the date of
any required calculation of any financial ratio, test or amount (x) any Subject Transaction has occurred or (y) any Person that subsequently
became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries
since the beginning of such Test Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio,
test or amount shall be calculated on a Pro Forma Basis for such Test Period as if such Subject Transaction had occurred at the beginning
of the applicable Test Period (or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance
sheet, including the acquisition of Cash and Cash Equivalents), as of the last day of such Test Period), it being understood, for the
avoidance of doubt, that solely for purposes of calculating (x) quarterly compliance with Section 6.15 or Section 6.21,
as applicable, and (y) the Consolidated Leverage Ratio for purposes of the definition of “Applicable Rate”, the date of the
required calculation shall be the last day of the Test Period, and no Subject Transaction occurring thereafter shall be taken into account.
(c)
Notwithstanding anything to the contrary contained in paragraph (a) above or in the definition of “Finance
Lease”, unless the Borrower elects otherwise, all obligations of any Person that are or would have been treated as operating leases
for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards
Update (the “ASU”) shall continue to be accounted for as operating leases (and not be treated as financing or capital
lease obligations or Indebtedness) for purposes of all financial definitions, calculations and deliverables under this Agreement or any
other Loan Document (including the calculation of Consolidated Net Income and Consolidated Adjusted EBITDA) (whether or not such operating
lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU
or any other change in accounting treatment or otherwise (on a prospective or retroactive basis or otherwise) to be treated as or to
be recharacterized as financing or capital lease obligations or otherwise accounted for as liabilities in financial statements.
(d)
For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any
financial ratio or financial test (including Section 6.15 hereof, Section 6.21 hereof, any First Lien Leverage
Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) and/or the amount
of Consolidated Adjusted EBITDA,
Consolidated Net Income
or Consolidated Total Assets, such financial ratio, financial test or amount shall, subject to clause (e) below, be calculated
at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and
no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio, financial test
or amount occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as
the case may be.
(e)
Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), to the
extent that the terms of this Agreement require (i) compliance with any financial ratio or financial test (including, without limitation,
Section 6.15 hereof, Section 6.21 hereof, any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total
Leverage Ratio test and/or any Interest Coverage Ratio test) and/or any cap expressed as a percentage of Consolidated Total Assets, Consolidated
Net Income or Consolidated Adjusted EBITDA, (ii) accuracy of any representation or warranty and/or the absence of a Default or Event
of Default (or any type of default or event of default) or (iii) compliance with any basket or other condition, as a condition to (A)
the consummation of any transaction (including in connection with any acquisition, consolidation, business combination or similar Investment
or the assumption or incurrence of Indebtedness), (B) the making of any Restricted Payment and/or (C) the making of any Restricted Debt
Payment, the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, (1) in the case
of any acquisition, consolidation, business combination or similar Investment, any Disposition, any incurrence of Indebtedness or any
transaction relating thereto, at the time of (or on the basis of the financial statements for the most recently ended Test Period at
the time of) either (x) the execution of the definitive agreement with respect to such acquisition, consolidation, business combination,
similar Investment or Disposition (or, solely in connection with an acquisition, consolidation or business combination to which the United
Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 Announcement” of a firm intention to make
an offer is made) or the establishment of a commitment with respect to such Indebtedness or (y) the consummation of such acquisition,
consolidation, business combination, Investment or Disposition or the incurrence of such Indebtedness, (2) in the case of any Restricted
Payment, at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) the
declaration of such Restricted Payment or (y) the making of such Restricted Payment and (3) in the case of any Restricted Debt Payment,
at the time of (or on the basis of the financial statements for the most recently ended Test Period at the time of) (x) delivery of notice
with respect to such Restricted Debt Payment or (y) the making of such Restricted Debt Payment, in each case, after giving effect on
a Pro Forma Basis to the relevant acquisition, consolidation, business combination or similar Investment, Restricted Payment and/or Restricted
Debt Payment, incurrence of Indebtedness or other transaction (including the intended use of proceeds of any Indebtedness to be incurred
in connection therewith) and, at the election of the Borrower, any other acquisition, consolidation, business combination or similar
Investment, Restricted Payment, Restricted Debt Payment, incurrence of Indebtedness or other transaction that has not been consummated
but with respect to which definitive agreements have been executed, and no Default or Event of Default shall be deemed to have occurred
solely as a result of an adverse change in such ratio, test or condition occurring after the time such election is made (but any subsequent
improvement in the applicable ratio, test or amount may be utilized by the Borrower or any Restricted Subsidiary). For the avoidance
of doubt, if the Borrower shall have elected the option set forth in clause (x) of any of the preceding clauses (1), (2)
or (3) in respect of any transaction, then the Borrower or its applicable Restricted Subsidiary shall be permitted to consummate
such transaction even if any applicable test or condition shall cease to be satisfied subsequent to the Borrower’s election of
such option. The provisions of this paragraph (e) shall also apply in respect of the incurrence of any Incremental Facility.
(f)
[Reserved].
(g)
Notwithstanding anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agents, with respect
to any amount incurred or transaction entered into (or consummated) in reliance on a provision of this Agreement (other than a non-concurrent
borrowing under the Revolving Facility) that does not require compliance with a financial ratio or financial test (including Section
6.15 hereof, any First Lien Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest
Coverage Ratio test) (any such amount, including any concurrent drawing under the Revolving Facility, and any cap expressed as a percentage
of Consolidated Total Assets, Consolidated Net Income or Consolidated Adjusted EBITDA, a “Fixed Amount”) substantially
concurrently with any amount incurred or transaction entered into (or consummated) in reliance on a provision of this Agreement that
requires compliance with a financial ratio or financial test (including Section 6.15 hereof, any First Lien
Leverage Ratio test, any Secured Leverage Ratio test, any Total Leverage Ratio test and/or any Interest Coverage Ratio test) (any such
amount, an “Incurrence-Based Amount”), it is understood and agreed that (i) the incurrence of the Incurrence-Based
Amount shall be calculated first without giving effect to any Fixed Amount but giving full pro forma effect to the use of proceeds of
such Fixed Amount and the related transactions and (ii) the incurrence of the Fixed Amount shall be calculated thereafter. Unless it
elects otherwise, the Borrower shall be deemed to have used amounts under an Incurrence-Based Amount then available to the Borrower prior
to utilization of any amount under a Fixed Amount then available to the Borrower. In calculating any Incurrence Based Amount, any amounts
concurrently-incurred under the Revolving Facility shall not be given effect.
(h)
The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date
shall be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with
GAAP.
(i)
Any increase in any amount of Indebtedness or any increase in any amount secured by any Lien by virtue of the accrual of interest,
the accretion of accreted value, the payment of interest or a dividend in the form of additional Indebtedness, amortization of original
issue discount and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate
of any applicable currency shall be deemed to be permitted Indebtedness for purposes of Section 6.01 and will be deemed not to
be the granting of a Lien for purposes of Section 6.02.
(j)
For purposes of determining compliance with Section 6.01 or Section 6.02, if any Indebtedness or Lien is incurred
in reliance on a basket measured by reference to a percentage of Consolidated Adjusted EBITDA, and any refinancing or replacement thereof
would cause the percentage of Consolidated Adjusted EBITDA to be exceeded if calculated based on the Consolidated Adjusted EBITDA on
the date of such refinancing or replacement, such percentage of Consolidated Adjusted EBITDA will be deemed not to be exceeded so long
as the principal amount of such refinancing or replacement Indebtedness or other obligation does not exceed an amount sufficient to repay
the principal amount of such Indebtedness or other obligation being refinanced or replaced, except by an amount equal to (x) unpaid accrued
interest, penalties and premiums (including tender, prepayment or repayment premiums) thereon plus underwriting discounts and other customary
fees, commissions and expenses (including upfront fees, original issue discount or initial yield payment) incurred in connection with
such refinancing or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred
under Section 6.01.
(k)
Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order
for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
Section
1.05.
Representations and
Warranties. Each of the representations and warranties contained in this Agreement (and all corresponding definitions) is made after
giving effect to the Transactions, unless the context otherwise requires. Notwithstanding anything herein or in any other Loan Document
to the contrary, no officer, director or other representative of the Borrower or any Subsidiary shall have any personal liability in
connection with any representation, warranty or other certification in, or made pursuant to, this Agreement or any other Loan Document.
Section
1.06. Timing
of Payment and Performance. When payment of any obligation or the performance of any covenant, duty or obligation is stated to be
due or required on a day which is not a Business Day, the date of such payment (other than as described in the definition of “Interest
Period”) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension.
Section
1.07. Times
of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or
standard, as applicable).
Section
1.08. Currency
Equivalents Generally.
(a)
Notwithstanding anything to the contrary in clause (b) below, for purposes of any determination under Article 5,
Article 6 (other than Section 6.15 or Section 6.21 and the calculation of compliance with any financial ratio for
purposes of taking any action hereunder) or Article 7 with respect to the amount of any Indebtedness, Lien, Restricted Payment,
Restricted Debt Payment, Investment, Disposition, Sale and Lease-Back Transaction, affiliate transaction or other transaction, event
or circumstance, or any determination under any other provision of this Agreement (any of the foregoing, a “relevant transaction”),
in a currency other than Dollars, (i) the Dollar equivalent amount of a relevant transaction in a currency other than Dollars shall be
calculated based on the rate of exchange quoted by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any successor
page thereto, or in the event such rate does not appear on any Bloomberg Page, by reference to such other publicly available service
for displaying exchange rates as may be agreed upon by the Applicable Administrative Agent and the Borrower) for such foreign currency,
as in effect at 11:00 a.m. (London time) on the date of such relevant transaction (which, in the case of any Restricted Payment, Restricted
Debt Payment, Investment, Disposition or incurrence of Indebtedness, shall be determined as set forth in Section 1.04(e)); provided,
that if any Indebtedness is incurred (and, if applicable, associated Lien granted) to refinance or replace other Indebtedness denominated
in a currency other than Dollars, and the relevant refinancing or replacement would cause the applicable Dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing or replacement, such Dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing or replacement Indebtedness
(and, if applicable, associated Lien granted) does not exceed an amount sufficient to repay the principal amount of such Indebtedness
being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest, penalties and premiums (including tender premiums)
thereon plus underwriting discounts and other customary fees, commissions and expenses (including upfront fees, original issue discount
or initial yield payment) incurred in connection with such refinancing or replacement, (y) any existing commitments unutilized thereunder
and (z) additional amounts permitted to be incurred under Section 6.01 or Section 6.17, as applicable, and (ii) for the
avoidance of doubt, no Default or Event of Default shall be deemed to have occurred solely as a result of a change in the rate of currency
exchange occurring after the time of any relevant transaction so long as such relevant transaction was permitted at the time incurred,
made, acquired, committed, entered or declared as set forth in clause (i). For purposes of Section 6.15, Section 6.21
and the calculation of compliance with any financial ratio for purposes of taking any action hereunder (including for purposes of
calculating availability under the Incremental Cap) on any relevant date of determination, amounts denominated in currencies other than
Dollars shall be translated into Dollars at the applicable currency
exchange rate used
in preparing the financial statements delivered pursuant to Sections 5.01(a) or (b) (or, prior to the first such delivery,
the financial statements referred to in Section 3.04), as applicable, for the relevant Test Period. Notwithstanding the foregoing
or anything to the contrary herein, to the extent that the Borrower would not be in compliance with Section 6.15 (but not Section
6.21), if any Indebtedness denominated in a currency other than Dollars were to be translated into Dollars on the basis of the applicable
currency exchange rate used in preparing the financial statements delivered pursuant to Section 5.01(a) or (b), as applicable,
for the relevant Test Period, but would be in compliance with Section 6.15 if such Indebtedness that is denominated in a currency
other than in Dollars were instead translated into Dollars on the basis of the average relevant currency exchange rates over such Test
Period (taking into account the currency translation effects, determined in accordance with GAAP, of any Hedge Agreement permitted hereunder
in respect of currency exchange risks with respect to the applicable currency in effect on the date of determination for the Dollar equivalent
amount of such Indebtedness), then, solely for purposes of compliance with Section 6.15, the First Lien Leverage Ratio as of the
last day of such Test Period shall be calculated on the basis of such average relevant currency exchange rates.
(b)
Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agents may
from time to time specify with the Borrower’s consent to appropriately reflect a change in currency of any country and any relevant
market convention or practice relating to such change in currency.
(c)
The Revolving Facility Administrative Agent shall determine the Spot Rate as of each Revaluation Date to be used for calculating
the Dollar Equivalent amount of any Revolving Loan and/or Letter of Credit that is denominated in any Alternate Currency. The Spot Rate
shall become effective as of such Revaluation Date and shall be the Spot Rate employed in converting any amount between any Alternate
Currency and Dollars until the next occurring Revaluation Date.
Section
1.09. Cashless
Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that
any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental Loans, Replacement
Term Loans, Loans in connection with any Replacement Revolving Facility, Extended Term Loans, Extended Revolving Loans or loans incurred
under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of
a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any
requirement hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available
funds”, “in Cash” or any other similar requirement.
Section
1.10. Additional
Alternate Currencies.
(a)
The Borrower may from time to time request that Alternative Currency Loans be made to the Borrower and/or Letters of Credit be
issued to the Borrower in a currency other than Dollars and those specifically listed in the definition of “Alternate Currencies”;
provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable
and convertible into Dollars. In the case of any such request with respect to the making of Alternative Currency Loans, such request
shall be subject to the approval of the Revolving Facility Administrative Agent and the Revolving Lenders of the applicable Class that
will provide such Loans, and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be
subject to the approval of the Revolving Facility Administrative Agent and the applicable Issuing Banks, in each case as set forth in
Section 10.02(b)(ii)(E).
(b)
Any such request shall be made to the Revolving Facility Administrative Agent not later than 11:00 a.m., ten Business Days prior
to the requested date of the making of such Revolving Loan or
issuance of such Letter
of Credit (or such other time or date as may be agreed by the Revolving Facility Administrative Agent and, in the case of any such request
pertaining to Letters of Credit, the applicable Issuing Banks, in its or their sole discretion). In the case of any such request pertaining
to Alternative Currency Loans, the Revolving Facility Administrative Agent shall promptly notify each Revolving Lender thereof; and in
the case of any such request pertaining to Letters of Credit, the Revolving Facility Administrative Agent shall promptly notify the applicable
Issuing Bank thereof. Each applicable Revolving Lender (in the case of any such request pertaining to Revolving Loans) or each applicable
Issuing Bank (in the case of a request pertaining to Letters of Credit) shall notify the Revolving Facility Administrative Agent, not
later than 11:00 a.m., five Business Days after receipt of such request whether it consents, in its sole discretion, to the making of
Alternative Currency Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c)
Any failure by a Revolving Lender or Issuing Bank, as the case may be, to respond to such request within the time period specified
in the preceding paragraph shall be deemed to be a refusal by such Revolving Lender or Issuing Bank, as the case may be, to permit Alternative
Currency Loans to be made or Letters of Credit to be issued in such requested currency. If the Revolving Facility Administrative Agent
and all the applicable Revolving Lenders consent to making Alternative Currency Loans or issuance of Letters of Credit in such requested
currency, the Revolving Facility Administrative Agent shall so notify the Borrower, and such currency shall thereupon be deemed for all
purposes to be an Alternate Currency hereunder for purposes of any Borrowing of Revolving Loans or issuance of Letters of Credit in such
currency, as applicable, in which case the Borrower and the Revolving Lenders shall be permitted (but not required) to amend this Agreement
and the other Loan Documents as necessary to accommodate such Borrowings and/or Letters of Credit (as applicable), in accordance with
Section 10.02(b)(ii)(E). If the Revolving Facility Administrative Agent shall fail to obtain consent to any request for an additional
currency under this Section 1.10, the Revolving Facility Administrative Agent shall promptly so notify the Borrower. Except to
the extent otherwise expressly provided, to the extent that the Alternative Currency Daily Rate, the Eurocurrency Rate and/or the Alternate
Base Rate is not applicable to or available with respect to any Revolving Loan denominated in any Alternate Currency, the components
of the interest rate applicable to such Revolving Loan shall be separately agreed by the Borrower and the Revolving Facility Administrative
Agent.
Section
1.11. Security
Principles. The Collateral Documents, guarantee provisions hereof (including as applied to any Counterpart Agreement), and each other
guaranty and security document delivered or to be delivered under this Agreement and any obligation to enter into such document or obligation
in each case by any Subsidiary shall be granted in accordance with the Agreed Security Principles set forth in Schedule 1.01(d).
Section
1.12. Additional
Borrowers.
(a)
From time to time on or after the Closing Date, and with three Business Days’ notice to the Revolving Facility Administrative
Agent (or such shorter period as the Revolving Facility Administrative Agent may agree), subject to completion of customary “know
your customer” procedures and delivery of related information (including, if such Additional Borrower qualifies as a “legal
entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certificate as to such Additional Borrower),
the Borrower may designate any Subsidiary Guarantor as an additional Borrower (each such person, an “Additional Borrower”)
under the Revolving Facility, an Incremental Revolving Facility, an Additional Revolving Facility or a Replacement Revolving Facility,
provided that such person prior to or contemporaneously with becoming an Additional Borrower (i) is incorporated in an Approved
Jurisdiction and (ii) in the case of an Additional Borrower under any Incremental Revolving Facility or Additional Revolving Facility,
is approved by the relevant Incremental Revolving Facility Lenders or Additional Revolving Lenders, as applicable.
(b)
Once a person has become an Additional Borrower in accordance with clause (a) above, it shall be a “Borrower”
in respect of the applicable Facility and will have the right to request Revolving Loans or Letters of Credit, as the case may be, in
accordance with Article 2 hereof until the earlier to occur of the applicable Maturity Date or the date on which such Additional
Borrower resigns as an Additional Borrower in accordance with clause (c) below.
(c)
An Additional Borrower may elect to resign as an Additional Borrower; provided that: (i) no Default or Event of Default
is continuing or would result from the resignation of such Additional Borrower, (ii) such resigning Additional Borrower has delivered
to the Revolving Facility Administrative Agent a written notice of resignation, (iii) all outstanding Revolving Loans, together with
all accrued and unpaid interest, unpaid fees and other unpaid amounts with respect to such Revolving Loans, extended to it hereunder
as a Borrower (in each case, solely if any) shall be deemed to be assigned to Bausch + Lomb Corporation, and Bausch + Lomb Corporation
shall be deemed to have assumed such unpaid Revolving Loans, and unpaid interest, unpaid fees and other unpaid amounts with respect to
such Revolving Loans (in each case, if any), as its primary obligations as Borrower, and (iv) its obligations in its capacity as Guarantor
continue to be legal, valid, binding and enforceable and in full force and effect. Upon satisfaction of the requirements in sub-clauses
(i), (ii), (iii) and (iv) of this clause (c), the relevant Additional Borrower shall cease to be an Additional
Borrower and a Borrower.
(d)
Each Additional Borrower hereby designates the Borrower as its agent and representative. The Borrower may act as the agent of
any Additional Borrower for the purposes of (i) delivering Borrowing Requests, continuation or conversion notices and other notices pursuant
to Article 2 hereof (and for the purpose of giving instructions with respect to the disbursement of the proceeds of any such Loans
or the issuance of any Letters of Credit), (ii) delivering and receiving all other notices, consents, certificates and similar instruments
contemplated hereunder or under any of the other Loan Documents and (iii) taking all other actions (including in respect of compliance
with covenants and certifications) on behalf of any Additional Borrower under any Loan Document. The Borrower hereby accepts such appointment.
(e)
In respect of a Loan or Loans to a particular Additional Borrower (“Designated Loans”), any Lender (a “Designating
Lender”) may at any time and from time to time designate (by written notice to the Revolving Facility Administrative Agent
and the Borrower): (i) a substitute lending office from which it will make Designated Loans (a “Substitute Facility Office”)
or (ii) nominate an Affiliate to act as the Lender of Designated Loans (a “Substitute Affiliate Lender”). A notice
to nominate a Substitute Affiliate Lender must be in the form set out in Exhibit O and be countersigned by the relevant Substitute
Affiliate Lender confirming it will be bound as a Lender under this Agreement in respect of the Designated Loans in respect of which
it acts as Substitute Affiliate Lender. The Designating Lender will act as the representative of any Substitute Affiliate Lender it nominates
for all administrative purposes under this Agreement. The Borrower, the Revolving Facility Administrative Agent and the other Loan Parties
will be entitled to deal only with the Designating Lender, except that payments will be made in respect of Designated Loans to the lending
office of the Substitute Affiliate Lender. In particular the Loans, Commitments, LC Exposure and Swingline Exposure of the Designating
Lender will not be treated as reduced by the introduction of the Substitute Affiliate Lender for voting purposes under this Agreement
or the other Loan Documents and the Substitute Affiliate Lender will be treated as having no Loans, Commitments, LC Exposure or Swingline
Exposure for such voting purposes. Save as mentioned in the immediately preceding sentence, a Substitute Affiliate Lender will be treated
as a Lender for all purposes under the Loan Documents and having a Loan, Commitment, LC Exposure or Swingline Exposure equal to the principal
amount of all Designated Loans in which it is participating if and for so long as it continues to be a Substitute Affiliate Lender under
this Agreement. A Designating Lender may revoke its designation of an Affiliate as a Substitute Affiliate Lender by notice in writing
to the Revolving Facility Administrative Agent and provided that such notice may only take effect when there are no
Designated Loans outstanding
to the Substitute Affiliate Lender. Upon such Substitute Affiliate Lender ceasing to be a Substitute Affiliate Lender the Designating
Lender will automatically assume (and be deemed to assume without further action by any party) all rights and obligations previously
vested in the Substitute Affiliate Lender. If a Designating Lender designates a Substitute Facility Office or Substitute Affiliate Lender
in accordance with this clause (e): (i) any Substitute Affiliate Lender shall be treated for the purposes of Section 2.17
as having become a Lender on the date of this Agreement and (ii) the provisions of Section 10.05 shall not apply to or in respect
of any Substitute Facility Office or Substitute Affiliate Lender.
Article
2
THE CREDITS
Section
2.01. Commitments.
(a)
Subject to the terms and conditions set forth herein (i) each Initial Term Lender severally, and not jointly, agrees to make Initial
Term Loans to the Borrower on the Closing Date in Dollars in a principal amount not to exceed its Initial Term Loan Commitment and (ii)
each Revolving Lender severally, and not jointly, agrees to make Initial Revolving Loans to the Borrower in Dollars or any Alternate
Currency at any time and from time to time on and after the Closing Date, and until the earlier of the Initial Revolving Credit Maturity
Date and the termination of the Initial Revolving Credit Commitment of such Initial Revolving Lender in accordance with the terms hereof;
provided that, after giving effect to any Borrowing of Initial Revolving Loans, (x) the Outstanding Amount of such Initial Revolving
Lender’s Initial Revolving Credit Exposure shall not exceed such Initial Revolving Lender’s Initial Revolving Credit Commitment
and (y) the aggregate Initial Revolving Credit Exposure of all Initial Revolving Lenders shall not exceed the aggregate Initial Revolving
Credit Commitment of all Initial Revolving Lenders. Within the foregoing limits and subject to the terms, conditions and limitations
set forth herein, the Borrower may borrow, pay or prepay and re-borrow Revolving Loans. Amounts paid or prepaid in respect of the Initial
Term Loans may not be re-borrowed.
(b)
Subject to the terms and conditions of this Agreement and any applicable Refinancing Amendment, Extension Amendment or Incremental
Facility Amendment, each Lender with an Additional Commitment of a given Class, severally and not jointly, agrees to make Additional
Loans of such Class to the Borrower, which Loans shall not exceed for any such Lender at the time of any incurrence thereof the Additional
Commitment of such Class of such Lender as set forth in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility
Amendment.
Section
2.02. Loans
and Borrowings.
(a)
Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made
by the Lenders ratably in accordance with their respective Commitments of the applicable Class. Each Swingline Loan shall be made in
accordance with the procedures set forth in Section 2.04.
(b)
Subject to Section 2.01 and Section 2.14, (i) each Borrowing denominated in Dollars shall be comprised entirely
of ABR Loans or Eurocurrency Rate Loans as the Borrower may request in accordance herewith, (ii) each Borrowing denominated in Canadian
Dollars shall be comprised entirely of Canadian Prime Rate Loans or BA Rate Loans as the Borrower may request in accordance herewith,
(iii) each Borrowing denominated in Sterling shall be comprised of Alternative Currency Daily Rate Loans and (iv) each Borrowing denominated
in Euros shall be comprised of Eurocurrency Rate Loans; provided that each Swingline Loan shall be an ABR Loan denominated in
Dollars. Each Lender at its option may make any Eurocurrency Rate Loan or Alternative Currency Daily Rate Loan by causing any domestic
or
foreign branch or
Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement, (ii) such Eurocurrency Rate Loan or Alternative Currency
Daily Rate Loan shall be deemed to have been made and held by such Lender, and the obligation of the Borrower to repay such Eurocurrency
Rate Loan or Alternative Currency Daily Rate Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch
or Affiliate of such Lender and (iii) in exercising such option, such Lender shall use reasonable efforts to minimize increased costs
to the Borrower resulting therefrom (which obligation of such Lender shall not require it to take, or refrain from taking, actions that
it determines would result in increased costs for which it will not be compensated hereunder or that it otherwise determines would be
disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions
of Section 2.15 shall apply); provided, further, that any such domestic or foreign branch or Affiliate of such Lender
shall not be entitled to any greater indemnification under Section 2.17 with respect to such Eurocurrency Rate Loan or Alternative
Currency Daily Rate Loan than that to which the applicable Lender was entitled on the date on which such Loan was made (except in connection
with any indemnification entitlement arising as a result of a Change in Law after the date on which such Loan was made).
(c)
At the commencement of each Interest Period for any Eurocurrency Rate Borrowing, such Borrowing shall comprise an aggregate principal
amount that is an integral multiple of $100,000 and not less than $500,000 (or the Dollar Equivalent thereof). Each ABR Borrowing when
made shall be in a minimum principal amount of $100,000; provided that an ABR Revolving Loan Borrowing may be made in a lesser
aggregate amount that is (x) equal to the entire aggregate Unused Revolving Credit Commitments or (y) required to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.05(e). Each Alternative Currency Daily Rate Loan Borrowing when made shall
comprise an aggregate principal amount that is an integral multiple of the Dollar Equivalent of $100,000 and not less than the Dollar
Equivalent of $500,000; provided that an Alternative Currency Daily Rate Loan Borrowing may be made in a lesser aggregate amount
that is (x) equal to the entire aggregate Unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement
as contemplated by Section 2.05(e). At the commencement of each Interest Period for any BA Rate Borrowing, such Borrowing shall
comprise an aggregate principal amount that is an integral multiple of C$100,000 and not less than C$500,000. Each Canadian Prime Rate
Borrowing when made shall be in a minimum principal amount of C$100,000; provided that a Canadian Prime Rate Revolving Borrowing
may be made in a lesser aggregate amount that is (x) equal to the entire aggregate Unused Revolving Credit Commitments or (y) required
to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Borrowings of more than one Type and Class
may be outstanding at the same time; provided that there shall not at any time be more than a total of ten (10) different Interest
Periods in effect for Eurocurrency Rate Borrowings and BA Rate Borrowings at any time outstanding (or such greater number of different
Interest Periods as the Applicable Administrative Agent may agree from time to time).
(d)
Notwithstanding any other provision of this Agreement, the Borrower shall not, nor shall the Borrower be entitled to, request,
or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity
Date applicable to such Loans.
Section
2.03. Requests
for Borrowings. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans,
Alternative Currency Daily Rate Loans or BA Rate Loans shall be made upon irrevocable notice by the Borrower to the Applicable Administrative
Agent (provided that notices in respect of any Borrowings to be made in connection with any acquisition, Investment or irrevocable
repayment, redemption or refinancing of Indebtedness may be conditioned on the closing of such acquisition, Investment or irrevocable
repayment, redemption or refinancing of such Indebtedness). Each such notice must be in writing and must be received by the
Applicable Administrative
Agent (by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) not later than 1:00
p.m. (i) three Business Days prior to the requested day of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
or BA Rate Loans (or one Business Day in the case of any Borrowing of Eurocurrency Rate Loans or BA Rate Loans to be made on the Closing
Date or on the Second Incremental Amendment Date), (ii) five Business
Days prior to the requested date of any Borrowing of Alternative Currency Daily Rate Loans and (iii) on the requested date of any Borrowing
of or conversion to ABR Loans (other than Swingline Loans) or Canadian Prime Rate Loans (or, in each case, such later time as shall be
reasonably acceptable to the Applicable Administrative Agent); provided, however, that if the Borrower wishes to request
Eurocurrency Rate Loans or BA Rate Loans having an Interest Period of other than one, three or (other than with respect to BA Rate Loans)
six months in duration as provided in the definition of “Interest Period,” (A) the applicable notice from the Borrower must
be received by the Applicable Administrative Agent not later than 1:00 p.m. four Business Days prior to the requested date of such Borrowing,
conversion or continuation (or such later time as is reasonably acceptable to the Applicable Administrative Agent), whereupon the Applicable
Administrative Agent shall give prompt notice to the appropriate Lenders of such request and determine whether the requested Interest
Period is available to them and (B) not later than 10:00 a.m. three Business Days before the requested date of such Borrowing, conversion
or continuation, the Applicable Administrative Agent shall notify the Borrower whether or not the requested Interest Period is available
to the appropriate Lenders. Each written notice with respect to a Borrowing by the Borrower pursuant to this Section 2.03 shall
be delivered to the Applicable Administrative Agent in the form of a written Borrowing Request, appropriately completed and signed by
a Responsible Officer of the Borrower. Each such Borrowing Request shall specify the following information in compliance with Section
2.02:
(a)
the Borrower requesting such Borrowing;
(b)
the Class of such Borrowing;
(c)
the aggregate amount of the requested Borrowing;
(d)
the date of such Borrowing, which shall be a Business Day;
(e)
whether such Borrowing is to be an ABR Borrowing, a Eurocurrency Rate Borrowing, an Alternative Currency Daily Rate Borrowing,
a Canadian Prime Rate Borrowing or a BA Rate Borrowing;
(f)
in the case of a Eurocurrency Rate Borrowing or a BA Rate Borrowing, the initial Interest Period to be applicable thereto, which
shall be a period contemplated by the definition of the term “Interest Period”; and
(g)
the location and number of the Borrower’s account or any other designated account(s) to which funds are to be disbursed
(the “Funding Account”).
If, with respect to
a Borrowing denominated in Dollars, no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing. If, with respect to a Borrowing denominated in Canadian Dollars, no election as to the Type of Borrowing is specified, then
the requested Borrowing shall be a Canadian Prime Rate Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency
Rate Borrowing or BA Rate Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
Promptly following receipt of a Borrowing Request in accordance with this Section, the Applicable Administrative Agent shall advise each
Lender of the details thereof and of the amount (and currency) of such Lender’s Loan to be made as part of the requested Borrowing.
Section 2.04.
Swingline Loans.
(a)
Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans in Dollars to the Borrower
from time to time during the Availability Period, in an aggregate principal amount at any time outstanding not to exceed $50,000,000;
provided that (x) the Swingline Lender shall not be required to make any Swingline Loan to refinance an outstanding Swingline
Loans and (y) after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and
LC Exposure shall not exceed the Total Revolving Credit Commitments. Each Swingline Loan shall be in a minimum principal amount of not
less than $100,000 or such lesser amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing,
a Swingline Loan may be in an aggregate amount that is (x) equal to the entire unused balance of the aggregate Unused Revolving Credit
Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Within the
foregoing limits and subject to the terms and conditions set forth herein, Swingline Loans may be borrowed, prepaid and reborrowed. To
request a Swingline Loan, the Borrower shall notify the Swingline Lender (with a copy to the Revolving Facility Administrative Agent)
of such request in writing, not later than 2:00 p.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Swingline Lender shall
make each Swingline Loan available to the Borrower on the same Business Day by means of a credit to the Funding Account or otherwise
in accordance with the instructions of the Borrower (including, in the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank).
(b)
The Swingline Lender may by written notice given to the Revolving Facility Administrative Agent not later than 12:00 p.m. on any
Business Day require the Revolving Lenders to acquire participations on the second Business Day following receipt of such notice in all
or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving
Lenders will participate. Promptly upon receipt of such notice, the Revolving Facility Administrative Agent will give notice thereof
to each Revolving Lender, specifying in such notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or Swingline
Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Revolving
Facility Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan
or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant
to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or any reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.07 with respect to Revolving
Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving
Lenders pursuant to this Section 2.04(b)), and the Revolving Facility Administrative Agent shall promptly remit to the Swingline
Lender the amounts so received by it from the Revolving Lenders. The Revolving Facility Administrative Agent shall notify the Borrower
of any participation in any Swingline Loan acquired pursuant to this Section 2.04(b), and thereafter payments in respect of such
Swingline Loan shall be made to the Revolving Facility Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect of any Swingline Loan after receipt by
the Swingline Lender of the proceeds of any sale of participations therein shall be promptly remitted by the Swingline Lender to the
Revolving Facility Administrative Agent and any such amounts received by the Revolving Facility Administrative Agent shall be promptly
remitted by the Revolving Facility Administrative Agent to the Revolving Lenders that have made their payments
pursuant to this Section
2.04(b) and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid
to the Swingline Lender or the Revolving Facility Administrative Agent, as the case may be, and thereafter to the Borrower, if and to
the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in any Swingline Loan
pursuant to this Section 2.04(b) shall not relieve the Borrower of any default in the payment thereof.
(c)
If any Revolving Lender fails to make available to the Revolving Facility Administrative Agent for the account of the Swingline
Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04 by the
time specified in Section 2.04(b), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through
the Revolving Facility Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater
of the Federal Funds Effective Rate from time to time in effect and a rate determined by the Revolving Facility Administrative Agent
in accordance with banking industry rules on interbank compensation. A certificate of the Swingline Lender submitted to any Revolving
Lender (through the Revolving Facility Administrative Agent) with respect to any amounts owing under this clause (c) shall be
conclusive absent manifest error.
Section
2.05. Letters
of Credit.
(a)
General. Subject to the terms and conditions set forth herein, (i) each Issuing Bank agrees, in each case in reliance upon
the agreements of the other Revolving Lenders set forth in this Section 2.05, (A) from time to time on any Business Day during
the period from the Closing Date to the fifth Business Day prior to the Latest Revolving Loan Maturity Date, upon the request of the
Borrower, to issue Letters of Credit denominated in Dollars or any Alternate Currency issued on sight basis only for the account of the
Borrower (or any Restricted Subsidiary; provided that the Borrower will be the applicant) and to amend or renew Letters of Credit
previously issued by it, in accordance with Section 2.05(b) and (B) to honor drafts under the Letters of Credit and (ii) the Revolving
Lenders severally agree to participate in the Letters of Credit issued pursuant to Section 2.05(d); provided, further, that after
giving effect to the issuance, amendment, renewal or extension of any Letter of Credit, (w) the aggregate LC Exposure shall not exceed
the Total Revolving Credit Commitments, (x) the LC Exposure of each Revolving Lender shall not exceed such Revolving Lender’s Revolving
Credit Commitment, (y) the Outstanding Amount of the LC Exposure shall not exceed the Letter of Credit Sublimit and (z) the Outstanding
Amount of the Letters of Credit issued by any Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment. Notwithstanding
anything to the contrary contained in this Agreement, no Issuing Bank shall be required to issue Commercial Letters of Credit without
its consent.
(i)
No Issuing Bank shall have an obligation to issue any Letter of Credit if (x) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, (y) customary
“know your customer” requirements of such Issuing Bank with respect to the beneficiary of such Letter of Credit would be
violated or (z) any law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such Issuing Bank shall prohibit, or direct that such Issuing Bank refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular.
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit, the
Borrower shall deliver to the applicable Issuing Bank and the Revolving Facility Administrative Agent, at least three Business Days in
advance of the requested date of issuance (or such shorter period as is acceptable to the applicable Issuing Bank or, in the case of
any issuance to be
made on the Closing
Date, one Business Day prior to the Closing Date), a request to issue a Letter of Credit, which shall specify that it is being issued
under this Agreement, in the form of Exhibit K attached hereto or any other form approved by the applicable Issuing Bank and the
Borrower. To request an amendment, extension or renewal of a Letter of Credit (other than any automatic extension of a Letter of Credit
permitted under Section 2.05(c)), the Borrower shall submit such a request to the applicable Issuing Bank selected by the Borrower
(with a copy to the Revolving Facility Administrative Agent) at least three Business Days in advance of the requested date of amendment,
extension or renewal (or such shorter period as is acceptable to the applicable Issuing Bank), identifying the Letter of Credit to be
amended, extended or renewed, and specifying the proposed date (which shall be a Business Day) and other details of the amendment, extension
or renewal. Requests for the issuance, amendment, extension or renewal of any Letter of Credit must be accompanied by such other information
required by the applicable Issuing Bank as shall be necessary to issue, amend, extend or renew such Letter of Credit. If requested by
the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form
in connection with any request for a Letter of Credit. In the event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered
into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall
control. No Letter of Credit, letter of credit application or other document entered into by the Borrower with any Issuing Bank relating
to any Letter of Credit shall contain any representations or warranties, covenants or events of default not set forth in this Agreement
(and to the extent inconsistent herewith shall be rendered null and void or reformed automatically without further action by any Person
to conform to the terms of this Agreement), and all representations and warranties, covenants and events of default set forth therein
shall contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those set forth in this
Agreement (and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards, qualifications,
thresholds and exceptions set forth herein without action by any Person). A Letter of Credit may be issued, amended, extended or renewed
only if (and on the issuance, amendment, extension or renewal of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, extension or renewal, (w) the aggregate Revolving Credit Exposure shall
not exceed the Total Revolving Credit Commitments, (x) the LC Exposure of each Revolving Lender shall not exceed such Revolving Lender’s
Revolving Credit Commitment, (y) the aggregate amount of the LC Exposure shall not exceed the Letter of Credit Sublimit and (z) the Outstanding
Amount of the Letters of Credit issued by any Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment. In
addition, no Issuing Bank shall be required to issue, amend, extend or renew any Letter of Credit if the expiration date of such Letter
of Credit extends beyond the Maturity Date applicable to the Revolving Credit Commitments of any Class unless (1) the aggregate amount
of the LC Exposure attributable to Letters of Credit expiring after such Maturity Date does not exceed the aggregate amount of the Revolving
Credit Commitments then in effect that are scheduled to remain in effect after such Maturity Date, (2) all Revolving Lenders and such
Issuing Bank shall have consented to such expiry date, (3) the Borrower shall have caused such Letter of Credit to be backstopped by
a “back to back” letter of credit reasonably satisfactory to such Issuing Bank or (4) the Borrower shall have caused such
Letter of Credit to be Cash collateralized in accordance with Section 2.05(j), in the case of clause (3) or (4)
on or before the date that such Letter of Credit is issued, amended, extended or renewed beyond such date. Promptly after the delivery
of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof,
the applicable Issuing Bank will also deliver to the Borrower and the Revolving Facility Administrative Agent a true and complete copy
of such Letter of Credit or amendment. Upon receipt of such Letter of Credit or amendment, the Revolving Facility Administrative Agent
shall notify the Revolving Lenders, in writing, of such Letter of Credit or amendment, and if so requested by a Revolving Lender, the
Revolving Facility Administrative Agent will provide such Revolving Lender with copies of such Letter of Credit or amendment.
(c)
Expiration Date.
(i)
Except as set forth in Section 2.05(b), no Standby Letter of Credit shall expire later than the earlier of (A) the date
that is one year after the date of the issuance of such Standby Letter of Credit (or such later date to which the relevant Issuing Bank
may agree) and (B) five (5) Business Days prior to the Latest Revolving Loan Maturity Date; provided that, any Standby Letter
of Credit may provide for the automatic extension thereof for any number of additional periods each of up to one year in duration (none
of which, in any event, shall extend beyond the date referred to in the preceding clause (B) unless 100% of the then-available
face amount thereof is Cash collateralized or backstopped on or before the date that such Letter of Credit is extended beyond the date
referred to in clause (B) above pursuant to arrangements reasonably satisfactory to the relevant Issuing Bank).
(ii)
Except as set forth in Section 2.05(b), no Commercial Letter of Credit shall expire later than the earlier to occur of
(A) one year after the issuance thereof (or such later date to which the relevant Issuing Bank may agree) and (B) five (5) Business Days
prior to the Latest Revolving Loan Maturity Date; provided that any Commercial Letter of Credit may provide for the automatic
extension thereof for any number of additional periods each of up to one year in duration (none of which, in any event, shall extend
beyond the date referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized
or backstopped on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above pursuant
to arrangements reasonably satisfactory to the relevant Issuing Bank).
(d)
Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof)
and without any further action on the part of the applicable Issuing Bank or the Revolving Lenders, the applicable Issuing Bank hereby
grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of
Credit (in respect of any Letter of Credit issued in any Alternate Currency, expressed in the Dollar Equivalent thereof). In consideration
and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Revolving Facility
Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement
made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence
and continuance of a Default or Event of Default or reduction or termination of the Revolving Credit Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e)
Reimbursement.
(i)
If the applicable Issuing Bank makes any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Revolving Facility Administrative Agent (or, in the case of Commercial Letters of Credit, the applicable
Issuing Bank) an amount equal to such LC Disbursement not later than 1:00 p.m. on the Business Day immediately following the date on
which the Borrower receives notice under paragraph (g) of this Section of such LC Disbursement (or, if such notice is received
less than two hours prior to the deadline for requesting ABR Borrowings pursuant to Section 2.03, on the second Business
Day immediately
following the date on which the Borrower receives such notice); provided that the Borrower may, subject to the conditions to borrowing
set forth herein, request in accordance with Section 2.03 or 2.04 that such payment be financed with an ABR Revolving Loan
or a Swingline Loan and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting Revolving Loan Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the Revolving Facility
Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Revolving Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving
Lender shall pay to the Revolving Facility Administrative Agent its Applicable Percentage of the payment then due from the Borrower,
in the same manner as provided in Section 2.07 with respect to Loans made by such Revolving Lender (and Section 2.07 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Revolving Facility Administrative Agent shall
promptly pay to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by the
Revolving Facility Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Revolving Facility Administrative
Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant
to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear.
(ii)
If any Revolving Lender fails to make available to the Revolving Facility Administrative Agent for the account of the applicable
Issuing Bank any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.05(e)
by the time specified therein, such Issuing Bank shall be entitled to recover from such Revolving Lender (acting through the Revolving
Facility Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to such Issuing Bank at a rate per annum equal to the greater of the Federal
Funds Effective Rate (or, in the case of any Letter of Credit denominated in any Alternate Currency, the Revolving Facility Administrative
Agent’s customary rate for interbank advances in such Alternate Currency) from time to time in effect and a rate determined by
the Revolving Facility Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate of the
applicable Issuing Bank submitted to any Revolving Lender (through the Revolving Facility Administrative Agent) with respect to any amounts
owing under this clause (ii) shall be conclusive absent manifest error.
(f)
Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e)
of this Section shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein or herein, (ii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect,
(iii) payment by the applicable Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower’s obligations hereunder. Neither the Revolving Facility Administrative Agent, the Revolving Lenders nor any
Issuing Bank, nor any of their respective Related Parties shall have any liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (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 other communication under or relating to any Letter of
Credit (including
any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes
beyond the control of such Issuing Bank; provided that the foregoing shall not be construed to excuse such Issuing Bank from liability
to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect
of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such
Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct
on the part of applicable Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed
to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties
agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter
of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility
for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents
if such documents are not in strict compliance with the terms of such Letter of Credit.
(g)
Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Revolving Facility
Administrative Agent and the Borrower in writing of such demand for payment and whether such Issuing Bank has made or will make an LC
Disbursement thereunder; provided that no failure to give or delay in giving such notice shall relieve the Borrower of its obligation
to reimburse such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
(h)
Interim Interest. If any Issuing Bank makes any LC Disbursement, then, unless the Borrower reimburses such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement (or the date on which such
LC Disbursement is reimbursed with the proceeds of Loans, as applicable), at the rate per annum then applicable to (x) in the case of
any Letter of Credit denominated in Dollars, Revolving Loans that are ABR Loans, (y) in the case of any Letter of Credit denominated
in Canadian Dollars, Revolving Loans that are Canadian Prime Rate Loans and (z) in the case of any Letter of Credit denominated in any
other Alternate Currency, Revolving Loans that are Eurocurrency Rate Loans with an Interest Period of one month or Alternative Currency
Daily Rate Loans (as applicable); provided that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph
(e) of this Section, then Section 2.13(e) shall apply. Interest accrued pursuant to this paragraph shall be for the account
of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph
(e) of this Section to reimburse such Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment.
(i)
Replacement of an Issuing Bank or Addition of New Issuing Banks. Any Issuing Bank may be replaced with the consent of the
Revolving Facility Administrative Agent (not to be unreasonably withheld or delayed), the Borrower and the successor Issuing Bank at
any time by written agreement among the Borrower, the Revolving Facility Administrative Agent and the successor Issuing Bank. The Revolving
Facility Administrative Agent shall notify the Revolving Lenders of any such replacement of an Issuing Bank. At the time any such replacement
becomes effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b)(ii). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term “Issuing Bank” shall be deemed to refer to such
successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of any
Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required
to issue additional Letters of Credit after such replacement. The Borrower may, at any time and from time to time with the consent of
the Revolving Facility Administrative Agent (which consent shall not be unreasonably withheld or delayed) and the relevant Revolving
Lender, designate one or more additional Revolving Lenders to act as an issuing bank under the terms of this Agreement. Any Revolving
Lender designated as an issuing bank pursuant to this paragraph (i) shall be deemed to be an “Issuing Bank” (in addition
to being a Revolving Lender) in respect of Letters of Credit issued or to be issued by such Revolving Lender, and, with respect to such
Letters of Credit, such term shall thereafter apply to the other Issuing Bank and such Revolving Lender.
(j)
Cash Collateralization.
(i)
If any Event of Default exists and the Revolving Loans have been declared due and payable in accordance with Article 7
hereof, then on the Business Day that the Borrower receives notice from the Revolving Facility Administrative Agent at the direction
of the Required Lenders demanding the deposit of Cash collateral pursuant to this paragraph (j), upon such demand, the Borrower
shall deposit, in an interest-bearing account with the Revolving Facility Administrative Agent, in the name of the Revolving Facility
Administrative Agent and for the benefit of the Revolving Lenders (the “LC Collateral Account”), an amount in Cash
equal to 100% of the LC Exposure as of such date (minus the amount then on deposit in the LC Collateral Account); provided that
the obligation to deposit such Cash collateral shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described
in Section 8.01(f) or (g).
(ii)
Any such deposit under clause (i) above shall be held by the Revolving Facility Administrative Agent as collateral for
the payment and performance of the Obligations in accordance with the provisions of this paragraph (j). The Revolving Facility
Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account, and the
Borrower hereby grants the Revolving Facility Administrative Agent, for the benefit of the Secured Parties, a First Priority security
interest in the LC Collateral Account. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Revolving Facility Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements
for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations
of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of
the Required Revolving Lenders) be applied to satisfy other Obligations. If the Borrower is required to provide an amount of Cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (together with all interest and other earnings with respect
thereto, to the extent not applied as aforesaid) shall be returned to the Borrower promptly but in no event later than three Business
Days after such Event of Default has been cured or waived.
(k)
Existing Letters of Credit. Each Existing Letter of Credit shall be deemed a Letter of Credit issued hereunder for all
purposes under this Agreement without need for any further action by the Borrower or any other Person.
(l)
Reporting. Not later than the third Business Day following the last day of each month and on the date of any issuance of
any Letter of Credit (or at such other intervals as the Revolving Facility Administrative Agent and the applicable Issuing Bank shall
agree), each Issuing Bank shall provide to the Revolving Facility Administrative Agent a schedule of the Letters of Credit issued by
it, in form and substance reasonably satisfactory to the Revolving Facility Administrative Agent, showing the date of issuance of each
Letter of Credit, the account party, the original face amount (if any), the expiration date, and the reference number of any Letter of
Credit outstanding at any time during such month, and showing the aggregate amount (if any) payable by the Borrower to such Issuing Bank
during such month.
Section
2.06. [Reserved].
Section
2.07. Funding
of Borrowings.
(a)
Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available
funds by 1:00 p.m. to the account of the Applicable Administrative Agent most recently designated by it for such purpose by notice to
the Lenders in an amount equal to such Lender’s respective Applicable Percentage; provided that Swingline Loans shall be
made as provided in Section 2.04. The Applicable Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to the Funding Account or as otherwise directed by the Borrower; provided that
Revolving Loans made to finance the reimbursement of any LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Applicable Administrative Agent to the applicable Issuing Bank.
(b)
Unless the Applicable Administrative Agent has received notice from any Lender prior to the proposed date of any Borrowing that
such Lender will not make available to the Applicable Administrative Agent such Lender’s share of such Borrowing, the Applicable
Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if any
Lender has not in fact made its share of the applicable Borrowing available to the Applicable Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Applicable Administrative Agent forthwith on demand (without duplication) such
corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Applicable Administrative Agent, at (i) in the case of such Lender, the greater of the Federal
Funds Effective Rate (or, with respect to any amount denominated in any Alternate Currency, the rate of interest per annum at which overnight
deposits in the applicable Alternate Currency, in an amount that is approximately equal to the amount with respect to which such rate
is being determined, would be offered for such day by the Applicable Administrative Agent in the applicable offshore interbank market
for such currency) and a rate determined by the Applicable Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate applicable to the Loans comprising such Borrowing at such time. If
such Lender pays such amount to the Applicable Administrative Agent, then such amount shall constitute such Lender’s Loan included
in such Borrowing and the Borrower’s obligation to repay the Applicable Administrative Agent such corresponding amount pursuant
to this Section 2.07(b) shall cease. If the Borrower pays such amount to the Applicable Administrative Agent, the amount so paid
shall constitute a repayment of such Borrowing by such amount. Nothing herein shall be deemed to relieve any Lender from its obligation
to fulfill its Commitment or to prejudice any rights which the Applicable Administrative Agent or the Borrower or any other Loan Party
may have against any Lender as a result of any default by such Lender hereunder.
Section
2.08. Type;
Interest Elections.
(a)
Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency
Rate Borrowing or BA Rate Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert any Borrowing to a Borrowing of a different Type available in such currency or to continue any Borrowing and, in
the case of a Eurocurrency Rate Borrowing or BA Rate Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders based upon their Applicable Percentages and the Loans comprising each such portion shall
be considered a separate Borrowing. This Section shall not apply to Swingline Loans, which may not be converted or continued.
(b)
To make an election pursuant to this Section, the Borrower shall deliver an Interest Election Request (by hand delivery, fax or
other electronic transmission (including “.pdf” or “.tif”)), appropriately completed and signed by a Responsible
Officer of the Borrower, of the applicable election to the Applicable Administrative Agent by the time that a Borrowing Request would
be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made
on the effective date of such election. If any such Interest Election Request requests a Eurocurrency Rate Borrowing or a BA Rate Borrowing
but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(c)
Promptly following receipt of an Interest Election Request, the Applicable Administrative Agent shall advise each applicable Lender
of the details thereof and of such Lender’s portion of each resulting Borrowing.
(d)
If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Rate Borrowing or BA Rate Borrowing
prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing
shall be converted at the end of such Interest Period to a Eurocurrency Rate Borrowing or BA Rate Borrowing, as applicable, with an Interest
Period of one month. Notwithstanding any contrary provision hereof, if an Event of Default exists and the Applicable Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long as such Event of Default exists (i) no outstanding Borrowing
denominated in Dollars may be converted to or continued as a Eurocurrency Rate Borrowing and (ii) unless repaid, each Eurocurrency Rate
Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the then-current Interest Period applicable thereto.
(e)
It is understood and agreed that (i) only a Borrowing denominated in Dollars may be made as, or converted to, an ABR Loan, (ii)
only a Borrowing denominated in Canadian Dollars may be made as, or converted to, a Canadian Prime Rate Loan or a BA Rate Loan, (iii)
a Borrowing denominated in Sterling may only be made as, or converted to, or continued as, an Alternative Currency Daily Rate Loan (or
such other type of Revolving Loan as may be agreed by the Revolving Facility Administrative Agent and the Borrower pursuant to Section
1.10) and (iv) a Borrowing in Euros may only be made as, or converted to, or continued as, a Eurocurrency Rate Loan (or such other
type of Revolving Loan as may be agreed by the Revolving Facility Administrative Agent and the Borrower pursuant to Section 1.10).
Section
2.09. Termination
and Reduction of Commitments.
(a)
Unless previously terminated, (i) the Initial Term Loan Commitments on the Closing Date shall automatically terminate upon the
making of the Initial Term Loans on the Closing Date, (ii) the Initial Revolving Credit Commitments shall automatically terminate on
the Initial Revolving Credit Maturity Date, (iii) the Additional Term Loan Commitments of any Class shall automatically terminate upon
the making of the Additional Term Loans of such Class and, if any such Additional Term Loan
Commitment is not
drawn on the date that such Additional Term Loan Commitment is required to be drawn pursuant to the applicable Refinancing Amendment,
Extension Amendment or Incremental Facility Amendment, the undrawn amount thereof shall terminate unless otherwise provided in the applicable
Refinancing Amendment, Extension Amendment or Incremental Facility Amendment and (iv) the Additional Revolving Credit Commitments of
any Class shall automatically terminate on the Maturity Date specified therefor in the applicable Refinancing Amendment, Extension Amendment
or Incremental Facility Amendment.
(b)
Upon delivering the notice required by Section 2.09(c), the Borrower may at any time terminate or from time to time reduce
the Revolving Credit Commitments of any Class; provided that (i) each reduction of the Revolving Credit Commitments of any Class
shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate
or reduce the Revolving Credit Commitments of any Class if, after giving effect to such termination or reduction, as applicable, and
any concurrent prepayment of Revolving Loans and Swingline Loans, the aggregate amount of the Revolving Credit Exposure attributable
to the Revolving Credit Commitments of such Class would exceed the aggregate amount of the Revolving Credit Commitments of such Class;
provided that, after the establishment of any Additional Revolving Credit Commitment, any such termination or reduction of the
Revolving Credit Commitments of any Class shall be subject to the provisions set forth in Section 2.22, 2.23 and/or 10.02,
as applicable.
(c)
The Borrower shall notify the Revolving Facility Administrative Agent of any election to terminate or reduce any Class or Classes
of Revolving Credit Commitments under paragraph (b) of this Section (as selected by the Borrower) not later than 1:00 p.m.
on or prior to the effective date of such termination or reduction (or not later than 1:00 p.m., three Business Days prior to the effective
date of such termination or reduction, in the case of a termination or reduction involving a prepayment of Eurocurrency Rate Borrowings,
Alternative Currency Daily Rate Borrowings or BA Rate Borrowings (or such later date to which the Revolving Facility Administrative Agent
may agree)), specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Revolving Facility
Administrative Agent shall advise the Revolving Lenders of each applicable Class or Classes of the contents thereof. Each notice delivered
by the Borrower pursuant to this Section shall be irrevocable; provided that any such notice may state that such notice is
conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by notice to the
Revolving Facility Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination
or reduction of any Revolving Credit Commitment pursuant to this Section 2.09 shall be permanent. Upon any reduction of any Revolving
Credit Commitment, the Revolving Credit Commitment of each Revolving Lender of the relevant Class shall be reduced by such Revolving
Lender’s Applicable Percentage of such reduction amount.
Section
2.10. Repayment
of Loans; Evidence of Debt.
(a)
The Borrower hereby unconditionally promises to repay (i) the outstanding principal amount of the Initial Term Loans to the Term
Facility Administrative Agent for the account of each applicable Initial Term Lender commencing on September 30, 2022, on the last Business
Day of each March, June, September and December prior to the Initial Term Loan Maturity Date (each such date being referred to as an
“Initial Loan Installment Date”), in each case in an amount equal to 0.25% of the original principal amount of the
Initial Term Loans (as such payments may be reduced from time to time as a result of the application of prepayments in accordance with
Section 2.11 and purchases or assignments in accordance with Section 10.05(g) or increased as a result of any increase
in the amount of such Initial Term Loans pursuant to Section 2.22(a)), (ii) the outstanding principal amount of the First Incremental
Term Loans to the First Incremental Term FacilityFacilities
Administrative Agent for the account of each applicable First Incremental Term Lender commencing on December 31, 2023, on the
last Business Day
of each March, June, September and December prior to the First Incremental Term Loan Maturity Date (each such date being referred to
as a “First Incremental Loan Installment Date” and, together with the Initial Loan
Installment Date, a “Loan Installment Date”), in
each case in an amount equal to 0.25% of the original principal amount of the First Incremental Term Loans (as such payments may be reduced
from time to time as a result of the application of prepayments in accordance with Section 2.11 and purchases or assignments in accordance
with Section 10.05(g) or increased as a result of any increase in the amount of such First Incremental Term Loans pursuant to Section
2.22(a)), (iii) the outstanding principal amount of the Second Incremental
Term Loans to the Incremental Term Facilities Administrative Agent for the account of each applicable Second Incremental Term Lender
commencing on March 31, 2025, on the last Business Day of each March, June, September and December prior to the Second Incremental Term
Loan Maturity Date (each such date being referred to as a “Second Incremental Loan Installment Date” and, together
with each Initial Loan Installment Date and the First Incremental Loan
Installment Date, a “Loan Installment Date”))
in each case in an amount equal to (x) for the first eight Second Incremental Loan Installment Dates following the Second Incremental
Amendment Date, 0.625% of the original principal amount of the Second Incremental Term Loans and (y) for each Second Incremental Loan
Installment Date thereafter, 1.875% of the original principal amount of the Second Incremental Term Loans (in each case of clauses (x)
and (y), as such payments may be reduced from time to time as a result of the application of prepayments in accordance with Section 2.11
and purchases or assignments in accordance with Section 10.05(g) or increased as a result of any increase in the amount of such Second
Incremental Term Loans pursuant to Section 2.22(a)), (iv) on the Initial Term Loan Maturity Date,
in an amount equal to the remainder of the principal amount of the Initial Term Loans outstanding on such date, together in each case
with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment and,
(ivv) on
the First Incremental Term Loan Maturity Date, in an amount equal to the remainder of the principal amount of the First Incremental Term
Loans outstanding on such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding
the date of such payment and (vi) on the Second Incremental Term Loan Maturity
Date, in an amount equal to the remainder of the principal amount of the Second Incremental Term Loans outstanding on such date, together
in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment. The
Borrower shall repay the Additional Term Loans of any Class in such scheduled amortization installments and on such date or dates as
shall be specified therefor in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment (as such payments
may be reduced from time to time as a result of the application of prepayments in accordance with Section 2.11 and purchases or
assignments in accordance with Section 10.05(g) or increased as a result of any increase in the amount of such Additional Term
Loans pursuant to Section 2.22(a)).
(b)
The Borrower hereby unconditionally promises to pay (i) to the Revolving Facility Administrative Agent for the account of each
Initial Revolving Lender, the then-unpaid principal amount of the Initial Revolving Loans of such Lender made to such Borrower on the
Initial Revolving Credit Maturity Date, (ii) to the Revolving Facility Administrative Agent for the account of each Additional Revolving
Lender, the then-unpaid principal amount of each Additional Revolving Loan of such Additional Revolving Lender made to such Borrower
on the Maturity Date applicable thereto and (iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan made
to such Borrower on the earlier of (x) the 10th Business Day following the incurrence of such Swingline Loan and (y) the Latest Revolving
Loan Maturity Date. On the Initial Revolving Credit Maturity Date, the Borrower shall make payment in full in Cash of all accrued and
unpaid fees and all reimbursable expenses and other Loan Document Obligations with respect to the Initial Revolving Facility then due,
together with accrued and unpaid interest (if any) thereon attributable to such Borrower.
(c)
If the Maturity Date in respect of any Class of Revolving Credit Commitments occurs prior to the expiry date of any Letter of
Credit, then (i) if one or more other Classes of Revolving Credit
Commitments in respect
of which the Maturity Date shall not have so occurred are then in effect (or will automatically be in effect upon the occurrence of such
Maturity Date), such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of
the Revolving Lenders to purchase participations therein and to make Revolving Loans and payments in respect thereof pursuant to Section
2.05(d) and Section 2.05(e)) under (and ratably participated in by Revolving Lenders pursuant to) the non-terminating or new
Classes of Revolving Credit Commitments up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolving
Credit Commitments continuing at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated)
(in each case, after giving effect to any repayments of Revolving Loans) and (ii) to the extent not reallocated pursuant to immediately
preceding clause (i) and unless provisions reasonably satisfactory to the applicable Issuing Bank for the treatment of such Letter of
Credit as a letter of credit under a successor credit facility have been agreed upon, the Borrower shall, on or prior to the applicable
Maturity Date, (x) cause such Letter of Credit to be replaced and returned to the applicable Issuing Bank undrawn and marked “cancelled”,
(y) cause such Letter of Credit to be backstopped by a “back to back” letter of credit reasonably satisfactory to the applicable
Issuing Bank or (z) Cash collateralize such Letter of Credit in accordance with Section 2.05(j). Commencing with the Maturity
Date of any Class of Revolving Credit Commitments, the Letter of Credit Sublimit shall be in an amount agreed solely with the applicable
Issuing Bank; provided that, at the request of the Borrower, the Letter of Credit Sublimit immediately following such Maturity
Date shall be no less than the Letter of Credit Sublimit immediately prior to such Maturity Date multiplied by a fraction, the numerator
of which is the aggregate amount of the Revolving Credit Commitments immediately following such Maturity Date and the denominator of
which is the aggregate amount of the Revolving Credit Commitments immediately prior to such Maturity Date.
(d)
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(e)
The Applicable Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder,
the Class and Type thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Applicable
Administrative Agent hereunder for the account of the Lenders or the Issuing Banks and each Lender’s or the Issuing Bank’s
share thereof.
(f)
The entries made in the accounts maintained pursuant to paragraph (d) or (e) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein (absent manifest error); provided that the failure of
any Lender or any Administrative Agent to maintain such accounts or any manifest error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the event
of any inconsistency between the accounts maintained by any Administrative Agent pursuant to paragraph (e) of this Section and
any Lender’s records, the accounts of such Administrative Agent shall govern.
(g)
Any Lender may request that Loans made by it be evidenced by a Promissory Note. In such event, the Borrower shall prepare, execute
and deliver to such Lender a Promissory Note payable to such Lender and its registered permitted assigns; it being understood and agreed
that such Lender (and/or its applicable permitted assign) shall be required to return such Promissory Note to the Borrower in accordance
with Section 10.05(b)(iii) and upon the occurrence of the Termination Date (or as promptly thereafter as practicable). If any
Lender loses the original copy of its Promissory Note, it shall execute an affidavit of loss containing a customary indemnification provision
that is reasonably satisfactory to the Borrower. The obligation of each Lender to execute an affidavit of loss containing a customary
indemnification provision
that is reasonably satisfactory to the Borrower shall survive the Termination Date.
Section
2.11. Prepayment
of Loans.
(a)
Optional Prepayments.
(i)
Upon prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time
and from time to time to prepay any Borrowing of Term Loans of one or more Classes (such Class or Classes to be selected by the Borrower
in its sole discretion) in whole or in part without premium or penalty (but subject to (A) in the case of Initial Term Loans only, Section
2.12(f)(i), (B) in the case of First Incremental Term Loans only, Section 2.12(f)(ii) and (C) if applicable, Section 2.16).
Each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages of the relevant Class.
(ii)
Upon prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time
and from time to time to prepay any Borrowing of Revolving Loans of any Class or any Borrowing of Swingline Loans, including any Additional
Revolving Loans, in whole or in part without premium or penalty (but subject to Section 2.16). Prepayments made pursuant to this
Section 2.11(a)(ii), first, shall be applied ratably to the Swingline Loans and to outstanding LC Disbursements and second, shall
be applied ratably to the outstanding Revolving Loans, including any Additional Revolving Loans of the relevant Class.
(iii)
The Borrower shall notify the Applicable Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the Swingline
Lender) in writing of any prepayment under this Section 2.11(a) (A) in the case of a prepayment of a Eurocurrency Rate Borrowing
or a BA Rate Borrowing, not later than 1:00 p.m. three Business Days before the date of prepayment, (B) in the case of an Alternative
Currency Daily Rate Borrowing, not later than 1:00 p.m. five Business Days before the date of prepayment, (C) in the case of a prepayment
of an ABR Borrowing or a Canadian Prime Rate Borrowing, not later than 1:00 p.m. (or, solely in the case of the First Incremental
Term Loans and Second Incremental Term Loans, 11:00 a.m.) on the date of prepayment or (D) in the case of a prepayment of a Swingline
Loan, not later than 1:00 p.m. on the date of prepayment (or, in each case, such later date or time to which the Applicable Administrative
Agent may reasonably agree). Each such notice shall be irrevocable (except as set forth in the proviso to this sentence) and shall specify
the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that a notice of prepayment
delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other transactions or other conditional
events, in which case such notice may be revoked or its effectiveness deferred by the Borrower (by notice to the Applicable Administrative
Agent on or prior to the specified effective date) if such condition is not satisfied and/or the Borrower may delay or rescind such notice
until such condition is satisfied. Promptly following receipt of any such notice relating to any Borrowing, the Applicable Administrative
Agent shall advise the relevant Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount at least
equal to the amount that would be permitted in the case of a Borrowing of the same Type and Class as provided in Section 2.02(c)
or such lesser amount that is then outstanding with respect to such Borrowing being repaid. Each prepayment of Term Loans shall be applied
to the Class or Classes of Term Loans specified by the Borrower in the applicable prepayment notice, and each prepayment of Term Loans
of such Class or Classes made pursuant to this Section 2.11(a) shall be applied against the remaining scheduled installments of
principal due in respect of the Term Loans of such Class or Classes in the manner specified by the Borrower or, if not so specified on
or prior to the date of such optional prepayment, in direct order of maturity.
(b)
Mandatory Prepayments.
(i)
No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the
Borrower are delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2023, the Borrower shall
prepay Subject Loans in accordance with clause (vivii)
below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow
Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then most recently ended
(this clause (A), the “Base ECF Prepayment Amount”) minus (B) at the option of
the Borrower, to the extent occurring during such Excess Cash Flow Period (or occurring after such Excess Cash Flow Period and prior
to the date of the applicable Excess Cash Flow payment), and without duplication (including duplication of any amounts deducted in any
prior Excess Cash Flow Period), the following (collectively, the “ECF Deductions”):
(1)
the aggregate principal amount of any Term Loans and Revolving Loans prepaid pursuant to Section 2.11(a);
(2)
the aggregate principal amount of any Incremental Equivalent Debt, Replacement Debt and/or any other Indebtedness permitted to
be incurred pursuant to Section 6.01 to the extent secured by Liens on the Collateral that are pari passu with the Liens on the
Collateral securing the Credit Facilities (without regard to the control of remedies), voluntarily prepaid, repurchased, redeemed or
otherwise retired (or contractually committed to be prepaid, repurchased, redeemed or otherwise retired);
(3)
the amount of any reduction in the outstanding amount of any Term Loans, Incremental Equivalent Debt, Replacement Debt and/or
any other Indebtedness permitted to be incurred pursuant to Section 6.01 to the extent secured by Liens on the Collateral that
are pari passu with the Liens on the Collateral securing the Credit Facilities, resulting from any purchase or assignment made in accordance
with Section 10.05(g) of this Agreement (including in connection with any Dutch Auction) (with respect to Term Loans) and any
equivalent provisions with respect to any Incremental Equivalent Debt, Replacement Debt and/or such other Indebtedness;
(4)
all Cash payments in respect of Capital Expenditures and all Cash payments made to acquire IP Rights;
(5)
Cash payments by the Borrower and its Restricted Subsidiaries made (or committed or budgeted) in respect of long-term liabilities
(including for purposes of clarity, the current portion of such long-term liabilities) of the Borrower and its Restricted Subsidiaries
other than Indebtedness, except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated
Adjusted EBITDA for such period;
(6)
Cash payments in respect of any Investment (including acquisitions) permitted by Section 6.06 or otherwise consented
to by the Required Lenders (other than Investments (x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any
Restricted Payment permitted by Section 6.04(a) (other than Restricted Payments set forth in
Sections
6.04(a)(iii), 6.04(a)(vi) and 6.04(a)(xiii)) or otherwise consented to by the Required Lenders;
(7)
the aggregate consideration (i) required to be paid in Cash by the Borrower or its Restricted Subsidiaries pursuant to binding
contracts entered into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by
Section 6.06 or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause
(6) above and/or (ii) otherwise committed or budgeted to be made in connection with Capital Expenditures, acquisitions or other Investments
and/or Restricted Payments described in clause (6) above (clauses (i) and (ii) of this clause (7), the “Scheduled Consideration”)
(other than Investments in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the
period of four consecutive Fiscal Quarters of the Borrower following the end of such period; provided that to the extent the aggregate
amount actually utilized to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent
period of four consecutive Fiscal Quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added
to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters;
(8)
Cash expenditures in respect of any Hedge Agreement to the extent not otherwise deducted in the calculation of Consolidated Net
Income or Consolidated Adjusted EBITDA; and
(9)
the aggregate amount of expenditures actually made by the Borrower and/or any Restricted Subsidiary in Cash (including any expenditure
for the payment of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence
or repayment of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including
this Agreement, and including, in each case, any such transaction consummated prior to, on or after the Closing Date, and Charges incurred
in connection therewith, whether or not such transaction was successful), in each case to the extent that such expenditures were not
expensed;
in the case
of each of clauses (1)-(9), (I) excluding any such payments, prepayments and expenditures made during such Fiscal Year
that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year, (II) in the case
of any prepayment of revolving Indebtedness, to the extent accompanied by a permanent reduction in the relevant commitment, (III) to
the extent that such payments, prepayments and expenditures were not financed with the proceeds of other long-term funded Indebtedness
(other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries and (IV) in each case under clause (3) above,
based upon the actual amount of cash paid in connection with any relevant purchase or assignment; provided that no prepayment
under this Section 2.11(b)(i) shall be required unless the principal amount of Subject Loans required to be prepaid exceeds $25,000,000
(and, in such case, only such amount in excess of $25,000,000 shall be required to be prepaid); provided, further, that
if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is also required to prepay, repurchase
or offer to prepay or repurchase any Indebtedness that is secured on a pari passu basis (without regard to the control
of remedies)
with any Obligation pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so prepaid
or repurchased or offered to be so prepaid or repurchased, “Other Applicable Indebtedness”) with any portion of the
ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis
of the aggregate outstanding principal amount of the Subject Loans and the relevant Other Applicable Indebtedness (or accreted amount
if such Other Applicable Indebtedness is issued with original issue discount) at such time) to the prepayment of the Subject Loans and
to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Subject Loans that would have otherwise
been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; it being understood that (1) the portion of such
ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the portion of such ECF Prepayment Amount required
to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment
Amount shall be allocated to the Subject Loans in accordance with the terms hereof and (2) to the extent the holders of the Other Applicable
Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten
Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof.
(ii)
No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation
Proceeds that are Material Insurance/Condemnation Proceeds, in each case, in excess of $100,000,000 in any Fiscal Year (disregarding
Net Proceeds of up to $75,000,000 received in respect of Exclusive Licenses in such Fiscal Year), the Borrower shall apply an amount
equal to the Required Net Proceeds Percentage of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto
in excess of such thresholds (collectively, the “Subject Proceeds”; and any Net Proceeds in respect of any Prepayment
Asset Sale or Net Insurance/Condemnation Proceeds that do not constitute Subject Proceeds, the “Excluded Proceeds”)
to prepay the outstanding principal amount of Subject Loans in accordance with clause (vivii)
below; provided that application of such thresholds shall be at the option of the Borrower; provided further that (A)
the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to
the extent (x) the Subject Proceeds are so reinvested within 12 months following receipt thereof (the “Reinvestment Period”)
or (y) the Borrower or any of its subsidiaries has contractually committed to so reinvest the Subject Proceeds during such Reinvestment
Period and the Subject Proceeds are so reinvested within six months after the expiration of such Reinvestment Period; provided,
however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall
promptly prepay the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested as set forth above (without
regard to the immediately preceding proviso) (provided that the Borrower may elect to deem certain expenditures (including Investments)
that would otherwise be permissible reinvestments but that occurred prior to the receipt of the applicable Net Proceeds or Net Insurance/Condemnation
Proceeds (as applicable) as having been reinvested in accordance with the provisions of this Section 2.11(b)(ii), but only to
the extent such deemed expenditure (or Investment) shall have been made no earlier than (x) in the case of Net Proceeds, the earliest
of the execution of a definitive agreement with respect to such Prepayment Asset Sale, the provision of notice with respect to such Prepayment
Asset Sale or the consummation of the applicable Disposition and (y) in the case of Net Insurance/Condemnation Proceeds, the occurrence
of the event in respect of which such Net Insurance/Condemnation Proceeds were received) and (B) if, at the time that any such prepayment
would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to prepay, repay or repurchase (or offer
to prepay, repay or repurchase) any Other Applicable Indebtedness, then the relevant Person may
apply the
Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the prepayment, repurchase or repayment of the Other
Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable
Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being
understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of
the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof (and the remaining amount,
if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment
of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly
and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the
declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the
Subject Loans in accordance with the terms hereof.
(iii)
In the event that the Borrower or any of its Restricted Subsidiaries receives
Net Proceeds from any issuances or incurrences of equity or hybrid-equity securities, debt securities or third-party Indebtedness for
borrowed money (other than (x) the incurrence of Indebtedness, the proceeds of which would otherwise be subject to mandatory prepayment
pursuant to clause (iv) below and (y) deferred purchase obligations, intercompany debt, intercompany issuances of equity or hybrid-equity
securities, capital leases, factoring arrangements or other receivables financing, seller lending financing activities, purchase money
financings, equipment financings and similar obligations, hedging and cash management obligations, borrowings under working capital,
liquidity, letter of credit or overdraft facilities, Indebtedness under any facility to obtain or support bid, appeal and similar bonds
and local credit facilities, in each case, incurred in the ordinary course of business, drawings under the Revolving Facility and other
Indebtedness in an aggregate principal amount up to $60,000,000), the Borrower shall, substantially concurrently with (and in any event
not later than five Business Days after) the receipt of such Net Proceeds by the Borrower or its applicable Subsidiary, apply an amount
equal to 100% of such Net Proceeds to prepay an equal amount of outstanding principal of the Second Incremental Term Loans.
(iv)
(iii) In the event that
the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower
or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except to the extent
the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of the Initial Term Loans,
First Incremental Term Loans or Second Incremental Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred
to refinance Initial Term Loans, First Incremental Term Loans or Second
Incremental Term Loans in accordance with the requirements of Section 10.02(c)), the Borrower shall, substantially simultaneously
with (and in any event not later than two Business Days thereafter) the receipt of such Net Proceeds by the Borrower or its applicable
Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant
Initial TermSubject
Loans in accordance with clause (vivii)
below;
(v)
(iv) Notwithstanding anything
in this Section 2.11(b) to the contrary, (A) the Borrower shall not be required to prepay any amount that would otherwise be required
to be paid pursuant to Sections 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow is generated
by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation
Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the Borrower determines in good faith that the repatriation
to the Borrower of any such amount would be prohibited or delayed (beyond the
time period
during which such prepayment is otherwise required to be made pursuant to Section 2.11(b)(i) or (ii) above) under any Requirement
of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected
to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or
consultant of such Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin capitalization, capital
maintenance or similar considerations); it being understood and agreed that (i) solely within 365 days following the end of the applicable
Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable
actions required by applicable Requirements of Law to permit such repatriation and (ii) if the repatriation of the relevant affected
Excess Cash Flow or Subject Proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the extent applicable,
would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material
risk of personal or criminal liability for the Persons described above, in either case, within 365 days following the end of the applicable
Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will promptly repatriate
the relevant Excess Cash Flow or Subject Proceeds, as the case may be, and the repatriated Excess Cash Flow or Subject Proceeds, as the
case may be, will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional
Taxes payable or reserved against such Excess Cash Flow or such Subject Proceeds, as a result thereof, in each case by any Loan Party,
such Loan Party’s subsidiaries, and any Affiliates or indirect or direct equity owners of the foregoing) to the repayment of Subject
Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (ivv)),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections 2.11(b)(i)
or (ii) to the extent that the relevant Excess Cash Flow is generated by any Joint Venture (including any Subsidiary that
is not a Wholly-Owned Subsidiary) or the relevant Subject Proceeds are received by any Joint Venture (including any Subsidiary that is
not a Wholly-Owned Subsidiary) for so long as the Borrower determines in good faith that the distribution to the Borrower of such Excess
Cash Flow or Subject Proceeds would be prohibited under any applicable (I) Organizational Documents (or any relevant shareholders’
or similar agreement) governing such Joint Venture, (II) agreement or instrument (including a financing arrangement) entered into with
a Person other than the Borrower or a Restricted Subsidiary not prohibited by Section 6.03 or (III) judgment, decree, order, statute
or governmental rule or regulation; it being understood that if the relevant prohibition ceases to exist within the 365-day period following
the end of the applicable Excess Cash Flow Period, the event giving rise to the relevant Subject Proceeds, the relevant Joint Venture
will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess
Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than ten Business Days after such distribution)
applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Subject Loans pursuant to this
Section 2.11(b) to the extent required herein (without regard to this clause (ivv))
and (C) if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower of any amounts
required to mandatorily prepay the Subject Loans pursuant to Section 2.11(b)(i) or (ii) above would result in material
and adverse tax consequences for any Loan Party or any of such Loan Party’s subsidiaries, Affiliates or indirect or direct equity
owners, taking into account any foreign tax credit or benefit actually realized in connection with such repatriation (such amount, a
“Restricted Amount”), as determined by the Borrower in good faith, the amount the Borrower shall be required to mandatorily
prepay pursuant to Section 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount; provided
that to the extent that the repatriation (or other intercompany distribution) of any Subject Proceeds or Excess Cash Flow from the
relevant Foreign Subsidiary would no longer have a material and adverse tax consequence within the 365-day period
following
the event giving rise to the relevant Subject Proceeds or the end of the applicable Excess Cash Flow Period, as the case may be, an amount
equal to the Subject Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to this clause (C), shall be
promptly applied to the repayment of Subject Loans pursuant to Section 2.11(b) as otherwise required above (without regard to
this clause (ivv));
(vi)
(v) Each Lender may elect,
by notice to the Term Facility Administrative Agent or the First Incremental Term FacilityFacilities
Administrative Agent, as applicable, at or prior to the time and in the manner specified by the Term Facility Administrative Agent
or the First Incremental Term FacilityFacilities
Administrative Agent, as applicable, prior to any prepayment of Initial Term Loans, First Incremental Term Loans,
Second Incremental Term Loans and Additional Term Loans required to be made by the Borrower pursuant to this Section 2.11(b),
to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”),
which Declined Proceeds may be retained by the Borrower and used for any legal purpose permitted (or not prohibited) hereunder, including
to increase the Available Amount; provided further that, for the avoidance of doubt, no Lender may reject any prepayment made
under Section 2.11(b)(iii) above or, to the extent that such prepayment
is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of
the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental Term Loans incurred to refinance
all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or a portion
of the Term Loans in accordance with the requirements of Section 10.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance
all or a portion of the Term Loans in accordance with the requirements of Section 6.01(z),
Section 2.11(b)(iv) above. If any Lender fails to deliver a notice to the Term Facility Administrative Agent or the First
Incremental Term FacilityFacilities
Administrative Agent, as applicable, of its election to decline receipt of its Applicable
Percentage of any mandatory prepayment within the time frame specified by the Term Facility Administrative Agent or the First
Incremental Term FacilityFacilities
Administrative Agent, as applicable, such failure will be deemed to constitute an acceptance
of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Initial Term Loans, First Incremental
Term Loans, Second Incremental Term Loans and Additional Term Loans.
(vii)
(vi) Except as
set forth in Section 2.11(b)(iii) or as may otherwise be set forth in any amendment to this Agreement in connection with any Additional
Term Loan, (A) each prepayment of Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) shall be applied
ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided
that any prepayment constituting (w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion
of Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), (x) Incremental Loans incurred to refinance all or
a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or a portion of the
Term Loans in accordance with the requirements of Section 10.02(c) and/or (z) Incremental Equivalent Debt incurred to refinance
all or a portion of the Term Loans in accordance with the requirements of Section 6.01(z) shall, in each case be applied solely
to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each Class of Initial Term Loans and Additional Term
Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or (iiiiv)
shall be applied against the remaining scheduled installments of principal due in respect of the Initial Term Loans and Additional
Term Loans as directed by the Borrower (or, in the absence of direction from the Borrower, to the remaining scheduled amortization payments
in respect of the Initial Term Loans and Additional Term Loans in direct order of maturity) and,
(C) with respect to the Second Incremental Term Loans, all prepayments
under Section 2.11(b)(iii) shall be applied against the remaining
scheduled
installments of principal due in respect of the Second Incremental Term Loans as directed by the Borrower (or, in the absence of direction
from the Borrower, to the remaining scheduled amortization payments in respect of the Second Incremental Term Loans in direct order of
maturity) and (D) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentages.
The amount of such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Initial Term Loans and Additional
Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans, Eurocurrency Rate Loans, Alternative Currency
Daily Rate Loans or Loans of any other Type. Any prepayment of Initial Term Loans or
First Incremental Term Loans, respectively, made on or prior to the Initial
Term Loan Soft Call Termination Date or First Incremental Term Loan
Soft Call Termination Date, respectively, pursuant to Section 2.11(b)(iiiiv)
as part of a Repricing Transaction shall be accompanied by the fee set forth in Section 2.12(f).
(viii)
(vii) In the event that
on any Revaluation Date (after giving effect to the determination of the Outstanding Amount of each Revolving Loan, Letter of Credit
and LC Disbursement) the Revolving Credit Exposure of any Class exceeds the amount of the Revolving Credit Commitment of such Class then
in effect, the Borrower shall, within five Business Days of receipt of notice from the Revolving Facility Administrative Agent, prepay
the Revolving Loans or Swingline Loans and/or reduce LC Exposure in an aggregate amount sufficient to reduce such Revolving Credit Exposure
as of the date of such payment to an amount not to exceed the Revolving Credit Commitment of such Class then in effect by taking any
of the following actions as it shall determine at its sole discretion: (A) prepaying Revolving Loans or Swingline Loans or (B) with respect
to any excess LC Exposure, depositing Cash in the LC Collateral Account or “backstopping” or replacing the relevant Letters
of Credit, in each case, in an amount equal to 100% of such excess LC Exposure (minus any amount then on deposit in the LC Collateral
Account).
(ix)
(viii) At the time of each
prepayment required under Section 2.11(b)(i), (ii) or,
(iii) or (iv), the Borrower
shall deliver to each Applicable Administrative Agent a certificate signed by a Responsible Officer of the Borrower setting forth in
reasonable detail the calculation of the amount of such prepayment in the form attached as Exhibit M hereto. Each such certificate shall
specify the Borrowings being prepaid, the principal amount of each Borrowing (or portion thereof) to be prepaid and the Applicable Administrative
Agent with respect to each such Borrowing (or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest as
required by Section 2.13. All prepayments of Borrowings under this Section 2.11(b) shall be subject to Section 2.16 and, except as set
forth in the last sentence of clause (vivii)
above, shall otherwise be without premium or penalty.
Section
2.12. Fees.
(a)
The Borrower agrees to pay to the Revolving Facility Administrative Agent for the account of each Revolving Lender of any Class
(other than any Defaulting Lender) a fee, which shall accrue at a rate equal to the (x) prior to the Investment Grade Trigger Date, a
commitment fee (the “Commitment Fee”), which shall accrue at a rate equal to 0.25% per annum on the daily amount of
the unused amount of Revolving Credit Commitment of such Lender at all times during the period from and including the Closing Date to
but excluding the earlier of (i) the Investment Grade Trigger Date and (ii) the date on which such Commitment terminates and (y) on and
after the Investment Grade Trigger Date, a facility fee (the “Facility Fee”), which shall accrue at the rate set forth
under the heading “Facility Fee” under the definition of Applicable Rate on the daily amount of the Revolving Credit Commitment
of such Lender (whether used or unused) during the period from and including the Investment Grade Trigger Date to but excluding the date
on which such Revolving Credit Commitment terminates. Accrued Commitment
Fees and Facility
Fees (as applicable) shall be payable in arrears on the last Business Day of each March, June, September and December for the quarterly
period then ended (commencing on September 30, 2022, but in the case of the payment made on such date, for the period from the Closing
Date to such date) and on the date on which the Revolving Credit Commitments of the applicable Class terminate. For purposes of calculating
the Commitment Fees and Facility Fees only, no portion of the Revolving Credit Commitments shall be deemed utilized as a result of outstanding
Swingline Loans.
(b)
The Borrower agrees to pay (i) to the Revolving Facility Administrative Agent for the account of each Revolving Lender of any
Class (other than any Defaulting Lender) a participation fee with respect to its participation in each Letter of Credit, which shall
accrue at the Applicable Rate used to determine the interest rate applicable to Eurocurrency Rate Revolving Loans on the daily face amount
of such Lender’s LC Exposure attributable to its Revolving Credit Commitment of such Class in respect of such Letter of Credit
(excluding any portion thereof attributable to unreimbursed LC Disbursements), during the period from and including the Closing Date
to the later of the date on which such Revolving Lender’s Revolving Credit Commitment of such Class terminates and the date on
which such Revolving Lender ceases to have any LC Exposure related to its Revolving Credit Commitment of such Class in respect of such
Letter of Credit (including any such LC Exposure that may exist following the termination of such Revolving Credit Commitments) and (ii)
to each Issuing Bank, for its own account, a fronting fee, in respect of each Letter of Credit issued by such Issuing Bank for the period
from the date of issuance of such Letter of Credit to the expiration date of such Letter of Credit (or if terminated on an earlier date,
to the termination date of such Letter of Credit), computed at a rate equal to the rate agreed by such Issuing Bank and the Borrower
(but in any event not to exceed 0.125% per annum) of the daily face amount of such Letter of Credit, as well as such Issuing Bank’s
reasonable and customary fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued to but excluding the last Business Day of each March, June, September
and December shall be payable in arrears for the quarterly period then ended (or, in the case of the payment made on September 30, 2022,
for the period from the Closing Date to such date) on the last Business Day of such calendar quarter; provided that all such fees
shall be payable on the date on which the Revolving Credit Commitments of the applicable Class terminate, and any such fees accruing
after the date on which the Revolving Credit Commitments of the applicable Class terminate shall be payable on demand. Any other fees
payable to any Issuing Bank pursuant to this paragraph shall be payable within 30 days after receipt of a written demand (accompanied
by reasonable back-up documentation) therefor.
(c)
[Reserved].
(d)
The Borrower agrees to pay to each Administrative Agent and the Collateral Agent, for its own account, the fees in the amounts
and at the times separately agreed upon by the Borrower and such Administrative Agent or the Collateral Agent, as applicable, in writing.
(e)
All fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Applicable Administrative
Agent (or to the applicable Issuing Bank, in the case of fees payable to it) for distribution, in the case of Commitment Fees, Facility
Fees and participation fees, to the Revolving Lenders. Fees paid shall not be refundable under any circumstances except as otherwise
provided in the Fee Letter or,
First Incremental Fee Letter or Second Incremental Fee Letter,
as applicable. Fees payable hereunder shall accrue through and including the last day of the month immediately preceding the applicable
fee payment date.
(f)
(i) In the event that, on or prior to the date that is six months after the Closing Date (the “Initial Term Loan Soft
Call Termination Date”), the Borrower (x) prepays, repays, refinances, substitutes or replaces any Initial Term Loans in connection
with a Repricing Transaction (including, for the avoidance of doubt, any prepayment made pursuant to Section 2.11(b)(iiiiv)
that constitutes a
Repricing Transaction)
with respect to Initial Term Loans or (y) effects any amendment, modification or waiver of, or consent under, this Agreement resulting
in a Repricing Transaction with respect to the Initial Term Loans, the Borrower shall pay to the Term Facility Administrative Agent,
for the ratable account of each of the applicable Initial Term Lenders, (I) in the case of clause (x), a premium of 1.00% of the
aggregate principal amount of the Initial Term Loans so prepaid, repaid, refinanced, substituted or replaced and (II) in the case of
clause (y), a fee equal to 1.00% of the aggregate principal amount of the Initial Term Loans that are the subject of such Repricing
Transaction outstanding immediately prior to such amendment. If, on or prior to the Initial Term Loan Soft Call Termination Date, all
or any portion of the Initial Term Loans held by any Term Lender are prepaid, repaid, refinanced, substituted or replaced pursuant to
Section 2.19(b)(iv) as a result of, or in connection with, such Term Lender not agreeing or otherwise consenting to any waiver,
consent, modification or amendment referred to in clause (y) above (or otherwise in connection with a Repricing Transaction),
such prepayment, repayment, refinancing, substitution or replacement will be made at 101% of the principal amount so prepaid, repaid,
refinanced, substituted or replaced. All such amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.
For the avoidance of doubt, the Initial Term Loan Soft Call Termination Date has occurred.
(ii)
In the event that, on or prior to the date that is six months after the First Incremental Amendment Date (the “First Incremental
Term Loan Soft Call Termination Date”), the Borrower (x) prepays, repays, refinances, substitutes or replaces any First Incremental
Term Loans in connection with a Repricing Transaction (including, for the avoidance of doubt, any prepayment made pursuant to Section
2.11(b)(iiiiv)
that constitutes a Repricing Transaction) with respect to First Incremental Term Loans or (y) effects any amendment, modification
or waiver of, or consent under, this Agreement resulting in a Repricing Transaction with respect to the First Incremental Term Loans,
the Borrower shall pay to the First Incremental Term FacilityFacilities
Administrative Agent, for the ratable account of each of the applicable First Incremental Term Lenders, (I) in the case of clause
(x), a premium of 1.00% of the aggregate principal amount of the First Incremental Term Loans so prepaid, repaid, refinanced, substituted
or replaced and (II) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the First Incremental
Term Loans that are the subject of such Repricing Transaction outstanding immediately prior to such amendment. If, on or prior to the
First Incremental Term Loan Soft Call Termination Date, all or any portion of the First Incremental Term Loans held by any Term Lender
are prepaid, repaid, refinanced, substituted or replaced pursuant to Section 2.19(b)(iv) as a result of, or in connection with,
such Term Lender not agreeing or otherwise consenting to any waiver, consent, modification or amendment referred to in clause (y)
above (or otherwise in connection with a Repricing Transaction with respect to such First Incremental Term Loans), such prepayment,
repayment, refinancing, substitution or replacement of First Incremental Term Loans will be made at 101% of the principal amount of First
Incremental Term Loans so prepaid, repaid, refinanced, substituted or replaced. All such amounts shall be due and payable on the date
of effectiveness of such Repricing Transaction with respect to such First Incremental Term Loans.
(g)
Unless otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable
for the actual days elapsed (including the first day but excluding the last day). Each determination by the Applicable Administrative
Agent of the amount of any fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section
2.13. Interest.
(a)
The Loans comprising each ABR Borrowing (including Swingline Loans) shall bear interest at the Alternate Base Rate plus the Applicable
Rate.
(b)
The Loans comprising each Eurocurrency Rate Borrowing shall bear interest at the Eurocurrency Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate.
(c)
The Loans comprising (i) each Canadian Prime Rate Borrowing shall bear interest at the Canadian Prime Rate plus the Applicable
Rate and (ii) each BA Rate Borrowing shall bear interest at the BA Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.
(d)
The Loans comprising each Alternative Currency Daily Rate Borrowing shall bear interest at the Alternative Currency Daily Rate
for such Borrowing plus the Applicable Rate.
(e)
Notwithstanding the foregoing, during the existence and continuance of any Event of Default under Section 8.01(a), if any
principal of or interest on any Loan or any LC Disbursement or any fee payable by the Borrower hereunder is not, in each case, paid or
reimbursed when due, whether at stated maturity, upon acceleration or otherwise, the relevant overdue amount shall bear interest, to
the fullest extent permitted by applicable Requirements of Law, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal or interest of any Loan or unreimbursed LC Disbursement, 2.00% plus the rate otherwise applicable to such
Loan or LC Disbursement as provided in the preceding paragraphs of this Section or Section 2.05(h) or (ii) in the case of any
other amount, 2.00% plus the rate applicable to Revolving Loans that are ABR Loans as provided in paragraph (a) of this Section;
provided that no amount shall be payable pursuant to this Section 2.13(e) to any Defaulting Lender so long as such Lender
is a Defaulting Lender; provided further that no amounts shall accrue pursuant to this Section 2.13(e) on any overdue amount,
reimbursement obligation in respect of any LC Disbursement or other amount payable to a Defaulting Lender so long as such Lender is a
Defaulting Lender.
(f)
Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and on the Maturity Date
applicable to such Loan or, in the case of any Revolving Loan, upon the termination of the Revolving Credit Commitments of the applicable
Class, as applicable; provided that (i) interest accrued pursuant to paragraph (e) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan, Alternative Currency
Daily Rate Loan or Canadian Prime Rate Revolving Loan prior to the termination of the relevant revolving Commitments), accrued interest
on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurocurrency Rate Loan or BA Rate Loan prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion. Accrued interest for any Class of Additional Loans shall be payable
as set forth in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment.
(g)
All interest hereunder shall be computed on the basis of a year of 360 days, except that interest (i) computed for ABR Loans based
on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), (ii) interest computed for Canadian
Prime Rate Revolving Loans and BA Rate Revolving Loans shall be computed on the basis of a year of 365 days, and in each case shall be
payable for the actual number of days elapsed (including the first day but excluding the last day), (iii) for Borrowings denominated
in Sterling shall be computed on the basis of a year of 365 days, and in each case, shall be payable for the actual number of days elapsed
(including the first day but excluding the last day) and (iv) in the case of interest in respect of Loans denominated in Alternate Currencies
(other than Canadian Dollars or Sterling) as to which market practice differs from the foregoing, shall be computed in accordance with
such market practice. The applicable Alternate Base Rate, Eurocurrency Rate, Alternative Currency Daily Rate, Canadian Prime Rate or
BA Rate shall be determined by the Applicable Administrative Agent, and such determination shall be conclusive absent manifest error.
Interest shall accrue on each Loan from the day on which the Loan is made, and shall not accrue on a
Loan, or any portion
thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which
it is made shall bear interest for one day.
(h)
For purposes of the Interest Act (Canada), whenever any interest or fee under this Agreement or any other Loan Document is calculated
using a rate based on a number of days less than a full year, such rate determined pursuant to such calculation, when expressed as an
annual rate, is equivalent to (x) the applicable rate based on a year of 360, 365 or 366 days, as the case may be, (y) multiplied by
the actual number of days in the calendar year in which the period for which such interest or fee is payable (or compounded) ends, and
(z) divided by the number of days based on which such rate is calculated. The principle of deemed reinvestment of interest does not apply
to any interest calculation under this Agreement or any other Loan Document. The rates of interest stipulated in this Agreement and the
other Loan Documents are intended to be nominal rates and not effective rates or yields.
Section
2.14. Alternate
Rate of Interest. If at least two Business Days prior to the commencement of any Interest Period for a Eurocurrency Rate Borrowing
or for a BA Rate Borrowing or prior to the extension of, or conversion to, an Alternative Currency Daily Rate Borrowing:
(a)
the Applicable Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate, the Alternative Currency Daily Rate or the BA Rate or that the
Eurocurrency Rate cannot be determined pursuant to the definition thereof, as applicable, for such Interest Period;
(b)
the Applicable Administrative Agent is advised by the Required Lenders that the Eurocurrency Rate or the BA Rate, as applicable,
for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included
in such Borrowing for such Interest Period; or
(c)
during a Benchmark Unavailability Period;
then the Applicable
Administrative Agent shall promptly give notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as practicable
thereafter and, until the Applicable Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, which the Applicable Administrative Agent agrees promptly to do, (i) any Interest Election Request that
requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Rate Borrowing, Alternative Currency
Daily Rate Borrowing or a BA Rate Borrowing, as applicable, shall be ineffective and such Borrowing shall be converted to an ABR Borrowing
or, solely in the case of a Borrowing denominated in Canadian Dollars, a Canadian Prime Rate Borrowing on the last day of the Interest
Period applicable thereto or, in the case of an Alternative Currency Daily Rate Borrowing, immediately, and (ii) if any Borrowing Request
requests a Eurocurrency Rate Borrowing, an Alternative Currency Daily Rate Borrowing or a BA Rate Borrowing, as applicable, such Borrowing
shall be made as an ABR Borrowing or, solely in the case of a Borrowing denominated in Canadian Dollars, a Canadian Prime Rate Borrowing.
Section
2.15. Increased
Costs.
(a)
If any Change in Law:
(i)
imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Eurocurrency Rate, Alternative
Currency Daily Rate or the BA Rate) or Issuing Bank;
(ii)
subjects any Lender or Issuing Bank or any Administrative Agent to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described
in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) in respect of its loans, letters of credit,
commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)
imposes on any Lender or Issuing Bank or the London interbank market any other condition (other than Taxes) affecting this Agreement
or Eurocurrency Rate Loans, Alternative Currency Daily Rate Loans or BA Rate Loans made by any Lender or any Letter of Credit or participation
therein;
and the result of
any of the foregoing is to increase the cost to the relevant Lender of making or maintaining any Eurocurrency Rate Loan, Alternative
Currency Daily Rate Loan or BA Rate Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender
or Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable
by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect of any Eurocurrency Rate Loan, Alternative
Currency Daily Rate Loan, BA Rate Loan or Letter of Credit in an amount deemed by such Lender or Issuing Bank to be material, then, within
30 days after the Borrower’s receipt of the certificate contemplated by paragraph (c) of this Section, the Borrower will
pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank,
as applicable, for such additional costs incurred or reduction suffered; provided that the Borrower shall not be liable for such
compensation if (x) the relevant Change in Law occurs on a date prior to the date such Lender becomes a party hereto, (y) such Lender
invokes Section 2.20 or (z) in the case of requests for reimbursement under clause (iii) above resulting from a market
disruption, (A) the relevant circumstances do not generally affect the banking market or (B) the applicable request has not been made
by Lenders constituting Required Lenders.
(b)
If any Lender or Issuing Bank determines that any Change in Law regarding liquidity or capital requirements has or would have
the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s
or Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such
Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law other
than due to Taxes (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s
or such Issuing Bank’s holding company with respect to capital adequacy), then within 30 days of receipt by the Borrower of the
certificate contemplated by paragraph (c) of this Section the Borrower will pay to such Lender or such Issuing Bank, as applicable,
such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s
holding company for any such reduction suffered.
(c)
Any Lender or Issuing Bank requesting compensation under this Section 2.15 shall be required to deliver a certificate to
the Borrower that (i) sets forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as
applicable, as specified in paragraph (a) or (b) of this Section, (ii) sets forth in reasonable detail the manner in which
such amount or amounts were determined and (iii) certifies that such Lender or Issuing Bank is generally charging such amounts to similarly
situated borrowers, which certificate shall be conclusive absent manifest error.
(d)
Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute
a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than
180 days
prior to the date
that such Lender or Issuing Bank notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided, further, that if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended
to include the period of retroactive effect thereof.
Section
2.16. Break
Funding Payments. In the event of (a) the conversion or prepayment of any principal of any Eurocurrency Rate Loan (other than any
Eurocurrency Rate Loan denominated in Dollars) or BA Rate Loan other than on the last day of an Interest Period applicable thereto (whether
voluntary, mandatory, automatic, by reason of acceleration or otherwise), (b) the failure to borrow, convert, continue or prepay any
Eurocurrency Rate Loan (other than any Eurocurrency Rate Loan denominated in Dollars) or BA Rate Loan on the date or in the amount specified
in any notice delivered pursuant hereto or (c) the assignment of any Eurocurrency Rate Loan (other than any Eurocurrency Rate Loan denominated
in Dollars) or BA Rate Loan of any Lender other than on the last day of the Interest Period applicable thereto as a result of a request
by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense incurred by such Lender that is attributable to such event (other than loss of profit). In the case of a Eurocurrency Rate
Loan (other than any Eurocurrency Rate Loan denominated in Dollars) or BA Rate Loan, the loss, cost or expense of any Lender shall be
the amount reasonably determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Eurocurrency Rate or BA Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest Period for such Loan) over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement
of such period, for deposits in the applicable currency of a comparable amount and period from other banks in the Eurodollar or applicable
interbank market; it being understood that such loss, cost or expense shall in any case exclude any interest rate floor and all administrative,
processing or similar fees. Any Lender requesting compensation under this Section 2.16 shall be required to deliver a certificate
to the Borrower (i) setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section, the basis
therefor and, in reasonable detail, the manner in which such amount or amounts were determined and (ii) certifying that such Lender is
generally charging the relevant amounts to similarly situated borrowers, which certificate shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
Section
2.17. Taxes.
(a)
Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be
made free and clear of and without deduction or withholding for any Taxes, except as required by applicable Requirements of Law. If any
applicable Requirement of Law requires the deduction or withholding of any Tax from any such payment by any applicable withholding agent,
then (i) if such Tax is an Indemnified Tax, the amount payable by the applicable Loan Party shall be increased as necessary so that after
required deductions (including deductions applicable to additional sums payable under this Section 2.17) having been made by the
applicable withholding agent, each Lender and each Issuing Bank (as applicable) (or, where any Administrative Agent receives a payment
for its own account, such Administrative Agent), receives an amount equal to the sum it would have received had no such deductions been
made, (ii) the applicable withholding agent shall make such deductions and (iii) such withholding agent shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law.
(b)
In addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable
Requirements of Law.
(c)
Each Loan Party shall indemnify each Administrative Agent, each Lender and each Issuing Bank within 30 days after receipt of the
certificate described in the succeeding sentence, for the full amount of any Indemnified Taxes payable or paid by such Administrative
Agent, such Lender or Issuing Bank (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this
Section), as applicable, and any reasonable expenses arising therefrom or with respect thereto; provided that if such Loan Party
reasonably believes that such Taxes were not correctly or legally asserted, such Administrative Agent or such Lender or Issuing Bank,
as applicable, will use reasonable efforts to cooperate with such Loan Party to obtain a refund of such Taxes (which shall be repaid
to such Loan Party in accordance with Section 2.17(g)) so long as such efforts would not, in the sole determination of such Administrative
Agent or such Lender or Issuing Bank, result in any additional out-of-pocket costs or expenses not reimbursed by such Loan Party or be
otherwise materially disadvantageous to such Administrative Agent or such Lender or Issuing Bank, as applicable. In connection with any
request for reimbursement under this Section 2.17(c), the relevant Lender, Issuing Bank or Administrative Agent, as applicable,
shall deliver a certificate to the Borrower setting forth, in reasonable detail, the basis and calculation of the amount of the relevant
payment or liability. Notwithstanding anything to the contrary contained in this Section 2.17(c), the Borrower shall not be required
to indemnify any Administrative Agent, any Lender or any Issuing Bank pursuant to this Section 2.17(c) for any incremental interest
or penalties resulting from a failure of such Administrative Agent, such Lender or Issuing Bank, as applicable, to notify the Borrower
of the relevant possible indemnification claim within 180 days after such Administrative Agent or such Lender or Issuing Bank receives
written notice from the applicable taxing authority of the specific tax assessment giving rise to such indemnification claim.
(d)
[reserved]
(e)
As soon as practicable after any payment of Indemnified Taxes by any Loan Party to a Governmental Authority, such Loan Party shall
deliver to the Administrative Agents the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment that is reasonably satisfactory to the Administrative
Agents.
(f)
Status of Lenders and Issuing Banks.
(i)
Any Lender and any Issuing Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments
made under any Loan Document shall deliver to the Borrower and the Applicable Administrative Agent, at the time or times reasonably requested
by the Borrower or the Applicable Administrative Agent, such properly completed and executed documentation as the Borrower or the Applicable
Administrative Agent may reasonably request to permit such payments to be made without withholding or at a reduced rate of withholding.
In addition, any Lender and any Issuing Bank, if reasonably requested by the Borrower or the Applicable Administrative Agent, shall deliver
such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrower or the Applicable Administrative
Agent as will enable the Borrower or the Applicable Administrative Agent to determine whether or not such Lender or Issuing Bank is subject
to backup withholding or information reporting requirements. Each Lender and each Issuing Bank hereby authorizes each Administrative
Agent to deliver to the Borrower and to any successor Administrative Agent any documentation provided to such Administrative Agent pursuant
to this Section 2.17(f).
(ii)
Each Lender and each Issuing Bank agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate
in any respect, it shall update such documentation or promptly notify the Borrower and the Applicable Administrative Agent in writing
of its legal ineligibility to do so.
(iii)
Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Borrower,
(A)
any Lender or Issuing Bank that is a U.S. Person (a “U.S. Lender/Issuing Bank”) shall deliver to the Borrower
and the Applicable Administrative Agent on or about the date on which such U.S. Lender/Issuing Bank becomes a Lender or the Issuing Bank
under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Applicable Administrative Agent),
executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B)
any Lender that is not a U.S. Lender/Issuing Bank (a “Non-U.S. Lender/Issuing Bank”) shall, to the extent it
is legally eligible to do so, deliver to the Borrower and the Applicable Administrative Agent (in such number of copies as shall be requested
by the recipient) on or about the date on which such Non-U.S. Lender/Issuing Bank becomes a Lender or Issuing Bank under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Applicable Administrative Agent), whichever of the
following is applicable:
(1)
in the case of a Non-U.S. Lender/Issuing Bank claiming the benefits of an income tax treaty to which the United States is a party
(x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E
establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of
such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E
establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or
“other income” article of such tax treaty;
(2)
executed copies of IRS Form W-8ECI;
(3)
in the case of a Non-U.S. Lender/Issuing Bank claiming the benefits of the exemption for portfolio interest under Section 881(c)
of the Code, (x) a certificate substantially in the form of Exhibit L-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 the Borrower within the meaning
of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C)
of the Code and no payments in connection with the Agreement are effectively connected with such Non-U.S. Lender/Issuing Bank’s
conduct of a U.S. trade or business (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS
Form W-8BEN or IRS Form W-8BEN-E; or
(4)
to the extent a Non-U.S. Lender/Issuing Bank is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied
by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the
form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as
applicable; provided that if the Non-U.S. Lender/Issuing Bank is a partnership (and not a participating Lender) and one or more
direct or indirect partners of such Non-U.S. Lender/Issuing Bank are claiming the portfolio interest exemption, such Non-U.S. Lender/Issuing
Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and
indirect partner;
(C)
any Lender or Issuing Bank shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Applicable Administrative
Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Lender or Issuing Bank becomes
a Lender or Issuing Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Applicable
Administrative Agent), executed copies of any other form prescribed by applicable Requirements of Law as a basis for claiming exemption
from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed
by applicable Requirements of Law to permit the Borrower or the Applicable Administrative Agent to determine the withholding or deduction
required to be made; and
(D)
if a payment made to a Lender or Issuing Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed
by FATCA if such Lender or Issuing Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained
in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender or Issuing Bank shall deliver to the Borrower and the Applicable
Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Applicable
Administrative Agent such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i)
of the Code) and such additional documentation reasonably requested by the Borrower or the Applicable Administrative Agent as may be
necessary for the Borrower and the Applicable Administrative Agent to comply with their obligations under FATCA and to determine whether
such Lender or Issuing Bank has complied with such Lender’s or Issuing Bank’s obligations under FATCA or to determine the
amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include
any amendments made to FATCA after the date of this Agreement.
(iv)
Notwithstanding anything to the contrary, a Lender or Issuing Bank shall not be required to deliver any documentation under this
Section 2.17(e) to the extent it is legally ineligible to deliver.
(g)
If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes
(whether received in cash or applied by the taxing authority granting the refund to offset other Taxes otherwise owed) as to which it
has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section
2.17), it shall pay the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by such indemnifying party under this Section 2.17 with respect to the
Indemnified Taxes
giving rise to such refund), net of all out-of-pocket expenses (including any Taxes imposed with respect to such refund) of such indemnified
party, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided
that such indemnifying party, upon the request of the indemnified party, agrees to repay to such indemnified party the amount paid
over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority)
in the event the indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary
in this paragraph (g), in no event will the indemnified party be required to pay any amount to any indemnifying party pursuant
to this paragraph (g) to the extent that the payment thereof would place the indemnified party in a less favorable net after-Tax
position than the position that the indemnified party would have been in if the Tax subject to indemnification had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid.
This paragraph shall not be construed to require the indemnified party to make available its Tax returns (or any other information relating
to its Taxes which it deems confidential) to the indemnifying party or any other Person.
(h)
Minimum Interest. As part of entering into this Agreement, the parties hereto have assumed that the interest payable at
the rates set forth in this Agreement is not and will not become subject to Swiss Federal Withholding Tax. Notwithstanding the foregoing,
the parties hereto agree that in the event that (A) Swiss Federal Withholding Tax is due on interest payments or other payments by any
Loan Party under this Agreement and (B) Section 2.17(a) is unenforceable for any reason, where payment of an additional amount
would otherwise be required by the terms of Section 2.17(a):
(x) the
applicable interest rate in relation to that interest payment shall be (i) the interest rate which would have applied to that interest
payment divided by (ii) 1 minus the rate at which the relevant Swiss Federal Withholding Tax deduction is required to be made under Swiss
domestic tax law and/or applicable double taxation treaties (where the rate at which the relevant Swiss Federal Withholding Tax deduction
is required to be made is for this purpose expressed as a fraction of 1); and
(y) the
Loan Party shall (i) pay the relevant interest at the adjusted rate in accordance with paragraph (x) above, (ii) make the Swiss Federal
Withholding Tax deduction on the interest so recalculated and (iii) all references to a rate of interest under the Agreement shall be
construed accordingly.
To the extent
that interest payable by any Loan Party under this Agreement becomes subject to Swiss Federal Withholding Tax, the parties shall promptly
cooperate in completing any procedural formalities (including submitting forms and documents required by the Swiss or foreign tax authorities)
to the extent possible and necessary (i) for the Loan Party to obtain the authorization from the Swiss Federal Tax Administration to
make interest payments without them being subject to Swiss Federal Withholding Tax or being subject to Swiss Federal Withholding Tax
at a reduced rate under applicable double taxation treaties and (ii) to ensure that any person entitled to a full or partial refund under
any applicable double taxation treaty is so refunded.
Section
2.17(g) equally applies to this Section 2.17(h).
(i)
Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of any Administrative
Agent or any assignment of rights by, or the replacement of, any Lender or Issuing Bank, the termination of the Commitments and the repayment,
satisfaction or discharge of all obligations under any Loan Document.
(j)
For purposes of this Section 2.17, the term “Requirements of Law” includes FATCA.
Section
2.18. Payments
Generally; Allocation of Proceeds; Sharing of Payments.
(a)
Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest,
fees or reimbursement of LC Disbursements or of amounts payable under Section 2.15, 2.16 or 2.17 or otherwise) prior
to the time expressed hereunder or under such Loan Document (or, if no time is expressly required, by 2:00 p.m.) on the date when due,
in immediately available funds, without set-off (except as otherwise provided in Section 2.17) or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Applicable Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Applicable Administrative
Agent to the applicable account designated to the Borrower by the Applicable Administrative Agent, except payments to be made directly
to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections
2.15, 2.16, 2.17 and 10.03 shall be made directly to the Persons entitled thereto. The Applicable Administrative
Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following
receipt thereof. Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Applicable
Administrative Agent may, in its discretion, round such Lender’s percentage of such Borrowing to the next higher or lower whole
dollar amount. Except as set forth in any amendment entered into pursuant to Section 10.02(b)(ii)(E) with respect to the making
of Revolving Loans or Letters of Credit denominated in a currency other than Dollars, all payments (including accrued interest) hereunder
shall be made in Dollars. Any payment required to be made by the Applicable Administrative Agent hereunder shall be deemed to have been
made by the time required if the Applicable Administrative Agent shall, at or before such time, have taken the necessary steps to make
such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Applicable Administrative
Agent to make such payment.
(b)
Subject in all respects to the provisions of any applicable Acceptable Intercreditor Agreement, all proceeds of Collateral received
by the Collateral Agent at any time when an Event of Default exists and all or any portion of the Loans have been accelerated hereunder
pursuant to Section 8.01 shall, upon election by the Collateral Agent or at the direction of the Required Lenders, be applied,
first, on a pro rata basis, to pay any fees, indemnities or expense reimbursements then due to the Collateral Agent, any Administrative
Agent or any Issuing Bank from the Borrower constituting Loan Document Obligations, second, on a pro rata basis, to pay any fees
or expense reimbursements then due to the Lenders from the Borrower constituting Loan Document Obligations, third, to pay interest
due and payable in respect of any Loans, on a pro rata basis, fourth, to prepay principal on the Loans and unreimbursed LC Disbursements,
all Banking Services Obligations and all Secured Hedging Obligations on a pro rata basis among the Secured Parties, fifth, to
pay an amount to the Revolving Facility Administrative Agent equal to 100% of the LC Exposure (minus the amount then on deposit in the
LC Collateral Account) on such date, to be held in the LC Collateral Account as Cash collateral for such Loan Document Obligations, on
a pro rata basis; provided that if any Letter of Credit expires undrawn, then any Cash collateral held to secure the related LC Exposure
shall be applied in accordance with this Section 2.18(b), beginning with clause first above, sixth, to the payment of any
other Obligation due to any Administrative Agent, any Lender or any other Secured Party by the Borrower on a pro rata basis, seventh,
as provided for under any applicable Acceptable Intercreditor Agreement and eighth, to the Borrower or as the Borrower shall direct.
(c)
If any Lender obtains payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in respect
of any principal of or interest on any of its Loans of any Class
or participations
in LC Disbursements or Swingline Loans held by it resulting in such Lender receiving payment of a greater proportion of the aggregate
amount of its Loans of such Class and participations in LC Disbursements or Swingline Loans and accrued interest thereon than the proportion
received by any other Lender with Loans of such Class and participations in LC Disbursements or Swingline Loans, then the Lender receiving
such greater proportion shall purchase (for Cash at face value) participations in the Loans and sub-participations in LC Disbursements
or Swingline Loans of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans of such Class and participations in LC Disbursements or Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not apply to
(x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained
by any Lender as consideration for the assignment of or sale of a participation in any of its Loans to any permitted assignee or participant,
including any payment made or deemed made in connection with Sections 2.22, 2.23, 10.02(c) and/or Section 10.05.
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that
any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim
with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
The Applicable Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations
purchased under this Section 2.18(c) and will, in each case, notify the Lenders following any such purchases or repayments. Each
Lender that purchases a participation pursuant to this Section 2.18(c) shall from and after such purchase have the right to give
all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Loan Document
Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Loan Document Obligations purchased.
(d)
Unless the Applicable Administrative Agent has received notice from the Borrower prior to the date on which any payment is due
to the Applicable Administrative Agent for the account of any Lender or any Issuing Bank hereunder that such Borrower will not make such
payment, the Applicable Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the applicable Lender or Issuing Bank the amount due. In such event, if such
Borrower has not in fact made such payment, then each Lender or the applicable Issuing Bank severally agrees to repay to the Applicable
Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day
from and including the date such amount is distributed to it to but excluding the date of payment to the Applicable Administrative Agent,
at the greater of the Federal Funds Effective Rate (or, with respect to any such amounts denominated in an Alternate Currency, the Applicable
Administrative Agent’s customary rate for interbank advances in such Alternate Currency) and a rate determined by the Applicable
Administrative Agent in accordance with banking industry rules on interbank compensation.
(e)
If any Lender fails to make any payment required to be made by it pursuant to Section 2.07(b) or Section 2.18(d),
then the Applicable Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Applicable Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.
Section
2.19. Mitigation
Obligations; Replacement of Lenders.
(a)
If any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain Eurocurrency
Rate Loans, Alternative Currency Daily Rate Loans or BA Rate Loans pursuant to Section 2.20, or any Loan Party is required to
pay any additional amount to or indemnify any Lender, Issuing Bank or any Governmental Authority for the account of any Lender or Issuing
Bank pursuant to Section 2.17, then such Lender or Issuing Bank shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event, or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender or
Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17,
as applicable, in the future or mitigate the impact of Section 2.20, as the case may be, and (ii) would not subject such Lender
or Issuing Bank to any material unreimbursed out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender
or Issuing Bank in any material respect. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by
any Lender or Issuing Bank in connection with any such designation or assignment.
(b)
If (i) any Lender requests compensation under Section 2.15 or such Lender determines it can no longer make or maintain
Eurocurrency Rate Loans, Alternative Currency Daily Rate Loan or BA Rate Loans pursuant to Section 2.20, (ii) any Loan Party is
required to pay any additional amount to or indemnify any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.17, (iii) any Lender is a Defaulting Lender or (iv) in connection with any proposed amendment, waiver or consent
requiring the consent of “each Lender”, “each Revolving Lender” or “each Lender directly affected thereby”
(or any other Class or group of Lenders other than the Required Lenders) with respect to which Required Lender or Required Revolving
Lender consent (or the consent of Lenders holding loans or commitments of such Class or lesser group representing more than 50% of the
sum of the total loans and unused commitments of such Class or lesser group at such time) has been obtained, as applicable, any Lender
is a non-consenting Lender (each such Lender, a “Non-Consenting Lender”), then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Applicable Administrative Agent, (x) terminate the applicable Commitments and/or Additional
Commitments of such Lender, and procure the repayment of all Loan Document Obligations of the Borrower owing to such Lender relating
to the applicable Loans and participations held by such Lender as of such termination date under one or more Credit Facilities or Additional
Credit Facilities as the Borrower may elect or (y) replace such Lender by requiring such Lender to assign and delegate (and such Lender
shall be obligated to assign and delegate), without recourse (in accordance with and subject to the restrictions contained in Section
10.05), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations
(which Eligible Assignee may be another Lender, if any Lender accepts such assignment); provided that (A) such Lender shall have
received payment of an amount equal to the outstanding principal amount of its Loans and, if applicable, participations in LC Disbursements
and Swingline Loans, in each case of such Class of Loans, Commitments and/or Additional Commitments, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder with respect to such Class of Loans, Commitments and/or Additional Commitments, (B)
in the case of any assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant
to Section 2.17, such assignment will result in a reduction in such compensation or payments and (C) such assignment does not
conflict with applicable law. No action by or consent of a Defaulting Lender or a Non-Consenting Lender shall be necessary in connection
with such assignment, which shall be immediately and automatically effective upon payment of the amounts described in clause (A)
of the immediately preceding sentence. No Lender (other than a Defaulting Lender) shall be required to make any such assignment and delegation,
and the Borrower may not repay the Loan Document Obligations of such Lender and the Borrower may not terminate its Commitments or Additional
Commitments, if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply. Each Lender agrees that if it is replaced pursuant to this Section 2.19, it shall
execute and deliver to the Applicable Administrative
Agent an Assignment
and Assumption to evidence such sale and purchase and shall deliver to the Applicable Administrative Agent any Promissory Note (if the
assigning Lender’s Loans are evidenced by one or more Promissory Notes) subject to such Assignment and Assumption (provided
that the failure of any Lender replaced pursuant to this Section 2.19 to execute an Assignment and Assumption or deliver any
such Promissory Note shall not render such sale and purchase (and the corresponding assignment) invalid), such assignment shall be recorded
in the Register and any such Promissory Note shall be deemed cancelled. Each Lender hereby irrevocably appoints the Applicable Administrative
Agent (such appointment being coupled with an interest) as such Lender’s attorney-in-fact, with full authority in the place and
stead of such Lender and in the name of such Lender, from time to time in the Applicable Administrative Agent’s discretion, with
prior written notice to such Lender, to take any action and to execute any such Assignment and Assumption or other instrument that the
Applicable Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (b). To the extent that
any Lender is replaced pursuant to Section 2.19(b)(iv) in connection with a Repricing Transaction requiring payment of a fee pursuant
to Section 2.12(f), the Borrower shall pay to each Lender being replaced as a result of such Repricing Transaction the fee set
forth in Section 2.12(f).
Section
2.20. Illegality.
If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted after
the Closing Date that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest
is determined by reference to the Eurocurrency Rate, Alternative Currency Daily Rate or BA Rate (whether denominated in Dollars or an
Alternate Currency), or to determine or charge interest rates based upon the Eurocurrency Rate, Alternative Currency Daily Rate or the
BA Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars or an Alternate Currency in the applicable interbank market, then, on notice thereof by such Lender to the Borrower
through the Applicable Administrative Agent, (i) any obligation of such Lender to (A) make or continue Eurocurrency Rate Loans, Alternative
Currency Daily Rate Loans or BA Rate Loans in Dollars or such Alternate Currency, (B) in the case of Dollars, to convert ABR Loans to
Eurocurrency Rate Loans or (C) in the case of Canadian Dollars, to convert Canadian Prime Rate Loans to BA Rate Loans, shall be suspended
and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Loans denominated in Dollars the interest rate
on which is determined by reference to the Eurocurrency Rate component of the Alternate Base Rate, the interest rate on which ABR Loans
of such Lender, shall, if necessary to avoid such illegality, be determined by the Applicable Administrative Agent without reference
to the Eurocurrency Rate component of the Alternate Base Rate, in each case until such Lender notifies the Applicable Administrative
Agent and the Borrower that the circumstances giving rise to such determination no longer exist (which notice such Lender agrees to give
promptly). Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Applicable Administrative
Agent), prepay or (A) if applicable and such Loans are denominated in Dollars, convert all of such Lender’s Eurocurrency Rate Loans
and Alternative Currency Daily Rate Loans to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid
such illegality), be determined by the Applicable Administrative
Agent without reference to the Eurocurrency Rate component of the Alternate Base Rate or (B) if applicable and such Loans are denominated
in Canadian Dollars, convert all of such Lender’s BA Rate Loans to Canadian Prime Rate Loans, in each case, either (1) on the last
day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans, or BA Rate Loans,
as applicable, to such day, or (2) immediately, in the case of any Alternative Currency Daily Rate Loans or if such Lender may not lawfully
continue to maintain such Eurocurrency Rate Loans or BA Rate Loans, as applicable (in which case the Borrower shall not be required to
make payments pursuant to Section 2.16 in connection with such payment), (y) if such notice asserts the illegality of such Lender
determining or charging interest rates based upon the Eurocurrency Rate the Applicable Administrative Agent shall during the period of
such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof
until the Applicable Administrative Agent is advised in writing by
such Lender that it
is no longer illegal for such Lender to determine or charge interest rates based upon the Eurocurrency Rate and (z) if such notice asserts
the illegality of such Lender determining or charging interest rates based upon the BA Rate, the Applicable Administrative Agent shall
during the period of such suspension compute the Canadian Prime Rate applicable to such Lender without reference to the BA Rate component
thereof until the Applicable Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to
determine or charge interest rates based upon the BA Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted. Each Lender agrees to designate a different lending office if such designation will avoid
the need for such notice and will not, in the determination of such Lender, otherwise be materially disadvantageous to such Lender.
Section
2.21. Defaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following
provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)
Commitment Fees and Facility Fees shall cease to accrue on the otherwise applicable portion of any Commitment of such Defaulting
Lender pursuant to Section 2.12(a) and, subject to clause (d)(iv) below, on the participation of such Defaulting Lender
in Letters of Credit pursuant to Section 2.12(b) and pursuant to any other provisions of this Agreement or other Loan Document.
(b)
The Commitments, Loans and LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, each
affected Lender, the Required Lenders, the Required Revolving Lenders or such other number of Lenders as may be required hereby or under
any other Loan Document have taken or may take any action hereunder (including any consent to any waiver, amendment or modification pursuant
to Section 10.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected
Lender which affects such Defaulting Lender disproportionately and adversely relative to other affected Lenders shall require the consent
of such Defaulting Lender.
(c)
Any payment of principal, interest, fees or other amounts received by the Applicable Administrative Agent for the account of any
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.11, Section 2.15, Section 2.16,
Section 2.17, Section 2.18, Article 8, Section 10.05 or otherwise, and including any amounts made available
to the Applicable Administrative Agent by such Defaulting Lender pursuant to Section 10.09), shall be applied at such time or
times as may be determined by the Applicable Administrative Agent and, where relevant, the Borrower as follows: first, to the
payment of any amounts owing by such Defaulting Lender to the Collateral Agent and the Administrative Agents hereunder; second,
to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any applicable Issuing Bank and/or Swingline Lender
hereunder; third, if so reasonably determined by the Applicable Administrative Agent or reasonably requested by the applicable
Issuing Bank, to be held as Cash collateral for future funding obligations of such Defaulting Lender in respect of any participation
in any Letter of Credit; fourth, so long as no Default or Event of Default exists, as the Borrower may request, to the funding
of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth,
if so determined by the Applicable Administrative Agent or the Borrower, to be held in a deposit account and released in order to satisfy
obligations of such Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the non-Defaulting
Lenders, Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any non-Defaulting
Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach
of its obligations under this Agreement; seventh, to the payment of any amounts owing to the Borrower as a result of any judgment
of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this
Agreement; and eighth,
to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is
a payment of the principal amount of any Loan or LC Exposure in respect of which such Defaulting Lender has not fully funded its appropriate
share and (y) such Loan or LC Exposure was made or created, as applicable, at a time when the conditions set forth in Section 4.02
were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Exposure owed to, all non-Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans of, or LC Exposure owed to, such Defaulting Lender. Any payments,
prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed by any Defaulting
Lender or to post Cash collateral pursuant to this Section 2.21(c) shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.
(d)
If any Swingline Loans or LC Exposure exists at the time any Revolving Lender becomes a Defaulting Lender then:
(i)
all or any part of such Swingline Loans and LC Exposure shall be reallocated among the non-Defaulting Revolving Lenders in accordance
with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures
does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Credit Commitments; provided that, subject
to Section 10.23, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a
Defaulting Lender arising from such Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result
of such non-Defaulting Lender’s increased exposure following such reallocation;
(ii)
if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without
prejudice to any other right or remedy available to it hereunder or under applicable Requirements of Law, within two Business Days following
notice by the Revolving Facility Administrative Agent, Cash collateralize 100% of such Defaulting Lender’s LC Exposure and any
obligations of such Defaulting Lender to fund participations in any Swingline Loan (after giving effect to any partial reallocation pursuant
to paragraph (i) above and any Cash collateral provided by such Defaulting Lender or pursuant to Section 2.21(c) above)
or make other arrangements reasonably satisfactory to the Revolving Facility Administrative Agent and to the applicable Issuing Bank
and/or Swingline Lender with respect to such LC Exposure and/or Swingline Loans and obligations to fund participations. Cash collateral
(or the appropriate portion thereof) provided to reduce LC Exposure or other obligations shall be released promptly following (A) the
elimination of the applicable LC Exposure or other obligations giving rise thereto (including by the termination of the Defaulting Lender
status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 2.19)) or (B) the Revolving
Facility Administrative Agent’s good faith determination that there exists excess Cash collateral (including as a result of any
subsequent reallocation of Swingline Loans and LC Exposure among non-Defaulting Lenders described in clause (i) above);
(iii)
(A) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.21(d), then the fees payable
to the Revolving Lenders pursuant to Section 2.12(a) and (b), as the case may be, shall be adjusted to give effect to such
reallocation and (B) if the LC Exposure of any Defaulting Lender is Cash collateralized pursuant to this Section 2.21(d), then,
without prejudice to any rights or remedies of the applicable Issuing Bank, any Lender or the Borrower hereunder, no letter of credit
fees shall be payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure; and
(iv)
if any Defaulting Lender’s LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to this Section 2.21(d),
then, without prejudice to any rights or remedies of
the applicable
Issuing Bank or any Revolving Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting
Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such Defaulting Lender’s LC Exposure is Cash collateralized
or reallocated.
(e)
So long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan,
and no Issuing Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably
satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders, Cash collateral
provided pursuant to Section 2.21(c) and/or Cash collateral provided by the Borrower in accordance with Section 2.21(d),
and participating interests in any such or newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated
among non-Defaulting Revolving Lenders in a manner consistent with Section 2.21(d)(i) (it being understood that Defaulting Lenders
shall not participate therein).
(f)
In the event that the Revolving Facility Administrative Agent and the Borrower agree that any Defaulting Lender has adequately
remedied all matters that caused such Lender to be a Defaulting Lender, then the Applicable Percentage of Swingline Loans and LC Exposure
of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment, and on such
date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans)
or participations in Revolving Loans as the Revolving Facility Administrative Agent shall determine as are necessary in order for such
Revolving Lender to hold such Revolving Loans or participations in accordance with its Applicable Percentage of the applicable Class.
Notwithstanding the fact that any Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender,
(x) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such
Lender was a Defaulting Lender and (y) 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 of any party hereunder arising from such Lender’s
having been a Defaulting Lender.
Section
2.22. Incremental
Credit Extensions.
(a)
The Borrower (or Subsidiary Guarantors that will become Borrowers) may, at any time, on one or more occasions pursuant to an Incremental
Facility Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing
Class by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term
Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or
(ii) add one or more new Classes of revolving commitments and/or increase the aggregate amount of the Revolving Credit Commitments of
any existing Class (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental
Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and
the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental
Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i)
no Incremental Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,000 (or such
lesser amount to which the Applicable Administrative Agent with respect to the applicable Term Facility may reasonably agree),
(ii)
except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any
Incremental Commitment, and the
determination
to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall
not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii)
no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval
of any existing Lender other than in its capacity, if any, as a lender providing all or part of such Incremental Facility or Incremental
Loan,
(iv)
any such Incremental Revolving Facility shall either (A) be subject to the same terms and conditions as any then-existing Revolving
Facility (and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an
Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable
Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable
to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving
Lenders) or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit
Maturity Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent,
amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined
by the Borrower) shall be (x) substantially consistent with the Initial Revolving Loans or (y) reasonably satisfactory to the Revolving
Facility Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added
for the benefit of any Incremental Revolving Facility, no consent shall be required from the Revolving Facility Administrative Agent
or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of any then-existing
Revolving Facility or (2) only applicable after the applicable Latest Revolving Loan Maturity Date),
(v)
the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and
the lender or lenders providing such Incremental Facility; provided that, in the case of any broadly syndicated Dollar-denominated
Incremental Term Facility that is secured on a pari passu basis with the Initial Term Loans or the First Incremental Term Loans (as applicable),
the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans
or the First Incremental Term Loans (each, as applicable) unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate
Base Rate floor or Eurocurrency Rate floor) with respect to the Initial Term Loans and/or the First Incremental Term Loans, as applicable,
is adjusted such that the Effective Yield on the Initial Term Loans and the First Incremental Term Loans (each, as applicable) is not
more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility (this proviso, the “MFN Provision”);
provided further that any increase in Effective Yield applicable to any Initial Term Loan and/or First Incremental Term Loan (as
applicable) due to the application or imposition of an Alternate Base Rate floor or Eurocurrency Rate floor on any Incremental Term Loan
may, at the election of the Borrower, be effected through an increase in (or implementation of, as applicable) any Alternate Base Rate
floor or Eurocurrency Rate floor applicable to such Initial Term Loans or First Incremental Term Loans, as applicable, or an increase
in the interest rate margin applicable to such Incremental Loans; provided further that the MFN Provision shall not apply to (1)
(A) with respect to the Initial Term Loans, Incremental Term Facilities having an aggregate initial principal amount not exceeding the
greater of (x) $375,000,000 and (y) 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period and
(B) with respect to the First Incremental Term Loans,
Incremental
Term Facilities having an aggregate initial principal amount not exceeding the greater of (x) $375,000,000 and (y) 50% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period, (2) any Incremental Term Facility scheduled to mature on or
after the date that is one year after the Initial Term Loan Maturity Date, (3) (x) with respect to the Initial Term Loans, any Incremental
Term Facility incurred more than 18 months after the Closing Date and (y) with respect to the First Incremental Term Loans, any Incremental
Term Facility incurred more than 18 months after the First Incremental Amendment Date, (4) solely with respect to the First Incremental
Term Loans, any Incremental Term Facility incurred in connection with a Permitted Acquisition or other Investment permitted hereby or
to refinance Indebtedness incurred in connection with a Permitted Acquisition or other Investment permitted hereby, (5) Customary Term
A Loans and (6) customary bridge loans with a maturity date of no longer than one year that are convertible or exchangeable into, or
are intended to be refinanced with, any Indebtedness other than broadly syndicated Dollar-denominated term loans that are pari passu
with the Initial Term Loans in right of payment and with respect to security,
(vi)
subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term
Loans shall be no earlier than the Initial Term Loan Maturity Date or,
the First Incremental Term Loan Maturity Date or the Second Incremental
Maturity Date at the time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (A) customary
bridge loans with a maturity date not longer than one year; provided, that any loans, notes, securities or other Indebtedness
which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vi), (B) Customary
Term A Loans or (C) 364-day bridge loans,
(vii)
subject to the Permitted Earlier Maturity Indebtedness Exception, the Weighted Average Life to Maturity of any Incremental Term
Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans or,
the First Incremental Term Loans or the Second Incremental Term Loans;
provided, that the foregoing limitation shall not apply to (A) customary bridge loans with a maturity date of not longer than
one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such
bridge loans shall be subject to the requirements of this clause (vii), (B) Customary Term A Loans or (C) 364-day bridge loans,
(viii)
subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule
as determined by the Borrower and the lenders providing such Incremental Term Facility,
(ix)
subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall
be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x)
(A) each Incremental Facility shall rank pari passu with the Initial Term Loans and,
the First Incremental Term Loans and the Second Incremental
Term Loans (in the case of any Incremental Term Facility) and pari passu with the Initial Revolving Loans (in the case of Incremental
Revolving Loans), in each case in right of payment and, if secured, security and (B) no Incremental Facility may be (x) guaranteed by
any Person which is not a Loan Party or (y) secured by Liens on any assets other than the Collateral,
(xi)
any Incremental Term Facility may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any
voluntary prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata or less than pro rata basis (but not
on a greater than pro rata
basis, other
than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of
Term Loans required pursuant to Section 2.11(b),
(xii)
no Specified Event of Default shall exist immediately prior to or after giving effect to the effectiveness of such Incremental
Facility (except in connection with any acquisition or other Investment or irrevocable repayment or redemption of Indebtedness, where
no such Specified Event of Default shall exist at the time as elected by the Borrower pursuant to Section 1.04(e)),
(xiii)
except as otherwise required or permitted in clauses (iv) through (xi) above, all other terms of any Incremental Term Facility
shall be as agreed between the Borrower and the lenders providing such Incremental Term Facility,
(xiv)
the proceeds of any Incremental Facility may be used for working capital, Capital Expenditures and other general corporate purposes
of the Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments
and any other purpose not prohibited by the terms of the Loan Documents), and
(xv)
on the date of the making of any Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding
anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute
a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding
Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such
Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged
that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be less
than one month) that begin during an Interest Period then applicable to outstanding Eurocurrency Rate Loans or BA Rate Loans of the relevant
Class and which end on the last day of such Interest Period.
(b)
Incremental Commitments may be provided by any existing Lender or by any other Eligible Assignee (any such other Eligible Assignee
being called an “Additional Lender”); provided that the Applicable Administrative Agent (and, in the case of
any Incremental Revolving Facility, the Swingline Lender and any Issuing Bank) shall have consented (such consent not to be unreasonably
withheld, conditioned or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would
be required under Section 10.05(b) for an assignment of Loans to such Additional Lender; provided further, that any Additional
Lender that is an Affiliated Lender shall be subject to the provisions of Section 10.05(g), mutatis mutandis, to the same extent
as if the relevant Incremental Commitments and related Loan Document Obligations had been obtained by such Lender by way of assignment.
(c)
Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Applicable
Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably
required by the Applicable Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such
Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d)
As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its
request, the Applicable Administrative Agent shall have received
customary written
opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the
Applicable Administrative Agent shall have received, from each Additional Lender, an administrative questionnaire in the form provided
to such Additional Lender by the Applicable Administrative Agent (the “Administrative Questionnaire”) and such other
documents as it shall reasonably require from such Additional Lender, (iii) the Applicable Administrative Agent and applicable Additional
Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iv) upon its
request, the Applicable Administrative Agent shall have received a certificate of Borrower signed by a Responsible Officer thereof:
(A)
certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such
Incremental Facility or Incremental Loans, and
(B)
to the extent applicable, certifying that the condition set forth in clause (a)(xii) above has been satisfied.
(e)
Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i)
if such Incremental Revolving Facility establishes Revolving Credit Commitments of the same Class as any then-existing Class of
Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act
be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender
will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder
in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each deemed assignment and assumption of participations,
all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender’s) (A) participations hereunder
in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held on a pro rata basis on the basis of their respective
Revolving Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22)
and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such
Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including
the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the
extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro
rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving
Credit Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing
and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this
clause (i); and
(ii)
if such Incremental Revolving Facility establishes Revolving Credit Commitments of a new Class, (1) the borrowing and repayment
(except for (A) payments of interest and fees at different rates on any Revolving Facility, (B) repayments required upon the Maturity
Date of any Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of any Revolving Credit
Commitments (subject to clause (3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving
Facility Commitments shall be made on a pro rata basis with any then-existing Revolving Facility, (2) all swingline loans and/or letters
of credit made or issued, as applicable, under such Incremental Revolving Facility shall be participated on a pro rata basis by all
Revolving
Lenders and (3) any permanent repayment of Revolving Loans with respect to, and reduction or termination of Revolving Credit Commitments
under, any Revolving Facility after the effective date of any Incremental Revolving Facility shall be made on a pro rata basis or less
than pro rata basis with all other Revolving Facilities, except that the Borrower shall be permitted to permanently repay Revolving Loans
and terminate Revolving Credit Commitments of any Revolving Facility on a greater than pro rata basis (I) as compared to any other Revolving
Facilities with a later Maturity Date than such Revolving Facility or (II) to the extent refinanced or replaced with a Replacement Revolving
Facility or Replacement Debt.
(f)
On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure and/or Swingline Loans,
as applicable, permitted hereunder shall increase by an amount, if any, agreed upon by the Revolving Facility Administrative Agent, the
Borrower and the relevant Issuing Bank and/or the Swingline Lender, as applicable.
(g)
The Lenders hereby irrevocably authorize each Administrative Agent to enter into any Incremental Facility Amendment and/or any
amendment to any other Loan Document with the Borrower as may be necessary in order to establish new or any increase in any Classes or
sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 (including, for instance, to increase the amortization
of any existing Class of Term Loans (or to provide for any existing Class of Term Loans to have (or to again have) amortization) in order
to have such existing Class of Term Loans be “fungible” with any Incremental Term Facility that is to be added to such Loans)
and such technical amendments as may be necessary or appropriate in the reasonable opinion of any Administrative Agent and the Borrower
in connection with the establishment or increase, as applicable, of such Classes or sub-Classes, in each case on terms consistent with
this Section 2.22 (including with respect to the appointment of a Subsidiary Guarantor as a Borrower in respect of such Incremental
Facility).
(h)
Notwithstanding anything to the contrary in this Section 2.22 (including Section 2.22(d)) or in any other provision
of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance an acquisition or other Investment
and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard”
or “certain funds” conditionality (including the making and accuracy of customary specified representations in connection
with such acquisition or other Investment).
(i)
This Section 2.22 shall supersede any provision in Section 2.18 or 10.02 to the contrary.
Section
2.23. Extensions
of Loans and Revolving Credit Commitments.
(a)
Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”)
made from time to time by the Borrower to all Lenders holding Loans of any Class or Commitments of any Class, in each case on a pro rata
basis (based on the aggregate outstanding principal amount of the respective Loans or Commitments of such Class) and on the same terms
to each such Lender, the Borrower is hereby permitted from time to time to consummate transactions with any individual Lender who accepts
the terms contained in the relevant Extension Offer to extend the Maturity Date of all or a portion of such Lender’s Loans and/or
Commitments of such Class and otherwise modify the terms of all or a portion of such Loans and/or Commitments pursuant to the terms of
the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Loans and/or Commitments (and
related outstandings) and/or modifying the amortization schedule, if any, in respect of such Loans) (each, an “Extension”);
it being understood that (x) any Extended Term Loans shall constitute a separate Class of Loans from the Class of Loans from which they
were converted and any Extended Revolving Credit Commitments shall constitute a separate Class of Revolving Credit Commitments from the
Class of Revolving Credit Commitments from which they were
converted and (y)
no Lender shall have any obligation to accept any applicable Extension Offer, so long as the following terms are satisfied:
(i)
except as to (x) interest rates, fees and final maturity (which shall, subject to clause (iii)(y) below, be determined
by the Borrower and set forth in the relevant Extension Offer), (y) terms applicable to such Extended Revolving Credit Commitments or
Extended Revolving Loans that are more favorable to the lenders or the agent of such Extended Revolving Credit Commitments or Extended
Revolving Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents on or prior to the
effectiveness of such Extension for the benefit of the Revolving Lenders or, as applicable, the Revolving Facility Administrative Agent
pursuant to the applicable Extension Amendment and (z) any terms or other provisions applicable only to periods after the Latest Revolving
Loan Maturity Date (in each case, as of the date of such Extension), the commitment of any Revolving Lender that agrees to an Extension
(an “Extended Revolving Credit Commitment”; and the Loans thereunder, “Extended Revolving Loans”),
and the related outstandings, shall be a revolving commitment (or related outstandings, as the case may be) with substantially consistent
terms (or terms not less favorable to existing Revolving Lenders) as the Class of Revolving Credit Commitments subject to the relevant
Extension Offer (and related outstandings) provided hereunder; provided that to the extent more than one Revolving Facility exists
after giving effect to any such Extension, (1) the borrowing and repayment (except for (A) payments of interest and fees at different
rates on any Revolving Facility (and related outstandings), (B) repayments required upon the Maturity Date of any Revolving Facility
and (C) repayments made in connection with any permanent repayment and termination of any Revolving Credit Commitments (subject
to clause (3) below)) of Extended Revolving Loans after the effective date of such Extended Revolving Credit Commitments shall
be made on a pro rata basis with all other Revolving Facilities, (2) all swingline loans and/or letters of credit made or issued, as
applicable, under any Extended Revolving Credit Commitment shall be participated on a pro rata basis by all Revolving Lenders of the
applicable Class and (3) any permanent repayment of Revolving Loans with respect to, and reduction or termination of Revolving Credit
Commitments under, any Revolving Facility after the effective date of such Extended Revolving Credit Commitments shall be made on a pro
rata basis or less than pro rata basis with all other Revolving Facilities, except that the Borrower shall be permitted to permanently
repay Revolving Loans and terminate Revolving Credit Commitments of any Revolving Facility on a greater than pro rata basis (I) as compared
to any other Revolving Facilities with a later Maturity Date than such Revolving Facility or (II) to the extent refinanced or replaced
with a Replacement Revolving Facility or Replacement Debt;
(ii)
except as to (x) interest rates, fees, amortization, final maturity date, premiums, required prepayment dates and participation
in prepayments (which shall, subject to immediately succeeding clauses (iii)(x), (iv) and (v), be determined by
the Borrower and set forth in the relevant Extension Offer), (y) terms applicable to such Extended Term Loans that are more favorable
to the lenders or the agent of such Extended Term Loans than those contained in the Loan Documents and are then conformed (or added)
to the Loan Documents on or prior to the effectiveness of such Extension for the benefit of the Term Lenders or, as applicable, the Term
Facility Administrative Agent and/or the First Incremental Term FacilityFacilities
Administrative Agent pursuant to the applicable Extension Amendment and (z) any terms or other provisions applicable only to periods
after the Latest Term Loan Maturity Date (in each case, as of the date of such Extension), the Term Loans of any Lender extended pursuant
to any Extension (any such extended Term Loans, the “Extended Term Loans”) shall have substantially consistent terms
(or terms not less favorable to existing Lenders) as the tranche of Term Loans subject to the relevant Extension Offer;
(iii)
(x) the final maturity date of any Extended Term Loans shall be no earlier than the then applicable Latest Term Loan Maturity
Date at the time of extension and (y) no Extended Revolving Credit Commitments or Extended Revolving Loans shall have a final maturity
date earlier than (or require commitment reductions prior to) the then applicable Latest Revolving Loan Maturity Date;
(iv)
the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life
to Maturity of any then-existing Term Loans;
(v)
subject to clauses (iii) and (iv) above, any Extended Term Loans may otherwise have an amortization schedule as
determined by the Borrower and the Lenders providing such Extended Term Loans;
(vi)
any Extended Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary
prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata or less than pro rata basis (but not on a greater
than pro rata basis other than in the case of prepayment with proceeds of Indebtedness refinancing such Extended Term Loans) in any mandatory
prepayment of Term Loans required pursuant to Section 2.11(b);
(vii)
if the aggregate principal amount of Loans or commitments, as the case may be, in respect of which Lenders shall have accepted
the relevant Extension Offer exceeds the maximum aggregate principal amount of Loans or commitments, as the case may be, offered to be
extended by the Borrower pursuant to such Extension Offer, then the Loans or commitments, as the case may be, of such Lenders shall be
extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) held
by Lenders that have accepted such Extension Offer;
(viii)
unless the Applicable Administrative Agent otherwise agrees, each Extension shall be in a minimum amount of $5,000,000;
(ix)
any applicable Minimum Extension Condition shall be satisfied or waived by the Borrower; and
(x)
all documentation in respect of such Extension shall be consistent with the foregoing.
(b)
With respect to any Extension consummated pursuant to this Section 2.23, (i) no such Extension shall constitute a voluntary
or mandatory prepayment for purposes of Section 2.11, (ii) the scheduled amortization payments (in so far as such schedule affects
payments due to Lenders participating in the relevant Class) set forth in Section 2.10 shall be adjusted to give effect to such
Extension of the relevant Class and (iii) except as set forth in clause (a)(viii) above, no Extension Offer is required to be
in any minimum amount or any minimum increment; provided that the Borrower may, at its election, specify as a condition (a “Minimum
Extension Condition”) to consummating such Extension that a minimum amount (to be determined and specified in the relevant
Extension Offer in the Borrower’s sole discretion and which may be waived by the Borrower in its sole discretion) of Loans or commitments
(as applicable) of any or all applicable Classes be tendered. The Administrative Agents and the Lenders hereby consent to the transactions
contemplated by this Section 2.23 (including, for the avoidance of doubt, any payment of any interest, fees or premium in respect
of any tranche of Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant
Extension Offer) and hereby waive the requirements of any provision of this Agreement
(including Sections
2.10, 2.11 or 2.18) or any other Loan Document that may otherwise prohibit any Extension or any other transaction contemplated
by this Section.
(c)
No consent of any Lender or any Administrative Agent shall be required to effectuate any Extension, other than (A) the consent
of each Lender agreeing to such Extension with respect to one or more of its Loans and/or commitments under any Class (or a portion thereof),
(B) with respect to any Extension of the Revolving Credit Commitments, the consent of each Issuing Bank to the extent the commitment
to provide Letters of Credit is to be extended and (C) with respect to any Extension of the Revolving Credit Commitments, the consent
of the Swingline Lender to the extent the swingline facility is to be extended (in each case which consent shall not be unreasonably
withheld or delayed). All Extended Term Loans and Extended Revolving Credit Commitments and all obligations in respect thereof shall
constitute Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari
passu basis with all other Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize each
Administrative Agent to enter into any Extension Amendment and such other amendments to this Agreement and the other Loan Documents with
the Borrower as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments so extended and
such technical amendments as may be necessary or appropriate in the reasonable opinion of any Administrative Agent and the Borrower in
connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.23.
(d)
In connection with any Extension, the Borrower shall provide the Applicable Administrative Agent at least five Business Days’
(or such shorter period as may be agreed by the Applicable Administrative Agent) prior written notice thereof, and shall agree to such
procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit
facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Applicable Administrative Agent,
in each case acting reasonably to accomplish the purposes of this Section 2.23.
Section
2.24. Benchmark
Replacement.
(a)
(i) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related
Benchmark Replacement Date have occurred for a currency prior to the Reference Time in respect of any setting of a then-current Benchmark,
then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement”
for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any
Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent
of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with
clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will
replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any such Benchmark setting at or after 5:00
p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders
without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the
Applicable Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders
comprising the Required Lenders.
(b)
In connection with the implementation of any Benchmark Replacement, the Applicable Administrative Agent will have the right, in
consultation with the Borrower, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the
contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement
Conforming Changes
will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. In the case
of the First Incremental Term Loans and the Second Incremental Term Loans,
if the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis.
(c)
The Applicable Administrative Agent will promptly notify the Borrower and the Lenders of (i) any Benchmark Replacement Date and
the related Benchmark Replacement, (ii) the effectiveness of any Benchmark Replacement Conforming Changes, (iii) the removal or reinstatement
of any tenor of a Benchmark pursuant to clause (d) below and (iv) the commencement of any Benchmark Unavailability Period. For the avoidance
of doubt, any notice required to be delivered by the Applicable Administrative Agent as set forth in this Section 2.24 may be
provided, at the option of the Applicable Administrative Agent (in its sole discretion), in one or more notices and may be delivered
together with, or as part of any amendment which implements any Benchmark Replacement or Benchmark Replacement Conforming Changes. Any
determination, decision or election that may be made by the Applicable Administrative Agent pursuant to this Section 2.24, including
any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date
and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and
may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except,
in each case, as expressly required pursuant to this Section 2.24.
(d)
Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation
of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR) and either (A) any tenor for such
Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Applicable
Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided
a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative,
then the Applicable Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or
after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above
either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is
not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark
Replacement), then the Applicable Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings
at or after such time to reinstate such previously removed tenor.
(e)
Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke
any request for a Eurocurrency Rate Borrowing, Alternative Currency Daily Rate Borrowing or BA Rate Borrowing, as applicable, of, conversion
to or continuation of Eurocurrency Rate Loans, Alternative Currency Daily Rate Loans or BA Rate Loans, as applicable, to be made, converted
or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request
into a request for a Borrowing of or conversion to ABR Loans.
(f)
The Applicable Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect
to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Alternate Base Rate,
Term SOFR, the EURIBO Screen Rate, SONIA, the BA Rate, the Alternative Currency Daily Rate or the Eurocurrency Rate or any component
definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including
any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate
(including any Benchmark
Replacement) will
be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Alternate Base Rate,
Term SOFR, the EURIBO Screen Rate, SONIA, the BA Rate, the Alternative Currency Daily Rate or the Eurocurrency Rate or any other Benchmark
prior to its discontinuance or unavailability or (b) the effect, implementation or composition of any Benchmark Replacement Conforming
Changes. The Applicable Administrative Agent and its affiliates or other related entities may engage in transactions consistent with
such Person’s general practice that affect the calculation of the Alternate Base Rate, Term SOFR, the EURIBO Screen Rate, SONIA,
the BA Rate, the Alternative Currency Daily Rate or the Eurocurrency Rate or any alternative, successor or replacement rate (including
any Benchmark Replacement) or any relevant adjustments thereto. The Applicable Administrative Agent may select information sources or
services in its reasonable discretion to ascertain the Alternate Base Rate, Term SOFR, the EURIBO Screen Rate, SONIA, the BA Rate, the
Alternative Currency Daily Rate or the Eurocurrency Rate or any other Benchmark, in each case pursuant to the terms of this Agreement,
and shall have no liability to the Borrower, any Lender, any Issuing Bank or any other person or entity for damages of any kind, including
direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise
and whether at law or in equity) resulting from any error in the calculation of any such rate (or component thereof) as provided by any
such information source or service.
(g)
As used in this Section 2.24, the following terms shall have the meanings specified below:
“Available
Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for
such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for
determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt,
any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (d) of this
Section 2.24.
“Benchmark”
means, initially, with respect to (i) Eurocurrency Rate Loans denominated in Dollars, the Term SOFR, (ii) Eurocurrency Rate Loans
denominated in Euros, the EURIBO Screen Rate, (iii) Alternative Currency Daily Rate Loans denominated in Sterling, SONIA or (iv) BA Rate
Loans, the BA Rate; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with
respect to the then-current Benchmark, then “Benchmark” shall mean the applicable Benchmark Replacement to the extent that
such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (a) of this Section 2.24.
“Benchmark
Replacement” means, for any Available Tenor, the first alternative set forth below and (where applicable) in the order set
forth below for the currency that can be determined by the Applicable Administrative Agent for the applicable Benchmark Replacement Date;
provided that, for any Loans denominated in a currency other than Dollars, “Benchmark Replacement” shall mean the alternative
set forth in (2) below:
| (1) | the
sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment; |
| (2) | the
sum of: (a) the alternate benchmark rate that has been selected by the Applicable Administrative
Agent and the Borrower as the replacement for the then-current Benchmark for the applicable
Corresponding Tenor giving due consideration to (i) any selection or recommendation of a
replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental
Body or (ii) any evolving or then-prevailing market convention for determining a benchmark
rate as a replacement for the |
then-current
Benchmark for syndicated credit facilities denominated in the applicable currency at such time and (b) the related Benchmark Replacement
Adjustment.
If
the Benchmark Replacement as determined pursuant to clauses (1) or (2), above would be less than the Floor for the applicable Benchmark,
the Benchmark Replacement will be deemed to be the Floor applicable to such Benchmark for the purposes of this Agreement and the other
Loan Documents.
“Benchmark
Replacement Adjustment” means, with respect to any replacement of the then current Benchmark with an Unadjusted Benchmark Replacement
for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
| (1) | for purposes
of clause (1) of the definition of “Benchmark Replacement,” the first alternative
set forth in the order below that can be determined by the Applicable Administrative Agent:
(a) the spread adjustment, or method for calculating or determining such spread adjustment,
(which may be a positive or negative value or zero) as of the Reference Time such Benchmark
Replacement is first set for such Interest Period that has been selected or recommended by
the Relevant Governmental Body for the replacement of such Benchmark with the applicable
Unadjusted Benchmark Replacement for the applicable Corresponding Tenor or (b) the spread
adjustment (which may be a positive or negative value or zero) as of the Reference Time such
Benchmark Replacement is first set for such Interest Period that would apply to the fallback
rate for a derivative transaction referencing the ISDA Definitions to be effective upon an
index cessation event with respect to such Benchmark for the applicable Corresponding Tenor;
and |
| (2) | for purposes
of clause (2) of the definition of “Benchmark Replacement,” the spread adjustment,
or method for calculating or determining such spread adjustment, (which may be a positive
or negative value or zero) that has been selected by the Applicable Administrative Agent
and the Borrower for the applicable Corresponding Tenor and currency giving due consideration
to (i) any selection or recommendation of a spread adjustment, or method for calculating
or determining such spread adjustment, for the replacement of such Benchmark with the applicable
Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark
Replacement Date or (ii) any evolving or then-prevailing market convention for determining
a spread adjustment, or method for calculating or determining such spread adjustment, for
the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for
syndicated credit facilities in the U.S. syndicated loan market denominated in the applicable
currency; provided that, in the case of clause (1) above, such adjustment is displayed
on a screen or other information service that publishes such Benchmark Replacement Adjustment
from time to time as selected by the Applicable Administrative Agent in its reasonable discretion. |
“Benchmark
Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational
changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “Interest
Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment,
conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, the formula for calculating
any successor rates identified pursuant to the definition of “Benchmark Replacement”, the formula, methodology or convention
for applying the successor Floor to the successor Benchmark Replacement and other technical, administrative or operational matters) that
the Applicable Administrative Agent decides in its reasonable discretion (and in consultation with the Borrower) may be appropriate to
reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Applicable Administrative
Agent in a manner substantially consistent with market practice (or, if the Applicable Administrative Agent decides in its reasonable
discretion (and in consultation with the Borrower) that adoption of any portion of such market practice is not
administratively feasible
or if the Applicable Administrative Agent determines in its reasonable discretion (and in consultation with the Borrower) that no market
practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Applicable Administrative
Agent decides is reasonably necessary (and in consultation with the Borrower) in connection with the administration of this Agreement
and the other Loan Documents).
“Benchmark
Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
| (1) | in the case
of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later
of (a) the date of the public statement or publication of information referenced therein
and (b) the date on which the administrator of such Benchmark (or the published component
used in the calculation thereof) permanently or indefinitely ceases to provide all Available
Tenors of such Benchmark (or such component thereof); or |
| (2) | in the case
of clause (3) of the definition of “Benchmark Transition Event,” the date of
the public statement or publication of information referenced therein. |
For
the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the
Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference
Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause
(1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all
then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark
Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect
to the then-current Benchmark:
| (1) | a public statement
or publication of information by or on behalf of the administrator of such Benchmark (or
the published component used in the calculation thereof) announcing that such administrator
has ceased or will cease to provide all Available Tenors of such Benchmark (or such component
thereof), permanently or indefinitely, provided that, at the time of such statement
or publication, there is no successor administrator that will continue to provide any Available
Tenor of such Benchmark (or such component thereof); |
| (2) | a public statement
or publication of information by the regulatory supervisor for the administrator of such
Benchmark (or the published component used in the calculation thereof), the Board or the
Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator
for such Benchmark (or such component), a resolution authority with jurisdiction over the
administrator for such Benchmark (or such component) or a court or an entity with similar
insolvency or resolution authority over the administrator for such Benchmark (or such component),
which states that the administrator of such Benchmark (or such component) has ceased or will
cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently
or indefinitely, provided that, at the time of such statement or publication, there is no
successor administrator that will continue to provide any Available Tenor of such Benchmark
(or such component thereof); or |
| (3) | a public statement
or publication of information by the regulatory supervisor for the administrator of such
Benchmark (or the published component used in the calculation thereof) announcing that all
Available Tenors of such Benchmark (or such component thereof) are no longer representative. |
For
the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a
public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such
Benchmark (or the published component used in the calculation thereof).
“Benchmark
Unavailability Period” means, with respect to any then-current Benchmark, the period (if any) (x) beginning at the time that
a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement
has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with this Section 2.24
and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under
any Loan Document in accordance with this Section 2.24.
“Corresponding
Tenor” with respect to any Available Tenor, means, as applicable, either a tenor (including overnight) or an interest payment
period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Daily
Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to the greater of (a) SOFR for
the day (such day “i”) that is five U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is
a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business
Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by
the SOFR Administrator on the SOFR Administrator’s Website, and (b) the Floor. If by 5:00 pm (New York City time) on the second
(2nd) U.S. Government Securities Business Day immediately following any day “i”, the SOFR in respect of
such day “i” has not been published on the SOFR Administrator’s Website, then the SOFR for such day “i”
will be the SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published
on the SOFR Administrator’s Website; provided that any SOFR determined pursuant to this sentence shall be utilized for purposes
of calculation of Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days. Any change in Daily Simple SOFR due to a change
in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Floor”
shall mean the benchmark rate floor, if any, provided in this Agreement initially (or, in the case of other Loans incurred subsequent
to the date of this Agreement, any other benchmark rate floor agreed to therefor) (as of the execution of this Agreement, the modification,
amendment or renewal of this Agreement or otherwise) with respect to any applicable Benchmark.
“ISDA
Definitions” shall mean the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or
any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives
published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Reference
Time” with respect to any setting of the then-current Benchmark shall mean (1) is such Benchmark is Term SOFR, 5:00 a.m. (Chicago
time) on the day that is two (2) Business Days preceding the date of such setting, (2) if such Benchmark is the EURIBO Screen Rate, 11:00
a.m. Brussels time two TARGET Days preceding the date of such setting, (3) if such Benchmark is SONIA, then four Business Days prior
to such setting or (4) if such Benchmark is none of the foregoing, the time determined by the Applicable Administrative Agent in its
reasonable discretion, otherwise, the time determined by the Applicable Administrative Agent in its reasonable discretion in accordance
with the terms of this Agreement.
“Relevant
Governmental Body” shall mean (i) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Board,
the Federal Reserve Bank of New York or the Term SOFR Administrator, or a committee officially endorsed or convened by the Board or the
Federal Reserve Bank of New York, or any successor thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated
in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor
thereto, (iii) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee
officially endorsed or convened by the European Central Bank or, in each case, any successor thereto, and (iv) with respect to a Benchmark
Replacement in respect of Loans denominated in any other currency, (a) the central bank for the currency in which such Benchmark Replacement
is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or
(2) the administrator of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the
central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible
for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central
banks or other supervisors or (4) the Financial Stability Board or any part thereof.
“Unadjusted
Benchmark Replacement” shall mean the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
Section
2.25. Sustainability
Adjustments.
(a)
ESG Amendment. After the Investment Grade Trigger Date, the Borrower, in consultation with an institution reasonably selected
by the Borrower and the Revolving Administrative Agent to serve as the sustainability coordinator hereunder (the “Sustainability
Coordinator”) and the Revolving Administrative Agent, shall be entitled to establish specified key performance indicators (“KPIs”)
with respect to certain environmental, social and governance (“ESG”) targets of the Borrower and its Subsidiaries.
The Sustainability Coordinator, the Revolving Administrative Agent and the Borrower may amend this Agreement (such amendment, the “ESG
Amendment”) solely for the purpose of incorporating the KPIs and other related provisions (the “ESG Pricing Provisions”)
into this Agreement, and any such amendment shall become effective at 5:00 p.m., New York City time, on the tenth Business Day after
the Revolving Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time,
Lenders comprising the Required Lenders have delivered to the Revolving Administrative Agent (who shall promptly notify the Borrower)
written notice that such Required Lenders object to such ESG Amendment. In the event that Required Lenders deliver a written notice objecting
to any such ESG Amendment, an alternative ESG Amendment may be effectuated with the consent of the Required Lenders, the Borrower and
the Sustainability Coordinator. Upon the effectiveness of any such ESG Amendment, based on the Borrower’s and/or its Subsidiaries’
performance against the KPIs, certain adjustments (increase, decrease or no adjustment) to the otherwise applicable facility fee, Applicable
Rate for ABR Loans, Canadian Prime Rate Loans, BA Rate Loans, Swingline Loans, Eurocurrency Rate Loans, Alternative Currency Daily Rate
Loans and Letter of Credit Fees will be made; provided that the amount of such adjustments shall not exceed (i) in the case of the Facility
Fee, an increase and/or decrease of 0.01% and (ii) in the case of the Applicable Rate for Eurocurrency Rate Loans, BA Rate Loans, Alternative
Currency Daily Rate Loans and Letter of Credit Fees, an increase and/or decrease of 0.04%, and the adjustments to the Applicable Rate
for ABR Loans, Canadian Prime Rate Loans and Swingline Loans shall be the same amount, in basis points, as the adjustments to the Applicable
Rate for Eurocurrency Loans, BA Rate Loans, Alternative Currency Daily Rate Loans and Letter of Credit Fees, provided that in no event
shall the Applicable Rate for ABR Loans, Canadian Prime Rate Loans and Swingline Loans be less than zero. The pricing adjustments pursuant
to the KPIs will require, among other things, reporting and validation of the measurement of the KPIs in a manner that is
aligned with the Sustainability
Linked Loan Principles and is to be agreed between the Borrower and the Sustainability Coordinator (each acting reasonably). Following
the effectiveness of the ESG Amendment:
(i)
any modification to the ESG Pricing Provisions which has the effect of (x) reducing the facility fee, Applicable Rate for ABR
Loans, Canadian Prime Rate Loans and Swingline Loans, or Applicable Rate for Eurocurrency Rate Loans, BA Rate Loans, Alternative Currency
Daily Rate Loans and Letter of Credit Fees to a level not otherwise permitted by this Section 2.25(a) or
(y) increasing the facility fee, Applicable Rate for ABR Loans, Canadian Prime Rate Loans and Swingline Loans, or Applicable Rate for
Eurocurrency Rate Loans, BA Rate Loans, Alternative Currency Daily Rate Loans and Letter of Credit Fees that is not accompanied by a
corresponding reduction of the facility fee, Applicable Rate for ABR Loans, Canadian Prime Rate Loans and Swingline Loans, or Applicable
Rate for Eurocurrency Rate Loans, BA Rate Loans, Alternative Currency Daily Rate Loans and Letter of Credit Fees by a percentage equivalent
to such increase, shall (in each case) be subject to the consent of all Lenders; and
(ii)
any other modification to the ESG Pricing Provisions (other than as provided for in Section 2.25(a)(i)
above) shall be subject only to the consent of the Required Lenders.
(b)
Sustainability Coordinator. The Sustainability Coordinator will (i) assist the Borrower in determining the ESG Pricing Provisions
in connection with the ESG Amendment and (ii) assist the Borrower in preparing informational materials focused on ESG to be used in connection
with the ESG Amendment.
(c)
Conflicting Provisions. This Section shall supersede any provisions in Section 10.02 to the contrary.
Article
3
REPRESENTATIONS AND WARRANTIES
On
the dates and to the extent required pursuant to Section 4.01 or Section 4.02 (other than, on and following the Investment
Grade Trigger Date, the representations and warranties set forth in Sections 3.13, 3.14 and 3.15), as applicable,
the Borrower and each other Loan Party hereby represent and warrant to the Lenders that:
Section
3.01. Organization;
Powers. The Borrower and each of their Restricted Subsidiaries (a) is (i) duly organized and validly existing and (ii) in good standing
(to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction of organization, (b) has all requisite
organizational power and authority to own its property and assets and to carry on its business as now conducted and (c) is qualified
to do business in, and is in good standing (to the extent such concept exists in the relevant jurisdiction) in, every jurisdiction where
its ownership, lease or operation of properties or conduct of its business requires such qualification; except, in each case referred
to in this Section 3.01 (other than clause (a)(i) and (b), in each case with respect to the Borrower) where the
failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section
3.02. Authorization;
Enforceability. The execution, delivery and performance by each Loan Party of each Loan Document to which it is a party are within
such Loan Party’s corporate or other organizational power and have been duly authorized by all necessary corporate or other organizational
action of such Loan Party. Each Loan Document to which any Loan Party is a party has been duly executed and delivered by such Loan Party
and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to the Legal Reservations.
Section
3.03.
Governmental Approvals;
No Conflicts. The execution and delivery of each Loan Document by each Loan Party party thereto and the performance by such Loan Party
thereof (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority,
except (i) such as have been obtained or made and are in full force and effect (except to the extent not required to be obtained or made
pursuant to the Collateral and Guarantee Requirement), (ii) in connection with the Perfection Requirements and (iii) such consents, approvals,
registrations, filings or other actions the failure to obtain or make which would not be reasonably expected to have a Material Adverse
Effect, (b) will not violate any (i) of such Loan Party’s Organizational Documents or (ii) Requirements of Law applicable
to such Loan Party which, in the case of this clause (b)(ii), would reasonably be expected to have a Material Adverse Effect and
(c) will not violate or result in a default under any material Contractual Obligation in respect of Indebtedness having an aggregate
principal amount exceeding the Threshold Amount to which such Loan Party is a party which, in the case of this clause (c), would
reasonably be expected to result in a Material Adverse Effect.
Section
3.04. Financial
Condition; No Material Adverse Effect.
(a)
After the Closing Date, the financial statements most recently provided pursuant to Section 5.01(a) or (b), as applicable, present
fairly, in all material respects, the financial position, results of operations and cash flows of the Borrower on a consolidated basis
as of such dates and for such periods in accordance with GAAP, (x) except as otherwise expressly noted therein, (y) subject, in the case
of quarterly financial statements, to the absence of footnotes and normal year-end audit adjustments and (z) except as may be necessary
to reflect any differing entity and/or organizational structure prior to giving effect to the Transactions.
(b)
Since the Closing Date, there have been no events, developments or circumstances that have had, or would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
Section
3.05. Properties.
(a)
As of the Closing Date, Schedule 3.05 sets forth the address of each Material Real Estate Asset that is owned in fee simple
by any Loan Party.
(b)
The Borrower and each of their Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or valid
leasehold interests in, or easements or other limited property interests in, all of their respective Real Estate Assets and have good
title to their personal property and assets, in each case material to the business, except (i) for Permitted Liens, (ii) for defects
in title that do not materially interfere with their ability to conduct their business as currently conducted or to utilize such properties
and assets for their intended purposes, or (iii) where the failure to have such title or interest would not reasonably be expected to
have a Material Adverse Effect.
(c)
The Borrower and each of their Restricted Subsidiaries owns or otherwise has a license or right to use all Patents, Trademarks,
Copyrights, and other intellectual property rights (“IP Rights”) necessary for the conduct of its respective business
as presently conducted, and, to the knowledge of the Borrower, such IP Rights do not infringe or violate the IP Rights of any third party,
except to the extent such failure to own or license or have rights to use would not, or where such infringement or violations would not,
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section
3.06. Litigation
and Environmental Matters. Except as set forth on Schedule 3.06:
(a)
there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge
of the Borrower, threatened in writing against the Borrower or any of its Restricted Subsidiaries which would reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect;
(b)
except for any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, (i) neither the Borrower nor any of its Restricted Subsidiaries has received any Environmental Claim nor, to the knowledge of
the Borrower, is any Environmental Claim threatened and (ii) neither the Borrower nor any of its Restricted Subsidiaries is in violation
of any Environmental Law or knows of any basis for any liability under Environmental Laws; and
(c)
neither the Borrower nor any of its Restricted Subsidiaries have treated, stored, transported, Released or disposed of any Hazardous
Material at or from any currently or formerly owned, leased or operated real estate or facility in a manner that would reasonably be
expected to have a Material Adverse Effect.
Section
3.07. Compliance
with Laws. The Borrower and each of their Restricted Subsidiaries are in compliance with all Requirements of Law applicable to it
or its property, except, in each case where the failure to do so, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect, it being understood and agreed that this Section 3.07 shall not apply to any law specifically
referenced in Section 3.17.
Section
3.08. Investment
Company Status. No Loan Party is required to be registered as an “investment company” under the Investment Company Act
of 1940.
Section
3.09. [Reserved].
Section
3.10. ERISA.
(a)
Each Employee Benefit Plan is in compliance with its terms and with ERISA and the Code and all other applicable laws and regulations,
except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(b)
In the five-year period prior to the date on which this representation is made or deemed made, no ERISA Event has occurred or
is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected
to occur, would reasonably be expected to result in a Material Adverse Effect.
Section
3.11. Disclosure.
(a)
As of the Closing Date, to the knowledge of the Borrower, all written factual information (other than forward-looking or projected
information, pro forma information and information of a general economic or general industry nature (including any reports or memoranda
prepared by third party consultants)) concerning the Borrower and its Restricted Subsidiaries and the Transactions and that was prepared
by or on behalf of the Borrower or its Restricted Subsidiaries or their respective representatives and made available to any Initial
Lender or any Administrative Agent in connection with the Transactions on or before the Closing Date (the “Information”),
when taken as a whole, did not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements
are made (after giving effect to all supplements and updates thereto from time to time).
(b)
The Projections have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time
furnished (it being recognized that such Projections are not to be viewed as a guarantee of financial performance or as facts and are
subject to significant uncertainties and contingencies many of which are beyond the Borrower’s control, that no assurance can be
given that any particular financial projections (including the Projections) will be realized, that actual results may differ from projected
results and that such differences may be material).
(c)
As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.
Section
3.12. Solvency.
As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date and the incurrence of indebtedness
and obligations on the Closing Date in connection with this Agreement and the Transactions, (i) the sum of the debt (including contingent
liabilities) of the Borrower and its Restricted Subsidiaries, taken as a whole, does not exceed the fair value of the assets of the Borrower
and its Restricted Subsidiaries, taken as a whole, (ii) the capital of the Borrower and its Restricted Subsidiaries, taken as a whole,
is not unreasonably small in relation to the business of the Borrower and its Restricted Subsidiaries, taken as a whole, contemplated
as of the Closing Date and (iii) the Borrower and its Restricted Subsidiaries, taken as a whole, do not intend to incur, or believe that
they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts (taking into
account any refinancing thereof) as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent
liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liability
meets the criteria for accrual under Statement of Financial Accounting Standards No. 5).
Section
3.13. Capitalization
and Subsidiaries. The Perfection Certificate sets forth, in each case as of the Closing Date, (a) a correct and complete list of
the name of each subsidiary of the Borrower and the ownership interest therein held by the Borrower or its applicable subsidiaries and
(b) the type of entity of the Borrower and each of their subsidiaries.
Section
3.14. Security
Interest in Collateral. Subject to the Legal Reservations and the Perfection Requirements (including the Agreed Security Principles),
the provisions, limitations and/or exceptions set forth in this Agreement and/or the other relevant Loan Documents (including any Acceptable
Intercreditor Agreement), the Collateral Documents create legal, valid and enforceable Liens on all of the Collateral described therein
in favor of the Collateral Agent, for the benefit of itself and the other Secured Parties, and upon the satisfaction of the applicable
Perfection Requirements (as limited by the Agreed Security Principles), such Liens constitute perfected Liens (with the priority such
Liens are expressed to have within the relevant Collateral Documents) on the Collateral (to the extent such Liens are required to be
perfected under the terms of the Loan Documents) securing the Obligations, in each case as and to the extent set forth therein. For the
avoidance of doubt, notwithstanding anything herein or in any other Loan Document to the contrary, neither the Borrower nor any other
Loan Party makes any representation or warranty (other than any representation or warranty expressly made in such Loan Document) as to
(A) the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest in any Capital
Stock of any Subsidiary, or as to the rights and remedies of the Collateral Agent, any Administrative Agent or any Lender with respect
thereto, under foreign Requirements of Law (except to the extent a pledge of Capital Stock has been duly executed under the laws of the
jurisdiction of the issuer thereof), (B) the enforcement of any security interest or right or remedy with respect to any Collateral that
may be limited or restricted by, or require any consent, authorization, approval or license under, any Requirement of Law, (C) on the
Closing Date and until required pursuant to Section 5.12, as applicable, the pledge or creation of any security interest, or the
effects of perfection
or non-perfection, the priority or enforceability of any pledge or security interest to the extent the same is not required on the Closing
Date pursuant to Section 4.01 or (D) any Excluded Asset.
Section
3.15. Labor
Disputes. As of the Closing Date, except as individually or in the aggregate would not reasonably be expected to have a Material
Adverse Effect: (a) there are no strikes, lockouts or slowdowns against the Borrower or any of their Restricted Subsidiaries pending
or, to the knowledge of the Borrower or any of its Restricted Subsidiaries, threatened in writing and (b) the hours worked by and payments
made to employees of the Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other
applicable federal, state, local or foreign law dealing with such matters.
Section
3.16. Federal
Reserve Regulations. No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose that results in a violation of the provisions of Regulation U and Regulation
X.
Section
3.17. USA PATRIOT
Act, Sanctions and Anti-Corruption Laws.
(a)
(i) Neither the Borrower nor any of its Subsidiaries, nor, to the knowledge of the Borrower, any director or officer of any of
the Borrower or any of its Subsidiaries, or any agent or employee of the Borrower or any of its Subsidiaries that will act in any capacity
in connection with this Agreement, is a Sanctioned Person; and (ii) the Borrower will not directly or, to its knowledge, indirectly,
use the proceeds of the Loans or otherwise make available such proceeds to any Sanctioned Person, for the purpose of financing the activities
of any Sanctioned Person, or in any Sanctioned Country, in each case in any manner that would result in the violation of applicable Sanctions
by any Person party to this Agreement.
(b)
Each Loan Party is in compliance with the USA PATRIOT Act and applicable Sanctions and anti-corruption laws in all material respects.
(c)
No part of the proceeds of any Loan or any Letter of Credit will be used, directly or, to the knowledge of the Borrower, indirectly,
for any payments to any governmental official or employee, political party, official of a political party, candidate for political office,
or any other person or entity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the U.S.
Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption law.
The
representations and warranties set forth in this Section made by or on behalf of any Foreign Subsidiary are subject to and limited by
any Requirements of Law applicable to such Foreign Subsidiary; it being understood and agreed that to the extent that any Foreign Subsidiary
is unable to make any representation or warranty set forth in this Section as a result of the application of this sentence, such Foreign
Subsidiary shall be deemed to have represented and warranted that it is in compliance, in all material respects, with any equivalent
Requirements of Law relating to anti-corruption or Sanctions that are applicable to such Foreign Subsidiary in its relevant local jurisdiction
of organization. Without limiting the foregoing sentence, the representations and warranties set forth in this Section made in respect
of any Subsidiary resident in Germany (Inländer) within the meaning of section 2 paragraph 15 of the German Foreign Trade
Act (Außenwirtschaftsgesetz) are only made to the extent such representation and/or warranty does not result in a violation
of or conflict with section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung).
Section
3.18. Canadian
Employee Benefit Plans.
(a)
Except as could not reasonably be expected to have a Material Adverse Effect and except as set forth on Schedule 3.18,
the Canadian Employee Benefit Plans are, and have been, established, registered, amended, funded, invested and administered in compliance
with the terms of such Canadian Employee Benefit Plans (including the terms of any documents in respect of such Canadian Employee Benefit
Plans), all Applicable Laws and any applicable collective agreements. There is no investigation by a Governmental Authority or claim
(other than routine claims for payment of benefits) pending or, to the knowledge of a Canadian Loan Party, threatened involving any Canadian
Employee Benefit Plan or its assets, and no facts exist which could reasonably be expected to give rise to any such investigation or
claim (other than routine claims for payment of benefits) which if determined adversely, could reasonably be expected to have a Material
Adverse Effect.
(b)
All employer and employee payments, contributions and premiums required to be remitted, paid to or in respect of each Canadian
Pension Plan have been paid or remitted in accordance with its terms and all applicable laws.
(c)
No Canadian Pension Plan Termination Events have occurred that individually or in the aggregate, would result in a Canadian Loan
Party owing an amount that could reasonably be expected to have a Material Adverse Effect.
(d)
Except as set forth on Schedule 3.18, no Loan Party has any liability (contingent, matured or otherwise) in respect of
a Defined Benefit Plan.
None
of the Canadian Employee Benefit Plans, other than the Canadian Pension Plans, provide benefits beyond retirement or other termination
of service to employees or former employees of a Canadian Loan Party, or to the beneficiaries or dependents of such employees.
Article
4
CONDITIONS
Section
4.01. Closing
Date. The obligations of (i) each Lender to make Loans and (ii) any Issuing Bank to issue Letters of Credit shall not become effective
until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.02):
(a)
Credit Agreement and Loan Documents. The Administrative Agents (or their counsel) shall have received from each Loan Party
party thereto (i) a counterpart signed by each such Loan Party (or written evidence reasonably satisfactory to the Administrative Agents
(which may include a copy transmitted by facsimile or other electronic method) that such party has signed a counterpart) of (A) each
Closing Date Collateral Document and (B) any Promissory Note requested by a Lender at least three Business Days prior to the Closing
Date and (ii) a Borrowing Request as required by Section 2.03.
(b)
Legal Opinions. The Administrative Agents (or their counsel) shall have received, on behalf of each Administrative Agent,
the Lenders and each Issuing Bank on the Closing Date, a customary written opinion of (i) Davis Polk & Wardwell LLP, in its capacity
as special New York counsel to the Loan Parties and (ii) Norton Rose Fullbright Canada LLP, in its capacity as special Canadian counsel
to the Canadian Loan Parties, in each case, dated the Closing Date and addressed to each Administrative Agent, the Collateral Agent,
the Lenders and each Issuing Bank.
(c)
Solvency. The Administrative Agents shall have received a solvency certificate, in the form attached hereto as Exhibit
I, dated as of the Closing Date from the chief financial officer (or other officer with reasonably equivalent responsibilities) of
the Borrower in the form attached as Exhibit I hereto.
(d)
Secretary’s Certificates; Certified Charters; Good Standing Certificates. The Administrative Agents (or their counsel)
shall have received (i) a certificate of each Loan Party (or of the Borrower, on behalf of such Loan Party) dated the Closing Date and
executed by a secretary, assistant secretary, director or other senior officer (as the case may be) of such Loan Party (or of the Borrower,
on behalf of such Loan Party), which shall, as to such Loan Party (A) certify that attached thereto is a true and complete copy of the
resolutions or written consents of its shareholders, board of directors, board of managers, members or other governing body authorizing
the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, the borrowings
and issuance of Promissory Notes (if any) hereunder, and that such resolutions or written consents have not been modified, rescinded
or amended (other than as attached thereto) and are in full force and effect (provided that if the Organizational Documents of a Loan
Party authorize the execution, delivery and performance of the Loan Documents to which it is a party without any such resolution or written
consent, such resolution or written consent need not be attached to such certificate), (B) identify by name and title and bear the signatures
of (x) the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which
it is a party on the Closing Date or (y) the individuals to whom such officers, managers, directors or authorized signatories of such
Loan Party have granted powers of attorney to sign the Loan Documents to which such Loan Party is a party and (C) certify (x) that attached
thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association, constitution
or other equivalent thereof) of such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan
Party and a true and correct copy of its by-laws or operating, management, partnership or similar agreement and (y) that such documents
or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments
thereto as of such date), (ii) a good standing (or equivalent) certificate (if applicable) as of a recent date for such Loan Party from
the relevant authority of its jurisdiction of organization and (iii) such other documents as the Administrative Agents may reasonably
request.
(e)
Closing Certificate. The Administrative Agents (or their counsel) shall have received a certificate of each Loan Party
(or by the Borrower on behalf of each Loan Party), dated the Closing Date and executed by a secretary, assistant secretary or other senior
officer (as the case may be) thereof, which shall certify the matters set forth in Sections 4.02(b) and (c).
(f)
Fees. Prior to or substantially concurrently with the funding of the Initial Term Loans hereunder, the Administrative Agents
shall have received:
(i)
all fees required to be paid by the Borrower on the Closing Date pursuant to (x) the Fee Letter and (y) the engagement letter
or any other letter agreement entered into between certain Arrangers and the Borrower with respect to the Credit Facilities; and
(ii)
all expenses required to be paid by the Borrower for which invoices have been presented at least three Business Days prior to
the Closing Date (including the reasonable fees and expenses of legal counsel for the Administrative Agents that are payable under the
engagement letter entered into between the Arrangers and the Borrower with respect to the Credit Facilities), in each case on or before
the Closing Date, which amounts may be offset against the proceeds of the Loans or may be paid from the proceeds of the Initial Term
Loans.
(g)
Lien Searches; Perfection Certificate. The Administrative Agents (or their counsel) shall have received (x) results of
customary lien searches, which are reasonably satisfactory to it and (y) a completed Perfection Certificate dated the Closing Date and
signed by a Responsible Officer of each Loan Party (or by the Borrower on behalf of each Loan Party), together with all attachments contemplated
thereby.
(h)
Filings, Registrations and Recordings. Each document (including any UCC financing statement, PPSA financing statements,
application for registration at the applicable Quebec Register or equivalent filings) required by any Closing Date Collateral Document
or under law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured
Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Closing Date Collateral Document, shall be in proper
form for filing, registration or recordation.
(i)
USA PATRIOT Act. (i) No later than three Business Days in advance of the Closing Date, the Administrative Agents shall
have received all documentation and other information reasonably requested in writing by the Administrative Agents with respect to any
Loan Party at least ten Business Days in advance of the Closing Date, which documentation or other information is required by (x) U.S.
regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the
USA PATRIOT Act and (y) Canadian AML and Sanctions Legislation and (ii) at least three days prior to the Closing Date, if the Borrower
qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership
Certification.
(j)
The Separation Transactions. That portion of the Separation Transactions intended by the S-1 Registration Statement and
the Separation Agreements to occur prior to or contemporaneously with the initial public offering of the Borrower shall have been consummated,
in all material respects, in accordance with the S-1 Registration Statement and the Separation Agreements (it being understood that,
other than any transfers of Capital Stock of the Borrower to be made pursuant to such initial public offering, transfers of Capital Stock
of the Borrower contemplated by the Separation Agreements and the Plan of Arrangement may occur following the Closing Date).
(k)
Parent Credit Agreement. The Administrative Agents shall have received evidence reasonably satisfactory to it (or its counsel)
that (x) each of the Borrower and the other Loan Parties have been released from its guarantee obligations under and (y) the release
of all of the Liens and security interests granted by the Borrower and the other Loan Parties (including any Liens and security interests
of the Capital Stock of the Borrower’s Subsidiaries) securing the obligations under that certain Fourth Amended and Restated Credit
and Guaranty Agreement, dated as of June 1, 2018 (as the same may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time), by and among the Parent, Bausch Health Americas, Inc., certain subsidiaries of the Parent from time to time
party thereto as guarantors, the lenders from time to time party thereto and Barclays Bank PLC, as administrative agent, and the other
Loan Documents (as defined therein) related thereto.
For
purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding
the Loans hereunder, each Administrative Agent, the Collateral Agent and each Lender that has executed the Credit Agreement on the Closing
Date shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder
to be consented to or approved by or acceptable or satisfactory to such Administrative Agent, the Collateral Agent or such Lender, as
the case may be.
Notwithstanding
anything to the contrary contained in this Agreement or the other Loan Documents, the parties hereto acknowledge and agree that (i) the
delivery of any document or instrument, and the taking of any action, set forth on Schedule 5.17 hereto shall not be a condition
precedent to the Closing Date but shall be required to be satisfied after the Closing Date in accordance with Section 5.17 hereto, and
(ii) all conditions precedent and representations, warranties, covenants, Events of Default and other provisions contained in this Agreement
and the other Loan Documents shall be deemed modified as set forth on Schedule 5.17 hereto (and to permit the taking of the actions
described therein within the time periods required therein, rather than as elsewhere provided in the Loan Documents).
Section
4.02. Each Credit Extension. The obligation of each Lender
to make a Credit Extension (which, for the avoidance of doubt (including for purposes of the last paragraph of this Section 4.02
but not clause (a) of this Section 4.02), shall not include (A) any Incremental Loans advanced in connection with any acquisition, other
Investment or irrevocable repayment or redemption of Indebtedness and/or (B) any Credit Extension under any Incremental Facility Amendment,
Refinancing Amendment and/or Extension Amendment, in each case to the extent not otherwise required by the lenders in respect of thereof)
is subject solely to the satisfaction of the following conditions:
(a)
(i) In the case of a Borrowing, the Applicable Administrative Agent shall have received a Borrowing Request as required by Section
2.03, (ii) in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Revolving Facility Administrative
Agent shall have received a notice requesting the issuance of such Letter of Credit as required by Section 2.05(b) or (iii) in
the case of a Borrowing of Swingline Loans, the Swingline Lender and the Revolving Facility Administrative Agent shall have received
a request as required by Section 2.04(a).
(b)
The representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true
and correct in all material respects on and as of the date of any such Credit Extension with the same effect as though such representations
and warranties had been made on and as of the date of such Credit Extension and excluding, after the Closing Date, the representations
and warranties set forth in Section 3.11(b); provided that to the extent that any representation and warranty specifically
refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period.
(c)
At the time of and immediately after giving effect to the applicable Credit Extension, no Event of Default or Default shall have
occurred and be continuing.
Each
Credit Extension shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified
in paragraphs (b) and (c) of this Section.
Article
5
AFFIRMATIVE COVENANTS
From
the Closing Date until the date on which all Commitments have expired or terminated and the principal of and interest on each Loan and
all fees, expenses and other Loan Document Obligations payable under any Loan Document (other than contingent indemnification obligations
for which no claim or demand has been made) have been paid in full in Cash and all Letters of Credit have expired or have been terminated
(or have been (x) collateralized or back-stopped by a letter of credit or otherwise in a manner reasonably satisfactory to the Revolving
Facility Administrative Agent and the relevant Issuing Bank or (y) deemed reissued under another agreement in a manner reasonably satisfactory
to the Revolving Facility Administrative Agent and the relevant Issuing Bank) and all LC Disbursements have been reimbursed (such date,
the “Termination Date”), the Borrower and each other Loan Party hereby covenant and agree with the Lenders that:
Section
5.01. Financial
Statements and Other Reports. The Borrower will deliver to the Administrative Agents, for delivery by the Applicable Administrative
Agent to each Lender:
(a)
Quarterly Financial Statements. Within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal
Year, commencing with the Fiscal Quarter ending June 30, 2022, (i) the unaudited consolidated balance sheet of the Borrower as at the
end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower for such Fiscal
Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and
setting forth, in
reasonable detail, in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year (which shall
be based on historical combined financial statements for periods ending prior to the completion of the Separation Transactions), all
in reasonable detail, together with a Responsible Officer Certification (which may be included in the applicable Compliance Certificate)
with respect thereto and (ii) a Narrative Report, provided that such financial statements shall not be required to reflect any
purchase accounting adjustments relating to any acquisition consummated after the Closing Date until the last day of the Fiscal Year
following the Fiscal Year in which the relevant acquisition was consummated;
(b)
Annual Financial Statements. Within 90 days after the end of each Fiscal Year ending after the Closing Date, (i) the consolidated
balance sheet of the Borrower as at the end of such Fiscal Year and the related consolidated statements of income, stockholders’
equity and cash flows of the Borrower for such Fiscal Year and setting forth, in reasonable detail, in comparative form the corresponding
figures for the previous Fiscal Year (which shall be based on historical combined financial statements for periods ending prior to the
completion of the Separation Transactions) and (ii) with respect to such consolidated financial statements, (A) a report thereon of an
independent certified public accountant (or accountants) of recognized national standing or another accounting firm reasonably acceptable
to the Administrative Agents (which report shall not be subject to a “going concern” or scope of audit qualification (except
for any such qualification pertaining to, or disclosure of an exception or qualification resulting from, (x) the maturity (or impending
maturity) of any Credit Facility or any other Indebtedness, (y) any breach or anticipated breach of any financial covenant or (z) the
activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary) but may include a “going concern”
or “emphasis of matter” explanatory paragraph or like statement), and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position of the Borrower as at the dates indicated and its income
and cash flows for the periods indicated in conformity with GAAP and (B) a Narrative Report;
(c)
Compliance Certificate; Unrestricted Subsidiaries. (i) Within 5 Business Days after the delivery of financial statements
pursuant to Section 5.01(a) or 5.01(b) with respect to any Fiscal Quarter or Fiscal Year, as applicable, a duly executed
and completed Compliance Certificate and (ii) within 5 Business Days after the delivery of financial statements of the Borrower pursuant
to Section 5.01(b), (A) a summary (which may be in footnote form) of the pro forma adjustments necessary to eliminate the accounts
of Unrestricted Subsidiaries (if any) from such financial statements and (B) a list identifying each subsidiary of the Borrower as a
Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such financial statements or confirming that there
is no change in such information since the later of the Closing Date and the most recent prior delivery of such information;
(d)
Financial Plan. Prior to the Investment Grade Trigger Date, as soon as practicable and in any event no later than 90 days
subsequent to the beginning of each Fiscal Year (beginning with the Fiscal Year ending December 31, 2023), a consolidated plan and financial
forecast for such Fiscal Year, including forecasted consolidated statements of income of Borrower for each Fiscal Quarter of such Fiscal
Year (it being understood that the forecasted financial information is not to be viewed as facts and that actual results during the period
or periods covered by the Financial Plan may differ from such forecasted financial information and that such differences may be material).
(e)
Notice of Default or Event of Default. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i)
any Default or Event of Default or (ii) the occurrence of any event or change that has caused or evidences or would reasonably be expected
to cause or evidence, either individually or in the aggregate, a Material Adverse Effect, a reasonably detailed notice specifying the
nature and period of existence of such condition, event or change and what action the Borrower has taken, is taking and proposes to take
with respect thereto;
(f)
Notice of Litigation. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of the institution of any
Adverse Proceeding not previously disclosed in writing by the Borrower to the Administrative Agents that would reasonably be expected
to have a Material Adverse Effect, written notice thereof by the Borrower together with such other non-privileged information as may
be reasonably available to the Loan Parties to enable the Lenders to evaluate such matters;
(g)
ERISA. Promptly upon any Responsible Officer of the Borrower becoming aware of the occurrence of any ERISA Event that would
reasonably be expected to have a Material Adverse Effect, a written notice specifying the nature thereof;
(h)
[Reserved];
(i)
Information Regarding Collateral. At all times prior to the Investment Grade Trigger Date, promptly (and, in any event,
within 90 days of the relevant change or such later date as the Collateral Agent may agree) written notice of any change (i) in any Loan
Party’s legal name, (ii) in any Loan Party’s type of organization, (iii) in any Loan Party’s jurisdiction of organization
or (iv) in any Loan Party’s organizational identification number, in each case to the extent such information is necessary to enable
the Collateral Agent to perfect or maintain the perfection and priority of its security interest in the Collateral of the relevant Loan
Party;
(j)
Certain Reports. Promptly upon their becoming publicly available and without duplication of any obligations with respect
to any such information that is otherwise required to be delivered under the provisions of any Loan Document, copies of (i) all financial
statements, material reports, material notices and proxy statements sent or made available generally by the Borrower to its security
holders acting in such capacity and (ii) all material regular and periodic reports and all material registration statements and prospectuses,
if any, filed by the Borrower or any of its Restricted Subsidiaries with any securities exchange or with the SEC or any analogous governmental
or private regulatory authority with jurisdiction over matters relating to securities (other than amendments to any registration statement
(to the extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and,
if applicable, any registration statement on Form S-8 or a similar form); provided that no such delivery shall be required hereunder
with respect to any of the foregoing to the extent that such are publicly available via EDGAR; and
(k)
Canadian Employee Benefit Plans. Promptly upon any Responsible Officer of the Borrower obtaining knowledge of: (1) a Canadian
Pension Plan Termination Event; (2) the failure to make a required contribution to or payment under any Canadian Pension Plan when due;
(3) the occurrence of any event which is reasonably likely to result in a Canadian Loan Party incurring any liability, fine or penalty
with respect to any Canadian Employee Benefit Plan that could reasonably be expected to result in a Material Adverse Effect; (4) the
establishment of any material new Canadian Employee Benefit Plans or (5) any change to an existing Canadian Employee Benefit Plan that
could reasonably be expected to result in a Material Adverse Effect; in the notice to the Administrative Agents of the foregoing, copies
of all documentation relating thereto as Administrative Agents shall reasonably request shall be provided; and
(l)
Other Information. Such other certificates, reports and information (financial or otherwise) as the Administrative Agents
may reasonably request from time to time regarding the financial condition or business of the Borrower and its Restricted Subsidiaries
or compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering
laws; provided, however, that neither the Borrower nor any Restricted Subsidiary shall be required to disclose or provide
any information (i) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrower or any of its
subsidiaries or any of their respective customers
and/or suppliers,
(ii) in respect of which disclosure to any Administrative Agent or any Lender (or any of their respective representatives) is prohibited
by any applicable Requirement of Law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product
or (iv) in respect of which the Borrower or any Restricted Subsidiary owes confidentiality obligations to any third party (provided
such confidentiality obligations were not entered into solely in contemplation of the requirements of this Section 5.01(l));
provided, further, that in the event the Borrower does not provide any certificate, report or information requested pursuant
to this Section 5.01(l) in reliance on the preceding proviso, the Borrower shall provide notice to the Applicable Administrative
Agent that such certificate, report or information is being withheld and the Borrower shall use commercially reasonable efforts to describe,
to the extent both feasible and permitted under applicable Requirements of Law or confidentiality obligations, or without waiving such
privilege, as applicable, the applicable certificate, report or information.
Documents
required to be delivered pursuant to this Section 5.01 may be delivered electronically and, if so delivered, shall be deemed to
have been delivered on the date (v) on which the Borrower (or a representative thereof) (x) posts such documents or (y) provides a link
thereto at the website address listed on Schedule 10.01 (as updated from time to time); provided that, other than with
respect to items required to be delivered pursuant to Section 5.01(j) above, the Borrower shall promptly notify (which notice
may be by facsimile or electronic mail) the Administrative Agents of the posting of any such documents or a link thereto on such website
and provide to the Administrative Agents by electronic mail electronic versions (i.e., soft copies) of such documents; (vi) on which
such documents are delivered by the Borrower to the Administrative Agents for posting on behalf of the Borrower on IntraLinks, SyndTrak
or another relevant secure website, if any, to which each Lender and the Administrative Agents have access (whether a commercial, third-party
website or whether sponsored by any Administrative Agent); (vii) on which such documents are faxed to the Administrative Agents (or electronically
mailed to addresses provided by the Administrative Agents); or (viii) in respect of the items required to be delivered pursuant to Section
5.01(j) above in respect of information filed by the Borrower or any of its Restricted Subsidiaries with any securities exchange
or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other
than Form 10-Q Reports and Form 10-K Reports), on which such items have been made available on the SEC website or the website of the
relevant analogous governmental or private regulatory authority or securities exchange.
Notwithstanding
the foregoing, the obligations in paragraphs (a), (b) and (h) of this Section 5.01 may be satisfied with
respect to any financial statements of the Borrower (including with respect to delivery of a Narrative Report) by furnishing Form 10-K
or 10-Q, as applicable, filed with the SEC or any securities exchange, in each case, within the time periods specified in such paragraphs.
No
financial statement required to be delivered pursuant to Section 5.01(a) or (b) shall be required to include acquisition
accounting adjustments relating to any Permitted Acquisition or other Investment to the extent it is not practicable to include any such
adjustments in such financial statement.
Section
5.02. Existence.
Except as otherwise permitted under Section 6.07 or as a result of the consummation of a Permitted Reorganization, the Borrower
will, and the Borrower will cause each of its Restricted Subsidiaries to, at all times preserve and keep in full force and effect their
existence and all rights, franchises, licenses and permits material to their business except, other than with respect to the preservation
of the existence of the Borrower, to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse
Effect; provided that neither the Borrower nor any of the Borrower’s Restricted Subsidiaries shall be required to preserve
any such existence (other than with respect to the preservation of existence of the Borrower, except as otherwise permitted under Section
6.07 or as a result of the consummation of a Permitted Reorganization), right, franchise, license or permit if a Responsible Officer
of such Person or such Person’s board of directors (or similar governing body)
determines that the
preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous
in any material respect to such Person or to the Lenders.
Section
5.03. Payment
of Taxes. The Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, pay all Taxes imposed upon it or
any of its properties or assets or in respect of any of its income or businesses or franchises before any penalty or fine accrues thereon;
provided that no such Tax need be paid if (a) it is being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted, so long as (i) adequate reserves or other appropriate provisions, as are required in conformity with GAAP,
have been made therefor and (ii) in the case of a Tax which has or may become a Lien against a material portion of the Collateral, such
contest proceedings conclusively operate to stay the sale of such portion of the Collateral to satisfy such Tax or (b) failure to pay
or discharge the same would not reasonably be expected to result in a Material Adverse Effect.
Section
5.04. Maintenance
of Properties. The Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, maintain or cause to be maintained
in good repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all material tangible property
reasonably necessary to the normal conduct of business of the Borrower and its Restricted Subsidiaries and from time to time will make
or cause to be made all needed and appropriate repairs, renewals and replacements thereof and use commercially reasonable efforts to
prosecute, renew and maintain in full force and effect all material IP Rights, in each case, except as expressly permitted by this Agreement
or where the failure to maintain such tangible properties, make such repairs, renewals or replacements or prosecute, renew and maintain
such material IP Rights would not reasonably be expected to have a Material Adverse Effect.
Section
5.05. Insurance.
Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, the Borrower will maintain or cause
to be maintained, in each case, as determined by the Borrower in good faith, with financially sound and reputable insurers, such insurance
coverage with respect to liabilities, losses or damage in respect of the assets, properties and businesses of the Borrower and its Restricted
Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in
similar businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering such risks and otherwise
on such terms and conditions as shall be customary for such Persons, including, but only if required by applicable law or regulation,
flood insurance with respect to each Flood Hazard Property, in each case in compliance with applicable Flood Insurance Laws. Prior to
the occurrence of the Investment Grade Trigger Date, each such policy of insurance shall, to the extent available from the relevant insurance
carrier, (i) name the Collateral Agent on behalf of the Secured Parties as a loss payee, mortgagee and/or an additional insured, as applicable,
thereunder as its interests may appear and (ii) in the case of each casualty insurance policy (excluding any business interruption insurance
policy, any workers’ compensation policy, any employee liability policy and/or any representation and warranty insurance policy),
contain a loss payable clause or endorsement that names the Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder
and, to the extent available, provide for at least 30 days’ prior written notice to the Collateral Agent of any modification or
cancellation of such policy (or 10 days’ prior written notice in the case of the failure to pay any premiums thereunder); provided
that the Borrower shall have 120 days after the Closing Date (or such later date as agreed by the Collateral Agent) to comply with
the requirements of the foregoing clauses (i) and (ii) with respect to policies in effect on the Closing Date.
Section
5.06. Inspections.
The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any authorized representative designated by the Administrative
Agents to visit and inspect any of the properties of the Borrower and any of its Restricted Subsidiaries at which the principal financial
records and executive
officers of the applicable Person are located, to inspect, copy and take extracts from its and their respective financial and accounting
records, and to discuss its and their respective affairs, finances and accounts with its and their Responsible Officers and independent
public accountants (subject to such accountants’ customary policies and procedures) (provided that the Borrower (or any
of its subsidiaries) may, if it so chooses, be present at or participate in any such discussion), all upon reasonable notice and at reasonable
times during normal business hours; provided that (x) only the Administrative Agents on behalf of the Lenders may exercise the
rights of the Administrative Agents and the Lenders under this Section 5.06, (y) the Administrative Agents, collectively, shall
not exercise such rights more often than one time during any calendar year and (z) only one such time per calendar year shall be at the
expense of the Borrower; provided, further, that when an Event of Default exists, any Administrative Agent (or any of its
representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business
hours and upon reasonable advance notice; provided, further that notwithstanding anything to the contrary herein, neither
the Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection, examination or making of copies of or
taking abstracts from, or discuss any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial
proprietary information of the Borrower and its subsidiaries and/or any of its customers and/or suppliers, (ii) in respect of which disclosure
to any Administrative Agent or any Lender (or any of their respective representatives or contractors) is prohibited by applicable law,
(iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which the Borrower
or any Restricted Subsidiary owes confidentiality obligations to any third party (provided such confidentiality obligations were
not entered into solely in contemplation of the requirements of this Section 5.06); provided, further, that in the
event any of the circumstances described in the preceding proviso exist, the Borrower shall provide notice to the Administrative Agents
thereof and shall use commercially reasonable efforts to describe, to the extent both feasible and permitted under applicable Requirements
of Law or confidentiality obligations, or without waiving such privilege, as applicable, the applicable document, information or other
matter.
Section
5.07. Maintenance
of Book and Records. The Borrower will, and will cause its Restricted Subsidiaries to, maintain proper books of record and account
containing entries of all material financial transactions and matters involving the assets and business of the Borrower and its Restricted
Subsidiaries that are full, true and correct in all material respects and permit the preparation of consolidated financial statements
in accordance with GAAP.
Section
5.08. Compliance
with Laws. The Borrower will comply, and will cause each of its Restricted Subsidiaries to comply, with the requirements of all applicable
laws, rules, regulations and orders of any Governmental Authority (including ERISA and all Environmental Laws), except to the extent
the failure of the Borrower or the relevant Restricted Subsidiary to comply would not reasonably be expected to have a Material Adverse
Effect; provided that the requirements set forth in this Section 5.08, as they pertain to compliance by any Foreign Subsidiary
with Sanctions and anti-corruption laws are subject to and limited by any Requirement of Law applicable to such Foreign Subsidiary in
its relevant local jurisdiction.
Section
5.09. Hazardous
Materials Activity.
(a)
At all times prior to the Investment Grade Trigger Date, the Borrower will deliver to the Administrative Agents:
(i)
reasonably promptly following Borrower becoming aware of the occurrence thereof, written notice describing in reasonable detail
(A) any Release required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal, state or local governmental
or regulatory agency under any applicable Environmental Law, (B) any remedial action taken by or
on behalf
of the Borrower or any of its Restricted Subsidiaries in response to any Hazardous Materials Activity or Environmental Claim, or (C)
any pending or threatened Environmental Claim, that in the case of each of clauses (A), (B) and (C) above, would
reasonably be expected to have a Material Adverse Effect; and
(ii)
reasonably promptly following the sending or receipt thereof by the Borrower or any of its Restricted Subsidiaries, a copy of
any and all written communications with respect to any Release required to be reported by the Borrower or any of its Restricted Subsidiaries
to any federal, state or local governmental or regulatory agency or any Release required to be remediated pursuant to any Environmental
Law, that in each case would reasonably be expected to have a Material Adverse Effect.
(b)
At all times prior to the Investment Grade Trigger Date, the Borrower shall reasonably promptly take, and shall cause each of
its Restricted Subsidiaries reasonably promptly to take, any and all actions reasonably necessary to (i) cure any violation of Environmental
Law by the Borrower or any of its Restricted Subsidiaries, and, to the extent required by Environmental Law, address with appropriate
corrective or remedial action any Release or threatened Release of any Hazardous Material at or from any Facility, that, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect and (ii) make an appropriate response to any Environmental
Claim against the Borrower or any of its Restricted Subsidiaries and discharge any obligations it may have to any Person thereunder,
where failure to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; provided
that it shall not be deemed to be a violation of this Section 5.09 if the Borrower or its Restricted Subsidiaries are in good
faith contesting such violation, liability for such Release or threatened Release or such Environmental Claim in accordance with applicable
Environmental Law.
Section
5.10. Designation
of Subsidiaries. The Borrower may, at any time after the Closing Date but prior to the Investment Grade Trigger Date, designate (or
re-designate) any subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided
that as of the date of designation (or re-designation) of any subsidiary as an Unrestricted Subsidiary (a) no Event of Default shall
have occurred and be continuing, (b) the Borrower shall be compliant, on a Pro Forma Basis, with the Financial Covenant, (c) no Unrestricted
Subsidiary shall own any Capital Stock in any Restricted Subsidiary of the Borrower (unless such Restricted Subsidiary is also designated
as an Unrestricted Subsidiary simultaneously with the aforementioned designation in accordance with the terms of this Section 5.10)
or hold any Indebtedness of or any Lien on any property of the Borrower or its Restricted Subsidiaries (unless the Borrower or such Restricted
Subsidiary is permitted (or not prohibited) hereunder to incur such Indebtedness or grant such Lien in favor of such Unrestricted Subsidiary
(as a third party)) and (d) no Subsidiary shall be designated as an Unrestricted Subsidiary if such Subsidiary owns Material Intellectual
Property at the time of such designation. The designation of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment
by the Borrower therein at the date of designation in an amount equal to the portion of the fair market value of the net assets of such
subsidiary attributable to the Borrower’s equity interest therein as estimated by the Borrower in good faith (and such designation
shall only be permitted to the extent such Investment is permitted under Section 6.06); provided that if any subsidiary (a “Subject
Subsidiary”) being designated as an Unrestricted Subsidiary has a subsidiary that was previously designated as an Unrestricted
Subsidiary (the “Previously Designated Unrestricted Subsidiary”) in compliance with the provisions of this Agreement,
the Investment of such Subject Subsidiary in such Previously Designated Unrestricted Subsidiary shall not be taken into account, and
shall be excluded, in determining whether the Subject Subsidiary may be designated as an Unrestricted Subsidiary hereunder. The designation
of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the making, incurrence or granting, as applicable, at the
time of designation of any then-existing Investment, Indebtedness or Lien of such subsidiary, as applicable; provided that upon
a re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the
Borrower shall be
deemed to continue to have an Investment in the resulting Restricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s
“Investment” in such Restricted Subsidiary at the time of such re-designation less (b) the portion of the fair market
value of the net assets of such Restricted Subsidiary attributable to the Borrower’s equity therein at the time of such re-designation.
As of the Closing Date, the subsidiaries listed on Schedule 5.10 hereto have been designated as Unrestricted Subsidiaries.
Section
5.11. Use of
Proceeds. The Borrower shall use the proceeds of the Revolving Loans on and after the Closing Date, to finance the working capital
needs and other general corporate purposes of the Borrower and its subsidiaries (including for capital expenditures, acquisitions, working
capital and/or purchase price adjustments, the payment of transaction fees and expenses, other Investments, Restricted Payments, Restricted
Debt Payments and any other purpose not prohibited by the terms of the Loan Documents). The Borrower shall use the proceeds of the Swingline
Loans made after the Closing Date to finance the working capital needs and other general corporate purposes of the Borrower and its subsidiaries
and any other purpose not prohibited by the terms of the Loan Documents. The Borrower shall use the proceeds of the Initial Term Loans
(i) to finance the Repayment, (ii) to finance all or a portion of the Transactions (including the payment of Transaction Costs) and (iii)
for general corporate purposes. The Borrower shall use the proceeds of the First Incremental Term Loans (i) to finance (in part) the
Acquisition, (ii) to finance all or a portion of the First Incremental Transactions and (iii) for general corporate purposes or other
actions or purposes permitted (or not prohibited) hereunder. The Borrower
shall use the proceeds of the Second Incremental Term Loans (i) to consummate the Second Incremental Transactions, (ii) to pay fees and
expenses in connection with the foregoing and (iii) for general corporate purposes or other actions or purposes permitted (or not prohibited)
hereunder. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that would entail
a violation of Regulation U. The Borrower shall use the proceeds of the Incremental Term Loans for working capital, capital expenditures
and other general corporate purposes of the Borrower and its subsidiaries (including for Restricted Payments, Investments, Permitted
Acquisitions and any other purpose not prohibited by the terms of the Loan Documents).
Section
5.12. Covenant
to Guarantee Loan Document Obligations and Give Security. Subject in all respects to the Agreed Security Principles, at all times
prior to the Investment Grade Trigger Date:
(a)
Upon (i) the formation or acquisition after the Closing Date of any Restricted Subsidiary (subject to Section 6.06(hh))
that is not an Excluded Subsidiary, (ii) the designation of any Unrestricted Subsidiary as a Restricted Subsidiary that is not an Excluded
Subsidiary or (iii) any Restricted Subsidiary (including any Immaterial Subsidiary) ceasing to be an Excluded Subsidiary, (x) if the
event giving rise to the obligation under this Section 5.12(a) occurs during the first three Fiscal Quarters of any Fiscal Year,
on or before the later of (I) 60 days following the relevant formation, acquisition, designation or cessation and (II) the
date on which financial statements are required to be delivered pursuant to Section 5.01(a) for the Fiscal Quarter in which such
formation, acquisition, designation or cessation occurred or (y) if the event giving rise to the obligation under this Section 5.12(a)
occurs during the fourth Fiscal Quarter of any Fiscal Year, on or before the date that is 90 days after the end of such Fiscal Quarter
(or, in the cases of clauses (x) and (y), such longer period as the Administrative Agents may reasonably agree), the Borrower
shall (A) cause such Restricted Subsidiary (other than any Excluded Subsidiary) to comply with the requirements set forth in clause
(a) of the definition of “Collateral and Guarantee Requirement” and (B) upon the reasonable request of any Administrative
Agent, cause the relevant Restricted Subsidiary (other than any Excluded Subsidiary) to deliver to the Administrative Agents a signed
copy of a customary opinion of counsel for such Restricted Subsidiary, addressed to the Administrative Agents, the Collateral Agent and
the other relevant Secured Parties.
(b)
Within 120 days (or such longer period as the Collateral Agent may reasonably agree) after the acquisition by any Loan Party
of any Material Real Estate Asset other than any Excluded Asset, the Borrower shall cause such Loan Party to comply with the requirements
set forth in clause (b) of the definition of “Collateral and Guarantee Requirement”; it being understood and agreed
that, with respect to any Material Real Estate Asset (other than any Excluded Asset) owned by any Restricted Subsidiary at the time such
Restricted Subsidiary is required to become a Loan Party under Section 5.12(a) above, such Material Real Estate Asset shall be
deemed to have been acquired by such Restricted Subsidiary on the first day of the time period within which such Restricted Subsidiary
is required to become a Loan Party under Section 5.12(a).
(c)
Upon the formation or acquisition by any Loan Party of any new directly-held Restricted Subsidiary after the Closing Date (other
than any Restricted Subsidiary that is an Immaterial Subsidiary or to the extent the Capital Stock of such Restricted Subsidiary constitutes
Excluded Securities), subject to the Agreed Security Principles, (x) if the event giving rise to the obligation under this Section
5.12(c) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the later of (I) 60 days following the
relevant formation or acquisition and (II) the date on which financial statements are required to be delivered pursuant to Section
5.01(a) for the Fiscal Quarter in which such formation or acquisition occurred or (y) if the event giving rise to the obligation
under this Section 5.12(c) occurs during the fourth Fiscal Quarter of any Fiscal Year, on or before the date that is 90 days after
the end of such Fiscal Quarter (or, in the cases of clauses (x) and (y), such longer period as the Collateral Agent may
reasonably agree), the Borrower shall (A) cause such Loan Party to execute and deliver to the Collateral Agent such Collateral Documents
as the Collateral Agent deems reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties,
a perfected First Priority security interest in the Capital Stock of such new Restricted Subsidiary that is owned by any such Loan Party
(provided that in no event shall more than 65% of the issued and outstanding voting Capital Stock of any Specified Foreign Subsidiary
or Disregarded U.S. Subsidiary be required to be so pledged) and (B) deliver to the Collateral Agent the certificates representing such
Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan
Party, as the case may be, and take such other action as may be reasonably necessary or, in the opinion of the Collateral Agent, desirable
to perfect the Collateral Agent’s security interest therein.
Notwithstanding anything
to the contrary herein or in any other Loan Document, (i) the Collateral Agent and/or the Administrative Agents may grant extensions
of time (including after the expiration of any relevant period, which apply retroactively), including if any applicable Loan Party is
unable, after exercising commercially reasonable efforts, to perform its obligations due to circumstances existing in connection with
the COVID-19 disease outbreak, in each case for the creation and perfection of security interests in, or obtaining of title insurance,
legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Loan Guarantee by any Restricted
Subsidiary, and each Lender hereby consents to any such extension of time, (ii) any Lien required to be granted from time to time pursuant
to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions and limitations set forth
in the Collateral Documents and the Agreed Security Principles, (iii) perfection by control shall not be required with respect to assets
requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities
accounts (other than control of pledged Capital Stock and/or Material Debt Instruments, in each case, that constitute Collateral) and
no blocked account agreement, account control agreement or similar agreement shall be required, in each case unless otherwise required
pursuant to the applicable Collateral Documents (subject to the Agreed Security Principles to the extent applicable), (iv) no Loan Party
shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter
or agreement, (v) no Loan Party will be required to (1) take any action or grant or perfect any security interest in any asset located
outside of its jurisdiction of organization (other than with respect to (x) Capital Stock in the United States, Canada, Ireland or the
Netherlands (provided that, so long as
9079-8851 Québec,
Inc. is dormant and holds no assets, no Canadian-law governed share pledge shall be required with respect to its Capital Stock) or (y)
intellectual property filings in the United States or Canada), (2) execute any guarantee, security agreement, pledge agreement, mortgage,
deed or charge or governed under laws other than the laws of its jurisdiction of organization (other than with respect to (x) Capital
Stock in the United States, Canada, Ireland or the Netherlands (provided that, so long as 9079-8851 Québec, Inc. is dormant
and holds no assets, no Canadian-law governed share pledge shall be required with respect to its Capital Stock) or (y) intellectual property
filings in the United States or Canada) or (3) make any foreign or multinational intellectual property filing, conduct any foreign or
multinational intellectual property search or prepare any foreign or multinational schedule with respect to any assets of any Loan Party
(in each case outside of its jurisdiction of organization, other than with respect to intellectual property filings in Canada or the
United States) or enter into any source code escrow arrangement or register any intellectual property, (vi) in no event will the Collateral
include any Excluded Assets (unless the relevant Loan Party shall agree in its discretion to pledge such asset in favor of the Secured
Parties), (vii) no action shall be required to perfect any Lien with respect to (x) any vehicle or other asset subject to a certificate
of title, or any retention of title, extended retention of title rights, or similar rights and/or (y) Letter-of-Credit Rights, in each
case to the extent that a security interest therein cannot be perfected by filing a financing statement under the UCC or PPSA (or similar
filings in foreign jurisdictions) without the requirement to list any VIN, serial or other number and (viii) no Administrative Agent
nor the Collateral Agent shall require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to
which the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations
and business in the ordinary course of business) of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or
other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the security afforded thereby as determined in good
faith by the Borrower and the Administrative Agents.
Additionally, (i)
no action shall be required to create or perfect a Lien in any asset in respect of which the creation or perfection of a security interest
therein would (1) be prohibited by enforceable anti-assignment provisions set forth in any contract directly relating to such asset (at
the time of acquisition thereof and not incurred in contemplation thereof (except if contemplated in connection with any licensing arrangement
permitted hereunder)) that is permitted or otherwise not prohibited by the terms of this Agreement, (2) violate the terms of any contract
directly relating to such asset (at the time of acquisition thereof and not incurred in contemplation thereof (except if contemplated
in connection with any licensing arrangement permitted hereunder)) that is permitted or otherwise not prohibited by the terms of this
Agreement, in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law or (3) trigger
termination of any contract directly relating to such asset (at the time of acquisition thereof and not incurred in contemplation thereof
(except if contemplated in connection with any licensing arrangement permitted hereunder)) that is permitted or otherwise not prohibited
by the terms of this Agreement pursuant to any “change of control” or similar provision (in each case after giving effect
to any applicable anti-assignment provisions of the UCC, the PPSA or other applicable law), it being understood that the Collateral shall
include any proceeds and/or receivables arising out of any contract described in this clause (other than Excluded Assets) to the extent
the assignment of such proceeds or receivables is expressly deemed effective under the UCC, the PPSA or other applicable Requirements
of Law notwithstanding the relevant prohibition, violation or termination right, (ii) no Loan Party shall be required to create or perfect
a security interest in any asset to the extent the creation or perfection of a security interest in such asset would (A) be prohibited
under any applicable Requirement of Law, after giving effect to any applicable anti-assignment provision of the UCC or other applicable
law and other than proceeds thereof to the extent that the assignment of such proceeds is effective under the UCC, the PPSA or other
applicable Requirements of Law notwithstanding such Requirement of Law, (B) require any governmental consent, approval, license or authorization
(unless such consent, approval, license or authorization has been obtained), after giving effect to any applicable anti-assignment provision
of the UCC, the PPSA or other applicable law and other than proceeds thereof to the extent that the
assignment of such
proceeds is effective under the UCC, the PPSA or other applicable Requirements of Law notwithstanding such consent or restriction and/or
(C) result in material adverse tax consequences or adverse regulatory consequences to any Loan Party or any of its subsidiaries as determined
by the Borrower in good faith in writing (which may be by email) following consultation with the Administrative Agents, provided
that this clause (C) shall not apply to any asset or property that is owned by the Borrower or any of its Subsidiaries on the Closing
Date and that is not an Excluded Asset on the Closing Date (determined without regard to this clause (C) and clause (12) of the Excluded
Assets), (iii) any joinder or supplement to any Loan Guarantee, any Collateral Document and/or any other Loan Document executed by any
Restricted Subsidiary that is required to become a Loan Party pursuant to Section 5.12(a) above may, with the consent of the Collateral
Agent (not to be unreasonably withheld or delayed), include such schedules (or updates to schedules) as may be necessary to qualify any
representation or warranty set forth in any Loan Document to the extent necessary to ensure that such representation or warranty is true
and correct to the extent required thereby or by the terms of any other Loan Document and (iv) (A) no Loan Party will be required to
take any action required under the Federal Assignment of Claims Act or any similar law and (B) no Secured Party will be permitted to
exercise any right of setoff in respect of any account maintained solely for the purpose of receiving and holding government receivables.
Section
5.13. [Reserved].
Section
5.14. Guarantors.
Any time on or after the Investment Grade Trigger Date, the Borrower may cause any of its Subsidiaries to guarantee its Obligations hereunder
by delivering to the Revolving Facility Administrative Agent (i) a Counterpart Agreement and (ii) documents with respect to such Guarantor
corresponding to the documents delivered pursuant to Section 4.01(b) and (d) (or in any other form reasonably acceptable to the Revolving
Facility Administrative Agent). If, at any time on or after the Investment Grade Trigger Date, a Guarantor ceases to be a Subsidiary
or a wholly-owned Subsidiary, in each case as a result of a transaction not otherwise prohibited hereunder, then such Guarantor’s
guarantee of the Obligations under Article 7 hereof shall be automatically released and such Guarantor shall be automatically released
from its obligations under Article 7 hereof. In addition, if, on or after the Investment Grade Trigger Date, the Borrower elects
by notice in writing to the Revolving Facility Administrative Agent to cause such Guarantor to be released from its guarantee of the
Obligations, and a Responsible Officer of the Borrower certifies in writing that immediately after giving effect to such release, no
Default or Event of Default shall have occurred and be continuing, then immediately upon the delivery of such notice and certification
to the Revolving Facility Administrative Agent such Guarantor’s guarantee of the Obligations shall be automatically released and
such Guarantor shall be automatically released from its obligations under the Guarantee Agreement. The Revolving Facility Administrative
Agent shall, at the Borrower’s sole expense, execute such documents as the Borrower shall reasonably request to evidence the release
contemplated by this Section 5.14. Notwithstanding anything to the contrary herein, the provisions of this Section 5.14
shall only be applicable on and after the Investment Grade Trigger Date.
Section
5.15. Further
Assurances. At all times prior to the Investment Grade Trigger Date, promptly upon the reasonable request of the Collateral Agent
and subject to the limitations described in Section 5.12 (but only to the extent required pursuant to the Collateral and Guarantee
Requirement, and in all cases subject to the Agreed Security Principles):
(a)
the Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, financing
change statements, agreements, instruments, certificates, notices and acknowledgments and take all such further actions (including the
filing and recordation of financing statements, financing change statements, fixture filings, Mortgages and/or amendments thereto and
other documents), that may be required under any applicable law and which the Collateral Agent may
reasonably request
to ensure the perfection and priority of the Liens created or intended to be created under the Collateral Documents, all at the expense
of the relevant Loan Parties.
(b)
the Borrower will, and will cause each other Loan Party to, (i) correct any material defect or error that may be discovered in
the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral
and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts
(including notices to third parties), deeds, certificates, assurances and other instruments as the Collateral Agent may reasonably request
from time to time in order to ensure the creation and perfection of the Liens created under the Collateral Documents.
Section
5.16. Conduct
of Business. At all times prior to the Investment Grade Trigger Date, the Borrower and its Restricted Subsidiaries shall engage only
in those material lines of business that consist of (a) the businesses engaged (or proposed to be engaged) in by the Borrower or any
Restricted Subsidiary on the Closing Date, reasonably related, similar, incidental, complementary, ancillary, corollary, synergistic
or related businesses, and/or a reasonable extension, development or expansion of such businesses and (b) such other lines of business
to which the Administrative Agents may consent.
Section
5.17. Post-Closing
Actions. The Borrower shall take the actions set forth on Schedule 5.17 within the applicable time periods specified thereon
(or by such later time as the Administrative Agents may reasonably agree). Each Secured Party authorizes the Collateral Agent to enter
into amendments to (or, if necessary, replacements of) the Collateral Documents in effect immediately prior to the Closing Date to effectuate
such post-closing items.
Section
5.18. Annual
Lender Call. Prior to the Investment Grade Trigger Date, upon the request of the Administrative Agents following each delivery of
financial statements pursuant to Section 5.01(b) (commencing with respect to the financial statements delivered for the Fiscal
Year ending on December 31, 2022), the Borrower shall participate in a conference call with Lenders arranged by the Administrative Agents
to provide discussion and analysis with respect to the financial condition and results of operations of the Borrower and its Restricted
Subsidiaries at a time at which the Borrower and the Administrative Agents mutually agree (it being agreed that the Borrower’s
quarterly and annual “earnings” calls are deemed to satisfy this requirement).
Section
5.19. Canadian
Employee Benefit Plan. Each Canadian Loan Party shall:
(a)
with respect to each Canadian Pension Plan, pay all contributions, premiums and payments when due in accordance with its terms
and applicable law; and
(b)
promptly deliver to the Administrative Agents copies of: (A) annual information returns, actuarial valuations and any other reports
which have been filed with a Governmental Authority with respect to each Canadian Pension Plan; and (B) any direction, order, notice,
ruling, or opinion that a Canadian Loan Party may receive from a Governmental Authority with respect to any Canadian Employee Benefit
Plan.
Section
5.20. [Reserved].
Article
6
NEGATIVE COVENANTS
From
the Closing Date and until the Termination Date has occurred, the Borrower and each other Loan Party covenant and agree with the Lenders
that:
PART
A: At all times prior to the Investment Grade Trigger Date (but for the avoidance of doubt, this Part A shall not apply thereafter):
Section
6.01. Indebtedness.
The Borrower and each other Loan Party shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, create, incur,
assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a)
the Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b)
Indebtedness of the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; provided
that all such Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to
the Loan Document Obligations of such Loan Party pursuant to the Intercompany Note (which, with respect to such Indebtedness in existence
on the Closing Date or incurred within 120 days thereafter, may be delivered within 120 days of the Closing Date (or such later date
approved by the Administrative Agents)) or on other terms that are reasonably acceptable to the Administrative Agents;
(c)
Indebtedness of any Joint Venture or Indebtedness of the Borrower or any Restricted Subsidiary incurred on behalf of any Joint
Venture or any guarantees by the Borrower or any Restricted Subsidiary of Indebtedness of any Joint Venture in an aggregate outstanding
principal amount for all such Indebtedness not to exceed at any time the greater of $110,000,000 and 14% of Consolidated Adjusted EBITDA
as of the last day of the most recently ended Test Period;
(d)
Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including
contingent earn-out or similar obligations), or payment obligations in respect of any non-compete, consulting or similar arrangements,
in each case incurred in connection with any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder
or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties,
letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or
any such Restricted Subsidiary pursuant to any such agreement;
(e)
Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations (including health,
safety and environmental obligations), bids, leases, governmental contracts, trade contracts, surety, indemnity, stay, customs, judgment,
appeal, performance, completion and/or return of money bonds or guaranties or other similar obligations incurred in the ordinary course
of business (which shall be deemed to include any judgments, awards, attachments and/or decrees and notices of lis pendens and associated
rights relating to litigation being contested in good faith and not constituting an Event of Default under Section 8.01(h)) and
(ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing
items;
(f)
Indebtedness in respect of Permitted Treasury Arrangements and all other netting services, overdraft protections, treasury, depository,
pooling and other cash management arrangements, including, in all cases, incentive, supplier finance or similar programs and in connection
with deposit accounts;
(g)
(i) Guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers, franchisees, licensees,
sublicensees and cross-licensees in the ordinary course of business, (ii) Indebtedness (A) incurred in the ordinary course of business
in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of property or services
or
progress payments
in connection with such property and services or (B) consisting of obligations under deferred purchase price or other similar arrangements
incurred in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder and (iii) Indebtedness in respect
of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts
or similar facilities entered into in the ordinary course of business;
(h)
Guarantees (including any co-issuance) by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of
the Borrower, and/or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section
6.01 or other obligations not prohibited by this Agreement; provided that in the case of any such Guarantee by any Loan Party
of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i)
Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing (or anticipated),
on the Closing Date and, with respect to any such item of Indebtedness in an aggregate committed or principal amount in excess of $5,000,000,
described on Schedule 6.01;
(j)
Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount
of such Indebtedness shall not exceed the greater of $185,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most
recently ended Test Period;
(k)
Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license,
sublicense or similar agreements entered into in the ordinary course of business;
(l)
Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii)
take-or-pay obligations contained in supply arrangements in the ordinary course of business and/or (iii) obligations to reacquire assets
or inventory in connection with customer financing arrangements in the ordinary course of business;
(m)
Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Finance Leases (including Finance Leases entered
into in connection with any Sale and Lease-Back Transaction) and purchase money Indebtedness (including mortgage financing, industrial
revenue bond, industrial development bond or similar financings) or Indebtedness to finance the construction, purchase, repair, replacement,
lease, installation, maintenance or improvement of property (real or personal) or any fixed or capital asset (whether through direct
purchase of assets or the Capital Stock of a Person owning such assets), in an aggregate outstanding principal amount not to exceed the
greater of $115,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(n)
Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or other
Investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person
became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation
thereof and (ii) either (A) the Borrower is in compliance with the applicable ratio set forth in clause (e) of the definition of
Incremental Cap based on whether such Indebtedness is secured by a Lien or a junior Lien on the Collateral or is unsecured or secured
by Liens on assets not constituting Collateral (and for the purpose of this clause (n), such Indebtedness shall be deemed to have been
incurred to finance an acquisition or other Investment permitted hereunder), calculated on a Pro Forma Basis as of the last day of the
most recently ended Test Period or (B) the aggregate outstanding principal amount of such Indebtedness does not exceed the greater of
$65,000,000 and 8% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o)
[reserved];
(p)
the Borrower and its Restricted Subsidiaries may become and remain liable for any Indebtedness extending, refinancing, refunding
or replacing any Indebtedness permitted under clauses (a), (c), (i), (j), (m), (n), (r),
(u), (v), (y), (z), (dd), and (ll) of this Section 6.01 (in any case, including any
extending, refinancing, refunding or replacing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”)
and any subsequent Refinancing Indebtedness in respect thereof; provided that (i) the principal amount of such Refinancing Indebtedness
does not exceed the principal amount of the Indebtedness being extended, refinanced, refunded or replaced, except by (A) an amount equal
to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts and other customary
fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with
the relevant extension, refinancing, refunding or replacement, (B) an amount equal to any existing commitments unutilized thereunder
and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (1) any additional Indebtedness
referred to in this clause (C) satisfies the other applicable requirements of this Section 6.01(p) (with additional amounts incurred
in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount
is permitted) and (2) if such additional Indebtedness is secured, the Liens securing such Indebtedness are permitted under of Section
6.02), (ii) in the case of Refinancing Indebtedness with respect to clauses (a) and (z) (subject to the Permitted Earlier
Maturity Indebtedness Exception and other than (x) customary bridge loans with a maturity date of no longer than one year; provided
that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject
to the requirements of this clause (ii), (y) Customary Term A Loans, and (z) 364-day bridge loans), such Refinancing Indebtedness
has (A) a final maturity on or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions,
if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date at the time of the incurrence of such Refinancing Indebtedness
and (y) the final maturity of the Indebtedness being extended, refinanced, refunded or replaced and (B) other than with respect to revolving
Indebtedness, a Weighted Average Life to Maturity equal to or greater than (x) the Weighted Average Life to Maturity of the Indebtedness
being extended, refinanced, refunded or replaced or (y) the Weighted Average Life to Maturity of the outstanding Term Loans at the time
of the incurrence of such Refinancing Indebtedness, (iii) with respect to any Refinancing Indebtedness with an original principal amount
in excess of the Threshold Amount (other than Indebtedness of the type described in Section 6.01(m)) the terms thereof (excluding
pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect
to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above and clause (z) below,
security) are not, taken as a whole (as determined by the Borrower in good faith), materially more favorable to the lenders providing
such Indebtedness than those applicable to the Indebtedness being extended, refinanced, refunded or replaced (other than any covenants
or any other terms or provisions (X) applicable only to periods after the maturity date of the Indebtedness being extended, refinanced,
refunded or replaced at the time of the incurrence of such Refinancing Indebtedness, (Y) that are then-current market terms (as determined
by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the
applicable type of Indebtedness or (Z) solely in the case of Refinancing Indebtedness in respect of Indebtedness incurred in reliance
on clauses (a) and/or (z) of this Section 6.01, terms or other provisions which are conformed (or added) to the Loan Documents
for the benefit of the Lenders or, as applicable, the Administrative Agents and/or the Collateral Agent, pursuant to an amendment to
this Agreement effectuated in reliance on Section 10.02(d)(ii)), (iv) the incurrence thereof shall be without duplication of any
amounts outstanding in reliance on the relevant clause of this Section 6.01 pursuant to which the Indebtedness being extended,
refinanced, refunded or replaced was incurred (i.e., the incurrence of such Refinancing Indebtedness shall not create availability under
such relevant clause), (v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause
(a) of this Section 6.01, (A) such Indebtedness, if secured, is secured only by
Permitted Liens at
the time of such extension, refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with
unsecured Indebtedness), (B) such Indebtedness is not incurred by the Borrower or a Restricted Subsidiary that was not an obligor in
respect of the Indebtedness being extended, refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section
6.01 and (C) if the Indebtedness being extended, refinanced, refunded or replaced was contractually subordinated to the Loan Document
Obligations in right of payment (or the Liens securing such Indebtedness were contractually subordinated to the Liens on the Collateral
securing the Obligations), such Indebtedness is contractually subordinated to the Loan Document Obligations in right of payment (or the
Liens securing such Indebtedness are subordinated to the Liens on the relevant Collateral securing the Obligations) either (x) on terms
not materially less favorable, taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being
extended, refinanced, refunded or replaced, taken as a whole (as determined by the Borrower in good faith) or (y) pursuant to an Acceptable
Intercreditor Agreement, (vi) except in the case of Refinancing Indebtedness with respect to clause (a) of this Section 6.01,
as of the date of the incurrence of such Indebtedness and after giving effect thereto, there shall exist no Specified Event of Default
and (vii) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section
6.01, (A) such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu
or junior basis with respect to the remaining Loan Document Obligations hereunder, or is unsecured; provided that any such Refinancing
Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Acceptable Intercreditor Agreement, (B)
if such Refinancing Indebtedness is secured, it is not secured by any assets other than the Collateral, (C) if such Refinancing Indebtedness
is guaranteed, it shall not be guaranteed by any Person other than a Loan Party and (D) such Refinancing Indebtedness shall be incurred
under (and pursuant to) documentation other than this Agreement;
(q)
endorsement of instruments or other payment items for collection or deposit in the ordinary course of business;
(r)
Indebtedness in respect of any Additional Letter of Credit Facility in an aggregate principal or face amount at any time outstanding
not to exceed the greater of $50,000,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(s)
Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative
purposes;
(t)
[reserved];
(u)
Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount at any time outstanding
not to exceed the greater of $310,000,000 and 40% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period;
(v)
Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 100%
of the amount of any capital contributions or other proceeds received by the Borrower or any Restricted Subsidiary (i) from the issuance
or sale of its Qualified Capital Stock or (ii) in the form of any cash contribution, plus the fair market value, as determined by the
Borrower in good faith, of Cash Equivalents, marketable securities or other property received by the Borrower or any Restricted Subsidiary
from the issuance and sale of its Qualified Capital Stock or a contribution to the Qualified Capital Stock of the Borrower or any Restricted
Subsidiary (including through consolidation, amalgamation or merger), in each case after the Closing Date, and in each case other than
(A) any proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries,
(B) to the extent the relevant proceeds have otherwise
been applied to make
Investments, Restricted Payments or Restricted Debt Payments hereunder, (C) any Available Excluded Contribution Amount and (D) any Cure
Amount;
(w)
[reserved];
(x)
[reserved];
(y)
Indebtedness of the Borrower and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transactions permitted
pursuant to Section 6.08;
(z)
Incremental Equivalent Debt; provided that no Specified Event of Default shall exist immediately prior to or after giving
effect to such Incremental Equivalent Debt (except in connection with any acquisition or other Investment or irrevocable repayment or
redemption of Indebtedness, where no such Specified Event of Default shall exist at the time as elected by the Borrower pursuant to Section
1.04(e)); provided, further, that the aggregate principal amount of Incremental Equivalent Debt outstanding in respect
of any Restricted Subsidiaries that are not Loan Parties shall not exceed the greater of $161,250,000 and 21.5% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period;
(aa)
Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar
instruments with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers’
compensation claims (or other Indebtedness in respect of reimbursement type obligations regarding workers’ compensation claims),
unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health,
disability or other employee benefits or property, casualty or liability insurance or self-insurance;
(bb)
Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to Permitted Payees
in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with any Permitted Acquisition
or any other Investment permitted hereby;
(cc)
Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of any letter of credit or bank guarantee issued in favor
of any issuing bank or swingline lender to support any defaulting lender’s participation in letters of credit issued, or swingline
loans made, hereunder;
(dd)
Indebtedness of the Borrower or any Restricted Subsidiary supported by any letter of credit issued hereunder or under any Additional
Letter of Credit Facility or any other letters of credit or bank guarantees permitted hereunder;
(ee)
unfunded pension fund and other employee benefit plan obligations and liabilities incurred by the Borrower and/or any Restricted
Subsidiary in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under
Section 8.01(i) or Section 8.01(m);
(ff)
without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in
kind interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the
Borrower and/or any Restricted Subsidiary hereunder;
(gg)
[reserved];
(hh)
customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased
in the ordinary course of business;
(ii)
[reserved];
(jj)
[reserved];
(kk)
(i) Indebtedness in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of
receivables for credit management purposes, in each case incurred or undertaken in the ordinary course of business on arm’s-length
commercial terms and (ii) the incurrence of Indebtedness attributable to the exercise of appraisal rights or the settlement of any claims
or actions (whether actual, contingent or potential) with respect to any acquisition (by merger, consolidation or amalgamation or otherwise)
in accordance with the terms hereof; and
(ll)
obligations in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any
subsidiary of the Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions
performed in jurisdictions other than within the United States.
Section
6.02. Liens.
The Borrower and each other Loan Party shall not, nor shall it permit any Restricted Subsidiary to, create, incur, assume or permit or
suffer to exist any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any
income or profits therefrom, except:
(a)
Liens created pursuant to the Loan Documents securing the Obligations (including Cash collateralization of Letters of Credit as
set forth in Section 2.05);
(b)
Liens for Taxes or other governmental charges which are not overdue for a period of more than 60 days or, if more than 60 days
overdue (i) are not at such time required to be paid pursuant to Section 5.03, (ii) are being contested in accordance with Section
5.03 or (iii) with respect to which the failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(c)
statutory or common law Liens (and rights of set-off) of landlords, sub landlords, construction contractors, banks, carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case
incurred in the ordinary course of business (i) for amounts not yet overdue by more than 60 days, (ii) for amounts that are overdue by
more than 60 days (A) that are being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate
provisions required by GAAP have been made for any such contested amounts or (B) with respect to which no filing or other action has
been taken to enforce such Lien or (iii) with respect to which the failure to make payment would not reasonably be expected to have a
Material Adverse Effect;
(d)
Liens incurred (i) in the ordinary course of business in connection with workers’ compensation, unemployment insurance,
health, disability or employee benefits and other types of social security laws and regulations, or otherwise securing obligations incurred
under Section 6.01(aa), (ii) in the ordinary course of business to secure the performance of tenders, statutory
obligations, warranties, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts (including customer
contracts), indemnitees, performance, completion and return-of-money bonds and other similar obligations (including those to secure (x)
obligations incurred under Section 6.01(e), (y) health, safety and environmental obligations and (y) letters of credit and bank
guarantees required or requested by any Governmental Authority in connection with any contract or Requirement of Law) (exclusive of
obligations for the
payment of borrowed money), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents in the ordinary course of business securing
(x) any liability for reimbursement (including in respect of deductibles, self-insurance retention amounts and premiums and adjustments
related thereto), premium or indemnification (including obligations in respect of letters of credit, bank guarantees or similar documents
or instruments for the benefit of) obligations of insurance brokers or carriers providing property, casualty, liability or other insurance
or self-insurance to the Borrower and its subsidiaries (including deductibles, self-insurance, co-payment, co-insurance and retentions)
or (y) leases, sub-leases, licenses or sub-licenses of property otherwise permitted by this Agreement and (iv) to secure obligations
in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments posted with respect to the items
described in clauses (i) through (iii) above;
(e)
Liens consisting of easements, covenants, conditions, site plan agreements, development agreements, operating agreements, cross-easement
agreements, reciprocal easement agreements and encumbrances, applicable laws and municipal ordinances, rights-of-way, rights, waivers,
reservations, restrictions, encroachments, servitudes for railways, sewers, drains, gas and oil and other pipelines, gas and water mains,
electric light and power and telecommunication, telephone or telegraph or cable television conduits, poles, wires and cables and other
similar protrusions or encumbrances, agreements and other similar matters of fact or record and matters that would be disclosed by a
survey or inspection of any real property and other minor defects or irregularities in title, in each case (x) which do not, in
the aggregate, materially interfere with the ordinary conduct of the business of the Borrower and/or its Restricted Subsidiaries, taken
as a whole, or materially interfere with the use of the affected property for its intended purpose or (y) where the failure to have
such title or having such Lien would not reasonably be expected to have a Material Adverse Effect;
(f)
Liens consisting of any (i) interest or title of a lessor, sub-lessor, licensor or sub-licensor under any lease, sub-lease, license,
sub-license or similar arrangement of real estate or other property (including any technology or intellectual property) permitted hereunder,
(ii) landlord lien arising by law or permitted by the terms of any lease, sub-lease, license, sub-license or similar arrangement, (iii) restriction
or encumbrance to which the interest or title of such lessor, sub-lessor, licensor or sub-licensor may be subject, (iv) subordination
of the interest of the lessee, sub-lessee, licensee or sub-licensee under such lease, sub-lease, license, sub-license or similar arrangement
to any restriction or encumbrance referred to in the preceding clause (iii) or (v) deposit of cash with the owner or lessor
of premises leased and operated by the Borrower or any Restricted Subsidiary in the ordinary course of business to secure the performance
of obligations under the terms of the lease for such premises;
(g)
Liens (i) solely on any Cash (or Cash Equivalent) earnest money deposits (including as part of any escrow arrangement) made by
the Borrower and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to
any Investment permitted hereunder (or to secure letters of credit, bank guarantees or similar instruments posted in respect thereof),
(ii) on advances of Cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant
to Section 6.06(b), (c), (e), (f), (n), (q), (r), (x), (y) or (kk)
to be applied against the purchase price for such Investment or (iii) consisting of (A) an agreement to Dispose of any property in
a Disposition permitted under Section 6.07 and/or (B) the pledge of Cash or Cash Equivalents as part of an escrow or similar arrangement
required in any Disposition permitted under Section 6.07;
(h)
precautionary or purported Liens evidenced by the filing of UCC financing statements, PPSA financing statements, applications
for registration at the applicable Quebec Register or similar financing statements under applicable Requirements of Law relating solely
to (i) operating leases or consignment or bailee arrangements entered into in the ordinary course of business and/or (ii) the sale of
accounts receivable in the ordinary course of business for which a UCC financing statement, PPSA
financing statement,
hypothec registration form at the applicable Quebec Register or similar financing statement under applicable Requirements of Law is required;
(i)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(j)
Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental
Authority to control or regulate the use of any dimensions of real property or any structure thereon, including Liens in connection with
any condemnation, expropriation or eminent domain proceeding or compulsory purchase order;
(k)
Liens securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to the permitted extension, refinancing,
refunding or replacement of Indebtedness permitted pursuant to Sections 6.01(a), (c), (f), (i), (j),
(m), (n), (r), (u), (v), (y), (z) and (dd));
provided that (i) no such Lien extends to any asset not covered or required to be covered by the Lien securing the Indebtedness
that is being refinanced other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien
and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood that
such extensions, refinancings, refundings or replacements of individual financings of the type permitted under Section 6.01(m)
provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii)
if the Indebtedness being refinanced was subject to intercreditor arrangements in respect of Liens on Collateral, then any refinancing
Indebtedness in respect thereof secured by Liens on Collateral shall be subject to intercreditor arrangements not materially less favorable
to the Secured Parties, taken as a whole, than the intercreditor arrangements governing the Indebtedness that is refinanced or the intercreditor
arrangements governing the relevant refinancing Indebtedness shall be set forth in an Acceptable Intercreditor Agreement;
(l)
Liens existing on, or contractually committed or contemplated as of, the Closing Date and, with respect to each such Lien securing
Indebtedness in an aggregate committed or principal amount in excess of $5,000,000, described on Schedule 6.02 and in each case
any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional
property other than property required to be covered thereby or (A) after-acquired property that is affixed or incorporated into the property
covered by such Lien and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it
being understood that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized
to other financings of such type provided by such lender or its affiliates) and (ii) any such modification, replacement, refinancing,
renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section
6.01;
(m)
Liens arising out of Sale and Lease-Back Transactions permitted under Section 6.08;
(n)
Liens securing Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien shall encumber only
the assets (including Capital Stock) acquired, constructed, repaired, replaced or improved with the proceeds of such Indebtedness, or
the assets subject to the Sale and Lease-Back Transaction, as applicable, and proceeds and products thereof, replacements, accessions
or additions thereto and improvements thereon and customary security deposits with respect thereto (it being understood that individual
financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings
of such type provided by such lender or its affiliates);
(o)
Liens securing Indebtedness permitted pursuant to Section 6.01(n) on the relevant acquired assets or on the Capital Stock
and assets of the relevant Restricted Subsidiary; provided that no
such Lien (x) extends
to or covers any other assets (other than the proceeds or products thereof, replacements, accessions or additions thereto and improvements
thereon, it being understood that individual financings of the type permitted under Section 6.01(m) provided by
any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) or (y) was created
in contemplation of the applicable acquisition of assets or Capital Stock;
(p)
(i) Liens that are contractual rights of set-off or netting or pledge relating to (A) the establishment of depositary relations
with banks or other financial institutions not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts
of the Borrower and/or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of the Borrower and/or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers
of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (D) commodity trading or other brokerage
accounts incurred in the ordinary course of business, (ii) Liens encumbering reasonable customary initial deposits and margin deposits,
(iii) bankers Liens and rights and remedies as to Deposit Accounts or similar accounts, (iv) Liens of a collection bank arising under
Section 4-208 or Section 4-210 of the UCC (or any similar Requirement of Law of any jurisdiction) on items in the ordinary course of
business, (v) Liens (including rights of set-off) in favor of banking or other financial institutions arising as a matter of Law or under
customary general terms and conditions encumbering deposits or other funds maintained with a financial institution and that are within
the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions
and (vi) Liens on the proceeds of any Indebtedness permitted hereunder incurred in connection with any transaction permitted hereunder,
which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such
proceeds to finance such transaction or on Cash or Cash Equivalents set aside at the time of the incurrence of such Indebtedness to the
extent such Cash or Cash Equivalents prefund the payment of interest or fees on such Indebtedness and are held in escrow pending application
for such purpose;
(q)
Liens on assets and Capital Stock of Restricted Subsidiaries that are not Loan Parties (including Capital Stock owned by such
Persons) securing Indebtedness or other obligations of Restricted Subsidiaries that are not Loan Parties permitted pursuant to Section
6.01 (or not prohibited under this Agreement);
(r)
Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement
or similar agreements entered into in the ordinary course of business of the Borrower and/or their Restricted Subsidiaries;
(s)
Liens disclosed in any Mortgage Policy delivered pursuant to Sections 5.12, 5.15 or 5.17 (as applicable) with respect
to any Material Real Estate Asset, and any replacement, extension or renewal of any such Lien; provided that no such replacement,
extension or renewal Lien shall cover any property other than the property that was subject to such Lien prior to such replacement, extension
or renewal (and additions thereto, improvements thereon and the proceeds thereof);
(t)
Liens securing Indebtedness incurred pursuant to Section 6.01(z); provided that if any such Lien is on Collateral,
the holders of such Indebtedness (or a representative thereof) shall be party to an Acceptable Intercreditor Agreement;
(u)
other Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at the time of incurrence not
to exceed the greater of $110,000,000 and 14% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
provided that, at the election of the Borrower with respect to any such Liens on Collateral, the holders of such Indebtedness
or obligations (or a representative thereof) shall be party to an Acceptable Intercreditor Agreement;
(v)
(i) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating
to litigation (including appeal bonds) being contested in good faith not constituting an Event of Default under Section 8.01(h)
and (ii) any cash deposits securing any settlement of litigation;
(w)
(i) leases, licenses, subleases, sub-licenses or cross-licenses granted to others, (ii) assignments of IP Rights granted
to a customer of the Borrower or any Restricted Subsidiary in the ordinary course of business which do not secure any Indebtedness or
(iii) the rights reserved or vested in any Person (including any Governmental Authority) by the terms of any lease, sub-lease, license,
sub-license, franchise, grant or permit held by the Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate
any such lease, sub-lease, license, sub-license, franchise, grant or permit, or to require annual or periodic payments as a condition
to the continuance thereof;
(x)
Liens on Securities or other assets that are the subject of repurchase agreements constituting Investments permitted under Section
6.06 arising out of such repurchase transaction;
(y)
Liens securing obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments
permitted under Sections 6.01(d), (e), (g), (aa), (cc) and (dd);
(z)
Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any assets or
property and bailee arrangements in the ordinary course of business and permitted by this Agreement or (ii) by operation of law under
Article 2 of the UCC (or any similar Requirement of Law of any jurisdiction);
(aa)
Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not
a Loan Party, in the case of each of clauses (i) and (ii), securing intercompany Indebtedness permitted under Section
6.01 or Section 6.06 or securing other intercompany obligations not prohibited hereunder;
(bb)
Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(cc)
Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations
in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate
the purchase, shipment or storage of such inventory or goods;
(dd)
Liens securing (i) obligations under Hedge Agreements in connection with any Derivative Transaction of the type described in Section
6.01(s), (ii) obligations of the type described in Section 6.01(f) and/or (iii) obligations of the type described in Section
6.01(r), which Liens (A) in each case under this Section 6.02(dd), may be (but are not required to be) secured by all of the
Collateral so long as the Lien on the Collateral is subject to an Acceptable Intercreditor Agreement and (B) in the case of clause
(ii) (to the extent not secured as provided in clause (A)), may consist of pledges of Cash collateral in an amount not to
exceed the greater of $50,000,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(ee)
(i) Liens on Capital Stock of Joint Ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of,
such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with
respect to non-Wholly-Owned Subsidiaries;
(ff)
Liens on cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(gg)
[reserved];
(hh)
Liens on assets not constituting Collateral (x) securing obligations in an aggregate outstanding principal amount not to exceed
the greater of $185,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period or (y)
so long as the Loan Document Obligations in respect of the Credit Facilities are secured on a ratable basis (without regard to the control
of remedies) with or are secured prior to the obligations so secured for so long as such obligations are so secured (which Liens, in
the case of this clause (y), shall be subject to an Acceptable Intercreditor Agreement);
(ii)
[reserved];
(jj)
undetermined or inchoate Liens, rights of distress and charges incidental to current operations that have not at such time been
filed or exercised, or which relate to obligations not due or payable or, if due, the validity of such Liens are being contested in good
faith by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person
in accordance with GAAP;
(kk)
with respect to any Foreign Subsidiary, Liens and privileges arising mandatorily by any Requirement of Law; provided such
Liens and privileges extend only to the assets or Capital Stock of such Foreign Subsidiary and do not secure Indebtedness for borrowed
money;
(ll)
ground leases or subleases in respect of real property on which facilities owned or leased by the Borrower or any of their Restricted
Subsidiaries are located;
(mm)
Liens that are customary in the business of the Borrower and its Restricted Subsidiaries and that do not secure debt for borrowed
money;
(nn)
security given to a public or private utility or any Governmental Authority as required in the ordinary course of business;
(oo)
receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien
on the related inventory and proceeds;
(pp)
Liens arising pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar
provision of any applicable law;
(qq)
Liens in the nature of the right of setoff in favor of counterparties to contractual agreements with the Borrower or any Restricted
Subsidiary in the ordinary course of business;
(rr)
Liens granted pursuant to a security agreement between the Borrower or any Restricted Subsidiary and a licensee of IP Rights to
secure the damages, if any, incurred by such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization
or similar proceeding with respect to the Borrower or such Restricted Subsidiary;
(ss)
Liens arising solely in connection with rights of dissenting equity holders pursuant to any Requirement of Law in respect of any
Permitted Acquisition or other similar Investment;
(tt)
Liens granted by any Loan Party organized under the laws of Canada or a province thereof to a landlord to secure the payment
of rent and other obligations under a lease with such landlord for premises situated in the Province of Québec; provided
that such Lien (i) is limited to the tangible assets located at or about such leased premises and (ii) is incurred in the ordinary course
of business (a) for amounts not yet overdue or (b) for amounts that are overdue and that (in the case of any such amounts overdue for
a period in excess of five days) are being contested in good faith by appropriate proceedings, so long as such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts; and
(uu)
Liens in connection with Permitted Treasury Arrangements.
Section
6.03. No Further
Negative Pledges. The Borrower and each other Loan Party shall not, nor shall it permit any Restricted Subsidiary that is a Loan
Party to, enter into any agreement prohibiting in any material respect the creation or assumption of any Lien upon any of its properties
(other than Excluded Assets), whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the Loan
Document Obligations, except with respect to:
(a)
restrictions relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary
which are imposed pursuant to an agreement entered into in connection with any Disposition or other transfer, lease, sub-lease, license
or sublicense of such asset (or assets) and/or all or a portion of the Capital Stock of the relevant Person that is permitted or not
restricted by this Agreement;
(b)
restrictions contained in the Loan Documents, any Incremental Equivalent Debt or any Additional Letter of Credit Facility (and
in any Indebtedness permitted under Section 6.01(p) to the extent relating to any extension, refinancing, refunding or replacement
of any of the foregoing);
(c)
restrictions contained in any documentation governing any Indebtedness permitted by Section 6.01 (or related Lien permitted
under Section 6.02) to the extent that such restrictions (w) only apply to the Persons obligated under such Indebtedness and their
Restricted Subsidiaries or the assets intended to secure such Indebtedness, (x) are, taken as a whole, in the good-faith judgment of
the Borrower, not materially more restrictive as concerning the Borrower or any Restricted Subsidiary than customary market terms for
Indebtedness of such type, (y) are not materially more restrictive, taken as a whole, than the restrictions contained in this Agreement
(as determined by the Borrower in good faith) or (z) will not materially impair the Borrower’s obligation or ability to make any
payments required hereunder (as determined by the Borrower in good faith);
(d)
restrictions by reason of customary provisions restricting assignments, subletting, licensing, sublicensing or other transfers
(including the granting of any Lien) contained in leases, subleases, licenses, sublicenses, joint venture agreements, asset sale agreements,
trading, netting, operating, construction, service, supply, purchase, sale or other agreements entered into in the ordinary course of
business (each of the foregoing, a “Covered Agreement”) (provided that such restrictions are limited to the
relevant Covered Agreement and/or the property or assets secured by such Liens or the property or assets subject to such Covered Agreement);
(e)
Permitted Liens and restrictions in the agreements relating thereto that limit the right of the Borrower or any of their Restricted
Subsidiaries to Dispose of or encumber the assets subject to such Liens;
(f)
provisions limiting the Disposition, distribution or encumbrance of assets or property in joint venture agreements, sale and lease-back
agreements, stock sale agreements and other similar
agreements, which
limitation is applicable only to the assets that are the subject of such agreements (or the Persons the Capital Stock of which is the
subject of such agreement (or any “shell company” parent with respect thereto));
(g)
any encumbrance or restriction assumed in connection with an acquisition of the property or Capital Stock of any Person, so long
as such encumbrance or restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person
or Persons) and/or property so acquired (or to the Person or Persons (and its or their subsidiaries) bound thereby) and was not created
in contemplation of such acquisition;
(h)
restrictions imposed by customary provisions in partnership agreements, limited liability company organizational governance documents,
joint venture agreements and other similar agreements (i) relating to the transfer of the assets of, or ownership interests in, the relevant
partnership, limited liability company, joint venture or any similar Person (or any “shell company” parent with respect thereto),
(ii) relating to such joint venture or its members and/or (iii) otherwise entered into in the ordinary course of business;
(i)
restrictions on Cash or other deposits permitted under Section 6.02 and/or 6.06 and any net worth or similar requirements,
including such restrictions or requirements imposed by Persons under contracts entered into in the ordinary course of business or for
whose benefit such Cash or other deposits or net worth requirements exist;
(j)
restrictions (i) set forth in documents which exist on the Closing Date or (ii) which are contemplated as of the Closing Date
and, in the case of this clause (ii), set forth on Schedule 6.03;
(k)
restrictions contained in documents governing Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted hereunder
(solely to the extent relating to the assets or Capital Stock of such Restricted Subsidiary);
(l)
[reserved];
(m)
provisions restricting the granting of a security interest in IP Rights contained in licenses, sublicenses or cross-licenses by
the Borrower and its Restricted Subsidiaries of such IP Rights, which licenses, sublicenses and cross-licenses were entered into in the
ordinary course of business (in which case such restriction shall relate only to such IP Rights);
(n)
restrictions arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession
or permit issued or granted by a Governmental Authority;
(o)
restrictions with respect to a Restricted Subsidiary that was previously an Unrestricted Subsidiary, pursuant to or by reason
of an agreement that such Restricted Subsidiary is a party to or entered into before the date on which such Subsidiary became a Restricted
Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted
Subsidiary and any such restriction does not extend to any assets or property of the Borrower or any other Restricted Subsidiary other
than the assets and property of such Subsidiary;
(p)
[reserved];
(q)
restrictions in any Hedge Agreement, any agreement relating to Banking Services and/or any agreement relating to Permitted Treasury
Arrangements; and
(r)
other restrictions or encumbrances imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing of the contracts, instruments or obligations referred to in the preceding clauses of this Section; provided
that no such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the
good faith judgment of the Borrower, materially more restrictive with respect to such encumbrances and other restrictions, taken as a
whole, than those in effect prior to the relevant amendment, modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing.
Section
6.04. Restricted
Payments; Restricted Debt Payments.
(a)
The Borrower shall not pay or make, directly or indirectly, any Restricted Payment, except that:
(i)
[reserved];
(ii)
the Borrower may pay for the repurchase, redemption, retirement or other acquisition or retirement for value of Capital Stock
of any subsidiary held by any Permitted Payee:
(A)
with Cash and Cash Equivalents (and including, to the extent constituting Restricted Payments, amounts paid in respect of promissory
notes issued pursuant to Section 6.01(o)), in an aggregate amount not to exceed (1) the greater of $40,000,000 and 5% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period in any Fiscal Year, which, if not used in any Fiscal Year,
may be carried forward to the immediately succeeding Fiscal Year (and deemed first applied in such subsequent Fiscal Year) minus (2)
any utilization of the Shared RP Amount in reliance on unused capacity under the immediately preceding clause (1); plus
(B)
with the proceeds of any sale or issuance of, or of any capital contribution in respect of, the Capital Stock of the Borrower
(to the extent such proceeds are contributed to the Borrower or any Restricted Subsidiary in respect of Qualified Capital Stock issued
by the Borrower or such Restricted Subsidiary) (other than amounts constituting (x) a Cure Amount or (y) an Available Excluded Contribution
Amount); plus
(C)
with the net proceeds of any key-man life insurance policies; plus
(D)
with the amount of any Cash bonuses otherwise payable to any Permitted Payee that are foregone in exchange for the receipt of
Capital Stock of the Borrower pursuant to any compensation arrangement, including any deferred compensation plan;
(iii)
the Borrower may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount
on such date that the Borrower elects to apply to this clause (iii)(A) plus (B) the portion, if any, of the Available Excluded
Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B) (plus, without duplication of amounts
referred to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after
the Closing Date, if the acquisition of such property or assets was financed with Available Excluded Contribution Amounts up to the amount
of such Available Excluded Contribution Amount, less any application thereof under Section 6.04(b)(vi) or Section 6.06(r));
(iv)
the Borrower may (A) make Cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants,
options or other securities convertible into or exchangeable for Capital Stock of the Borrower, or in connection with dividends, share
splits, reverse share splits (or any combination thereof) and mergers, consolidations, amalgamations or other business combinations,
and acquisitions and other Investments permitted hereunder, (B) honor any conversion request by a holder of convertible Indebtedness,
make any cash payments in lieu of fractional shares in connection with any conversion and make payments on convertible Indebtedness in
accordance with its terms and (C) make Restricted Payments consisting of (x) payments made or expected to be made in respect of
withholding or similar Taxes payable by any Permitted Payee and/or (y) repurchases of Capital Stock in consideration of the payments
described in sub clause (x) above, including demand repurchases in connection with the exercise of stock options and the issuance
of restricted stock units or similar stock based awards;
(v)
the Borrower may repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in connection with),
the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock if such Capital Stock represents
all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible
into or exchangeable for Capital Stock as part of a “cashless” exercise;
(vi)
Restricted Payments made as part of, or which are reasonably necessary or appropriate (as determined by the Borrower in good faith)
to effectuate, any of the Separation Transactions;
(vii)
the Borrower may make Restricted Payments with respect to any Capital Stock in an amount not to exceed (A) an amount equal to
6.00% per annum of the Net Proceeds received by or contributed to the Borrower from any public offering after the Closing Date minus
(B) any utilization of the Shared RP Amount in reliance on unused capacity under immediately preceding clause (A);
(viii)
the Borrower may make Restricted Payments to (i) redeem, repurchase, defease, discharge, retire or otherwise acquire any Capital
Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary in exchange for, or out of the proceeds
of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the
Borrower to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of
Qualified Capital Stock (“Refunding Capital Stock”), (ii) declare and pay dividends on any Treasury Capital Stock
out of the proceeds of the substantially concurrent sale or issuance (other than to the Borrower or a Restricted Subsidiary) of any Refunding
Capital Stock and (iii) if, immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon
by the Borrower was permitted under the preceding clause (i) or (ii), the declaration and payment of dividends on the Refunding Capital
Stock in an aggregate amount no greater than the aggregate amount of dividends on such Treasury Capital Stock that was permitted under
the preceding clause (i) or (ii) (other than in connection with the issuance of such Refunding Capital Stock) immediately prior to such
redemption, repurchase, defeasance, discharge, retirement or other acquisition;
(ix)
to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06
(other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other
than Section 6.09(d));
(x)
the Borrower may make additional Restricted Payments in an aggregate amount not to exceed (A) the greater of $230,000,000 and
30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period minus (B) any utilization of the Shared
RP Amount in reliance on unused capacity under immediately preceding clause (A);
(xi)
the Borrower may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration
thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice,
the dividend, distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions
of this Section 6.04(a);
(xii)
the Borrower may make additional Restricted Payments constituting any part of the Repayment;
(xiii)
the Borrower may make additional Restricted Payments so long as, as measured at the time provided for in Section
1.04(e), the Total Leverage Ratio would not exceed 3.00:1.00, calculated on a Pro Forma Basis;
(xiv)
[reserved];
(xv)
[reserved];
(xvi)
the Borrower may make additional Restricted Payments constituting any part of a Permitted Reorganization;
(xvii)
the Borrower may make a distribution, by dividend or otherwise, of the Capital Stock of, or debt owed to any Loan Party or any
Restricted Subsidiary by, any Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries, provided
that such Restricted Subsidiary owns no assets other than Capital Stock of one or more Unrestricted Subsidiaries and immaterial assets
incidental to the ownership thereof); provided that any such Capital Stock or debt that represents an Investment by the Borrower
or any Restricted Subsidiary shall be deemed to continue to charge (as utilization) the respective clause under Section 6.06 pursuant
to which such Investment was made;
(xviii)
the Borrower may make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result
of, the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential)), pursuant
to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 6.07 or
any other transaction permitted hereunder;
(xix)
the Borrower may make a Restricted Payment in respect of payments made for the benefit of the Borrower or any Restricted Subsidiary
to the extent such payments could have been made by the Borrower or any Restricted Subsidiary because such payments (A) would not otherwise
be Restricted Payments and (B) would be permitted by Section 6.09;
(xx)
the Borrower may make a Restricted Payment in respect of any payments or deliveries in connection with (a) a Permitted Bond Hedge
Transaction or (b) Permitted Warrant Transaction or Packaged Rights (i) by delivery of shares of the Borrower’s Qualified Capital
Stock or (ii) otherwise, to the extent of a payment or delivery received from a Permitted Bond Hedge Transaction (whether such payment
or delivery on the Permitted Warrant Transaction is effected by netting, set-off or otherwise); and
(xxi)
the Borrower may make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to any Permitted
Payee and any repurchases of Capital Stock in consideration of such payments, including deemed repurchases in connection with the exercise
of stock options or the issuance of restricted stock units or similar stock based awards.
(b)
The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any voluntary prepayment in Cash on or in respect
of principal of or interest on any Restricted Debt, including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any Restricted Debt more than one year prior to the scheduled maturity date thereof
(collectively, “Restricted Debt Payments”), except:
(i)
any refinancing, purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement of any Restricted
Debt made by exchange for, or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01;
(ii)
payments as part of, or to enable another Person to make, an “applicable high yield discount obligation” catch-up
payment;
(iii)
payments of regularly scheduled principal and interest (including any penalty interest, if applicable) and payments of fees, expenses
and indemnification obligations as and when due (other than payments with respect to Restricted Debt that are prohibited by the subordination
provisions thereof);
(iv)
additional Restricted Debt Payments in an aggregate amount not to exceed the Shared RP Amount at such time;
(v)
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or
any Restricted Subsidiary and/or any capital contribution in respect of Qualified Capital Stock of the Borrower or any Restricted Subsidiary,
(B) Restricted Debt Payments as a result of the conversion of all or any portion of any Restricted Debt into Qualified Capital Stock
of the Borrower and/or any Restricted Subsidiary and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest
with respect to any Restricted Debt that is permitted under Section 6.01;
(vi)
Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that
the Borrower elects to apply to this clause (vi)(A) plus (B) the portion, if any, of the Available Excluded Contribution Amount
on such date that the Borrower elects to apply to this clause (vi)(B) (plus, without duplication of amounts previously referred
to in this clause (B), in an amount equal to the Net Proceeds from a Disposition of property or assets acquired after the Closing
Date, if the acquisition of such property or assets was financed with Available Excluded Contribution Amounts up to the amount of such
Available Excluded Contribution Amount, less any application thereof under Section 6.04(a)(iii) or 6.06(r));
(vii)
additional Restricted Debt Payments so long as, as measured at the time provided for in Section 1.04(e),
the Total Leverage Ratio would not exceed 3.00:1.00, calculated on a Pro Forma Basis;
(viii)
(A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Disqualified Capital Stock of the Borrower
and/or any Restricted Subsidiary and/or any capital contribution in respect of Disqualified Capital Stock of the Borrower or any Restricted
Subsidiary
and/or (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Restricted Debt into Disqualified Capital
Stock of the Borrower and/or any Restricted Subsidiary;
(ix)
Restricted Debt Payments in connection with the Separation Transactions to the extent consisting of prepayments of intercompany
Indebtedness;
(x)
additional Restricted Debt Payments to the extent constituting any part of the Repayment; and
(xi)
Restricted Debt Payments in respect of Restricted Debt permitted to be assumed pursuant to Section 6.01(n); provided
that any such Restricted Debt Payment shall be deemed an Investment and shall only be permitted to the extent there exists the ability
to make such Investment pursuant to Section 6.06 at such time.
Section
6.05. [Reserved].
Section
6.06. Investments.
The Borrower and each other Loan Party shall not, nor shall it permit any Restricted Subsidiary to, make or own any Investment in any
other Person except:
(a)
Investments in assets that are Cash or Cash Equivalents, or investments that were Cash or Cash Equivalents at the time made;
(b)
(i) Investments existing on the Closing Date in the Borrower, any Subsidiary and/or any Joint Venture and any modification, replacement,
renewal or extension thereof so long as no such modification, replacement, renewal or extension thereof increases the amount of such
Investment except by the terms thereof (including as a result of the accrual or accretion of interest or original issue discount or the
issuance of payment-in-kind securities) or as otherwise permitted by this Section 6.06 and (ii) Investments made after the Closing
Date among the Borrower and/or one or more Restricted Subsidiaries or in any Person that will, upon such Investment, become a Restricted
Subsidiary;
(c)
Investments (i) constituting deposits, prepayments and/or other credits to suppliers or other trade counterparties, (ii) made
in connection with obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors,
suppliers, licensors and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent
necessary to maintain the ordinary course of supplies to the Borrower or any Restricted Subsidiary;
(d)
Investments in (i) any Unrestricted Subsidiary (including any Joint Venture that is an Unrestricted Subsidiary) or (ii) any Similar
Business (including any Joint Venture engaged in a Similar Business), in an outstanding amount in the aggregate for clauses (i)
and (ii) not to exceed the greater of $90,000,000 and 12% of Consolidated Adjusted EBITDA as of the last day of the most recently
ended Test Period;
(e)
(i) Permitted Acquisitions and (ii) any Investment in any Restricted Subsidiary that is not a Loan Party in an amount required
to permit such Restricted Subsidiary to consummate a Permitted Acquisition;
(f)
(i) Investments existing on, or contractually committed to or contemplated as of, the Closing Date and, with respect to any such
Investment in excess of $5,000,000, described on Schedule 6.06 and (ii) any modification, replacement, renewal or extension of
any Investment described in clause (i) above so long as no such modification, renewal or extension thereof increases the amount
of such
Investment except
by the terms thereof (including as a result of the accrual or accretion of interest or original issue discount or the issuance of payment-in-kind
securities) or as otherwise permitted by this Section 6.06;
(g)
Investments received in lieu of Cash in connection with any Disposition permitted by Section 6.07 or any other disposition
of assets not constituting a Disposition;
(h)
loans or advances to Permitted Payees to the extent permitted by Requirements of Law, either (i) in an aggregate principal amount
not to exceed the greater of $10,000,000 and 1% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period
at any one time outstanding, (ii) so long as the proceeds of such loan or advance are substantially contemporaneously contributed to
the Borrower for the purchase of such Capital Stock or (iii) so long as no Cash or Cash Equivalents are advanced in connection with such
loan or advance;
(i)
Investments consisting of rebates and extensions of credit in the nature of accounts receivable or notes receivable arising from
the grant of trade credit in the ordinary course of business;
(j)
Investments consisting of (or resulting from) Indebtedness permitted under Section 6.01 (including guarantees thereof)
(other than Indebtedness permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under
Section 6.04 (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers, consolidations,
amalgamations, liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section 6.07(a)
(if made in reliance on sub-clause (ii)(y) of the proviso thereto), Section 6.07(b) (if made in reliance on clause
(ii) of the proviso thereto), Section 6.07(c)(ii) (if made in reliance on clause (B) therein) and Section 6.07(g)
and transactions permitted by Section 6.09 (other than Section 6.09(d));
(k)
Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements
with customers, vendors, suppliers, licensors, sublicensors, licensees and sublicensees;
(l)
Investments (including debt obligations and Capital Stock) received (i) in connection with the bankruptcy, work-out, reorganization
or recapitalization of any Person, (ii) in settlement or compromise of delinquent obligations of, or other disputes with or judgments
against, customers, trade-creditors, suppliers, licensees and other account debtors arising in the ordinary course of business, including
pursuant to any plan of reorganization or similar arrangement upon bankruptcy or insolvency of any customer, trade creditor, supplier,
licensee or other account debtor, (iii) in satisfaction of judgments against other Persons, (iv) as a result of foreclosure with respect
to any secured Investment or other transfer of title with respect to any secured Investment and/or (v) in settlement, compromise or resolution
of litigation, arbitration or other disputes;
(m)
loans and advances of payroll payments or other compensation to present or former employees, directors, members of management,
officers, managers or consultants of the Borrower and/or any subsidiary in the ordinary course of business;
(n)
Investments to the extent that payment therefor is made solely with Qualified Capital Stock of the Borrower or any Restricted
Subsidiary, in each case, to the extent not resulting in a Change of Control;
(o)
(i) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or
consolidated or amalgamated with, the Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment
otherwise permitted by this
Section 6.06
to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or
consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation or consolidation and (ii) any modification,
replacement, renewal or extension of any Investment permitted under clause (i) of this Section 6.06(o) so long as no such
modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted by this
Section 6.06;
(p)
[reserved];
(q)
Investments made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate amount at any
time outstanding not to exceed:
(i)
the greater of $310,000,000 and 40% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period,
plus
(ii)
the Shared RP Amount, plus
(iii)
in the event that (A) the Borrower or any of its Restricted Subsidiaries makes any Investment after the Closing Date in any Person
that is not a Restricted Subsidiary and (B) such Person subsequently becomes a Restricted Subsidiary, an amount equal to 100% of the
fair market value of such Investment as of the date on which such Person becomes a Restricted Subsidiary;
(r)
Investments made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding
amount not to exceed (i) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause
(r)(i) plus (ii) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply
to this clause (r)(ii) (plus, without duplication of amounts referred to in this clause (ii), in an amount equal to the Net Proceeds
from a Disposition of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed
with Available Excluded Contribution Amounts up to the amount of such Available Excluded Contribution Amount, less any application thereof
under Section 6.04(a)(iii) or Section 6.04(b)(vi));
(s)
(i) Guarantees of leases or subleases (in each case other than Finance Leases) or of other obligations not constituting Indebtedness,
(ii) Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Borrower and/or its Restricted Subsidiaries,
in each case, in the ordinary course of business and (iii) Investments consisting of Guarantees of any supplier’s obligations in
respect of commodity contracts, including Derivative Transactions, solely to the extent such commodities related to the materials or
products to be purchased by the Borrower or any Restricted Subsidiary;
(t)
Investments in any Person in amounts and for purposes for which Restricted Payments to such Person are permitted under Section
6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce availability
under the applicable Restricted Payment basket under Section 6.04(a);
(u)
[reserved];
(v)
Investments in subsidiaries and Joint Ventures in connection with reorganizations and/or restructurings, including any Permitted
Reorganization and/or activities related to tax planning (including Investments in non-Cash or non-Cash Equivalents); provided
that, after giving effect to any such reorganization, restructuring and/or related activity, the security interest of the Collateral
Agent in the
Collateral, taken
as a whole, is not materially impaired (including by a material portion of the assets that constitute Collateral immediately prior to
such reorganization, restructuring or tax planning activities no longer constituting Collateral) as a result of such reorganization,
restructuring or tax planning activities;
(w)
Investments arising under or in connection with any Derivative Transaction of the type permitted under Section 6.01(s);
(x)
Investments made (A) in Joint Ventures or Unrestricted Subsidiaries, (B) in connection with the creation, formation and/or acquisition
of any Joint Venture or (C) in any Restricted Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any Joint
Venture, in an aggregate outstanding amount under this clause (x) not to exceed in any Fiscal Year the greater of $131,250,000 and 17.5%
of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (with unused amounts, if not used in any Fiscal
Year, carried forward to the immediately succeeding Fiscal Year and deemed first applied in such Fiscal Year); provided that if
any Investment pursuant to this clause (x) is made in any Person that is not a Restricted Subsidiary at the date of making
of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall, at the election of the Borrower,
be deemed to have been made pursuant to clause (b)(ii) above and shall cease to have been made under this clause (x);
(y)
Investments made in joint ventures as required by, or made pursuant to, buy/sell arrangements between the joint venture parties
set forth in joint venture agreements and similar binding arrangements in effect on the Closing Date or entered into after the Closing
Date in the ordinary course of business;
(z)
unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain
unfunded under applicable Requirements of Law;
(aa)
Investments in connection with Permitted Treasury Arrangements;
(bb)
Investments made in connection with any nonqualified deferred compensation plan or arrangement for any Permitted Payee;
(cc)
[reserved];
(dd)
additional Investments so long as, as measured at the time provided for in Section 1.04(e), on a Pro
Forma Basis, the Total Leverage Ratio does not exceed 3.50:1.00;
(ee)
Investments consisting of the licensing, sublicensing or contribution of any intellectual property or other IP Rights pursuant
to joint marketing, collaboration or other similar arrangements with other Persons;
(ff)
[reserved];
(gg)
the conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary and permitted
by Section 6.01;
(hh)
Restricted Subsidiaries of the Borrower may be established or created if such Borrower and such Restricted Subsidiary comply with
the requirements of Section 5.12, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary
is created solely for the purpose of consummating a transaction pursuant to an acquisition or other Investment permitted by this Section
6.06, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any acquisition or
Investment consideration
contributed to it contemporaneously with the closing of such transaction, such new Restricted Subsidiary shall not be required to take
the actions set forth in Section 5.12 until the respective acquisition is consummated (at which time the surviving entity of the
respective transaction shall be required to so comply in accordance with the provisions thereof);
(ii)
contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners,
members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the
case of a bankruptcy of the Borrower or any of their Restricted Subsidiaries;
(jj)
[reserved];
(kk)
Investments consisting of earnest money deposits required in connection with purchase agreements or other acquisitions or Investments
otherwise permitted under this Section 6.06 and any other pledges or deposits permitted by Section 6.02;
(ll)
Term Loans repurchased by the Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance
with this Agreement and, to the extent permitted (or not prohibited) by Section 6.04(b), loans or other Indebtedness repurchased
by the Borrower or a Restricted Subsidiary pursuant to and subject to immediate cancellation in accordance with the terms of any other
Indebtedness;
(mm)
Guarantee obligations of the Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations
issued, made or incurred for the benefit of any Restricted Subsidiary of the Borrower to the extent required by law or in connection
with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(nn)
Permitted Bond Hedge Transactions;
(oo)
purchases and acquisitions of inventory, supplies, materials, services, equipment or similar assets in the ordinary course of
business; and
(pp)
any customary upfront milestone, marketing or other funding payment in the ordinary course of business to another Person in connection
with obtaining a right to receive royalty or other payments in the future.
provided
that, notwithstanding anything to the contrary in this Section 6.06, any Investment in the form of a transfer of actual legal
title (or transfer of similar effect) or an Exclusive License of Material Intellectual Property by the Borrower or any Restricted Subsidiary
to Unrestricted Subsidiaries shall not be permitted; provided that notwithstanding the foregoing, for the avoidance of doubt,
the above references to a transfer of actual legal title (or transfer of similar effect) or an Exclusive License with respect to Material
Intellectual Property shall not be deemed or interpreted to include a transfer in the form of a non-exclusive license of IP Rights in
the ordinary course of business or any license of IP Rights entered into for legitimate business purposes (as determined by the Borrower
in good faith) that is only exclusive with respect to a particular type or field (or types or fields) of usage, a certain territory or
group of territories, the ability to manufacture, use, offer for sale or sell any authorized generic version of any Licensed Property,
or any companion diagnostics authorization, in each case that does not effectively result in the transfer of beneficial ownership of
such IP Rights (it being understood that an exclusive licensee’s ability to enforce the applicable IP Rights within the applicable
limited types(s), field(s) of usage, territory(ies), ability(ies) and/or authorizations of its exclusive license shall not be construed
as a transfer of beneficial ownership).
Section
6.07. Fundamental Changes;
Disposition of Assets. The Borrower and each other Loan Party shall not, nor shall it permit any Restricted Subsidiary to, enter into
any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any liquidation or
dissolution), or make any Disposition of assets having a Disposition Consideration in excess of $25,000,000 in a single transaction or
in a series of related transactions, except:
(a)
any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary;
provided that (i) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (A) the Borrower shall
be the continuing or surviving Person or a Person that continues as an amalgamated corporation or (B) if the Person formed by or surviving
any such merger, consolidation or amalgamation (including any immediate and successive mergers, consolidations or amalgamations of entities)
is not the Borrower (any such Person succeeding the Borrower after giving effect to such transaction or transactions, the “Successor
Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof,
the District of Columbia, Canada or a political subdivision thereof or the jurisdiction of organization of the Borrower or a political
subdivision thereof, (y) the Successor Borrower shall expressly assume the Loan Document Obligations of the Borrower, as applicable,
in a manner reasonably satisfactory to the Administrative Agents and (z) except as the Administrative Agents may otherwise agree, each
Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation
agreement with respect to its obligations under the Loan Guarantee and the other Loan Documents; it being understood and agreed that
if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be
substituted for, the Borrower under this Agreement and the other Loan Documents and (ii) in the case of any such merger, consolidation
or amalgamation with or into any Subsidiary Guarantor, either (x) a Subsidiary Guarantor shall be the continuing or surviving Person
or the continuing or surviving Person shall expressly assume the guarantee obligations of the Subsidiary Guarantor in a manner reasonably
satisfactory to the Administrative Agents or (y) the relevant transaction shall be treated as an Investment and otherwise be made in
compliance with Section 6.06;
(b)
Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise);
provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value
(as determined by such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 6.06
(other than on reliance of clause (j) thereof);
(c)
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation
or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders, and the Borrower or any Restricted
Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; (ii) any merger, amalgamation, dissolution,
liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07
(other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06
(other than clause (j) thereof); and (iii) the Borrower or any Restricted Subsidiary may be converted into another form of entity, in
each case, so long as such conversion does not adversely affect the value of the Loan Guarantee or the Collateral, taken as a whole;
(d)
(x) Dispositions of inventory or goods held for sale, equipment or other assets in the ordinary course of business (including
on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e)
Dispositions of surplus, obsolete, used or worn out property or other property that, in the good faith judgment of the Borrower,
is (A) no longer useful in its business (or in the business of any
Restricted Subsidiary
of the Borrower) or (B) otherwise economically impracticable or not commercially reasonable to maintain;
(f)
Dispositions of Cash and/or Cash Equivalents or other assets that were Cash and/or Cash Equivalents when the relevant original
Investment was made;
(g)
Dispositions, mergers, amalgamations, consolidations or conveyances that constitute (or are made in order to effectuate) Investments
permitted pursuant to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section
6.04(a) (other than Section 6.04(a)(ix)) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h)
Dispositions for fair market value; provided that with respect to any single Disposition transaction or a series of related
transactions with respect to assets having Disposition Consideration in excess of the greater of $25,000,000 and 3% of Consolidated Adjusted
EBITDA as of the last day of the most recently ended Test Period, at least 75% of the consideration for such Disposition, shall consist
of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (u) the amount of any Indebtedness
or other liabilities (other than Indebtedness or other liabilities that are expressly subordinated in right of payment to the Loan Document
Obligations or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on
such Person’s most recent balance sheet (or in the notes thereto), or if the incurrence of such Indebtedness or other liability
took place after the date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto, as determined
in good faith by the Borrower) that are (i) assumed by the transferee of any such assets and for which the Borrower and/or its applicable
Restricted Subsidiary have been validly released by all relevant creditors in writing or (ii) otherwise cancelled or terminated in connection
with such Disposition, (v) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection
with such Disposition, (w) future payments to be made in cash or Cash Equivalents owed to the Borrower or a Restricted Subsidiary in
the form of licensing, royalty, earnout or milestone payment (or similar deferred cash payments), (x) any Securities or other obligations
or assets received by the Borrower or any Restricted Subsidiary from such transferee (including earn-outs or similar obligations) that
are converted by such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied for Cash or Cash Equivalents
(to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (y)
any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with
all other Designated Non-Cash Consideration received pursuant to this clause (y) and clause (B)(1) of the proviso to Section
6.08 that is at that time outstanding, not in excess of the greater of $115,000,000 and 15% of Consolidated Adjusted EBITDA as of
the last day of the most recently ended Test Period, in each case shall be deemed to be Cash); provided, further, that
the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i)
to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property
or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j)
Dispositions of Investments in (or assets of) Joint Ventures or other non-Wholly-Owned Subsidiaries to the extent required by,
or made pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements
and/or similar binding arrangements, or made on a pro rata basis to the owners thereof (or on a greater than pro rata basis to the extent
the recipient of such greater amount is the Borrower or a Restricted Subsidiary);
(k)
Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness
thereof) or in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l)
Dispositions and/or terminations of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses (including the
provision of software under any open source license), the Dispositions or terminations of which (i) do not materially interfere with
the business of the Borrower and its Restricted Subsidiaries, (ii) relate to closed facilities or the discontinuation of any Product
Line or (iii) are made in the ordinary course of business;
(m)
(i) any termination of any lease, sublease, license or sub-license in the ordinary course of business (and any related Disposition
of improvements made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or
personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights
or litigation claims (including in tort) in the ordinary course of business;
(n)
Dispositions of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain, expropriation or
condemnation proceedings (including in lieu thereof or any similar proceeding);
(o)
Dispositions or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property)
with respect to facilities that are temporarily not in use, held for sale or closed;
(p)
[reserved];
(q)
Dispositions of non-core assets and sales of Real Estate Assets, in each case acquired in any acquisition or other Investment
permitted hereunder, including such Dispositions (x) made in order to obtain the approval of any anti-trust authority or otherwise necessary
or advisable in the good faith determination of the Borrower to consummate any acquisition or other Investment permitted hereunder or
(y) which, within 90 days of the date of such acquisition or Investment, are designated in writing to the Administrative Agents as being
held for sale and not for the continued operation of the Borrower or any of their Restricted Subsidiaries or any of their respective
businesses;
(r)
exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction),
of property or assets so long as any such exchange or swap is made for fair value (as determined by the Borrower in good faith) for like
property or assets or property, assets or services of greater value or usefulness to the business of the Borrower and its Restricted
Subsidiaries as a whole, as determined in good faith by the Borrower; provided that upon the consummation of any such exchange
or swap by any Loan Party, to the extent the property received does not constitute an Excluded Asset, the Collateral Agent has a perfected
Lien with the same priority as the Lien held on the property or assets so exchanged or swapped;
(s)
Dispositions of assets that do not constitute Collateral having a fair market value of not more than, in any Fiscal Year, the
greater of $50,000,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, which amounts
if not used in any Fiscal Year may be carried forward to subsequent Fiscal Years (until so applied);
(t)
(i) licensing and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or other
IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business, (ii) Dispositions, abandonments, cancellations
or lapses of intellectual
property or other
IP Rights, including issuances or registrations thereof, or applications for issuances or registrations thereof, in the ordinary course
of business or which, in the good faith determination of the Borrower, are not necessary to the conduct of the business of the Borrower
or their Restricted Subsidiaries or are obsolete or no longer economical to maintain in light of their use, and (iii) Dispositions of
any technology, intellectual property or other IP Rights of the Borrower or any Restricted Subsidiary involving their customers in the
ordinary course of business, in each case that do not constitute Exclusive Licenses;
(u)
terminations or unwinds of Derivative Transactions;
(v)
Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries (or any Restricted
Subsidiary that owns one or more Unrestricted Subsidiaries, provided that such Restricted Subsidiary owns no other material assets other
than Capital Stock of one or more Unrestricted Subsidiaries), in each case other than Unrestricted Subsidiaries, the primary assets of
which are Cash and/or Cash Equivalents;
(w)
Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities
for directors, officers, employees, members of management, managers or consultants, the Borrower and/or any Restricted Subsidiary;
(x)
Dispositions made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of Law,
including Dispositions of any Restricted Subsidiary’s Capital Stock required to qualify directors;
(y)
any merger, consolidation, amalgamation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize
(provided that if such Restricted Subsidiary is a Loan Party it must satisfy the Collateral and Guarantee Requirement in such other jurisdiction
to the extent otherwise required hereunder);
(z)
Dispositions constituting any part of a Permitted Reorganization;
(aa)
any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(bb)
other Dispositions with a Disposition Consideration of not more than, in the aggregate, the greater of $35,000,000 and 4% of Consolidated
Adjusted EBITDA as of the last day of the most recently ended Test Period;
(cc)
Dispositions contemplated on the Closing Date and described on Schedule 6.07 hereto;
(dd)
[reserved];
(ee)
any issuance, sale or Disposition of Capital Stock to directors, officers, managers or employees for purposes of satisfying requirements
with respect to directors’ qualifying shares and shares issued to foreign nationals, in each case as required by applicable Requirements
of Law;
(ff)
any netting arrangement of accounts receivable between or among the Borrower and their Restricted Subsidiaries or among Restricted
Subsidiaries of the Borrower made in the ordinary course of business;
(gg)
Dispositions of, or in connection with, any Convertible Indebtedness, any Permitted Bond Hedge Transaction, any Permitted Warrant
Transaction or any Packaged Right (including upon settlement, repurchase, exchange, termination or unwind thereof);
(hh)
any “fee in lieu” or other Disposition of assets to any Governmental Authority that continue in use by the Borrower
or any Restricted Subsidiary, so long as such Borrower or any Restricted Subsidiary may obtain title to such asset upon reasonable notice
by paying a nominal fee; and
(ii)
(i) the formation of any Restricted Subsidiary that is a Delaware Divided LLC and (ii) any Disposition to effect the formation
of any Restricted Subsidiary that is a Delaware Divided LLC which Disposition is not otherwise prohibited hereunder; provided that in
each case upon formation of a Delaware Divided LLC, the Borrower complies with Section 5.12 with respect to such
Delaware Divided LLC to the extent applicable.
To
the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party,
such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents (which Liens shall be automatically
released upon the consummation of such Disposition) and the Collateral Agent and each Administrative Agent shall be authorized to take,
and shall take, any actions reasonably requested by the Borrower or otherwise deemed appropriate in order to effect the foregoing.
Notwithstanding
anything to the contrary in this Section 6.07, any Disposition (or other disposition) in the form of a transfer of actual legal
title (or transfer of similar effect) or an Exclusive License of Material Intellectual Property by the Borrower or any Restricted Subsidiary
to Unrestricted Subsidiaries shall not be permitted; provided that notwithstanding the foregoing, for the avoidance of doubt,
the above references to a transfer of actual legal title (or transfer of similar effect) or an Exclusive License with respect to Material
Intellectual Property shall not be deemed or interpreted to include a transfer in the form of a non-exclusive license of IP Rights in
the ordinary course of business or any license of IP Rights entered into for legitimate business purposes (as determined by the Borrower
in good faith) that is only exclusive with respect to a particular type or field (or types or fields) of usage, a certain territory or
group of territories, the ability to manufacture, use, offer for sale or sell any authorized generic version of any Licensed Property,
or any companion diagnostics authorization, in each case that does not effectively result in the transfer of beneficial ownership of
such IP Rights (it being understood that an exclusive licensee’s ability to enforce the applicable IP Rights within the applicable
limited types(s), field(s) of usage, territory(ies), ability(ies) and/or authorizations of its exclusive license shall not be construed
as a transfer of beneficial ownership).
Section
6.08. Sale and
Lease-Back Transactions. The Borrower and each other Loan Party shall not, nor shall it permit any Restricted Subsidiary to, directly
or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether
real, personal or mixed), whether now owned or hereafter acquired, which the Borrower or the relevant Loan Party or Restricted Subsidiary
(a) has sold or transferred or is to sell or to transfer to any other Person (other than the Borrower or any of their Restricted
Subsidiaries) and (b) intends to use for substantially the same purpose as the property which has been or is to be sold or transferred
by the Borrower or such Loan Party or Restricted Subsidiary to any Person (other than the Borrower or any of their Restricted Subsidiaries)
in connection with such lease (such a transaction described herein, a “Sale and Lease-Back Transaction”); provided that any
Sale and Lease-Back Transaction shall be permitted so long as either (A) the resulting Indebtedness, if any, is permitted by Section
6.01(m) or Section 6.01(z) or (B) (1) such Sale and Lease-Back Transaction is made in exchange for Cash consideration (provided that
the Cash consideration requirements set forth in Section 6.07(h) shall apply in determining whether or not the Cash consideration requirements
in this clause are satisfied; it being understood that any Designated Non-Cash Consideration
received in respect
of the relevant Sale and Lease-Back Transaction having an aggregate fair market value, taken together with all other Designated Non-Cash
Consideration received pursuant to this clause (1) and clause (y) of the proviso to Section 6.07(h) that is at that time outstanding,
not in excess of the greater of $115,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test
Period, in each case, shall be deemed to be Cash), (2) the Borrower or Loan Party or its applicable Restricted Subsidiary would
otherwise be permitted to enter into, and remain liable under, the applicable underlying lease and (3) the aggregate fair market value
of the assets sold subject to all Sale and Lease-Back Transactions under this clause (B) shall not exceed (i) the greater of $35,000,000
and 4% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period plus (ii) an unlimited amount provided
that all Cash proceeds received in connection therewith are applied to prepay the Loan Document Obligations hereunder as set forth in
Section 2.11(b).
Section
6.09. Transactions
with Affiliates. The Borrower and each other Loan Party shall not, nor shall it permit any Restricted Subsidiary to, enter into any
transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) involving payment in excess
of the greater of $50,000,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in any
individual transaction with any of their respective Affiliates on terms that are substantially less favorable to such Borrower or such
Loan Party or Restricted Subsidiary, as the case may be (as determined by the Borrower in good faith), than those that might be obtained
at the time in a comparable arm’s-length transaction from a Person who is not an Affiliate; provided that the foregoing restriction
shall not apply to:
(a)
any transaction between or among the Borrower and/or one or more Restricted Subsidiaries and/or Joint Ventures (or any entity
that becomes a Restricted Subsidiary or Joint Venture as a result of such transaction) to the extent permitted or not restricted by this
Agreement;
(b)
any issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or
the funding of, employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing
body) of the Borrower or any Restricted Subsidiary;
(c)
(i) any collective bargaining, employment, indemnification, expense reimbursement or severance agreement or compensatory (including
profit sharing) arrangement entered into by the Borrower or any of their Restricted Subsidiaries with any Permitted Payee, (ii) any subscription
agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with any Permitted
Payee and (iii) payments or other transactions pursuant to any management equity plan, employee compensation, benefit plan, stock option
plan or arrangement, equity holder arrangement, supplemental executive retirement benefit plan, any health, disability or similar insurance
plan, or any employment contract or arrangement which covers any Permitted Payee and payments pursuant thereto;
(d)
any transaction specifically permitted under this Agreement, including: (i) transactions permitted by Sections 6.01(d),
(o), (bb) and (ee), 6.03, 6.04, 6.06(h), (m), (o), (t), (v), (x),
(y), (z), (aa), (bb), (gg), (hh), (ii), (jj), (kk), (ll) and (mm)
and 6.07, (ii) any Permitted Reorganization and (iii) issuances of Capital Stock and issuances and incurrences of Indebtedness
not restricted by this Agreement and payments pursuant thereto;
(e)
the existence of, or performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of, any transaction
or agreement in existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment, modification
or extension,
taken as a whole,
is not materially (i) adverse to the Lenders or (ii) more disadvantageous to the Lenders than the relevant transaction in existence on
the Closing Date;
(f)
[reserved];
(g)
[reserved];
(h)
(i) transactions with a Person that is an Affiliate of the Borrower (other than an Unrestricted Subsidiary) solely because the
Borrower or any Restricted Subsidiary owns Capital Stock in such Person and (ii) transactions with any Person that is an Affiliate solely
because a director or officer of such Person is a director or officer of the Borrower or any Restricted Subsidiary;
(i)
any transaction or transactions approved by a majority of the disinterested members of the board of directors (or similar governing
body) of the Borrower at such time;
(j)
Guarantees permitted or not restricted by Section 6.01 or Section 6.06;
(k)
loans and other transactions among the Loan Parties and their Subsidiaries, in each case to the extent permitted or not restricted
under this Article 6;
(l)
the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board
of directors (or similar governing body), officers, employees, members of management, managers, consultants and independent contractors
of the Borrower and/or any of their Restricted Subsidiaries in the ordinary course of business;
(m)
transactions with customers, clients, suppliers, licensees, Joint Ventures, purchasers or sellers of goods or services or providers
of employees or other labor entered into in the ordinary course of business, which are (i) fair to the Borrower and/or its applicable
Restricted Subsidiary in the good faith determination of the board of directors (or similar governing body) of the Borrower or the senior
management thereof or (ii) on terms not substantially less favorable to the Borrower and/or its applicable Restricted Subsidiary
as might reasonably be obtained from a Person other than an Affiliate;
(n)
the payment of reasonable out-of-pocket costs and expenses related to registration rights and indemnities provided to shareholders
under any shareholder agreement and the existence or performance by the Borrower or any Restricted Subsidiary of its obligations under
any such registration rights or shareholder agreement;
(o)
[reserved];
(p)
any transaction in respect of which the Borrower delivers to the Administrative Agents a letter addressed to the board of directors
(or equivalent governing body) of the Borrower from an accounting, appraisal or investment banking firm of nationally recognized standing
stating that such transaction is fair to such Borrower or such Restricted Subsidiary from a financial point of view or stating that the
terms, when taken as a whole, are not substantially less favorable to such Borrower or the applicable Restricted Subsidiary than might
be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate;
(q)
transactions or agreements in contemplation of, or to effect or facilitate, the Separation Transactions (including any of the
reorganization transactions, arrangements or documents described or referred to in the S-1 Registration Statement, and in each case including
the Master Separation Agreement
transactions and any
transition services agreement or other agreements or arrangements referred to therein, and including the consummation of the Separation
Transactions);
(r)
payments to or from, and transactions with, an Unrestricted Subsidiary in the ordinary course of business (including, any cash
management or administrative activities related thereto);
(s)
any lease entered into between the Borrower or any Restricted Subsidiary, as lessee, and any Affiliate of the Borrower, as lessor,
and any transaction(s) pursuant to that lease, which lease is approved by the board of directors or senior management of the Borrower
in good faith;
(t)
transactions undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
(u)
transactions set forth on Schedule 6.09 and any renewals or extensions thereof.
Section
6.10. [Reserved].
Section
6.11. [Reserved].
Section
6.12. Amendments
of or Waivers with Respect to Restricted Debt. The Borrower and each other Loan Party shall not, nor permit any Restricted Subsidiary
to, amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) if the effect of
such amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests of the
Lenders (in their capacities as such); provided that, for purposes of clarity, it is understood and agreed that the foregoing
limitation shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification,
extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect
thereof.
Section
6.13. [Reserved].
Section
6.14. [Reserved].
Section
6.15. First
Lien Leverage Ratio.
(a)
On the last day of any Test Period ending on or after the last day of the second full Fiscal Quarter ending after the Closing
Date on which the Revolving Facility Test Condition is then satisfied, the Borrower shall not permit the First Lien Leverage Ratio to
be greater than 4.50:1.00.
(b)
On the last day of any Test Period ending on or after the last day of the first
full Fiscal Quarter ending after the Second Incremental Amendment Effective Date on which any Second Incremental Term Loans are outstanding,
the Borrower shall not permit the First Lien Leverage Ratio to be greater than (x) for the first four full Fiscal Quarters ending after
the Second Incremental Effective Date, 5.00:1.00 and (y) for each Fiscal Quarter ending thereafter, 4.50:1.00.
(c)
(b) Notwithstanding anything
to the contrary in this Agreement (including Article 7), if the Borrower reasonably expects to fail (or has
failed) to comply with Section 6.15(a) and/or (b), as applicable,
above for any Fiscal Quarter, the Borrower shall have the right (the “Cure Right”) (at any time during such
Fiscal Quarter or thereafter until the date that is 15 Business Days after the date on which financial statements for such Fiscal Quarter
are required to be delivered pursuant to Section 5.01(a) or (b), as applicable) to issue Permitted Equity
for Cash or otherwise receive Cash contributions in respect
of Permitted Equity
(the “Cure Amount”), and thereupon the Borrower’s compliance with Section 6.15(a) and/or
(b), as applicable, shall be recalculated by increasing Consolidated Adjusted EBITDA (notwithstanding the absence of a related
addback in the definition of “Consolidated Adjusted EBITDA”), solely for the purpose of determining compliance with Section
6.15(a) and/or (b), as applicable, as of the end of such Fiscal Quarter and
for applicable subsequent periods that include such Fiscal Quarter, by an amount equal to the Cure Amount. If, after giving effect to
the foregoing recalculation (but not, for the avoidance of doubt, except as expressly set forth below, taking into account any immediate
repayment of Indebtedness in connection therewith), the requirements of Section 6.15(a) and/or
(b), as applicable, would be satisfied, then the requirements of Section 6.15(a) and/or
(b), as applicable, shall be deemed satisfied as of the end of the relevant Fiscal Quarter with the same effect as though there
had been no failure to comply therewith at such date, and the applicable breach or default of Section 6.15(a) and/or
(b), as applicable, that had occurred (or would have occurred) shall be deemed cured for the purposes of this Agreement. Notwithstanding
anything herein to the contrary, (i) in each four consecutive Fiscal Quarter period there shall be at least two Fiscal Quarters (which
may, but are not required to be, consecutive) in which the Cure Right is not exercised, (ii) during the term of this Agreement, the Cure
Right shall not be exercised more than five times, (iii) the Cure Amount shall be no greater than the amount required for the purpose
of complying with Section 6.15(a) and/or (b), as applicable,
(iv) upon the Revolving Facility Administrative Agent’s and/or Incremental Term
Facilities Administrative Agent’s, as applicable, receipt of a written notice from the Borrower that the Borrower intends
to exercise the Cure Right (a “Notice of Intent to Cure”), until the 15th Business Day following the date on which
financial statements for the Fiscal Quarter to which such Notice of Intent to Cure relates are required to be delivered pursuant to Section
5.01(a) or (b), as applicable, neithernone
of the Revolving Facility Administrative
Agent (nor any sub-agent therefor), the Incremental Term Facilities Administrative Agent (nor any sub-agent therefor) nor any
Lender shall exercise any right to accelerate the Loans or terminate the Revolving Credit Commitments or any Additional Commitments,
and none of the Revolving Facility Administrative Agent (nor any sub-agent therefor) nor any,
the Incremental Term Facilities Administrative Agent (nor any sub-agent therefor) nor any Lender
or Secured Party shall exercise any right to foreclose on or take possession of the Collateral or any other right or remedy under the
Loan Documents, in each case solely on the basis of the relevant Event of Default under Section 6.15(a) and/or
(b), as applicable, (v) for any fiscal quarter in which any Cure Amount is included as an increase to Consolidated Adjusted EBITDA
as a result of any exercise of the Cure Right, such Cure Amount shall be (A) counted solely as an increase to Consolidated Adjusted EBITDA
(and not as a reduction of any other Indebtedness (by netting or otherwise) for the purpose of determining compliance with Section
6.15(a) and/or (b), as applicable) (provided, that, for any subsequent fiscal
quarter, any portion of the Cure Amount that is actually applied to repay Indebtedness may be taken into account as a reduction of such
Indebtedness so prepaid) and (B) disregarded for all other purposes, including the purpose of determining whether any financial ratio-based
condition has been satisfied, the Applicable Rate or the availability of any carve-out set forth in Article 6 of this Agreement
and (vi) no Revolving Lender or Issuing Bank shall be required to make any Revolving Loan or issue any Letter of Credit hereunder if
an Event of Default under Section 6.15(a) and/or (b), as applicable,
exists during the 15 Business Day period during which the Borrower may exercise a Cure Right above unless and until the Cure Amount
is actually received.
Section
6.16. Establishment
of Defined Benefit Plan. No Loan Party shall (a) sponsor, administer, maintain, contribute to, participate in or assume or incur
any liability in respect of, any Defined Benefit Plan, or (b) acquire an interest in any Person if such Person sponsors, administers,
maintains, contributes to, participates in or has any liability in respect of, any Defined Benefit Plan, other than, with respect to
clauses (a) and (b), Defined Benefit Plans that do not, in the aggregate, have a solvency deficit in excess of $10,000,000
at any time.
PART
B: At all times on and after the Investment Grade Trigger Date (but for the avoidance of doubt, this Part B shall not apply prior thereto):
Section
6.17. Indebtedness. The Borrower will not permit any Subsidiary
that is not a Loan Party to create, incur, assume or permit to exist any Indebtedness, except:
(a)
Indebtedness created under the Loan Documents;
(b)
Indebtedness existing on the Closing Date and set forth in Schedule 6.01 or that could be incurred on the Closing Date pursuant
to commitments set forth in Schedule 6.01 or as contemplated in Schedule 6.01 and Permitted Refinancing Indebtedness in respect of Indebtedness
permitted by this clause (b);
(c)
(i) Indebtedness of any Subsidiary that is not a Loan Party owing to (x) a Loan Party or (y) any other Subsidiary; and (ii) Guarantees
of Indebtedness of any Subsidiary that is not a Loan Party by any other Subsidiary that is not a Loan Party (to the extent that such
Indebtedness is permitted to be incurred under another provision of this Section 6.17);
(d)
(i) Indebtedness incurred to finance the acquisition, construction, repair, replacement or improvement of any fixed or capital
assets, including obligations in respect of Finance Leases and any Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof; provided that such Indebtedness is incurred prior
to or within 270 days after such acquisition or the completion of such construction, repair, replacement or improvement;
(e)
Indebtedness in respect of letters of credit (including trade letters of credit), bank guarantees or similar instruments issued
or incurred in the ordinary course of business, including in respect of card obligations or any overdraft and related liabilities arising
from treasury, depository and cash management services or any automated clearing house transfers, workers compensation claims, health,
disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect
to reimbursement-type obligations regarding workers compensation claims;
(f)
Indebtedness incurred pursuant to Permitted Receivables Facilities; provided that the Attributable Receivables Indebtedness
thereunder shall not exceed at any time outstanding $400,000,000;
(g)
Indebtedness under Hedge Agreements entered into in the ordinary course of business and not for speculative purposes;
(h)
Indebtedness in respect of bid, performance, surety, stay, customs, appeal or replevin bonds or performance and completion guarantees
and similar obligations issued or incurred in the ordinary course of business, including guarantees or obligations of any Subsidiary
with respect to letters of credit, bank guarantees or similar instruments supporting such obligation, in each case, not in connection
with Indebtedness for money borrowed;
(i)
Indebtedness in respect of judgments, decrees, attachments or awards that do not constitute an Event of Default under clause (k)
of Section 8.02;
(j)
Indebtedness consisting of bona fide purchase price adjustments, earn-outs, indemnification obligations, obligations under deferred
compensation or similar arrangements and similar items incurred in connection with acquisitions and asset sales not prohibited by this
Agreement;
(k)
Indebtedness in respect of letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments in an aggregate
amount outstanding not to exceed $200,000,000;
(l)
Indebtedness in respect of card obligations, netting services, overdraft protections, treasury, depository, pooling and other
cash management arrangements, including, in all cases, in connection with deposit accounts and any cash pooling arrangements;
(m)
Indebtedness consisting of (x) the financing of insurance premiums with the providers of such insurance or their affiliates or
(y) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(n)
Foreign Jurisdiction Deposits;
(o)
(i) so long as the Borrower is in compliance with Section 6.21 on a Pro Forma Basis as of the last day of the most recently completed
Test Period (for which financial statements have been delivered pursuant to Section 5.01(a) or (b)), other
Indebtedness in an aggregate amount, when aggregated with the amount of Indebtedness of the Loan Parties secured by Liens pursuant to
Section 6.18(r), not to exceed the greater of (x) $637,650,000 and (y) 15% of Consolidated Net Tangible Assets,
determined as of the last day of the most recent fiscal quarter prior to the date such Indebtedness is incurred for which financial statements
have been delivered pursuant to Section 5.01(a) or (b) and (ii) Permitted Refinancing Indebtedness in respect
of Indebtedness permitted by clause (i) of this clause (o);
(p)
(i) Indebtedness of a Person existing at the time such Person becomes a Subsidiary and not created in contemplation thereof and
(ii) any Permitted Refinancing Indebtedness in respect of Indebtedness permitted by this clause (p);
(q)
Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the available balance of such Letter of Credit;
and
(r)
all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest
on obligations described in clauses (a) through (q) above.
Section
6.18. Liens.
The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien securing Indebtedness
on any Property now owned or hereafter acquired by it, except:
(a)
Permitted Encumbrances;
(b)
any Lien on any Property of the Borrower or any Subsidiary existing on the Closing Date and set forth in Schedule 6.02 and any
modifications, replacements, renewals or extensions thereof; provided that (i) such Lien shall not apply to any other Property
of the Borrower or any other Subsidiary other than (A) improvements and after-acquired Property that is affixed or incorporated into
the Property covered by such Lien or financed by Indebtedness permitted under Section 6.17 and (B) proceeds and products thereof and
(ii) such Lien shall secure only those obligations which it secures on the Closing Date and any Permitted Refinancing Indebtedness in
respect thereof;
(c)
any Lien existing on any Property prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any Property
of any Person that becomes a Subsidiary after the Closing Date prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the
case may be, (ii) such Lien shall not apply to any other Property of the Borrower or any other Subsidiary (other than the proceeds or
products of the Property covered by such Lien and other than improvements and after-acquired property that is affixed or incorporated
into the Property covered by such Lien) and (iii) such Lien shall secure only those obligations which it secures on the date of such
acquisition or the
date such Person becomes
a Subsidiary, as the case may be, and Permitted Refinancing Indebtedness in respect thereof;
(d)
(i) Liens on fixed or capital assets acquired, constructed, repaired, replaced or improved by the Borrower or any Subsidiary;
provided that (i) such security interests and the Indebtedness secured thereby are incurred prior to or within two hundred seventy
(270) days after such acquisition or the completion of such construction, repair or replacement or improvement and (ii) such security
interests shall not apply to any other Property of the Borrower or any Subsidiary, except for accessions to such fixed or capital assets
covered by such Lien, Property financed by such Indebtedness and the proceeds and products thereof; provided further that individual
financings of fixed or capital assets provided by one lender may be cross-collateralized to other financings of fixed or capital assets
provided by such lender;
(e)
rights of setoff and similar arrangements and Liens in favor of depository and securities intermediaries to secure obligations
owed in respect of card obligations or any overdraft and related liabilities arising from treasury, depository and cash management services
or any automated clearing house transfers of funds and fees and similar amounts related to bank accounts or securities accounts (including
Liens securing letters of credit, bank guarantees or similar instruments supporting any of the foregoing);
(f)
Liens on Receivables and Permitted Receivables Facility Assets securing Indebtedness arising under Permitted Receivables Facilities;
(g)
Liens (i) on “earnest money” or similar deposits or other cash advances in connection with acquisitions or
investments not prohibited by this Agreement or (ii) consisting of an agreement to dispose of any Property in a disposition permitted
under this Agreement including customary rights and restrictions contained in such agreements;
(h)
Liens on cash, cash equivalents or other assets securing Indebtedness permitted by Section 6.17(g);
(i)
leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do not (i) interfere in
any material respect with the business of the Borrower or any Subsidiary or (ii) secure any Indebtedness;
(j)
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection
with the importation of goods in the ordinary course of business;
(k)
Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection
and (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business,
including Liens encumbering reasonable customary initial deposits and margin deposits;
(l)
Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by
a Loan Party or any Subsidiary in the ordinary course of business;
(m)
Liens deemed to be existing in connection with repurchase agreements constituting Cash Equivalents;
(n)
rights of setoff relating to purchase orders and other agreements entered into with customers of the Borrower or any Subsidiary
in the ordinary course of business;
(o)
ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Subsidiaries are
located and other Liens affecting the interest of any landlord (and any underlying landlord) of any real property leased by the Borrower
or any Subsidiary;
(p)
Liens on equipment owned by the Borrower or any Subsidiary and located on the premises of any supplier and used in the ordinary
course of business and not securing Indebtedness;
(q)
any restriction or encumbrance with respect to the pledge or transfer of the Capital Stock of a joint venture;
(r)
Liens not otherwise permitted by this Section 6.18, provided that a Lien shall be permitted to be incurred pursuant to
this clause (r) only if at the time such Lien is incurred the aggregate principal amount of Indebtedness secured at such
time (including such Lien) by Liens outstanding pursuant to this clause (r) (when taken together, without duplication,
with the amount of obligations outstanding pursuant to Section 6.17(o)) would not exceed the greater of (x) $637,650,000
and (y) 15% of Consolidated Net Tangible Assets, determined as of the last day of the most recent fiscal quarter prior to the date such
Indebtedness is incurred for which financial statements have been delivered pursuant to Section 5.01(a) or (b)
(or any Permitted Refinancing Indebtedness in respect of the foregoing);
(s)
Liens on any Property of the Borrower or any Subsidiary in favor of the Borrower or any other Subsidiary;
(t)
Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect
of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such
inventory or other goods;
(u)
Liens arising from Uniform Commercial Code or Personal Property Security Act (Ontario) financing statement filings (or analogous
filings in other jurisdictions) regarding operating leases or consignments entered into by the Borrower and its Subsidiaries in the ordinary
course of business;
(v)
Liens, pledges or deposits made in the ordinary course of business to secure liability to insurance carriers;
(w)
Liens securing insurance premiums financing arrangements; provided that such Liens are limited to the applicable unpaid
insurance premiums under the insurance policy related to such insurance premium financing arrangement;
(x)
Liens on Cash Equivalents deposited as Cash collateral on Letters of Credit as contemplated by this Agreement;
(y)
Liens on any Property of any Subsidiary that is not a Loan Party securing Indebtedness of such Subsidiary that is otherwise permitted
under Section 6.17; and
(z)
Liens on equity interests of any Person formed for the purposes of engaging in activities in the renewable energy sector (including
refined coal) that qualify for federal tax benefits allocable to the Borrower and its Subsidiaries in which the Borrower or any Subsidiary
has made an investment and Liens on the rights of the Borrower and its Subsidiaries under any agreement relating to any such investment.
Section
6.19. Fundamental
Changes. The Borrower will not merge into, amalgamate or consolidate with or transfer all or substantially all of its assets to any
other Person, or permit any other Person to merge into, amalgamate or consolidate with it, or liquidate or dissolve themselves into the
Borrower, except that,
if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, the Borrower
may be consolidated with or merged or amalgamated into any Person; provided that, if the Borrower is not the surviving Person
of such transaction, then simultaneously with such transaction, (x) the Person formed by such consolidation or into which the Borrower
is merged or amalgamated shall expressly assume all obligations of the Borrower under the Loan Documents and (y) the Person formed by
such consolidation or into which the Borrower is merged or amalgamated shall be a corporation organized under the laws of a State in
the United States or Canada or a political subdivision thereof, and shall take all actions as may be required to preserve the enforceability
of the Loan Documents.
Section
6.20. Restricted
Payments. The Borrower will not, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly
or indirectly, any Restricted Payment, except (a) the Borrower or any Subsidiary may declare and pay dividends or other distributions
with respect to its Capital Stock payable solely in additional shares of its Qualified Equity Interests or options to purchase Qualified
Equity Interests; (b) Subsidiaries may declare and make Restricted Payments ratably with respect to their Capital Stock (or greater than
ratably in the case of any Restricted Payment in favor of the Borrower or Subsidiary thereof); (c) the Borrower or any Subsidiary may
make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for present or former officers,
directors, consultants or employees of the Borrower and its Subsidiaries in an amount not to exceed $20,000,000 in any fiscal year (with
any unused amount of such base amount available for use in the next subsequent fiscal years); (d) the Borrower or any Subsidiary may
make Restricted Payments so long as no Event of Default has occurred and is continuing at the time of the declaration thereof or would
result therefrom; (e) repurchases of Capital Stock in any Loan Party or any Subsidiary deemed to occur upon exercise of stock options
or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants; (f) the payment of cash in
lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or
exercisable for Qualified Equity Interests of the Borrower; (g) payments made to exercise, settle or terminate any Permitted Warrant
Transaction (A) by delivery of the Borrower’s common stock, (B) by set-off against the related Permitted Bond Hedge Transaction,
or (C) with cash payments in an aggregate amount not to exceed the aggregate amount of any payments received by the Borrower or any of
its Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transaction; and (h) payments
made in connection with any Permitted Bond Hedge Transaction.
Section
6.21. Financial
Covenants.
(a)
The Borrower will not permit the Consolidated Leverage Ratio as of the last day of any fiscal quarter following the Investment
Grade Trigger Date to exceed 4.00 to 1.00. Notwithstanding the foregoing, the Borrower shall be permitted to increase the maximum permitted
Consolidated Leverage Ratio to 4.50 to 1.00 in connection with any Qualified Acquisition, which such increase shall be applicable for
the fiscal quarter in which such Qualified Acquisition is consummated and the three consecutive Test Periods thereafter; provided
that, there shall be at least one full fiscal quarter following the cessation of each such increase during which no such increase
shall then be in effect.
(b)
The Borrower will not permit the Consolidated Interest Coverage Ratio as of the last day of any fiscal quarter following the Investment
Grade Trigger Date to be less than 3.00 to 1.00.
Section
6.22. Defined
Terms. As used in this Part B of Article VI, the following terms have the following meanings:
“Attributable
Receivables Indebtedness” at any time means the principal amount of Indebtedness which (i) if a Permitted Receivables Facility
is structured as a secured lending agreement,
would constitute the
principal amount of such Indebtedness or (ii) if a Permitted Receivables Facility is structured as a purchase agreement, would be outstanding
at such time under the Permitted Receivables Facility if the same were structured as a secured lending agreement rather than a purchase
agreement.
“Cash
Equivalents” means:
(1) any
evidence of Indebtedness issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of (i)
the United States, (ii) the United Kingdom, (iii) Canada, (iv) Japan or (v) any member nation of the European Union;
(2) time
deposits, certificates of deposit, and bank notes of any financial institution that (i) is a Lender or (ii) is a member of the Federal
Reserve System (or organized in any foreign country recognized by the United States) and whose senior unsecured debt is rated at least
A-2, P-2, or F-2, short- term, or A or A2, long-term, by Moody’s, S&P or Fitch (any such bank in the foregoing clause (i) or
(ii) being an “Approved Bank”). Issues with only one short-term credit rating must have a minimum credit rating of
A 1, P 1 or F 1;
(3) commercial
paper, including asset-backed commercial paper, and floating or fixed rate notes issued by an Approved Bank or a corporation or special
purpose vehicle (other than an Affiliate or Subsidiary of the Borrower) organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia (or any foreign country recognized by the United States) and rated at least A
2 by S&P and at least P 2 by Moody’s;
(4) asset-backed
securities rated AAA by Moody’s, S&P or Fitch, with weighted average lives of 3 years or less (measured to the next maturity
date);
(5) repurchase
agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed or insured
by the government or any agency or instrumentality of (i) the United States, (ii) the United Kingdom, (iii) Canada, (iv) Japan or (v)
any member nation of the European Union maturing within 365 days from the date of acquisition;
(6) money
market funds which invest substantially all of their assets in assets described in the preceding clauses (1) through (5); and
(7) instruments
equivalent to those referred to in clauses (1) through (6) above denominated in any Alternative Currency or any other foreign currency
comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in
any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary
organized in such jurisdiction;
provided, that
except in the case of clauses (4) and (5) above, the maximum maturity date of individual securities or deposits will be 3 years or less
at the time of purchase or deposit.
“Consolidated
Interest Coverage Ratio” means, for any Test Period, the ratio of (a) Consolidated Adjusted EBITDA for such Test Period to
(b) Consolidated Interest Expense for such Test Period.
“Consolidated
Net Tangible Assets” means, with respect to the Borrower, the total amount of assets (less applicable reserves and other properly
deductible items) after deducting all goodwill, tradenames, trademarks, service marks, patents, unamortized debt discount and expense
and other like
intangible assets,
all as set forth on the most recent consolidated balance sheet of the Borrower and its Subsidiaries delivered pursuant to Section
5.01(a) or Section 5.01(b).
“Foreign
Jurisdiction Deposit” means a deposit or Guarantee incurred in the ordinary course of business and required by any Governmental
Authority in a foreign jurisdiction as a condition of doing business in such jurisdiction.
“Permitted
Encumbrances” means:
(a) Liens
imposed by law for taxes, assessments or other governmental charges that are not overdue for a period of more than sixty (60) days or,
if more than 60 days overdue, are being contested in compliance with Section
5.04;
(b) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’, workmen’s, suppliers’ and
other Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than sixty
(60) days or, if overdue for more than 60 days, are being contested in compliance with Section
5.04 (as applicable);
(c) (i)
Liens, pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance
and other social security laws or regulations or employment laws or to secure other public, statutory or regulatory obligations (including
to support letters of credit or bank guarantees) and (ii) Liens, pledges or deposits in the ordinary course of business securing liability
for premiums or reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees
for the benefit of) insurance carriers providing insurance to the Borrower or any Subsidiary;
(d) Liens
or deposits to secure the performance of bids, trade contracts, governmental contracts, tenders, statutory bonds, leases, statutory obligations,
surety, stay, customs, appeal and replevin bonds, performance bonds and other obligations of a like nature (including those to secure
health, safety and environmental obligations), in each case in the ordinary course of business;
(e) Liens
in respect of judgments, decrees, attachments or awards (or to secure any settlements with respect to the same) that do not constitute
an Event of Default under clause (k) of Section 8.02;
(f) easements,
restrictions (including zoning restrictions), rights-of-way, covenants, licenses, encroachments, protrusions and similar encumbrances
and minor title defects affecting real property imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially interfere with the ordinary conduct of business of the Borrower or any Subsidiary; and
(g) any
interest or title of a lessor, sublessor, licensor or sublicensor under any lease, sub-lease, license or sublicense entered into by the
Borrower or any of its Subsidiaries as a part of its business and covering only the assets so leased;
provided that
the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“Permitted
Receivables Facility” means any receivables facility or facilities created under the Permitted Receivables Facility Documents
from time to time, providing for the sale or pledge by the Borrower and/or one or more other Receivables Sellers of Permitted Receivables
Facility Assets (thereby providing financing to the Borrower and the Receivables Sellers) to the Receivables Entity (either directly
or through another
Receivables Seller), which in turn shall sell or pledge interests in the respective Permitted Receivables Facility Assets to third-party
lenders or investors pursuant to the Permitted Receivables Facility Documents (with the Receivables Entity permitted to issue notes or
other evidences of Indebtedness secured by Permitted Receivables Facility Assets or investor certificates, purchased interest certificates
or other similar documentation evidencing interests in Permitted Receivables Facility Assets) in return for the cash used by the Receivables
Entity to purchase Permitted Receivables Facility Assets from the Borrower and/or the respective Receivables Sellers, in each case as
more fully set forth in the Permitted Receivables Facility Documents.
“Permitted
Receivables Facility Assets” means (i) Receivables (whether now existing or arising in the future) of the Borrower and its
Subsidiaries which are transferred or pledged to a Receivables Entity pursuant to the Permitted Receivables Facility and any related
Permitted Receivables Related Assets which are also so transferred or pledged to a Receivables Entity and all proceeds thereof and (ii)
loans to the Borrower and its Subsidiaries secured by Receivables (whether now existing or arising in the future) of the Borrower and
its Subsidiaries which are made pursuant to a Permitted Receivables Facility.
“Permitted
Receivables Facility Documents” means each of the documents and agreements entered into from time to time in connection with
a Permitted Receivables Facility, including all documents and agreements relating to the issuance, funding and/or purchase of certificates
and purchased interests, or the issuance of notes or other evidence of Indebtedness secured by such notes, all of which documents and
agreements shall be in form and substance reasonably customary for transactions of this type, in each case as such documents and agreements
may be amended, modified, supplemented, refinanced or replaced from time to time so long as (in the good faith determination of the Borrower)
either (i) the terms as so amended, modified, supplemented, refinanced or replaced are reasonably customary for transactions of this
type or (ii)(x) any such amendments, modifications, supplements, refinancings or replacements do not impose any conditions or requirements
on the Borrower or any of its Subsidiaries that, taken as a whole, are more restrictive in any material respect than those in existence
immediately prior to any such amendment, modification, supplement, refinancing or replacement as determined by the Borrower in good faith
and (y) any such amendments, modifications, supplements, refinancings or replacements are not adverse in any material respect to the
interests of the Lenders as determined by the Borrower in good faith.
“Permitted
Receivables Related Assets” means any other assets that are customarily transferred or in respect of which security interests
are customarily granted in connection with asset securitization transactions involving receivables similar to Receivables and any collections
or proceeds of any of the foregoing.
“Permitted
Refinancing Indebtedness” means, with respect to any Person, any amendment, modification, refinancing, refunding, renewal,
replacement or extension of any Indebtedness of such Person; provided that the principal amount (or accreted value, if applicable)
thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded,
renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts
paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal, replacement or
extension and by an amount equal to any existing commitments unutilized thereunder (in each case, provided that Indebtedness in respect
of such existing unutilized commitments is then permitted under Section 6.17) (in each case, it being understood that incurrence of Indebtedness
in excess of the principal amount (plus any unpaid accrued interest and premium thereon and other reasonable amounts paid, and fees and
expenses reasonably incurred in connection therewith) of the Indebtedness so modified, refinanced, refunded, renewed, replaced or extended
(including the amount equal to any existing commitments unutilized thereunder) shall be
permitted if such
excess amount is then permitted under Section 6.17 and reduces the otherwise permitted Indebtedness under Section 6.17).
“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 Capital Stock.
“Receivables
Entity” means a wholly owned Subsidiary of the Borrower which engages in no activities other than in connection with the financing
of Receivables of the Receivables Sellers and which is designated (as provided below) as a “Receivables Entity”. Any
such designation shall be evidenced to the Revolving Facility Administrative Agent by filing with the Revolving Facility Administrative
Agent an officer’s certificate of the Borrower certifying that, to the best of such officer’s knowledge and belief after
consultation with counsel, such designation complied with the foregoing conditions.
“Qualified
Acquisition” means an acquisition by the Borrower or a Subsidiary of an Acquired Entity or Business occurring after the Closing
Date and that is permitted hereunder with aggregate consideration (including, without duplication, the assumption or incurrence of Indebtedness
in connection with such acquisition) equal to or in excess of $250,000,000.
“Qualified
Equity Interests” means Capital Stock of the Borrower other than Disqualified Capital Stock.
“Receivables
Sellers” means the Borrower and those Subsidiaries (other than Receivables Entities) that are from time to time party to the
Permitted Receivables Facility Documents.
Article
7
LOAN GUARANTEE
Section
7.01. Guarantee
of the Loan Document Obligations. Subject to Section 7.02 and the terms of each Counterpart Agreement, the Guarantors jointly
and severally hereby irrevocably and unconditionally guarantee to the Collateral Agent for the ratable benefit of the Secured Parties
the due and punctual payment in full of all Obligations (other than Excluded Swap Obligations) when the same shall become due, whether
at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code or other Debtor Relief Laws) (collectively, the “Guaranteed
Obligations”).
Section
7.02. Contribution
by Guarantors; Indemnification; Subordination.
(a)
The Guarantors desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair
and equitable manner, their obligations arising under the Loan Guarantee. Accordingly, in the event any payment or distribution (including
the sale of any assets) is made on any date by a Guarantor (a “Funding Guarantor”) under the Loan Guarantee or any
other Loan Document such that its Aggregate Payments exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled
to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s
Aggregate Payments to equal its Fair Share as of such date. The allocation among Contributing Guarantors of their obligations as set
forth in this Agreement shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder or under any
other Loan Document. Any Contributing Guarantor making a payment under this Section 7.02(a) shall be subrogated to the rights
of the Funding Guarantor under Section 7.02(b) below to the extent of such payment.
(b)
In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law, the Borrower agrees
that (i) in the event a payment in respect of any Obligation of such Borrower shall be made by any Guarantor under the Loan Guarantee,
such Borrower shall indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights
of the Person to whom such payment shall have been made to the extent of such payment and (ii) in the event any assets of any Guarantor
shall be sold pursuant to any Loan Document to satisfy in whole or in part an Obligation owed to any Secured Party by such Borrower,
such Borrower shall indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value of the assets
so sold.
(c)
Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors under Sections 7.02(a) and
(b) hereof and all other rights of the Guarantors of indemnity, contribution or subrogation under applicable law or otherwise
shall be fully subordinated to the payment in full in cash of the Loan Document Obligations. No failure on the part of the Borrower or
any Guarantor to make the payments required by Sections 7.02(a) and (b) (or any other payments required under Requirements
of Law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder,
and each Guarantor shall remain liable for the full amount of the obligations of such Guarantor hereunder.
Section
7.03. Payment
by Subsidiary Guarantors. Subject to Section 7.02 and the terms of each Counterpart Agreement, the Subsidiary Guarantors hereby
jointly and severally agree, in furtherance of the foregoing and not in limitation of any other right which any Secured Party may have
at law or in equity against any Subsidiary Guarantor by virtue hereof, that upon the failure of the Borrower to pay any of the Guaranteed
Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code or analogous provisions of other Debtor Relief Laws), the Subsidiary Guarantors will upon demand pay, or cause to be paid, in Cash,
to the Collateral Agent for the benefit of the Secured Parties, an amount equal to the sum of the unpaid principal amount of all Guaranteed
Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for the
Borrower’s becoming the subject of a case or proceeding under any Debtor Relief Law, would have accrued on such Guaranteed Obligations,
whether or not a claim is allowed against the Borrower for such interest in the related bankruptcy case) and all other Guaranteed Obligations
then owed to Secured Parties as aforesaid.
Section
7.04. Liability
of Guarantors Absolute. To the extent permitted under applicable law, each Guarantor agrees that its obligations hereunder are irrevocable,
absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge
of a guarantor or surety other than satisfaction in full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting
the generality thereof, each Guarantor agrees as follows:
(a)
this Loan Guarantee is a guarantee of payment and performance when due and not of collection. This Loan Guarantee is a primary
obligation of each Guarantor and not merely a contract of surety;
(b)
to the extent permitted under Requirements of Law, the Collateral Agent may enforce this Loan Guarantee upon the occurrence of
an Event of Default notwithstanding the existence of any dispute between the Borrower and any Secured Party with respect to the existence
of such Event of Default;
(c)
the obligations of each Guarantor hereunder are independent of the obligations of the Borrower and the obligations of any other
guarantor (including any other Guarantor) of the obligations of the Borrower, and a separate action or actions may be brought and prosecuted
against such Guarantor
whether or not any
action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or
actions;
(d)
payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge
any Guarantor’s liability for any portion of the Guaranteed Obligations which has not been paid. Without limiting the generality
of the foregoing, if the Collateral Agent or any Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s
covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant
to pay the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent
satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the Guaranteed
Obligations;
(e)
any Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability
hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder,
from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or
terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of
the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and
hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle,
rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations,
any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect
to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in
respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that
such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent
herewith or the applicable Hedge Agreement or agreement relating to Banking Services Obligations and any applicable security agreement,
including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation
or other right or remedy of any Guarantor against the Borrower or any security for the Guaranteed Obligations; and (vi) exercise any
other rights available to it under the Loan Documents or any agreement relating to Derivative Transactions or Banking Services Obligations;
and
(f)
this Loan Guarantee and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to
any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guaranteed Obligations),
including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i)
any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether
arising under the Loan Documents or any agreements relating to Derivative Transactions or Banking Services, at law, in equity or otherwise)
with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guarantee of or security for
the payment or performance of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to
departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Loan Documents,
any agreements relating to Derivative Transactions or Banking Services or any agreement or instrument executed pursuant thereto, or of
any other guarantee or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such
Loan Document, such agreement relating
to Derivatives Transactions
or Banking Services or any agreement relating to such other guarantee or security; (iii) to the extent permitted by applicable law, the
Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect;
(iv) the application of payments received from any source (other than payments received pursuant to the other Loan Documents, any agreements
relating to Derivative Transactions or Banking Services or from the proceeds of any security for the Guaranteed Obligations, except to
the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness
other than the Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the
Guaranteed Obligations; (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure
or existence of the Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii)
to the extent permitted by applicable law, any defenses, set-offs or counterclaims which the Borrower may allege or assert against any
Secured Party in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds,
statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act
or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed
Obligations.
Section
7.05. Waivers
by Guarantors. To the extent permitted by applicable law, each Guarantor hereby waives, for the benefit of the Secured Parties: (a)
any right to require any Secured Party, as a condition of payment or performance by such Guarantor, to (i) proceed against the Borrower,
any other guarantor (including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust
any security held from the Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance
of any Deposit Account or credit on the books of any Secured Party in favor of the Borrower or any other Person, or (iv) pursue any other
remedy in the power of any Secured Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability
or other defense of the Borrower or any other Guarantor including any defense based on or arising out of the lack of validity or the
unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability
of the Borrower or any other Guarantor from any cause other than satisfaction in full of the Guaranteed Obligations; (c) any defense
based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (d) any defense based upon any Secured Party’s errors or omissions in the administration
of the Guaranteed Obligations, except behavior which amounts to gross negligence, willful misconduct or bad faith; (e) (i) any principles
or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge
of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor’s liability
hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv) promptness, diligence and
any requirement that any Secured Party protect, secure, perfect or insure any security interest or lien or any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including
acceptance hereof, notices of default hereunder, agreements relating to Derivative Transactions or Banking Services or any agreement
or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related
thereto, notices of any extension of credit to the Borrower and notices of any of the matters referred to in Section 7.04 and
any right to consent to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the liability
of or exonerate guarantors or sureties, or which may conflict with the terms hereof.
Section
7.06. Guarantors’
Rights of Subrogation, Contribution, etc. Until the Termination Date, each Guarantor hereby waives, to the extent permitted by applicable
law, any claim, right or
remedy, direct or
indirect, that such Guarantor now has or may hereafter have against the Borrower or any other Guarantor or any of its assets in connection
with this Loan Guarantee or the performance by such Guarantor of its obligations hereunder, in each case whether such claim, right or
remedy arises in equity, under contract, by statute, under common law or otherwise and including (a) any right of subrogation, reimbursement
or indemnification that such Guarantor now has or may hereafter have against the Borrower with respect to the Guaranteed Obligations,
(b) any right to enforce, or to participate in, any claim, right or remedy that any Secured Party now has or may hereafter have against
the Borrower, and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by any Secured
Party. In addition, until the Termination Date, each Guarantor shall withhold exercise of any right of contribution such Guarantor may
have against any other guarantor (including any other Guarantor) of the Guaranteed Obligations, including any such right of contribution
set forth in Section 7.02 hereof. Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise
of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Guarantor may have against any
other Guarantor or against any collateral or security, and any rights of contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights any Secured Party may have against the Borrower, to all right, title and interest
any Secured Party may have in any such collateral or security, and to any right any Secured Party may have against such other guarantor.
If any amount shall be paid to any Guarantor on account of any such subrogation, reimbursement, indemnification or contribution rights
at any time prior to the Termination Date, such amount shall be held in trust for the Collateral Agent on behalf of the Secured Parties
and shall forthwith be paid over to the Collateral Agent for the benefit of the Secured Parties to be credited and applied against the
Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.
Section
7.07. Subordination
of Other Obligations. Any Indebtedness of the Borrower or any Subsidiary Guarantor now or hereafter owed to any Guarantor (the “Obligee
Guarantor”) is hereby subordinated in right of payment to the Guaranteed Obligations, and any such Indebtedness collected or
received by the Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust for the Collateral
Agent on behalf of the Secured Parties and shall forthwith be paid over to the Collateral Agent for the benefit of the Secured Parties
to be credited and applied against the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability
of the Obligee Guarantor under any other provision hereof.
Section
7.08. Continuing
Guarantee. This Loan Guarantee is a continuing guarantee and shall remain in effect until the Termination Date. Each Guarantor hereby
irrevocably waives any right to revoke this Loan Guarantee as to future transactions giving rise to any Guaranteed Obligations.
Section
7.09. Authority
of Subsidiary Guarantors or Borrower. It is not necessary for any Secured Party to inquire into the capacity or powers of any Subsidiary
Guarantor or the Borrower or the officers, directors or any Agents acting or purporting to act on behalf of any of them.
Section
7.10. Financial
Condition of Borrower. Any Credit Extension may be made to the Borrower or continued from time to time, and any agreements relating
to Derivative Transactions or Banking Services may be entered into from time to time, in each case without notice to or authorization
from any Guarantor regardless of the financial or other condition of the Borrower at the time of any such grant or continuation or at
the time such agreement relating to Derivatives Transactions or Banking Services is entered into, as the case may be. No Secured Party
shall have any obligation to disclose or discuss with any Subsidiary Guarantor its assessment, or any Subsidiary Guarantor’s assessment,
of the financial condition of the Borrower. Each Subsidiary Guarantor has adequate means to obtain information from the Borrower on a
continuing basis concerning the financial condition of such Borrower and its
ability to perform
its obligations under the Loan Documents and agreements relating to Derivative Transactions and Banking Services, and each Subsidiary
Guarantor assumes the responsibility for being and keeping informed of the financial condition of such Borrower and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations. Each Subsidiary Guarantor hereby waives and relinquishes any duty
on the part of any Secured Party to disclose any matter, fact or thing relating to the business, operations or conditions of the Borrower
now known or hereafter known by any Secured Party.
Section
7.11. Bankruptcy,
etc.
(a)
Until the Termination Date, no Subsidiary Guarantor shall, without the prior written consent of the Collateral Agent acting pursuant
to the instructions of the Required Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or insolvency
case, application or proceeding of or against the Borrower or any other Subsidiary Guarantor. The obligations of the Subsidiary Guarantors
hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case, application or proceeding,
voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of the Borrower
or any other Subsidiary Guarantor or by any defense which the Borrower or any other Subsidiary Guarantor may have by reason of the order,
decree or decision of any court or administrative body resulting from any such proceeding. (b)Each Guarantor acknowledges and agrees
that any interest on any portion of the Guaranteed Obligations which accrues after the commencement of any case, application or proceeding
referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of
law by reason of the commencement of such case, application or proceeding, such interest as would have accrued on such portion of the
Guaranteed Obligations if such case, application or proceeding had not been commenced) shall be included in the Guaranteed Obligations
because it is the intention of the Guarantors and the Secured Parties that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order which may relieve the Borrower of any portion of such
Guaranteed Obligations. The Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit
of creditors or similar Person to pay the Collateral Agent, or allow the claim of the Collateral Agent in respect of, any such interest
accruing after the date on which such case, application or proceeding is commenced.
(c)
In the event that all or any portion of the Guaranteed Obligations are paid by the Borrower, the obligations of the Subsidiary
Guarantors hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or
any part of such payment(s) are rescinded or recovered directly or indirectly from any Secured Party as a preference, fraudulent transfer
or otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder.
Section
7.12. Discharge
of Loan Guarantee upon Sale of Subsidiary Guarantor. If all of the Capital Stock of any Subsidiary Guarantor or any of its successors
in interest hereunder shall be sold or otherwise Disposed of (including by merger, amalgamation or consolidation) in accordance with
the terms and conditions hereof, the Loan Guarantee of such Subsidiary Guarantor or such successor in interest, as the case may be, hereunder
shall automatically be discharged and released without any further action by any Secured Party or any other Person effective as of the
time of such sale or other Disposition.
Section
7.13. Guarantee
Limitations. Notwithstanding anything herein or in any other Loan Document to the contrary, the application of this Agreement to
(including the Loan Guarantee and any obligation to contribute and indemnify pursuant to Section 7.02 of) each Subsidiary Guarantor
organized outside of the United States and Canada shall be (a) subject to the terms of Schedule 7.13 and (b) limited
in the manner set
forth in any Counterpart Agreement with respect to such Subsidiary Guarantor. Schedule 7.13 may be amended by the Administrative
Agents, the Collateral Agent and the Borrower, without the consent of any other Lender, Issuing Bank, the Swingline Lender or other Secured
Party, in order to (i) incorporate additional provisions to address the accession of any Loan Party in an additional jurisdiction after
the date hereof, (ii) cure omissions or defects or make changes of a technical nature or (iii) accommodate any Change in Law.
Article
8
EVENTS OF DEFAULT
PART
A: At all times prior to the Investment Grade Trigger Date (but for the avoidance of doubt, this Part A shall not apply thereafter):
Section
8.01. Events
of Default. If any of the following events (each, an “Event of Default”) shall occur:
(a)
Failure To Make Payments When Due. Failure by the Borrower to pay (i) any installment of principal of any Loan when due,
whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise, (ii) when due any
amount payable to any Issuing Bank in reimbursement of any drawing under a Letter of Credit or (iii) any interest on any Loan, any fee
or other non-principal amount due hereunder within five Business Days after the date due; or
(b)
Default in Other Agreements. (i) Failure by the Borrower or any of their Restricted Subsidiaries to pay when due any principal
of or interest on or any other amount payable in respect of one or more items of Indebtedness (other than (A) Indebtedness referred to
in clause (a) above and (B) Indebtedness held exclusively by an Affiliate of a Loan Party) with an aggregate outstanding principal
amount exceeding the Threshold Amount, in each case beyond the applicable notice period and grace period, if any, provided therefor;
or (ii) breach or default by the Borrower or any of their Restricted Subsidiaries with respect to any other term of (A) one or more items
of Indebtedness with an aggregate outstanding principal amount exceeding the Threshold Amount or (B) any loan agreement, mortgage, indenture
or other agreement relating to such item(s) of Indebtedness (other than, for the avoidance of doubt, with respect to Indebtedness consisting
of Hedging Obligations, termination events or equivalent events pursuant to the terms of the relevant Hedge Agreement which are not the
result of any default thereunder by any Loan Party or any Restricted Subsidiary), in each case beyond the applicable notice period and
grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, such Indebtedness to become or be declared due and
payable (or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; provided
that clause (ii) of this paragraph (b) shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property securing such Indebtedness if such sale or transfer is permitted hereunder; provided,
further, that (x) with respect to any breach or default referred to in clause (ii) above with respect to a financial covenant
in any such Indebtedness, such breach or default shall only constitute an Event of Default hereunder if such breach or default has resulted
in the acceleration of such Indebtedness and the termination of commitments thereunder, (y) any failure, breach or default described
under clauses (i) or (ii) above shall only constitute an Event of Default hereunder if such failure, breach or default
is unremedied and is not waived by the holders of such Indebtedness prior to any termination of the Commitments or acceleration of the
Loans pursuant to this Article 8 and (z) for the avoidance of doubt, any failure, breach or default described under clauses (i)
or (ii) above shall not result in a Default or Event of Default hereunder while any notice period or grace period, if applicable
to such failure, breach or default, remains in effect; or
(c)
Breach of Certain Covenants. Failure of any Loan Party, as required by the relevant provision, to perform or comply with
any term or condition contained in Section 5.01(e)(i) (provided that any such Default or Event of Default shall be automatically
deemed to be cured by (x) the cure or waiver of the underlying Default or Event of Default with respect to which such notice was required
or (y) upon subsequent delivery of the relevant notice of Default or Event of Default, unless a Responsible Officer of the Borrower had
actual knowledge that such Default or Event of Default had occurred and was continuing and should have reasonably known in the course
of his or her duties that failure to provide such notice would constitute an Event of Default), Section 5.02 (as it applies to
the preservation of the existence of the Borrower) or Article 6; provided that, notwithstanding this clause (c),
(i) no breach or default by any Loan Party under Section 6.15(a)
will constitute an Event of Default with respect to any Term Loans unless and until the Required Revolving Lenders have accelerated
the Revolving Loans, terminated the commitments under the Revolving Facility and demanded repayment of, or otherwise accelerated, the
Indebtedness or other obligations under the Revolving Facility and have not rescinded such demand or acceleration (theand
(ii) no breach or default by any Loan Party under Section 6.15(b) will constitute an Event of Default with respect to the Revolving Facility,
any Initial Term Loans, First Incremental Term Loans or any other Term Loans (other than Second Incremental Term Loans) unless and until
the Required Second Incremental Term Lenders have accelerated the Second Incremental Term Loans and demanded repayment of, or otherwise
accelerated, the Indebtedness or other obligations arising in connection with the Second Incremental Term Loans and have not rescinded
such demand or acceleration (each of the foregoing clauses (i) and (ii), a “Financial
Covenant Standstill”); or
(d)
Breach of Representations, Etc. Any representation, warranty or certification made or deemed made by any Loan Party in
any Loan Document or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of
doubt, any Perfection Certificate) shall be untrue in any material respect as of the date made or deemed made and such untrue representation,
warranty or certification shall remain untrue for a period of 30 days after notice from any Administrative Agent to the Borrower; it
being understood and agreed that any breach of representation, warranty or certification resulting from the failure of the Collateral
Agent to file any Uniform Commercial Code continuation statement (or other similar statement) shall not result in an Event of Default
under this Section 8.01(d) or any other provision of any Loan Document; or
(e)
Other Defaults Under Loan Documents. Default by any Loan Party in the performance of or compliance with any term contained
herein or in any of the other Loan Documents, other than any such term referred to in any other Section of this Section 8.01,
which default has not been remedied or waived within 30 days after receipt by the Borrower of any written notice thereof from any Administrative
Agent; or
(f)
Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) The entry by a court of competent jurisdiction of a decree or
order for relief in respect of the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) (any such Person,
a “Specified Person”) in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree
or order is not stayed or dismissed; or any other similar relief shall be granted under any applicable federal, state or local law, which
relief is not stayed or dismissed; or (ii) the commencement of an involuntary case against any Specified Person under any Debtor Relief
Law; the entry by a court having jurisdiction in the premises of a decree or order for the appointment of a receiver, receiver and manager
(preliminary) insolvency receiver, liquidator, sequestrator, trustee, monitor, custodian or other officer having similar powers over
any Specified Person, or over all or a substantial part of its property; or the involuntary appointment of an interim receiver, trustee
or other custodian of any Specified Person for all or a substantial part of its property, which remains, in any case under this clause
(f), undismissed, unvacated, unbonded and unstayed pending appeal for 60 consecutive days; or
(g)
Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) The entry against any Specified Person of an order for relief,
the commencement by any Specified Person of a voluntary case under any Debtor Relief Law, or the consent by any Specified Person to the
entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor
Relief Law, or the consent by any Specified Person to the appointment of or taking possession by a receiver, receiver and manager, trustee,
monitor or other custodian for all or a substantial part of its property; (ii) the making by any Specified Person of a general assignment
for the benefit of creditors; or (iii) the admission by any Specified Person in writing of its inability to pay its debts as such debts
become due; or
(h)
Judgments and Attachments. The entry of one or more final money judgments, writs or warrants of attachment or similar process
against any Specified Person or any of its assets involving in the aggregate at any time an amount in excess of the Threshold Amount
(in either case to the extent not adequately covered by indemnity from a third party as to which the indemnifying party has been notified
and not denied its indemnification obligations, self-insurance (if applicable) or insurance as to which the relevant third party insurance
company has been notified and not denied coverage), which judgment, writs or warrants of attachment or similar process remains unpaid,
undischarged, unvacated, unbonded and unstayed pending appeal for a period of 60 consecutive days; or
(i)
Employee Benefit Plans. The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability
of the Borrower or any of their Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a Material
Adverse Effect and the same shall remain undischarged for a period of 30 consecutive days; or
(j)
Change of Control. The occurrence of a Change of Control; or
(k)
Guaranties, Collateral Documents and Other Loan Documents. At any time after the execution and delivery thereof (i) any
material Loan Guarantee for any reason ceasing to be in full force and effect (other than in accordance with its terms or as a result
of the occurrence of the Termination Date) or being declared by a court of competent jurisdiction to be null and void or the repudiation
in writing by any Loan Party of its obligations thereunder (in each case other than as a result of the discharge of such Loan Party in
accordance with the terms thereof), (ii) this Agreement or any material Collateral Document or any Lien on a material portion of the
Collateral ceasing to be in full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof
or thereof, the occurrence of the Termination Date, any other termination of such Collateral Document in accordance with the terms thereof
prior to the taking of post-Closing Date actions with respect to the Collateral Documents) or being declared by a court of competent
jurisdiction to be null and void or (iii) other than in any bona fide, good faith dispute as to the scope of Collateral or whether any
Lien has been, or is required to be, released, the contesting by any Loan Party in writing of the validity or enforceability of any material
provision of any Loan Document (or any Lien on a material portion of the Collateral purported to be created by the Collateral Documents)
or denial by any Loan Party in writing that it has any further liability (other than by reason of the occurrence of the Termination Date
or any other termination of any Loan Document in accordance with the terms thereof), including with respect to future advances by the
Lenders, under any Loan Document to which it is a party; it being understood and agreed that the failure of the Collateral Agent to maintain
possession of any Collateral actually delivered to it or file any UCC (or equivalent) continuation statement or any failure by the Collateral
Agent or any Secured Party to take action within its control shall not result in an Event of Default under this clause (k);
or
(l)
Subordination. The Loan Document Obligations ceasing or the assertion in writing by any Loan Party that the Loan Document
Obligations cease to constitute senior indebtedness under the subordination provisions of any document or instrument evidencing any permitted
subordinated Junior Indebtedness in excess of the Threshold Amount (in each case, to the extent required by such
subordination provision)
or any such subordination provision being invalidated by a court of competent jurisdiction in a final non-appealable order or otherwise
ceasing, for any reason, to be valid, binding and enforceable obligations of the parties thereto; or
(m)
Canadian Employee Benefit Plans. (x) There shall occur one or more Canadian Pension Plan Termination Events that have had
or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (y) a Canadian Loan Party fails
to make a required contribution to or payment under any Canadian Pension Plan when due and such failure has had or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
then, and in every
such Event of Default (other than (x) an Event of Default with respect to the Borrower described in clause (f) or (g) of
this Section 8.01 or (y) any Event of Default arising under Section 6.15), and at any time thereafter during the continuance of
such Event of Default, the Applicable Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower,
take any of the following actions, at the same or different times: (i) terminate the Revolving Credit Commitments, and thereupon such
Commitments shall terminate immediately along with the obligation of Issuing Banks to issue any Letter of Credit, (ii) declare the Loans
then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower and (iii) require that the Borrower
deposit in the LC Collateral Account an additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 100% of
the relevant face amount) of the then outstanding LC Exposure (minus the amount then on deposit in the LC Collateral Account);
provided that (A) upon the occurrence of an Event of Default with respect to the Borrower described in clause (f) or (g)
of this Section 8.01, any such Commitments shall automatically terminate and the principal of the Loans then outstanding, together
with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, and the obligation
of the Borrower to Cash collateralize the outstanding Letters of Credit as aforesaid shall automatically become effective, in each case
without further action of any Administrative Agent or any Lender and (B) during the continuance of any Event of Default arising under
Section 6.15, after giving effect to the proviso to Section 8.01(c) (X) in
the case of an Event of Default under Section 6.15(a), solely upon the request of the Required Revolving Lenders (but not the
Required Lenders, Required Second Incremental Term Lenders or any
other Lender or group of Lenders), the Revolving Facility Administrative Agent shall, by notice to the Borrower, (1) terminate the Revolving
Credit Commitments, and thereupon such Revolving Credit Commitments shall terminate immediately, (2) declare the Revolving Loans then
outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Revolving Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder in respect of the Revolving Loans, shall
become due and payable immediately, without presentment, demand, protest or other notice in respect thereof of any kind, all of which
are hereby waived by the Borrower and (3) require that Borrower deposit in the LC Collateral Account an additional amount in Cash as
reasonably requested by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus
the amount then on deposit in the LC Collateral Account) and,
(Y) subject to the in
the case of an Event of Default under Section 6.15(b), solely upon the request of the Required Second Incremental Term Lenders (but not
the Required Lenders, Required Revolving Lenders or any other Lender or group of Lenders), the Incremental Term Facilities Administrative
Agent shall, by notice to the Borrower, declare the Second Incremental Term Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be
due and payable may
thereafter be declared to be due and payable), and thereupon the principal of the Second Incremental Term Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder in respect of
the Second Incremental Term Loans, shall become due and payable immediately, without presentment, demand, protest or other notice in
respect thereof of any kind, all of which are hereby waived by the Borrower and (Z)
subject to each Financial Covenant Standstill, the Administrative Agents may, and at the request of the Required Lenders shall,
by notice to the Borrower, declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal
not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived
by the Borrower. Upon the occurrence and during the continuance of an Event of Default, subject to any applicable intercreditor agreement,
each Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to such Administrative
Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC.
PART B: At all times
on and after the Investment Grade Trigger Date (but for the avoidance of doubt, this Part B shall not apply prior thereto):
Section
8.02. Events
of Default (On and After Investment Grade Trigger Date). If any of the following events (each an “Event of Default”)
shall occur and be continuing at any time on and from the Closing Date:
(a)
the Borrower shall fail to pay any principal of any Loan or any amount payable to any Issuing Bank in reimbursement of any drawing
under a Letter of Credit, in each case, when and as the same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or otherwise;
(b)
the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause
(a) of this Section 8.02) payable under this Agreement, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of five (5) Business Days;
(c)
any representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in or in connection with
this Agreement or any other Loan Document (including in any certificate delivered in connection with this Agreement or any other Loan
Document) shall prove to have been incorrect in any material respect when made or deemed made;
(d)
the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(e)(i), Section
5.03(i) (as to the Borrower’s existence), or Article 6;
(e)
any Loan Party, as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement
(other than those specified in clause (a), (b) or (d) of this Section 8.02) or any other Loan
Document, and such failure shall continue unremedied for a period of thirty (30) days after written notice thereof from the Revolving
Facility Administrative Agent to the Borrower;
(f)
(i) any Loan Party or any Material Subsidiary shall fail to make any payment (whether of principal or interest and regardless
of amount) in respect of any Material Indebtedness (other than any Hedge Agreement), when and as the same shall become due and payable,
or if a grace period shall be applicable to such payment under the agreement or instrument under which such Indebtedness was
created, beyond such
applicable grace period; or (ii) the occurrence under any Hedge Agreement of an “early termination date” (or equivalent event)
of such Hedge Agreement resulting from any event of default or “termination event” under such Hedge Agreement as to which
any Loan Party or any Material Subsidiary is the “defaulting party” or “affected party” (or equivalent term)
and, in either event, the termination value with respect to any such Hedge Agreement owed by any Loan Party or any Material Subsidiary
as a result thereof is greater than $150,000,000 and any Loan Party or any Material Subsidiary fails to pay such termination value when
due after applicable grace periods;
(g)
the Borrower or any Subsidiary shall default in the performance of any obligation in respect of any Material Indebtedness (including,
without limitation, any obligation to pay or repay Material Indebtedness prior to its scheduled maturity as a result of a “change
of control” (or equivalent term) with respect to such Material Indebtedness) in each case, that results in such Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both,
but after giving effect to any applicable grace period) the holder or holders of such Material Indebtedness or any trustee or agent on
its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity (other than solely in Qualified Equity Interests); provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness or as a result of a casualty event affecting such property or assets;
(h)
an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization,
moratorium, bankruptcy, insolvency, dissolution, compromise, arrangement or other relief in respect of any Loan Party or any Material
Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state, provincial or foreign Debtor Relief Law now
or hereafter in effect or (ii) the appointment of a receiver, interim receiver, receiver and manager, monitor, trustee, custodian, sequestrator,
conservator, administrator, trustee in bankruptcy or similar official for any Loan Party or any Material Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall continue undismissed or unstayed for sixty (60) days or
an order or decree approving or ordering any of the foregoing shall be entered;
(i)
any Loan Party or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization, moratorium, bankruptcy, insolvency, dissolution, compromise or arrangement or other relief under any Federal, state,
provincial or foreign Debtor Relief Law now or hereafter in effect, (ii) consent to the institution of any proceeding or petition described
in clause (h) of this Section 8.02, (iii) apply for or consent to the appointment of a receiver, interim receiver, receiver
and manager, monitor, trustee, custodian, sequestrator, conservator, administrator, trustee in bankruptcy or similar official for any
Loan Party or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any corporate
action for the purpose of effecting any of the foregoing;
(j)
any Loan Party or any Material Subsidiary shall become generally unable, admit in writing its inability generally or fail generally
to pay its debts as they become due;
(k)
the entry or filing of one or more final, non-appealable judgments for the payment of money in an aggregate amount in excess of
$150,000,000 (to the extent due and payable and not covered by indemnity from a third party as to which the indemnifying party has been
notified and not denied its indemnification obligations, self-insurance (if applicable) or insurance as to which the relevant third party
insurance company has been notified and not denied coverage) shall be rendered against any Loan Party, any Material Subsidiary or any
combination thereof and the same shall remain unpaid or undischarged for
a period of sixty
(60) consecutive days during which execution shall not be paid, bonded or effectively stayed;
(l)
an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, would reasonably
be expected to result in a Material Adverse Effect;
(m)
a Change in Control shall occur;
(n)
(i) at any time any actual guaranty provided under any Loan Guaranty, at any time after the execution and delivery thereof (including
pursuant to a Counterpart Agreement) and for any reason other than as expressly permitted (or not prohibited) hereunder or thereunder
(including as a result of a transaction permitted under Section 6.19) or as a result of acts or omissions by the Administrative
Agent or any Lender or the satisfaction in full of all the Obligations and the termination of the Commitments or pursuant to the provisions
of Section 5.14, is found to be invalid by a court of competent jurisdiction; (ii) or any Loan Party contests in writing the validity
or enforceability of its guaranty under any Loan Guaranty for any reason other than as expressly permitted (or not prohibited) hereunder
or thereunder (including as a result of a transaction permitted under Section 6.19) or as a result of acts or omissions by the
Administrative Agent or any Lender or the satisfaction in full of all the Obligations and the termination of the Commitments or pursuant
to the provisions of Section 5.14; or (iii) any Loan Party denies in writing that it has any further guaranty liability or guaranty
obligations under, or expressly purports in writing to rescind or revoke, any Loan Guaranty (for any reason other than as expressly permitted
(or not prohibited) hereunder or thereunder (including as a result of a transaction permitted under Section 6.19) or as a result
of acts or omissions by the Administrative Agent or any Lender or the satisfaction in full of all the Obligations and the termination
of the Commitments or pursuant to the provisions of Section 5.14); other than, in each case of clause (i), (ii) or (iii) above,
with respect to any Loan Guaranty by any Subsidiary Guarantor to the extent that the release thereof would not otherwise result in an
Event of Default;
(o)
there shall occur one or more Canadian Pension Plan Termination Events that have had or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or (y) a Canadian Loan Party fails to make a required contribution to or
payment under any Canadian Pension Plan when due and such failure has had or could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect; or
then,
and in every such event (other than an event with respect to the Borrower described in clause (h),
(i) or (j)
of this Section 8.02), and at any time thereafter during the continuance of such event, the Revolving Facility Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same
or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans
then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder and under the other Loan Documents, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrower; and in case of any event with respect to the Borrower described in clause (h),
(i) or (j)
of this Section 8.02, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, shall automatically become
due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
Section
8.03.
Defined Terms. As
used in Section 8.02, the following terms have the following meanings:
“Material
Subsidiary” means any Guarantor or any Subsidiary (or group of Subsidiaries as to which a specified condition applies) that
would be a “significant subsidiary” under Rule 1-02(w) of Regulation S-X.
“Material
Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), of any one or more of the Loan Parties and their
Subsidiaries in an aggregate principal amount exceeding $150,000,000.
“Qualified
Equity Interests” means Capital Stock of the Borrower other than Disqualified Capital Stock.
Article
9
THE ADMINISTRATIVE AGENTS AND THE COLLATERAL AGENT
Section
9.01. Appointment.
Each of the Revolving Lenders and the Issuing Banks, on behalf of itself and its applicable Affiliates and in their respective capacities
as such and as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably
appoints Citi (or any successor appointed pursuant hereto) as Revolving Facility Administrative Agent and authorizes the Revolving Facility
Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents and any other documents with
respect to the rights of the Secured Parties and the Collateral as contemplated by this Agreement and the other Loan Documents, and to
exercise such powers as are delegated to the Revolving Facility Administrative Agent by the terms of the Loan Documents, together with
such actions and powers as are reasonably incidental thereto.
Each
of the Initial Term Lenders, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Secured
Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints Goldman
Sachs (or any successor appointed pursuant hereto) as Term Facility Administrative Agent and authorizes the Term Facility Administrative
Agent to take such actions on its behalf, including execution of the other Loan Documents and any other documents with respect to the
rights of the Secured Parties and the Collateral as contemplated by this Agreement and the other Loan Documents, and to exercise such
powers as are delegated to the Term Facility Administrative Agent by the terms of the Loan Documents, together with such actions and
powers as are reasonably incidental thereto.
Each
of the First Incremental Term Lenders, and
the Second Incremental Term Lenders, each on behalf of itself and its applicable Affiliates and in their respective capacities
as such and as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably
appoints JPM (or any successor appointed pursuant hereto) as First Incremental Term
FacilityFacilities
Administrative Agent and authorizes the First Incremental Term FacilityFacilities
Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents and any other documents
with respect to the rights of the Secured Parties and the Collateral as contemplated by this Agreement and the other Loan Documents,
and to exercise such powers as are delegated to the First Incremental Term FacilityFacilities
Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
Subject
to Section 9.13, each of the Secured Parties hereby irrevocably appoints and authorizes the Citi (or any successor appointed pursuant
hereto) as Collateral Agent to act as the agent of (and to
hold any security
interest created by the Loan Documents for and on behalf of or on trust for) such Secured Party for purposes of acquiring, holding and
enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto. Each Secured Party agrees that any such actions by the Collateral Agent shall bind such
Secured Party.
Any
Person serving as an Administrative Agent and/or Collateral Agent hereunder shall have the same rights and powers in its capacity as
a Lender as any other Lender and may exercise the same as though it were not an Administrative Agent and/or the Collateral Agent, and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires
or unless such Person is in fact not a Lender, include each Person serving as an Administrative Agent and/or Collateral Agent hereunder
in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in
any other advisory capacity for and generally engage in any kind of business with any Loan Party or any subsidiary of any Loan Party
or other Affiliate thereof as if it were not an Administrative Agent and/or the Collateral Agent hereunder. The Lenders acknowledge that,
pursuant to such activities, each Administrative Agent, the Collateral Agent or any of their respective Affiliates may receive information
regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor
of such Loan Party or such Affiliate) and acknowledge that no Administrative Agent nor the Collateral Agent shall be under any obligation
to provide such information to them.
None
of the Administrative Agent nor the Collateral Agent shall have any duties or obligations except those expressly set forth in the Loan
Documents. Without limiting the generality of the foregoing, (a) none of the Administrative Agents nor the Collateral Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term
“agent” herein and in the other Loan Documents with reference to any Administrative Agent or the Collateral Agent is not
intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements
of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties, (b) none of the Administrative Agents nor any Collateral Agent shall
have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly
contemplated by the Loan Documents and which any Administrative Agent and/or the Collateral Agent is required to exercise in writing
as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary
under the relevant circumstances as provided in Section 10.02); provided that no Administrative Agent nor the Collateral
Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Administrative Agent or
the Collateral Agent, as applicable, to liability or that is contrary to any Loan Document or applicable Requirements of Law and (c)
except as expressly set forth in the Loan Documents, none of the Administrative Agent nor the Collateral Agent shall have any duty to
disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries
that is communicated to or obtained by the Person serving as an Administrative Agent and/or Collateral Agent or any of its Affiliates
in any capacity. None of the Administrative Agents nor the Collateral Agent shall be liable to the Lenders or any other Secured Party
for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as such Administrative Agent or the Collateral Agent, as applicable,
shall believe in good faith shall be necessary, under the relevant circumstances as provided in Section 10.02) or in the absence
of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection
with its duties expressly set forth herein. None of the Administrative Agents nor the Collateral Agent shall be deemed to have knowledge
of any Default or Event of Default unless and until written notice thereof is given to such Administrative Agent or the Collateral Agent
by the
Borrower or any Lender,
and no Administrative Agent nor the Collateral Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other
term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or
priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition
set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered
to such Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof; provided, further,
that the foregoing paragraph is solely for the benefit of each of the Administrative Agent and the Collateral Agent and not any Lender.
The
Collateral Agent shall act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its
capacities as a potential provider of Secured Hedging Obligations or Banking Services Obligations) and the Swingline Lender and each
Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent to act as the agent of such Lender, Swingline Lender and
Issuing Bank Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties
to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection,
the Collateral Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral
Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under
the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Agent),
shall be entitled to the benefits of all provisions of this Article 9 and Article 10 (as though such co-agents, sub-agents and attorneys-in-fact
were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
Section
9.02. Enforcement.
Each Lender agrees that, except with the written consent of the Administrative Agents, it will not take any enforcement action hereunder
or under any other Loan Document, accelerate the Loan Document Obligations under any Loan Document, or exercise any right that it might
otherwise have under applicable law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy
Code or other similar Dispositions of Collateral. Notwithstanding the foregoing, however, except as otherwise expressly limited herein,
a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that
would, absent such action, bar enforcement of the Loan Document Obligations held by such Lender, including the filing of a proof of claim
in a case under the Bankruptcy Code.
Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Collateral Agent, each Administrative
Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral
or to enforce the Loan Guarantee; it being understood and agreed that all powers, rights and remedies hereunder and under the other Loan
Documents may be exercised solely by the Applicable Administrative Agent and/or the Collateral Agent on behalf of the Secured Parties
in accordance with the terms hereof or thereof and (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral
pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code),
(A) the Collateral Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply all or any
portion of the Loan Document Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent
at such Disposition and (B) any Administrative Agent, the Collateral Agent or any Lender may be the purchaser or licensor of all or any
portion of such Collateral at any such Disposition.
No
holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection
with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement.
Each
of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or
by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes
and shall be deemed to authorize) the Collateral Agent, on behalf of all Secured Parties, to take any of the following actions upon the
instruction of the Required Lenders:
(a)
consent to the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Obligations in connection
with any Disposition pursuant to the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including
Section 363 thereof;
(b)
credit bid all or any portion of the Obligations, or purchase all or any portion of the Collateral (in each case, either directly
or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to
the applicable provisions of the Bankruptcy Code (or other applicable Debtor Relief Law), including under Section 363 thereof;
(c)
credit bid all or any portion of the Obligations, or purchase all or any portion of the Collateral (in each case, either directly
or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to
the applicable provisions of the UCC (or other applicable Debtor Relief Law), including pursuant to Sections 9-610 or 9-620 of the UCC;
(d)
credit bid all or any portion of the Obligations, or purchase all or any portion of the Collateral (in each case, either directly
or through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance with applicable
law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; and/or
(e)
estimate the amount of any contingent or unliquidated Obligations of such Lender or other Secured Party;
it being understood
that no Lender shall be required to fund any new amount in connection with any purchase of all or any portion of the Collateral by the
Collateral Agent pursuant to the foregoing clause (b), (c) or (d) without its prior written consent.
Each
Secured Party agrees that the Collateral Agent is under no obligation to credit bid any part of the Obligations or to purchase or retain
or acquire any portion of the Collateral; provided that, in connection with any credit bid or purchase described under clause
(b), (c) or (d) of the preceding paragraph, the Obligations owed to all of the Secured Parties (other than with respect
to contingent or unliquidated liabilities as set forth in the next succeeding paragraph) may be, and shall be, credit bid by the Collateral
Agent on a ratable basis. For the avoidance of doubt, nothing in this Article 9 shall limit any rights of any of the Borrower or its
Subsidiaries under Section 363(k) of the Bankruptcy Code (or the corresponding provisions of any other applicable Debtor Relief Law).
With
respect to any contingent or unliquidated claim that is an Obligation, the Collateral Agent is hereby authorized by the Secured Parties,
but is not required, to estimate the amount thereof for purposes of any credit bid or purchase described in the second preceding paragraph
so long as the estimation of the amount or liquidation of such claim would not unduly delay the ability of the Collateral Agent to credit
bid the Obligations or purchase the Collateral in the relevant Disposition. In the event that the Collateral Agent, in its sole and absolute
discretion, elects not to estimate any such contingent or unliquidated claim
or any such claim
cannot be estimated without unduly delaying the ability of the Collateral Agent to consummate any credit bid or purchase in accordance
with the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit
bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid.
Each
Secured Party whose Obligations are credit bid under clause (b), (c) or (d) of the third preceding paragraph shall
be entitled to receive interests in the Collateral or any other asset acquired in connection with such credit bid (or in the Capital
Stock of the acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the
percentage obtained by dividing (x) the amount of the Obligations of such Secured Party that were credit bid in such credit bid or other
Disposition by (y) the aggregate amount of all Obligations that were credit bid in such credit bid or other Disposition.
Section
9.03. Bankruptcy.
In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, each
Secured Party agrees that the Collateral Agent (irrespective of whether the principal of any Loan or LC Exposure is then due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Collateral Agent shall have made any demand on the
Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or LC Exposure
and all other Loan Document Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders, the Issuing Banks, the Collateral Agent and the Administrative Agents (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks, the Collateral Agent and the Administrative
Agents and their respective agents and counsel and all other amounts to the extent due to the Lenders, the Collateral Agent and the Administrative
Agents under Sections 2.12 and 10.03) allowed in such judicial proceeding; and
(ii)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and each Issuing Bank to make such payments to the Collateral Agent and/or the Administrative Agents and, in
the event that the Collateral Agent and/or the Applicable Administrative Agent consents to the making of such payments directly to the
Lenders and the Issuing Banks, to pay to such Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Collateral Agent and such Administrative Agent and their respective agents and counsel, and any other amount due
to the Administrative Agent under Sections 2.12 and 10.03.
Nothing
contained herein shall be deemed to authorize the Collateral Agent or any Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Loan
Document Obligations or the rights of any Lender or any Issuing Bank or to authorize the Collateral Agent or any Administrative Agent
to vote in respect of the claim of any Lender or any Issuing Bank in any such proceeding.
Section
9.04. Reliance.
Each of the Administrative Agents and the Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate,
consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each of the Administrative
Agents and the Collateral Agent also may rely upon any statement 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 condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the
applicable Issuing Bank, each Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank
unless such Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan
or the issuance of such Letter of Credit. Each of the Administrative Agents and the Collateral Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel, accountants or experts.
Section
9.05. Delegation.
Any of the Administrative Agents or the Collateral Agent may perform any and all of its duties and exercise its rights and powers by
or through any one or more sub-Agents appointed by it. The Administrative Agents, the Collateral Agent and any such sub-agent may perform
any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agents, the
Collateral Agent and any such sub-agent and shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as an Administrative Agent and/or the Collateral Agent.
Section
9.06. Resignation.
Any Administrative Agent or the Collateral Agent may resign at any time by giving thirty days’ written notice to the Lenders, the
Issuing Banks and the Borrower. If any Administrative Agent or the Collateral Agent is a Defaulting Lender or an Affiliate of a Defaulting
Lender, either the Required Lenders of the applicable Classes or the Borrower may, upon thirty days’ notice, remove such Administrative
Agent or the Collateral Agent, as applicable. Upon receipt of any such notice of resignation or delivery of any such notice of removal,
the Required Lenders of each applicable Class shall have the right, with the consent of the Borrower (not to be unreasonably withheld
or delayed), to appoint a successor Administrative Agent and/or Collateral Agent which shall be a commercial bank, trust company or other
Person reasonably acceptable to the Borrower with offices in the U.S.; provided that during the existence and continuation of
a Specified Event of Default, no consent of the Borrower shall be required. If no successor shall have been appointed as provided above
and accepted such appointment within thirty days after the retiring Administrative Agent and/or Collateral Agent gives notice of its
resignation or such Administrative Agent and/or Collateral Agent receives notice of removal, then (a) in the case of a retirement, the
retiring Administrative Agent and/or Collateral Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks,
appoint a successor Administrative Agent and/or Collateral Agent meeting the qualifications set forth above (including, for the avoidance
of doubt, consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required Lender of the
applicable Classes, appoint a successor Administrative Agent and/or Collateral Agent meeting the qualifications set forth above; provided
that (x) in the case of a retirement, if the applicable Administrative Agent and/or the Collateral Agent notifies the Borrower, the
Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies
the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless
become effective in accordance with such notice and (i) the retiring or removed Administrative Agent and/or Collateral Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of the Collateral Agent,
of any collateral security held by the Collateral Agent in its capacity as collateral agent for the Secured Parties for perfection purposes,
the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is
appointed) and (ii)
all payments, communications and determinations required to be made by, to or through such Administrative Agent and/or the Collateral
Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate
with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders of the applicable Classes or
the Borrower, as applicable, appoint a successor Administrative Agent and/or Collateral Agent, as provided for above in this Article
9. Upon the acceptance of its appointment as a successor Administrative Agent and/or Collateral Agent, such successor Administrative
Agent and/or Collateral Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or
removed Administrative Agent and/or Collateral Agent (other than any rights to indemnity payments owed to the retiring Administrative
Agent and/or Collateral Agent), and the retiring or removed Administrative Agent and/or Collateral Agent shall be discharged from its
duties and obligations hereunder (other than its obligations under Section 10.13 hereof). The fees payable by the Borrower to
a successor Administrative Agent and/or Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor Administrative Agent and/or Collateral Agent. After any Administrative Agent’s and/or the
Collateral Agent’s resignation or removal hereunder, the provisions of this Article and Section 10.03 shall continue in
effect for the benefit of such retiring or removed Administrative Agent and/or Collateral Agent, its sub-Agents and their respective
Related Parties in respect of any action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative
Agent and/or Collateral Agent (including for this purpose holding any collateral security following the retirement or removal of the
Collateral Agent).
Any
resignation or removal of the Revolving Facility Administrative Agent hereunder shall also constitute its resignation as the Swingline
Lender effective as of the date of effectiveness of its removal or resignation as Revolving Facility Administrative Agent as provided
above. In the event of any such resignation as Swingline Lender, the Borrower shall be entitled to appoint any Revolving Lender that
is willing to accept such appointment as successor Swingline Lender hereunder. Upon the acceptance of any appointment as Swingline Lender
hereunder by a successor Swingline Lender, such successor Swingline Lender shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning Swingline Lender and the resigning Swingline Lender shall be discharged from its
duties and obligations in such capacity hereunder. In the event the Swingline Lender resigns, the Borrower shall promptly repay all outstanding
Swingline Loans on the effective date of such resignation (which repayment may be effectuated with the proceeds of a Borrowing).
Each
Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon any Administrative Agent, the Collateral
Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will,
independently and without reliance upon any Administrative Agent, the Collateral Agent or any other Lender or any of their respective
Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder. Except for notices, reports and other documents expressly required to be furnished to the Lenders
and the Issuing Banks by any Administrative Agent or the Collateral Agent herein, no Administrative Agent nor the Collateral Agent shall
not have any duty or responsibility to provide any Lender or any Issuing Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective
Affiliates which may come into the possession of any Administrative Agent, the Collateral Agent or any of its Related Parties.
Section
9.07. Arrangers.
Notwithstanding anything to the contrary herein, the Arrangers shall not have any right, power, obligation, liability, responsibility
or duty under this Agreement, except in
their respective capacities,
as applicable, as an Administrative Agent, the Collateral Agent, an Issuing Bank or a Lender hereunder.
Section
9.08. Release
of Loan Guarantees; Collateral. Each Secured Party irrevocably authorizes and instructs each Administrative Agent and the Collateral
Agent to, and each Administrative Agent and the Collateral Agent shall:
(a)
without limiting Section 10.22, release any Lien on any property granted to or held by the Collateral Agent under any Loan
Document (i) upon the occurrence of the Termination Date, (ii) that is sold or to be sold or transferred as part of or in connection
with any Disposition permitted under the Loan Documents (or other disposition not restricted hereby) (A) to a Person that is not a Loan
Party or (B) to a Person that is a Loan Party, if (x) such release is a Requirement of Law in connection with such sale or transfer or
(y) such transferee Loan Party grants a perfected Lien on such property to the Collateral Agent at the time of such transfer or during
such longer period as agreed to by the Collateral Agent, (iii) that does not constitute Collateral (or ceases to constitute Collateral)
(including by being or becoming an Excluded Asset), (iv) if the property subject to such Lien is owned by a Subsidiary Guarantor, upon
the release of such Subsidiary Guarantor from its Loan Guarantee otherwise in accordance with the Loan Documents, (v) as required under
clause (d) below or (vi) if approved, authorized or ratified in writing by the Required Lenders (or such other number or
percentage of Lenders as shall be necessary under the relevant circumstances as provided in Section 10.02) in accordance with
Section 10.02;
(b)
without limiting Section 10.22, release any Subsidiary Guarantor from its obligations under the Loan Guarantee (i) if such
Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related
transactions or any event or other circumstance permitted hereunder) and/or (ii) upon the occurrence of the Termination Date;
(c)
subordinate (and, in the case of Section 6.02(uu), release) any Lien on any property granted to or held by the Collateral
Agent under any Loan Document to the holder of any Lien on such property that is permitted by Sections 6.02(c), 6.02(d),
6.02(e), 6.02(f), 6.02(g), 6.02(l), 6.02(k) 6.02(m), 6.02(n), 6.02(o), 6.02(q),
6.02(r), 6.02(v)(ii), 6.02(x), 6.02(y), 6.02(z)(i), 6.02(bb), 6.02(cc), 6.02(dd),
6.02(ee), 6.02(ff), 6.02(gg), 6.02(ii), 6.02(ll) and 6.02(uu) (and any Refinancing Indebtedness in
respect of any thereof to the extent such Refinancing Indebtedness is permitted to be secured under Section 6.02(k)); provided
that in the case of a release of a Lien on a deposit, securities or similar account (or related assets) there shall be no requirement
that any cash pooling and/or treasury service provider hold a subsequent Lien on such account or asset; and
(d)
enter into subordination, intercreditor, collateral trust and/or similar agreements (and any amendments thereto) with respect
to Indebtedness (including any Acceptable Intercreditor Agreement and any amendment thereto) that is (i) required or permitted to be
subordinated hereunder or pari passu with the Liens securing the Loan Document Obligations and/or (ii) secured by Liens, and with respect
to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor, subordination, collateral trust or similar agreement.
Upon
the request of the Collateral Agent or any Administrative Agent at any time, the Required Lenders of the applicable Classes will confirm
in writing the Collateral Agent’s and/or the Administrative Agents’ authority to release or subordinate its interest in particular
types or items of property, or to release any Loan Party from its obligations under the Loan Guarantee or its Lien on any Collateral
pursuant to this Article 9. In each case as specified in this Article 9, each Administrative Agent and the Collateral Agent
will (and each Lender and each Issuing Bank hereby authorizes each Administrative Agent and the Collateral Agent to), at the Borrower’s
expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release
of such item of Collateral
from the assignment
and security interest granted under the Collateral Documents, to subordinate its interest therein, or to release such Loan Party from
its obligations under the Loan Guarantee, in each case in accordance with the terms of the Loan Documents and this Article 9.
The parties hereto acknowledge and agree that each of the Administrative Agents and the Collateral Agent may rely conclusively as to
any of the matters described in this Section 9.08 and Section 10.22 (including as to its authority hereunder and thereunder)
on a certificate or similar instrument provided to it by any Loan Party without further inquiry or investigation, which certificate shall
be delivered to the Administrative Agents and/or the Collateral Agent by the Loan Parties upon request.
Section
9.09. Intercreditor
Agreements. Each of the Administrative Agents and the Collateral Agent is authorized to enter into any Acceptable Intercreditor Agreement
and any other intercreditor, subordination, collateral trust or similar agreement contemplated hereby with respect to any (a) Indebtedness
(i) that is (A) required or permitted to be subordinated hereunder or pari passu with or senior to the Liens securing the Loan Document
Obligations and/or (B) secured by Liens and (ii) with respect to which Indebtedness and/or Liens, this Agreement contemplates an intercreditor,
subordination, collateral trust or similar agreement (any such other intercreditor, subordination, collateral trust and/or similar agreement,
an “Additional Agreement”) and/or (b) Secured Hedging Obligations and/or Banking Services Obligations, whether or
not constituting Indebtedness, and each Secured Party acknowledges that any Acceptable Intercreditor Agreement and any Additional Agreement
is binding upon them. Each Secured Party hereby agrees that it will be bound by, and will not take any action contrary to, the provisions
of any Acceptable Intercreditor Agreement or any Additional Agreement and (c) authorizes and instructs each of the Administrative Agents
and the Collateral Agent to enter into any Additional Agreement (including any Acceptable Intercreditor Agreement) and to subject the
Liens on the Collateral securing the Obligations to the provisions thereof. The foregoing provisions are intended as an inducement to
the Secured Parties to extend credit to the Borrower, and the Secured Parties are intended third-party beneficiaries of such provisions
and the provisions of any Acceptable Intercreditor Agreement and/or any other Additional Agreement.
Section
9.10. Indemnification
by Lenders. To the extent that any Administrative Agent or the Collateral Agent (or any Affiliate of the foregoing) is not reimbursed
and indemnified by the Borrower in accordance with the terms of this Agreement, the Lenders will reimburse and indemnify the Administrative
Agents and the Collateral Agent (and any Affiliate of the foregoing) in proportion to their respective Applicable Percentages (determined
as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by any
Administrative Agent or the Collateral Agent (or any Affiliate of the foregoing) in performing its duties hereunder or under any other
Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender shall
be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses
or disbursements resulting from such Administrative Agent’s or the Collateral Agent’s (or such Affiliate’s) gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Section
9.11. Withholding
Taxes. To the extent required by any applicable Requirements of Law, each Administrative Agent may withhold from any payment to any
Lender (which term shall include any Issuing Bank for purposes of this Section 9.11) an amount equivalent to any applicable withholding
tax. If the Internal Revenue Service or any other Governmental Authority asserts a claim that any Administrative Agent did not properly
withhold Tax from amounts paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered
or was not properly executed or because such Lender failed to notify such Administrative Agent of a change in circumstance which rendered
the exemption from, or reduction of, withholding tax ineffective), such Lender shall
indemnify fully and
hold harmless such Administrative Agent (to the extent that such Administrative Agent has not already been reimbursed by a Loan Party
pursuant to Section 2.17 and without limiting or expanding the obligation of any Loan Party to do so) for all amounts paid, directly
or indirectly, by such Administrative Agent as Taxes or otherwise, together with all expenses incurred, including legal expenses and
any other out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to any Lender by such Administrative Agent shall be conclusive
absent manifest error. The agreements in this Section 9.11 shall survive the resignation and/or replacement of any Administrative
Agent, any assignment of rights by, or the replacement of, a Lender, the termination of this Agreement and the repayment, satisfaction
or discharge of all other Loan Document Obligations.
Section
9.12. Quebec.
For the purposes of any security granted at any time by any Canadian Loan Party pursuant to the laws of the Province of Quebec, each
Lender hereby irrevocably authorizes and appoints the Administrative Agents and the Collateral Agent (and, for the purposes of any existing
security, confirms the appointment of the Collateral Agent) to act as the hypothecary representative (fondé de pouvoir)
(within the meaning of Article 2692 of the Civil Code of Quebec) for the Secured Parties (including for the holder of any debenture,
bond or other title of indebtedness issued by any Canadian Loan Party pursuant to the terms of any deed of hypothec) in order to hold
any hypothec granted under the laws of the Province of Quebec (including as security for any such debenture, bond or other title of indebtedness
issued by any Canadian Loan Party (or as security in respect of any Obligations)) and to exercise such rights and duties as are conferred
upon a hypothecary representative (fondé de pouvoir) under the relevant deed of hypothec and applicable laws (with the
power to delegate any such rights or duties). Moreover, in respect of any pledge by any such Canadian Loan Party of any such debenture,
bond or other title of indebtedness as security in respect of any Obligations, the Collateral Agent shall also be authorized to hold
such debenture, bond or other title of indebtedness as agent, mandatary, custodian and pledgee for the benefit of the Secured Parties,
the whole notwithstanding the provisions of Section 32 of the An Act respecting the Special Powers of Legal Persons (Quebec).
The execution prior to the date hereof by any Administrative Agent or the Collateral Agent (or its predecessor in such capacity) of any
deed of hypothec or other security documents made pursuant to the laws of the Province of Quebec, is hereby ratified and confirmed. Any
person who becomes a Secured Party shall be deemed to have consented to and ratified the foregoing appointment of the Administrative
Agents and the Collateral Agent as hypothecary representative (fondé de pouvoir), agent, mandatary and custodian on behalf
of all Secured Parties (including for any holder of any such debenture, bond or other title of indebtedness issued by any Canadian Loan
Party), including such person. For greater certainty, the Administrative Agents and the Collateral Agent, when acting as the hypothecary
representative (fondé de pouvoir), shall have the same rights, powers, immunities, indemnities and exclusions from liability
as are prescribed in favor of the Administrative Agent and/or the Collateral Agent in this Agreement, which shall apply mutatis mutandis.
In the event of the resignation and appointment of a successor Administrative Agent and/or Collateral Agent, such successor of the Administrative
Agent and/or Collateral Agent shall also act as the hypothecary representative (fondé de pouvoir) without any further action
or formality, other than the filing of a notice of replacement in the applicable Quebec Register in accordance with Article 2692 of the
Civil Code of Quebec, and as agent, mandatary and custodian for the purposes set forth above. Without limiting the foregoing, no Lender
or Issuing Bank shall have or be deemed to have a fiduciary relationship with any other Lender or Issuing Bank. The Lenders and Issuing
Banks are not partners or co-venturers, and no Lender or Issuing Bank shall be liable for the acts or omissions of, or (except as otherwise
set forth herein in case of the Administrative Agents and the Collateral Agent) authorized to act for, any other Lender or Issuing Bank.
Section
9.13. Certain
Foreign Collateral Matters. Notwithstanding anything herein or in any other Loan Document to the contrary, the Collateral Documents
and the Liens (and the relative rights of the Secured Parties, the Administrative Agents and Collateral Agent) granted by a Subsidiary
Guarantor
organized outside
of the United States and Canada shall be subject to the terms of Schedule 9.13. Schedule 9.13 may be amended by the Administrative
Agents and the Borrower, without the consent of any other Lender, Issuing Bank, the Swingline Lender or other Secured Party, in order
to (i) incorporate additional provisions to address the accession of any Loan Party in an additional jurisdiction after the date hereof,
(ii) cure omissions or defects or make changes of a technical nature or (iii) accommodate any Change in Law.
Article
10
MISCELLANEOUS
Section
10.01. Notices.
(a)
Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph
(b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile or email, as follows:
(i)
if to any Loan Party, to such Loan Party in the care of the Borrower at:
Bausch
+ Lomb Corporation
400
Somerset Corporate Boulevard
Bridgewater,
NJ 08807
Attention:
Treasurer
Email: Manoj.Panda@bauschhealthbausch.com
and Mihir.Dharia@bauschhealth.com
with
a copy to (which shall not constitute notice to any Loan Party):
Davis
Polk & Wardwell LLP
450
Lexington Avenue
New
York, New York 10017
Attention:
Hilary Dengel and Michael Kaplan
Email:
hilary.dengel@davispolk.com and michael.kaplan@davispolk.com
(ii)
if to the Revolving Facility Administrative Agent or the Collateral Agent, at:
388
Greenwich Street
34th
Floor
New
York, NY 10012
Telephone:
212-816-6497
Attention:
Kevin Ciok
Email:
kevin.ciok@citi.com
with
a copy, in the case of any borrowing or continuation request, to:
388
Greenwich Street
34th
Floor
New
York, NY 10012
Telephone:
212-816-8322
Attention:
Susan Amrhein
Email:
susan.t.amrhein@citi.com
(iii)
if to the Term Facility Administrative Agent, at:
Goldman
Sachs Bank USA
2001
Ross Ave, 29th Floor
Dallas,
TX 75201
Telephone:
(972) 368-2323
Facsimile:
(646) 769-7829
Attention:
SBD Operations
Email:
gs-dallas-adminagency@ny.email.gs.com and gs-sbdagency-borrowernotices@ny.email.gs.com
(iv)
if to the Swingline Lender, at:
388
Greenwich Street
34th
Floor
New
York, NY 10012
Telephone:
212-816-6497
Attention:
Kevin Ciok
Email:
kevin.ciok@citi.com
(v)
if to the First Incremental Term FacilityFacilities
Administrative Agent, at
JPMorgan
Chase Bank, N.A.
131
S Dearborn St, Floor 04
Chicago,
IL, 60603-5506
Attention:
Loan and Agency Servicing
Email:
jpm.agency.cri@jpmorgan.com
Agency
Withholding Tax Inquiries:
Email:
agency.tax.reporting@jpmorgan.com
Agency
Compliance/Financials/Intralinks:
Email:
covenant.compliance@jpmchase.com
(vi)
if to any Lender, to it at its address, facsimile number or email address set forth in its Administrative Questionnaire.
All such notices and
other communications (A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have
been given when delivered in person or by courier service and signed for against receipt thereof or three Business Days after dispatch
if sent by certified or registered mail, in each case, delivered, sent or mailed (properly addressed) to the relevant party as provided
in this Section 10.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section
10.01 or (B) sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed by telephone; provided
that notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given
during normal business hours for the recipient, such notices or other communications shall be deemed to have been given at the opening
of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications
to the extent provided in clause (b) below shall be effective as provided in such clause (b).
(b)
Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including
e-mail and Internet or Intranet websites) pursuant to procedures set forth herein or otherwise approved by the Applicable Administrative
Agent. Each Administrative Agent, the Collateral Agent or the Borrower (on behalf of any Loan Party) may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic communications pursuant to procedures set forth herein or otherwise
approved by it; provided that approval of such procedures may be limited to particular notices or communications. All such notices
and other communications (i) sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written
acknowledgement); provided that if not given during the normal business hours of the recipient, such notice or communication shall
be deemed to have been given at the opening of business on the next Business Day for the recipient and (ii) posted to an Internet or
Intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (b)(i) of notification that such notice or communication is available and identifying the website address therefor.
(c)
Any party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties
hereto; it being understood and agreed that the Borrower may provide any such notice to the Applicable Administrative Agent as recipient
on behalf of itself, the Swingline Lender, each Issuing Bank and each Lender.
Section
10.02. Waivers; Amendments.
(a)
No failure or delay by any Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Administrative Agents, the Issuing Banks and the Lenders hereunder
and under any other Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document or consent to any departure by any party thereto therefrom shall in any event be effective unless
the same is permitted by this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose
for which it is given. Without limiting the generality of the foregoing, to the extent permitted by law, the making of a Loan or the
issuance of any Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether any Administrative
Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b)
Subject to clauses (A), (B), (C), (D) and (E) of this Section 10.02(b) and Sections
10.02(c) and (d) below and to Section 10.05(f), neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified, except (i) in the case of this Agreement, pursuant to an agreement or agreements
in writing entered into by the Borrower and the Required Lenders (or the Administrative Agents with the consent of the Required Lenders)
or (ii) in the case of any other Loan Document (other than any waiver, amendment or modification to effectuate any modification thereto
expressly contemplated by the terms of such other Loan Document), pursuant to an agreement or agreements in writing entered into by the
Administrative Agents, the Collateral Agent and each Loan Party that is party thereto, with the consent of the Required Lenders; provided
that, notwithstanding the foregoing:
(A)
except with the consent of each Lender directly and adversely affected thereby (but without requiring the consent of the Required
Lenders), no such agreement shall;
(1)
increase the Commitment of such Lender (other than with respect to any Incremental Facility pursuant to Section 2.22 in
respect of which such Lender has agreed to be an Additional Lender); it being understood that no amendment, modification or waiver of,
or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction of the Commitments shall constitute an increase of any Commitment of such Lender;
(2)
reduce or forgive the principal amount of any Loan owed to such Lender or any amount due to such Lender on any Loan Installment
Date (other than, in each case, any waiver of, or consent to or departure from, any Default or Event of Default or any mandatory prepayment;
it being understood that no change in (i) the definition of “First Lien Leverage Ratio” or any other ratio used in the calculation
of any mandatory prepayment (including any component definition thereof) or (ii) the MFN Provision shall constitute a reduction or forgiveness
of any principal amount due hereunder);
(3)
(x) extend the scheduled final maturity of any Loan or (y) postpone any Loan Installment Date, any Interest Payment Date or the
date of any scheduled payment of any fee, in each case payable to such Lender hereunder (in each case, other than any extension for administrative
reasons agreed by the Applicable Administrative Agent) (other than, in each case, any waiver of, or consent or departure from, any Default
or Event of Default or any mandatory prepayment; it being understood that no change in the definition of “First Lien Leverage Ratio”
or any other ratio used in the calculation of any mandatory prepayment (including any component definition thereof) shall constitute
such an extension or postponement);
(4)
reduce the rate of interest (other than to waive any Default or Event of Default or obligation of the Borrower to pay interest
at the default rate of interest under Section 2.13(e), which shall only require the consent of the Required Lenders, or to waive
adjustments in interest rate or fees on account of late delivery of financial statements or a determination with respect to financial
statements pursuant to the final paragraphs of the definition of “Applicable Rate”, which shall only require the consent
of the Required Lenders with respect to the Initial Term Loans or the Required Revolving Lenders, as applicable) or the amount of any
fee owed to such Lender; it being understood that no change in (i) the definition of “Consolidated Leverage Ratio” or any
other ratio used in the calculation of the Applicable Rate, or in the calculation of any other interest or fee due hereunder (including
any component definition thereof) or (ii) the MFN Provision shall constitute a reduction in any rate of interest or fee hereunder;
(5)
extend the expiry date of such Lender’s Commitment; it being understood that no amendment, modification or waiver of, or
consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction of
any Commitment
shall constitute an extension of any Commitment of any Lender; and
(6)
waive, amend or modify the provisions of Section 2.18(b) of this Agreement in a manner that would by its terms alter the
pro rata sharing of payments required thereby (except in connection with any transaction permitted under Sections 2.22, 2.23,
10.02(c) and/or 10.05(g) or as otherwise provided in this Section 10.02); and
(B)
no such agreement shall:
(1)
change (x) any of the provisions of Section 10.02(a) or Section 10.02(b) or the definition of “Required Lenders”,
in each case to reduce any voting percentage required to waive, amend or modify any right thereunder or make any determination or grant
any consent thereunder, without the prior written consent of each Lender or,
(y) the definition of “Required Revolving Lenders” to reduce any voting percentage required to waive, amend or modify
any right thereunder or make any determination or grant any consent thereunder, without the prior written consent of each Revolving Lender
(it being understood that neither the consent of the Required Lenders nor the consent of any other Lender shall be required in connection
with any change to the definition of “Required Revolving Lenders”); or
(z) the definition of “Required Second Incremental Term Lenders” to reduce any voting percentage required to waive, amend
or modify any right thereunder or make any determination or grant any consent thereunder, without the prior written consent of each Second
Incremental Term Lender (it being understood that neither the consent of the Required Lenders nor the consent of any other Lender shall
be required in connection with any change to the definition of “Required Second Incremental Term Lenders”);
(2)
release all or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted
herein or in the other Loan Documents, including pursuant to Article 9 or Section 10.22 hereof or pursuant to any Acceptable
Intercreditor Agreement), without the prior written consent of each Lender; or
(3)
release all or substantially all of the value of the Guarantees under the Loan Guarantee (except as otherwise permitted herein
or in the other Loan Documents, including pursuant to Article 9 or Section 10.22 hereof), without the prior written consent
of each Lender;
(C)
solely with the consent of the Required Revolving Lenders (but without the consent of the Required Lenders or any other Lender),
any such agreement may (x) waive, amend or modify Section 6.15(a) (or the
definition of “First Lien Leverage Ratio” or any component definition thereof, in each case, as any such definition is used
solely for purposes of Section 6.15(a)) or waive any Default or Event of Default
in respect of Section 6.15(a) (other than as permitted under clause (y)), (y)
waive, amend or modify any condition precedent set forth in Section 4.02 hereof as it pertains to any Revolving Loan and/or Additional
Revolving Loan and/or (z) waive any Default or Event of Default that results from any representation made or deemed made by any Loan
Party in any Loan Document in connection with any Credit Extension under the
Revolving
Facility being untrue in any material respect as of the date made or deemed made;
(D)
solely with the consent of the relevant Issuing Bank and, in the case of clause (x), the Revolving Facility Administrative
Agent, any such agreement may (x) increase or decrease the Letter of Credit Sublimit or (y) waive, amend or modify any condition precedent
set forth in Section 4.02 hereof as it pertains to the issuance of any Letter of Credit; and
(E)
solely with the consent of the Borrower and applicable Class or Classes of Revolving Lenders and/or, if applicable, Issuing Banks,
subject to the provisions of Section 1.10, this Agreement may be amended or otherwise modified to permit the availability of Revolving
Loans and/or Letters of Credit denominated in a currency other than Dollars and to make technical changes to this Agreement and any other
Loan Document to accommodate the inclusion of any such new currency; and
(F)
solely with the consent of the Required Second Incremental Term Lenders (but without
the consent of the Required Lenders or any other Lender), any such agreement may waive, amend or modify Section 6.15(b) (or the definition
of “First Lien Leverage Ratio” or any component definition thereof, in each case, as any such definition is used solely for
purposes of Section 6.15(b)) or waive any Default or Event of Default in respect of Section 6.15(b);
provided,
further, that no such agreement shall adversely amend, modify or otherwise affect the rights or duties of any Administrative Agent,
any Issuing Bank or the Swingline Lender hereunder without the prior written consent of such Administrative Agent, such Issuing Bank
or the Swingline Lender, as the case may be. The Applicable Administrative Agent may also amend the Commitment Schedule to reflect assignments
entered into pursuant to Section 10.05, Commitment reductions or terminations pursuant to Section 2.09, incurrences of Additional
Commitments or Additional Loans pursuant to Sections 2.22, 2.23 or 10.02(c) and reductions or terminations of any
such Additional Commitments or Additional Loans. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of any Defaulting Lender may not
be increased without the consent of such Defaulting Lender (it being understood that any Commitment or Loan held or deemed held by any
Defaulting Lender shall be excluded from any vote hereunder that requires the consent of any Lender, except as expressly provided in
Section 2.21(b)). Notwithstanding the foregoing, but without limiting the provisions of Section 2.22(g), this Agreement
may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agents and the Borrower
(i) to add one or more additional credit facilities to this Agreement and to permit any extension of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this Agreement and the other
Loan Documents and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders
on substantially the same basis as the Lenders prior to such inclusion.
(c)
Notwithstanding the foregoing, this Agreement may be amended:
(i)
with the written consent of the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing
or replacement of all or any portion of the outstanding Term Loans under any applicable Class (any such loans being refinanced or replaced,
the “Replaced Term Loans”) with one or more replacement term loans hereunder (“Replacement Term Loans”)
pursuant to a Refinancing Amendment; provided that
(A)
the aggregate principal amount of any Replacement Term Loans shall not exceed the aggregate principal amount of the Replaced
Term Loans (plus (1) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional
amounts are secured, the related Liens are permitted under Section 6.02 and plus (2) the amount of accrued interest, penalties
and premium (including any tender premium) thereon, any committed but undrawn amount and underwriting discounts, fees (including upfront
fees, original issue discount or initial yield payments), commissions and expenses associated therewith),
(B)
subject to the Permitted Earlier Maturity Indebtedness Exception, any Replacement Term Loans (other than (1) customary bridge
loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which
are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (B), (2) Customary Term
A Loans or (3) 364-day bridge loans) must have a final maturity date that is equal to or later than the final maturity date of, and
have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Replaced Term Loans at
the time of the relevant refinancing,
(C)
any Replacement Term Loans may be pari passu or junior in right of payment and pari passu (without regard to the control of remedies)
or junior with respect to the Collateral with the remaining portion of the Initial Term Loans or Additional Term Loans (provided
that if pari passu or junior as to Collateral, such Replacement Term Loans shall be subject to an Acceptable Intercreditor Agreement
and may, at the option of the Borrower, be documented in a separate agreement or agreements), or be unsecured,
(D)
if any Replacement Term Loans are secured, such Replacement Term Loans may not be secured by any assets other than the Collateral,
(E)
if any Replacement Term Loans are guaranteed, such Replacement Term Loans may not be guaranteed by any Person other than one or
more Loan Parties,
(F)
any Replacement Term Loans that are pari passu with the Initial Term Loans,
the First Incremental Term Loans and/or the FirstSecond
Incremental Term Loans in right of payment and security may participate (A) in any voluntary prepayment of Term Loans as set forth
in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vivii),
(G)
any Replacement Term Loans shall have pricing (including interest, fees and premiums) and, subject to preceding clause (F),
optional prepayment and redemption terms and, subject to preceding clause (B), an amortization schedule, as the Borrower and the
lenders providing such Replacement Term Loans may agree,
(H)
the covenants and events of default of any Replacement Term Loans (excluding pricing, interest, fees, rate floors, premiums, optional
prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be (i) substantially
identical to, or (taken as a whole) not materially more favorable (as determined by the Borrower in good faith) to the lenders providing
such Replacement Term Loans than, those applicable to the Replaced Term Loans (other than covenants or other provisions applicable only
to periods after the latest Maturity Date of
such Replaced
Term Loans (in each case, as of the date of incurrence of such Replacement Term Loans)), (ii) then-current market terms (as determined
by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the
applicable type of Indebtedness or (iii) reasonably acceptable to the Term Facility Administrative Agent or the First
Incremental Term FacilityFacilities
Administrative Agent, as applicable (it being agreed that covenants and events of default of any Replacement Term Loans that are
more favorable to the lenders or the agent of such Replacement Term Loans than those contained in the Loan Documents and are then conformed
(or added) to the Loan Documents pursuant to the applicable Refinancing Amendment shall thereafter be deemed acceptable to the Term Facility
Administrative Agent and/or the First Incremental Term FacilityFacilities
Administrative Agent), and
(ii)
with the written consent of the Borrower and the Lenders providing the relevant Replacement Revolving Facility to permit the refinancing
or replacement of all or any portion of any Revolving Credit Commitment under the applicable Class (any such Revolving Credit Commitment
being refinanced or replaced, a “Replaced Revolving Facility”) with a replacement revolving facility hereunder (a
“Replacement Revolving Facility”) pursuant to a Refinancing Amendment; provided that:
(A)
the aggregate principal amount of any Replacement Revolving Facility shall not exceed the aggregate principal amount of the Replaced
Revolving Facility (plus (x) any additional amounts permitted to be incurred under Section 6.01 and, to the extent any such additional
amounts are secured, the related Liens are permitted under Section 6.02 and (y) the amount of accrued interest, penalties and
premium thereon, any committed but undrawn amounts and underwriting discounts, fees (including upfront fees and original issue discount),
commissions and expenses associated therewith),
(B)
no Replacement Revolving Facility (other than (1) customary bridge loans with a maturity date of not longer than one year; provided
that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject
to the requirements of this clause (B) or (2) Customary Term A Loans) may have a final maturity date (or require commitment reductions)
prior to the final maturity date of the relevant Replaced Revolving Facility at the time of such refinancing,
(C)
any Replacement Revolving Facility may be pari passu or junior in right of payment and pari passu (without regard to the control
of remedies) or junior with respect to the Collateral with the remaining portion of any Revolving Credit Commitments (provided
that if pari passu or junior as to Collateral, such Replacement Revolving Facility shall be subject to an Acceptable Intercreditor Agreement
and may, at the option of the Borrower, be documented in a separate agreement or agreements), or be unsecured,
(D)
if any Replacement Revolving Facility is secured, it may not be secured by any assets other than the Collateral,
(E)
if any Replacement Revolving Facility is guaranteed, it may not be guaranteed by any Person other than one or more Loan Parties,
(F)
any Replacement Revolving Facility shall be subject to the “ratability” provisions applicable to Extended Revolving
Credit Commitments and Extended Revolving Loans set forth in the proviso to Section 2.23(a)(i), mutatis mutandis, to the same
extent as if fully set forth in this Section 10.02(c)(ii),
(G)
any Replacement Revolving Facility shall have pricing (including interest, fees and premiums) and, subject to the preceding clause
(F), optional prepayment and redemption terms as the Borrower and the lenders providing such Replacement Revolving Facility may agree,
(H)
the covenants and events of default of any Replacement Revolving Facility (excluding pricing, interest, fees, rate floors, premiums,
optional prepayment or redemption terms, security and maturity, subject to preceding clauses (B) through (G)) shall be
(i) substantially identical to, or (taken as a whole) no more favorable (as determined by the Borrower in good faith) to the lenders
providing such Replacement Revolving Facility than, those applicable to the Replaced Revolving Facility (other than covenants or other
provisions applicable only to periods after the latest Maturity Date of such Replaced Revolving Facility (in each case, as of the date
of incurrence of the relevant Replacement Revolving Facility)), (ii) then-current market terms (as determined by the Borrower in good
faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness
or (iii) reasonably acceptable to the Revolving Facility Administrative Agent (it being agreed that covenants and events of default of
any Replacement Revolving Facility that are more favorable to the lenders or the agent of such Replacement Revolving Facility than those
contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant to the applicable Refinancing Amendment
shall be deemed acceptable to the Revolving Facility Administrative Agent), and
(I)
the commitments in respect of the Replaced Revolving Facility shall be terminated, and all loans outstanding thereunder and all
fees then due and payable in connection therewith shall be paid in full, in each case on the date such Replacement Revolving Facility
is implemented.
Each party hereto
hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be amended by the Borrower, the Applicable
Administrative Agent and the lenders providing the relevant Replacement Term Loans or the Replacement Revolving Facility, as applicable,
to the extent (but only to the extent) necessary to reflect the existence and terms of such Replacement Term Loans or Replacement Revolving
Facility, as applicable, incurred or implemented pursuant thereto (including any amendment necessary to treat the loans and commitments
subject thereto as a separate “tranche” and “Class” of Loans and/or commitments hereunder). It is understood
that any Lender approached to provide all or a portion of any Replacement Term Loans or any Replacement Revolving Facility may elect
or decline, in its sole discretion, to provide such Replacement Term Loans or Replacement Revolving Facility.
(d)
Notwithstanding anything to the contrary contained in this Section 10.02 or any other provision of this Agreement or any
provision of any other Loan Document, (i) the Borrower, the Administrative Agents and the Collateral Agent may, without the input or
consent of any Lender, amend, supplement and/or waive any guarantee, collateral security agreement, pledge agreement and/or related document
(if any) executed in connection with this Agreement to (x) comply with any Requirements of Law or (y) cause any such guarantee, collateral
security agreement, pledge agreement or other document to be consistent with this Agreement and/or the relevant other Loan Documents,
(ii) the Borrower and the
Applicable Administrative
Agent may, without the input or consent of any other Lender (other than the relevant Lenders (including Additional Lenders) providing
Loans under such Sections), effect amendments to this Agreement and the other Loan Documents as may be necessary in the reasonable opinion
of the Borrower and the Applicable Administrative Agent to (A) effect the provisions of Sections 1.04(a), 1.08(b), 2.14,
2.22, 2.23, 5.12, 5.14, 5.15, 5.16, 6.11, 7.13, 9.13, 10.02(c), 11.09,
or any other provision specifying that any waiver, amendment or modification may be made with the consent or approval of the Administrative
Agents and/or any Administrative Agent and/or (B) add terms (including representations and warranties, conditions, prepayments, covenants
or events of default), in connection with the addition of any Loan or Commitment hereunder or the incurrence of any Incremental Equivalent
Debt, any Replacement Term Loans, any Replacement Revolving Facility, any Replacement Debt and/or any Refinancing Indebtedness incurred
in reliance on Section 6.01(p) with respect to Indebtedness originally incurred in reliance on Section 6.01(z) that are
favorable to the then-existing Lenders, as reasonably determined by the Applicable Administrative Agent (it being understood that, where
applicable, any such amendment may be effectuated as part of an Incremental Facility Amendment and/or a Refinancing Amendment), (iii)
if the Administrative Agents and the Borrower have jointly identified any ambiguity, mistake, defect, inconsistency, obvious error or
any error or omission of a technical or administrative nature or any necessary or desirable technical change, in each case, in any provision
of any Loan Document, then the Administrative Agents and the Borrower shall be permitted to amend such provision solely to address such
matter as reasonably determined by them acting jointly without the input or consent of any Lender, (iv) the Administrative Agents, the
Collateral Agent and the Borrower may amend, restate, amend and restate or otherwise modify any Acceptable Intercreditor Agreement as
provided therein or to give effect thereto or to carry out the purpose thereof without the input or consent of any Lender and (v) any
amendment, waiver or modification of any term or provision that directly affects Lenders under one or more Classes and does not directly
affect Lenders under one or more other Classes may be effected with the consent of Lenders owning 50% of the aggregate commitments or
Loans of such directly affected Class in lieu of the consent of the Required Lenders.
(e)
Notwithstanding anything to the contrary in any Loan Document, in connection with any determination as to whether the requisite
Lenders have (A) consented (or not consented) to any waiver, amendment or modification of any provision of this Agreement or any other
Loan Document or any departure by any Loan Party therefrom, (B) otherwise acted on any matter related to this Agreement or any other
Loan Document or (C) directed or required any Administrative Agent, the Collateral Agent or any Lender to undertake any action (or refrain
from taking any action) with respect to this Agreement or under any other Loan Document, any Lender (or any Affiliate of such Lender
(provided that for purposes of this clause (e), Affiliates shall not include Persons that are subject to customary procedures
to prevent the sharing of confidential information between such Lender and such Person and such Person is managed having independent
fiduciary duties to the investors or other equityholders of such Person and such investors or equityholders are not the same investors
or equityholders of such Lender)) (other than (x) any Lender that is a Regulated Bank, (y) any Revolving Lender as of the Closing Date
or any Affiliate thereof or (z) any Affiliate of a Regulated Bank to the extent that (1) all of the equity of such Affiliate is directly
or indirectly owned by either (I) such Regulated Bank or (II) a parent entity that also owns, directly or indirectly, all of the equity
of such Regulated Bank and (2) such Affiliate is a securities broker or dealer registered with the SEC under section 15 of the Securities
Exchange Act of 1934)) that, as a result of its interest (or such Affiliates collective
interests) in any total return swap, total rate of return swap, credit default swap or other derivative contract (other than any such
total return swap, total rate of return swap, credit default swap or other derivative contract entered into pursuant to bona fide market
making activities), has a net short position with respect to any of the Loans or Commitments, or with respect to any other tranche, class
or series of Indebtedness for borrowed money incurred or issued by the Borrower or any of its Restricted Subsidiaries at such time of
determination (including commitments with respect to any revolving credit facility) (each such item of Indebtedness, including the Loan
and Commitments, “Specified Indebtedness”) (each such Lender, a “Net Short Lender”) shall have
no right to vote with
respect to any waiver,
amendment or modification of this Agreement or any other Loan Documents and shall be deemed to have voted its interest as a Lender without
discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Net Short Lenders (including
in any plan of reorganization). For purposes of determining whether a Lender (alone or together with its Affiliates) has a “net
short position” on any date of determination: (i) derivative contracts with respect to any Specified Indebtedness and such contracts
that are the functional equivalent thereof shall be counted at the notional amount of such contract in Dollars, (ii) notional amounts
in other currencies shall be converted to the Dollar equivalent thereof by such Lender in a commercially reasonable manner consistent
with generally accepted financial practices and based on the prevailing conversion rate (determined on a mid-market basis) on the date
of determination, (iii) derivative contracts in respect of an index that includes the Borrower or any other Restricted Subsidiary or
any instrument issued or guaranteed by the Borrower or any other Restricted Subsidiary shall not be deemed to create a short position
with respect to such Specified Indebtedness, so long as (x) such index is not created, designed, administered or requested by such Lender
or its Affiliates and (y) the Borrower and the other Restricted Subsidiaries and any instrument issued or guaranteed by the Borrower
or the other Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index, (iv) derivative transactions
that are documented using either the 2014 ISDA Credit Derivatives Definitions or the 2003 ISDA Credit Derivatives Definitions (collectively,
the “ISDA CDS Definitions”) shall be deemed to create a short position with respect to the relevant Specified Indebtedness
if such Lender or its Affiliates is a protection buyer or the equivalent thereof for such derivative transaction and (x) the relevant
Specified Indebtedness is a “Reference Obligation” under the terms of such derivative transaction (whether specified by name
in the related documentation, included as a “Standard Reference Obligation” on the most recent list published by Markit,
if “Standard Reference Obligation” is specified as applicable in the relevant documentation or in any other manner), (y)
the relevant Specified Indebtedness would be a “Deliverable Obligation” under the terms of such derivative transaction or
(z) the Borrower or any other Restricted Subsidiary is designated as a “Reference Entity” under the terms of such derivative
transaction and (v) credit derivative transactions or other derivatives transactions not documented using the ISDA CDS Definitions shall
be deemed to create a short position with respect to any Specified Indebtedness if such transactions offer the Lender or its Affiliates
protection against a decline in the value of such Specified Indebtedness, or in the credit quality of the Borrower or any other Restricted
Subsidiary, in each case, other than as part of an index so long as (x) such index is not created, designed, administered or requested
by such Lender or its Affiliates and (y) the Borrower and the other Restricted Subsidiaries, and any instrument issued or guaranteed
by the Borrower or the other Restricted Subsidiaries, collectively, shall represent less than 5% of the components of such index. In
connection with any waiver, amendment or modification of this Agreement or the other Loan Documents, each Lender (other than any Lender
that is a Regulated Bank or a Revolving Lender as of the Closing Date) will be deemed to have represented to the Borrower and the Administrative
Agents that it does not constitute a Net Short Lender, in each case, unless such Lender shall have notified the Borrower and the Administrative
Agents prior to the requested response date with respect to such waiver, amendment or modification that it constitutes a Net Short Lender
(it being understood and agreed that the Borrower and the Administrative Agents shall be entitled to rely on each such representation
and deemed representation). In no event shall any Administrative Agent be obligated to monitor as to whether any Lender is a Net Short
Lender.
Section
10.03. Expenses; Indemnity.
(a)
Subject to Section 10.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by
each Arranger, each Administrative Agent, the Collateral Agent and their respective Affiliates (but limited, in the case of legal fees
and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel
to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken
as a whole) in connection with the syndication and distribution (including via the
Internet or through
a service such as Intralinks) of the Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents
and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document
(whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment,
modification or waiver was requested by the Borrower) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative
Agents, the Collateral Agent, the Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in
the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one
firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to
all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection
with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of
Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a)
shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail,
together with backup documentation supporting the relevant reimbursement request.
(b)
The Borrower shall indemnify each Arranger, each Administrative Agent, the Collateral Agent, each Issuing Bank, each Lender and
each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses,
to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as
a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees taken as a whole and, solely
in the case of an actual or perceived conflict of interest after the affected Person notifies the Borrower of such conflict, (x) one
additional counsel to all similarly situated affected Indemnitees taken as a whole and (y) one additional local counsel in any relevant
jurisdiction to all similarly situated affected Indemnitees taken as a whole), incurred by or asserted against any Indemnitee arising
out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated
thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or
any other transactions contemplated hereby or thereby, (ii) the use of the proceeds of the Loans or any Letter of Credit or (iii) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by
a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that any such loss, claim, damage or liability (i) is determined by a final and
non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted
from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds
(or any such settlement agreement acknowledges) that any such loss, claim, damage or liability has resulted from such Person’s
or a Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation
or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that
is brought by or against any Administrative Agent, the Collateral Agent, any Issuing Bank or any Arranger, acting in its capacity as
an Administrative Agent, as the Collateral Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of
the Borrower or any of its subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower
pursuant to this Section 10.03(b) to such Indemnitee for any fees, expenses or damages to the extent such Indemnitee is not entitled
to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower
within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y)
in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice,
setting forth such
costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section
10.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities arising
from any non-Tax claim.
(c)
The Borrower shall not be liable for any settlement or compromise of, or the consent to the entry of any judgment with respect
to, any proceeding effected without its consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if any
proceeding is so settled, compromised or consented to with the Borrower’s written consent, or if there is a final judgment entered
against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in
the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall
not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which
indemnity has been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee
from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as
to any admission of fault or culpability.
Section
10.04. Waiver of Claim. To the extent
permitted by applicable law, no party to this Agreement shall assert, and each hereby waives, any claim against any other party hereto,
any other Loan Party and/or any Related Party of any thereof, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement
or instrument contemplated hereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof, except, in
the case of any claim by any Indemnitee against the Borrower, to the extent such damages would otherwise be subject to indemnification
pursuant to the terms of Section 10.03.
Section
10.05. Successors and Assigns.
(a)
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and permitted assigns; provided that (i) except as provided under Section 6.07 and/or pursuant to any Permitted Reorganization,
the Borrower may not assign or otherwise transfer any of their rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in accordance with the terms of this Section (and other than
in the case of the First Incremental Term Loans and the Second Incremental
Term Loans, any attempted assignment or transfer not complying with the terms of this Section shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors
and permitted assigns, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Arrangers, the Administrative Agents, the Collateral Agent, the Issuing Banks and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement. Any Successor Borrower permitted pursuant to a transaction
referred to in clause (i) of the proviso above, shall thereafter be deemed to be and become the “Borrower” for all
purposes hereunder, and such initial Borrower, as applicable, shall be released from its Loan Document Obligations in respect of this
Agreement and the other Loan Documents.
(b)
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including all or a portion of any Loan or Additional Commitment
added pursuant to Sections 2.22, 2.23 or 10.02(c) at the time owing to it) with the prior written consent (not to
be unreasonably withheld or delayed) of:
(A)
the Borrower; provided that the Borrower shall be deemed to have consented to any assignment of Term Loans if it has not
responded to a written request for its consent from the Applicable Administrative Agent within 10 Business Days after receiving such
written request; provided, further, that no consent of the Borrower shall be required (x) for any assignment of Term Loans
or Term Commitments to another Lender, an Affiliate of any Lender or an Approved Fund, (y) for any assignment of Revolving Loans or Revolving
Credit Commitments to another Revolving Lender or (z) for any assignment during the continuance of a Specified Event of Default; provided,
further, that (1) assignments between Morgan Stanley Senior Funding, Inc. and Morgan Stanley Bank, N.A. and (2) assignments between
Goldman Sachs Bank USA and Goldman Sachs Lending Partners LLC, shall in each case be permitted without the consent of the Borrower;
(B)
the Applicable Administrative Agent; provided that no consent of the Applicable Administrative Agent shall be required
for any assignment to another Lender, any Affiliate of a Lender or any Approved Fund, or for any assignment to the Borrower and/or its
Affiliates, which otherwise complies with the terms of this Section 10.05; provided, further, that (1) assignments
between Morgan Stanley Senior Funding, Inc. and Morgan Stanley Bank, N.A. and (2) assignments between Goldman Sachs Bank USA and Goldman
Sachs Lending Partners LLC, shall in each case be permitted without the consent of any Administrative Agent; and
(C)
in the case of any Revolving Facility, each Issuing Bank and the Swingline Lender; provided, further, that (1) assignments
between Morgan Stanley Senior Funding, Inc. and Morgan Stanley Bank, N.A. and (2) assignments between Goldman Sachs Bank USA and Goldman
Sachs Lending Partners LLC, shall in each case be permitted without the consent of any Issuing Bank and/or Swingline Lender;
provided
that, in the case of assignments of Revolving Loans and/or Revolving Credit Commitments, it is understood and agreed that the Borrower
may withhold its consent on account of the creditworthiness of any proposed assignee (as determined by the Borrower in good faith).
(ii)
Assignments shall be subject to the following additional conditions:
(A)
except in the case of any assignment to another Lender, any Affiliate of any Lender or any Approved Fund or any assignment of
the entire remaining amount of the relevant assigning Lender’s Loans or commitments of any Class, the principal amount of Loans
or commitments of the assigning Lender subject to the relevant assignment (determined as of the date on which the Assignment Agreement
with respect to such assignment is delivered to the Applicable Administrative Agent and determined on an aggregate basis in the event
of concurrent assignments to Related Funds or by Related Funds) shall not be less than (x) $1,000,000, in the case of Term Loans and
Term Commitments and (y) $5,000,000 in the case of Revolving Loans and Revolving Credit Commitments unless the Borrower and the Applicable
Administrative Agent otherwise consent to a lesser amount, and in each case any assigned amount may exceed such minimum amount in an
integral multiple of $1,000,000 in excess thereof;
(B)
any partial assignment shall be made as an assignment of a proportionate part of all the relevant assigning Lender’s rights
and obligations under this Agreement;
(C)
the parties to each assignment shall execute and deliver to the Applicable Administrative Agent an Assignment Agreement via an
electronic settlement system acceptable to the Applicable Administrative Agent (or, if previously agreed with the Applicable Administrative
Agent, manually), and shall pay to the Applicable Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived
or reduced in the sole discretion of the Applicable Administrative Agent and which fee shall not apply for any assignment to an Affiliated
Lender);
(D)
the relevant Eligible Assignee, if it is not a Lender, shall deliver on or prior to the effective date of such assignment, to
the Applicable Administrative Agent and the Borrower (irrespective of whether an Event of Default exists) (1) an Administrative Questionnaire
and (2) any form required under Section 2.17; and
(E)
the assigning Lender shall, concurrently with its delivery of the same to the Applicable Administrative Agent, provide the Borrower
with a copy of its request for such assignment, which shall include the name of the prospective assignee (irrespective of whether an
Event of Default exists).
(iii)
Except as otherwise provided in Section 10.05(g), subject to the acceptance and recording thereof pursuant to paragraph
(b)(iv) of this Section, from and after the effective date specified in any Assignment Agreement, the Eligible Assignee thereunder
shall be a party hereto and, to the extent of the interest assigned pursuant to such Assignment Agreement, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be (A)
entitled to the benefits of Sections 2.15, 2.16, 2.17 and 10.03 with respect to facts and circumstances occurring
on or prior to the effective date of such assignment and (B) subject to its obligations thereunder and under Section 10.13). If
any assignment by any Lender holding any Promissory Note is made after the issuance of such Promissory Note, the assigning Lender shall,
upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender such Promissory Note to the Applicable
Administrative Agent for cancellation, and, following such cancellation, if requested by either the assignee or the assigning Lender,
the Borrower shall issue and deliver a new Promissory Note to such assignee and/or to such assigning Lender, with appropriate insertions,
to reflect the new commitments and/or outstanding Loans of the assignee and/or the assigning Lender.
(iv)
The Applicable Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its
offices a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders
and their respective successors and assigns, and the commitment of, and principal amount of and interest on the Loans and LC Disbursements
owing to, each Lender or Issuing Bank pursuant to the terms hereof from time to time (the “Register”). Failure to
make any such recordation, or any error in such recordation, shall not affect the Borrower’s obligations in respect of such Loans
and LC Disbursements. The entries in the Register shall be conclusive, absent manifest error, and the Borrower, each Administrative Agent,
the Collateral Agent, the Issuing Banks and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, each Issuing Bank and each Lender (but only as to its own holdings), at any reasonable time
and from time to time upon reasonable prior notice.
(v)
Upon its receipt of a duly completed Assignment Agreement executed by an assigning Lender and an Eligible Assignee, the Eligible
Assignee’s completed Administrative Questionnaire and any tax certification required by paragraph (b)(ii)(D)(2) of this
Section, the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and any written consent
to the relevant assignment required by paragraph (b) of this Section, the Applicable Administrative Agent shall promptly accept
such Assignment Agreement and record the information contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(vi)
By executing and delivering an Assignment Agreement, the assigning Lender and the Eligible Assignee thereunder shall be deemed
to confirm and agree with each other and the other parties hereto as follows: (A) such assigning Lender warrants that it is the legal
and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that the amount of its commitments,
and the outstanding balances of its Loans, in each case without giving effect to any assignment thereof which has not become effective,
are as set forth in such Assignment Agreement, (B) except as set forth in clause (A) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Restricted
Subsidiary or the performance or observance by the Borrower or any Restricted Subsidiary of any of its obligations under this Agreement,
any other Loan Document or any other instrument or document furnished pursuant hereto; (C) such assignee represents and warrants that
it is an Eligible Assignee, legally authorized to enter into such Assignment Agreement; (D) such assignee confirms that it has received
a copy of this Agreement and each then-applicable Acceptable Intercreditor Agreement, together with the most recent financial statements
delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment Agreement; (E) such assignee will independently and without reliance upon any Administrative
Agent, the assigning Lender or any other Lender and based on such documents and information as it deems appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this Agreement; (F) such assignee appoints and authorizes each
Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Administrative Agents and the Collateral Agent, by the terms hereof, together with such powers as are reasonably
incidental thereto; and (G) such assignee agrees that it will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(c)
(i) Any Lender may, without the consent of the Borrower, any Administrative Agent, the Collateral Agent, any Issuing Bank, the
Swingline Lender or any other Lender, sell participations to any bank or other entity (other than to any Defaulting Lender or any natural
Person or any investment vehicle established primarily for the benefit of a natural person) (a “Participant”) in all
or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its commitments and the
Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender
shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agents, the Collateral Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which any Lender
sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision
of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without the consent of the relevant Participant,
agree to any amendment, modification or waiver described in (x) clause (A) of the first proviso to Section 10.02(b) that
directly and adversely affects the Loans or commitments in which such Participant has an interest and (y) clauses (B)(1), (2)
or (3) of the first proviso to Section 10.02(b). Subject to paragraph (c)(ii) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the limitations
and requirements of such Sections and Section 2.19) to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section (it being understood that the documentation required under Section 2.17(f)
shall be delivered solely to the participating Lender, and if additional amounts are required to be paid to the Participant pursuant
to Section 2.17(a) or Section 2.17(c), to the Borrower). To the extent permitted by applicable Requirements of Law, each
Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant
shall be subject to Section 2.18(c) as though it were a Lender.
(i)
No Participant shall be entitled to receive any greater payment under Section 2.15, 2.16 or 2.17 than the
participating Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent
such entitlement to a greater payment results from any Change in Law occurring after the sale of the participation.
Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register
on which it enters the name and address of each Participant and their respective successors and assigns, and the principal amounts and
stated interest of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Loan, Letter
of Credit or any other obligation under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish
that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the Treasury Regulations.
The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name
is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary. For the avoidance of doubt, no Administrative Agent (in its capacity as an Administrative Agent) shall have any responsibility
for maintaining a Participant Register.
(d)
Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (other
than to any Defaulting Lender or any natural person) to secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Lender, and this Section
10.05 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release any Lender from any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(e)
Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a
special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender
to the Applicable Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails
to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii)
in no event may any Lender grant any option to provide to the Borrower all or any part of any Loan that such Granting Lender would have
otherwise been
obligated to make
to the Borrower pursuant to this Agreement to any Defaulting Lender. The making of any Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that
(i) an SPC shall be entitled to the benefits of Sections 2.15, Section 2.16 and Section 2.17 (subject to the limitations
and requirements of such Sections and Section 2.19; it being understood that any documentation required to be provided by SPC
under Section 2.17(e) shall be provided solely to the Granting Lender and if additional amounts are required to be paid to the
Participant pursuant to Section 2.17(a) or Section 2.17(c), to the Borrower) to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this Section; (ii) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower
under this Agreement (including its obligations under Section 2.15, 2.16 or 2.17) and no SPC shall be entitled to
any greater amount under Section 2.15, 2.16 or 2.17 or any other provision of this Agreement or any other Loan Document
that the Granting Lender would have been entitled to receive, except to the extent such entitlement to any greater amount results from
any Change in Law occurring after the grant is made, (iii) no SPC shall be liable for any indemnity or similar payment obligation under
this Agreement (all liability for which shall remain with the Granting Lender) and (iv) the Granting Lender shall for all purposes including
approval of any amendment, waiver or other modification of any provision of the Loan Documents, remain the Lender of record hereunder.
In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the Requirements of Law of the U.S. or any State thereof; provided that
(i) such SPC’s Granting Lender is in compliance in all material respects with its obligations to the Borrower hereunder and (ii)
each Lender designating any SPC hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage
or expense arising out of its inability to institute such a proceeding against such SPC during such period of forbearance. In addition,
notwithstanding anything to the contrary contained in this Section 10.05, any SPC may (i) with notice to, but without the prior
written consent of, the Borrower or the Applicable Administrative Agent and without paying any processing fee therefor, assign all or
a portion of its interests in any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating
to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to
such SPC.
(f)
(i) Other than in the case of assignments of the First Incremental Term Loans, any assignment or participation by a Lender without
the Borrower’s consent, to the extent the Borrower’s consent is required under this Section 10.05, to any other Person,
shall be null and void, and the Borrower and/or the Borrower shall be entitled to seek specific performance to unwind any such assignment
or participation and/or specifically enforce this Section 10.05(f) and (ii) solely,
in the case of the First Incremental Term Loans and the Second Incremental
Term Loans, to the extent any assignment is made by a Lender without the Borrower’s consent, to the extent the Borrower’s
consent is required under this Section 10.05, to any Person (any such Person, a “Disqualified Person”), then,
such assignment shall not be null and void, but (x) such Disqualified Person shall not be entitled to the benefit of any expense reimbursement
or indemnification provisions of the Loan Documents (including without limitation 10.03 hereof) and (y) the Borrower may, at its
sole expense and effort, upon notice to such Disqualified Person and the Incremental Term FacilityFacilities
Administrative Agent, (A) terminate any Commitment of such Disqualified Person and repay all obligations of the Borrower owing
to such Disqualified Person, (B) in the case of any outstanding Term Loans held by such Disqualified Person, purchase such Term Loans
by paying the lesser of (x) the amount that such Disqualified Person paid to acquire such Term Loans and (y) par, plus accrued interest
thereon, but excluding any premium, penalty, prepayment fee or breakage costs and/or (C) require that such Disqualified Person assign,
without recourse (in accordance
with and subject to
the restrictions contained in this Section 10.05), all of its interests, rights and obligations under this Agreement to one or
more Eligible Assignees (and if such Person does not execute and deliver to the Incremental Term FacilityFacilities
Administrative Agent a duly executed assignment agreement reflecting such assignment within five Business Days of the date on
which such Eligible Assignee executes and delivers such assignment agreement to such Person, then such Person shall be deemed to have
executed and delivered such assignment agreement without any action on its part); provided that in the case of clause (C), the
relevant assignment shall otherwise comply with this Section 10.05 (except that no registration and processing fee required under
this Section 10.05 shall be required with any assignment pursuant to this paragraph; provided, further, that in
the case of the foregoing clauses (A)-(C), the Borrower shall not be liable to any Person for breakage costs. Further, any Disqualified
Person identified by the Borrower to the Incremental Term FacilityFacilities
Administrative Agent, (A) shall not be permitted to (x) receive information or reporting provided by any Loan Party, any Administrative
Agent or any Lender and/or (y) attend and/or participate in conference calls or meetings attended solely by the Lenders and the Administrative
Agents and (B)(x) shall not for purposes of determining whether the Required Lenders or the majority Lenders under any Class have (i)
consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any
Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii)
directed or required any Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any
Loan Document, have a right to consent (or not consent), otherwise act or direct or require any Agent or any Lender to take (or refrain
from taking) any such action; it being understood that all Loans held by any Disqualified Person shall be deemed to be not outstanding
for all purposes of calculating whether the Required Lenders or all Lenders have taken any action and (y) shall be deemed to vote in
the same proportion as Lenders that are not Disqualified Persons in any proceeding under any Debtor Relief Law commenced by or against
the Borrower or any other Loan Party. The rights and remedies available to the Borrower pursuant to the foregoing provisions of this
Section 10.05(f) shall be in addition to injunctive relief (without posting a bond or presenting evidence of irreparable harm)
or any other remedies available to the Borrower and/or the Borrower at law or in equity; it being understood and agreed that the Borrower
and its subsidiaries will suffer irreparable harm if any Lender breaches any obligation under this Section 10.05 as it relates
to any assignment, participation or pledge of any Loan or Commitment to any Person to whom the Borrower’s consent is required but
not obtained. Nothing in this Section 10.05(f) shall be deemed to prejudice any right or remedy that the Borrower or the Borrower
may otherwise have at law or equity.
(g)
Notwithstanding anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights
and obligations under this Agreement in respect of its Term Loans to an Affiliated Lender on a non-pro rata basis (A) through Dutch Auctions,
or similar transactions pursuant to procedures to be established by the applicable “auction agent” that are consistent with
this Section 10.05(g), in each case open to all Lenders holding the relevant Term Loans on a pro rata basis or (B) through open
market purchases (which purchases may be effected at any price as agreed between such Lender and such Affiliated Lender in their respective
sole discretion), in each case with respect to clauses (A) and (B), without the consent of the Term Facility Administrative
Agent or the First Incremental Term FacilityFacilities
Administrative Agent, as applicable; provided that:
(i)
any Term Loans acquired by any Affiliated Lender shall, to the extent permitted by applicable Requirements of Law, be retired
and cancelled immediately upon the acquisition thereof; provided that upon any such retirement and cancellation, the aggregate
outstanding principal amount of the Term Loans shall be deemed reduced by the full par value of the aggregate principal amount of the
Term Loans so retired and cancelled, and each principal repayment installment with respect to the Initial Term Loans,
First Incremental Term Loans and/or FirstSecond
Incremental Term Loans (as applicable) pursuant to Section 2.10(a) shall be
reduced
on a pro rata basis by the full par value of the aggregate principal amount of Initial Term Loans and/or First Incremental Term Loans
so cancelled;
(ii)
[reserved];
(iii)
the relevant Affiliated Lender and assigning Lender shall have executed an Affiliated Lender Assignment and Assumption;
(iv)
[reserved];
(v)
in connection with any assignment effected pursuant to a Dutch Auction and/or open market purchase conducted by the Borrower or
any of its Restricted Subsidiaries, (A) the relevant Person may not use the proceeds of any Revolving Loans to fund such assignment
and (B) no Event of Default exists at the time of acceptance of bids for the Dutch Auction or the confirmation of such open market
purchase, as applicable;
(vi)
[reserved];
(vii)
no Affiliated Lender shall be required to represent or warrant that it is not in possession of material non-public information
with respect to the Borrower and/or any subsidiary thereof and/or their respective securities in connection with any assignment permitted
by this Section 10.05(g).
Section
10.06. Survival. All covenants,
agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loan and issuance of
any Letter of Credit regardless of any investigation made by any such other party or on its behalf and notwithstanding that any Administrative
Agent or the Collateral Agent may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force and effect until the Termination Date. The provisions
of Sections 2.15, 2.16, 2.17, 10.03 and 10.13 (with respect to Section 10.13, only for a period
of one year following such Termination Date) and Article 9 shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit
or any Commitment, the occurrence of the Termination Date or the termination of this Agreement or any provision hereof but in each case,
subject to the limitations set forth in this Agreement.
Section
10.07. Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and the
Fee Letters andLetter,
the First Incremental Fee Letter and Second Incremental Fee
Letter, as applicable, and any separate letter agreements with respect to fees payable to the Administrative Agents and the Collateral
Agent constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all previous agreements
and understandings, oral or written, relating to the subject matter hereof. This Agreement shall become effective upon satisfaction of
the conditions set forth in Section 4.01, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or
by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of
this Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of
like import in this Agreement, any other Loan Document
or any other document
to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures,
electronic records or the electronic matching of assignment terms and contract formations on electronic platforms approved by any Administrative
Agent and/or the Collateral Agent, each of which shall be of the same legal effect, validity or enforceability as a manually executed
signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided
for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section
10.08. Severability. To the extent
permitted by applicable Requirements of Law, any provision of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
Section
10.09. Right of Setoff. At any time
when an Event of Default exists, upon the written consent of the Administrative Agents and each Issuing Bank, each Lender is hereby authorized
at any time and from time to time, to the fullest extent permitted by applicable Requirements of Law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other obligations (in any currency) at any time
owing by such Administrative Agent, the Collateral Agent, such Issuing Bank or such Lender to or for the credit or the account of the
Borrower or any other Loan Party against any of and all the Obligations held by such Administrative Agent, the Collateral Agent, such
Issuing Bank or such Lender, irrespective of whether or not such Administrative Agent, the Collateral Agent, such Issuing Bank or such
Lender shall have made any demand under the Loan Documents and although such obligations may be contingent or unmatured or are owed to
a branch or office of such Lender or Issuing Bank different than the branch or office holding such deposit or obligation on such Indebtedness.
Any applicable Lender or Issuing Bank shall promptly notify the Borrower and the Administrative Agents of such set-off or application;
provided that any failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application
under this Section. The rights of each Lender, each Issuing Bank, the Collateral Agent and each Administrative Agent under this Section
are in addition to other rights and remedies (including other rights of setoff) which such Lender, such Issuing Bank, the Collateral
Agent or such Administrative Agent may have.
Section
10.10. Governing Law; Jurisdiction;
Consent to Service of Process.
(a)
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN ANY OTHER LOAN DOCUMENT) AND ANY CLAIM, CONTROVERSY
OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN ANY OTHER LOAN
DOCUMENT), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
(b)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF
ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM)
OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE OR, TO THE EXTENT
PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, FEDERAL COURT. EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR
DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW. EACH PARTY HERETO AGREES
THAT EACH OF THE ADMINISTRATIVE AGENTS AND THE COLLATERAL AGENT RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE
COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT.
(c)
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
(d)
TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM
OF MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 10.01. EACH PARTY HERETO HEREBY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED
HEREUNDER OR UNDER ANY LOAN DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE REQUIREMENTS
OF LAW. EACH LOAN PARTY THAT IS ORGANIZED UNDER THE LAWS OF A JURISDICTION OUTSIDE THE UNITED STATES HEREBY APPOINTS BHA AS ITS AGENT
FOR SERVICE OF PROCESS IN ANY MATTER RELATED TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS AND BHA HEREBY ACCEPTS SUCH APPOINTMENT.
Section
10.11. Waiver of Jury Trial. EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY
HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section
10.12. Headings. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
Section
10.13. Confidentiality. Each of
the Administrative Agents, the Collateral Agent, each Lender, each Issuing Bank and each Arranger agrees (and each Lender agrees to cause
its SPC, if any) to maintain the confidentiality of the Confidential Information (as defined below), except that Confidential Information
may be disclosed (a) to its and its Affiliates’ directors, officers, managers, employees, independent auditors, or other experts
and advisors, including accountants, legal counsel and other advisors (collectively, the “Representatives”) on a confidential
“need to know” basis solely in connection with the transactions contemplated hereby and who are informed of the confidential
nature of the Confidential Information and are or have been advised of their obligation to keep the Confidential Information of this
type confidential; provided that such Person shall be responsible for its Affiliates’ and their Representatives’ compliance
with this paragraph, (b) upon the demand or request of any regulatory or governmental authority having jurisdiction over such Person
or its Affiliates (in which case such Person shall, except with respect to any audit or examination conducted by bank accountants or
any Governmental Authority or regulatory authority exercising examination or regulatory authority, to the extent permitted by applicable
Requirements of Law, (i) inform the Borrower promptly in advance thereof and (ii) ensure that any information so disclosed is accorded
confidential treatment), (c) to the extent compelled by legal process in, or reasonably necessary to, the defense of such legal, judicial
or administrative proceeding, in any legal, judicial or administrative proceeding or otherwise as required by applicable Requirements
of Law (in which case such Person shall (i) to the extent permitted by law, inform the Borrower promptly in advance thereof, (ii)
ensure that any such information so disclosed is accorded confidential treatment and (iii) allow the Borrower a reasonable opportunity
to object to such disclosure in such proceeding), (d) to any other party to this Agreement, (e) subject to an acknowledgment and agreement
by the relevant recipient that the Confidential Information is being disseminated on a confidential basis (on substantially the terms
set forth in this paragraph or as otherwise reasonably acceptable to the Borrower and the Administrative Agents) in accordance with the
standard syndication process of the Arrangers or market standards for dissemination of the relevant type of information, which shall
in any event require “click through” or other affirmative action on the part of the recipient to access the Confidential
Information and acknowledge its confidentiality obligations in respect thereof, to (i) any Eligible Assignee of or Participant in, or
any prospective Eligible Assignee of or prospective Participant in, any of its rights or obligations under this Agreement, including
any SPC, (ii) any pledgee referred to in Section 10.05, (iii) any actual or prospective direct or indirect contractual counterparty
(or its advisors) to any Derivative Transaction (including any credit default swap) or similar derivative product to which any Loan Party
is a party and (iv) subject to the Borrower’s prior approval of the information to be disclosed (not to be unreasonably withheld
or delayed), to Moody’s or S&P on a confidential basis in connection with obtaining or maintaining ratings as required under
Section 5.13, (f) with the prior written consent of the Borrower and (g) to the extent the Confidential Information becomes publicly
available other than as a result of a breach of this Section by such Person, its Affiliates or their respective Representatives. In addition,
any Administrative Agent, the Collateral Agent or any Lender may disclose the existence of this Agreement and publicly available information
about this Agreement to market data collectors and similar service providers to the lending industry (including to the CUSIP Service
Bureau in connection with the issuance and monitoring of CUSIP numbers with respect to the facilities). For purposes of this Section,
“Confidential Information” means all information relating to the Borrower and/or any of its subsidiaries and their
respective businesses, the Transactions (including any information obtained by any Administrative Agent, the Collateral Agent, any Issuing
Bank, any Lender or any Arranger, or any of their respective Affiliates or Representatives, based on a review of any books and records
relating to the Borrower and/or any of its subsidiaries and their respective Affiliates from time to time, including prior to the date
hereof) other than any such information that is publicly available to any
Administrative Agent
or the Collateral Agent or any Arranger, Issuing Bank, or Lender on a non-confidential basis prior to disclosure by the Borrower or any
of its subsidiaries.
Section
10.14. No Fiduciary Duty. Each of
the Administrative Agents, the Collateral Agent, the Arrangers, each Lender, each Issuing Bank and their respective Affiliates (collectively,
solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the
Loan Parties, their stockholders and/or their respective affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise
will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the
one hand, and such Loan Party, its respective stockholders or its respective affiliates, on the other. Each Loan Party acknowledges and
agrees that: (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and
thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan Parties, on the other,
and (ii) in connection therewith and with the process leading thereto, (x) no Lender, in its capacity as such, has assumed an advisory
or fiduciary responsibility in favor of any Loan Party, its respective stockholders or its respective affiliates with respect to the
transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective
of whether any Lender has advised, is currently advising or will advise any Loan Party, its respective stockholders or its respective
Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents
and (y) each Lender, in its capacity as such, is acting solely as principal and not as the agent or fiduciary of such Loan Party, its
respective management, stockholders, creditors or any other Person. Each Loan Party acknowledges and agrees that such Loan Party has
consulted its own legal, tax and financial advisors to the extent it deemed appropriate and that it is responsible for making its own
independent judgment with respect to such transactions and the process leading thereto.
Section
10.15. Several Obligations.
(a)
The respective obligations of the Lenders hereunder are several and not joint and the failure of any Lender to make any Loan,
issue any Letter of Credit or perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations
hereunder.
(b)
The respective obligations of the Borrowers hereunder are several and not joint. References herein to “Obligations of the
Borrowers” or similar words of import are used solely for administrative convenience and are not intended to create liability that
is joint and several.
Section
10.16. USA PATRIOT Act. Each Lender
that is subject to the requirements of the USA PATRIOT Act hereby notifies the Loan Parties that, pursuant to the requirements of the
USA PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes
the name, address and tax identification number of such Loan Party and other information that will allow such Lender to identify such
Loan Party in accordance with the USA PATRIOT Act.
Section
10.17. Disclosure. Each Loan Party,
each Issuing Bank and each Lender hereby acknowledges and agrees that the Administrative Agents, the Collateral Agent and/or their respective
Affiliates from time to time may hold investments in, make other loans to or have other relationships with any of the Loan Parties and
their respective Affiliates.
Section
10.18. Appointment for Perfection.
Each Lender hereby appoints each other Lender and each Issuing Bank as its agent for the purpose of perfecting Liens for the benefit
of the Collateral Agent, the Administrative Agents, the Issuing Banks and the Lenders, in assets which, in accordance with Article
10 of the UCC or any other applicable Requirements of Law can be perfected only by possession. If any
Lender or Issuing
Bank (other than the Collateral Agent) obtains possession of any Collateral, such Lender or such Issuing Bank shall notify the Collateral
Agent thereof and, promptly upon the Collateral Agent’s request therefor, shall deliver such Collateral to the Collateral Agent
or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
Section
10.19. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan or Letter of Credit, together
with all fees, charges and other amounts which are treated as interest on such Loan or Letter of Credit under applicable law (collectively,
the “Applicable Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may
be contracted for, charged, taken, received or reserved by the Lender or Issuing Bank holding such Loan or Letter of Credit in accordance
with applicable Requirements of Law, the rate of interest payable in respect of such Loan or Letter of Credit hereunder, together with
all Applicable Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Applicable
Charges that would have been payable in respect of such Loan or Letter of Credit but were not payable as a result of the operation of
this Section shall be cumulated and the interest and Applicable Charges payable to such Lender or Issuing Bank in respect of other Loans
or Letters of Credit or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender or Issuing Bank.
Section
10.20. Judgment Currency.
(a)
If, for the purpose of obtaining or enforcing judgment against any Loan Party in any court in any jurisdiction, it becomes necessary
to convert into any other currency (such other currency being hereinafter in this Section 10.20 referred to as the “Judgment
Currency”) an amount due under any Loan Document in any currency (the “Obligation Currency”) other than
the Judgment Currency, the conversion shall be made at the rate of exchange prevailing on the Business Day immediately preceding the
date of actual payment of the amount due, in the case of any proceeding in the courts of any jurisdiction that will give effect to such
conversion being made on such date, or the date on which the judgment is given, in the case of any proceeding in the courts of any other
jurisdiction (the applicable date as of which such conversion is made pursuant to this Section 10.20 being hereinafter in this
Section 10.20 referred to as the “Judgment Conversion Date”).
(b)
If, in the case of any proceeding in the court of any jurisdiction referred to in Section 10.20(a), there is a change in
the rate of exchange prevailing between the Judgment Conversion Date and the date of actual receipt for value of the amount due, then
the applicable Loan Party or Loan Parties shall pay such additional amount (if any, but in any event not a lesser amount) as may be necessary
to ensure that the amount actually received in the Judgment Currency, when converted at the rate of exchange prevailing on the date of
payment, will provide the amount of the Obligation Currency which could have been purchased with the amount of the Judgment Currency
stipulated in the judgment or judicial order at the rate of exchange prevailing on the Judgment Conversion Date. Any amount due from
any Loan Party under this Section 10.20(b) shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of any of the Loan Documents.
(c)
The term “rate of exchange” in this Section 10.20 means the rate of exchange at which Applicable Administrative
Agent, on the relevant date at or about 12:00 noon (New York time), would be prepared to sell, in accordance with Applicable Administrative
Agent’s normal course foreign currency exchange practices, the Obligation Currency against the Judgment Currency.
Section
10.21. Conflicts. Notwithstanding anything to the contrary
contained herein or in any other Loan Document, in the event of any conflict or inconsistency between this Agreement and any other Loan
Document, the terms of this Agreement shall govern and control.
Section
10.22. Release of Guarantors.
(a)
Notwithstanding anything in Section 10.02(b) to the contrary, (x) any Subsidiary Guarantor shall automatically be released
from its obligations hereunder and under the other Loan Documents (and its Loan Guarantee and any Liens on its property securing any
of the Obligations shall be automatically released) (i) upon the consummation of any permitted transaction or series of related transactions
or the occurrence of any other permitted event or circumstance if as a result thereof such Subsidiary Guarantor ceases to be a Restricted
Subsidiary (including by merger, amalgamation or dissolution) or becomes an Excluded Subsidiary as a result of a single transaction or
series of related transactions or other event or circumstance permitted hereunder; or (ii) upon the occurrence of the Termination Date
and/or (y) any Subsidiary Guarantor that qualifies as an “Excluded Subsidiary” shall be released from its obligations hereunder
and under the other Loan Documents (and its Loan Guarantee and any Liens on its property securing any of the Obligations shall be automatically
released) by the Administrative Agents promptly following the request therefor by the Borrower.
(b)
In connection with any such release, the Administrative Agents shall, subject to receipt of an officer’s certificate from
the Borrower certifying that such transaction and release are permitted hereunder, promptly execute and deliver to the relevant Loan
Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence termination or release.
Any execution and delivery of any document pursuant to the preceding sentence of this Section 10.22 shall be without recourse
to or warranty by any Administrative Agent.
(c)
Upon the occurrence of the Investment Grade Trigger Date, each Guarantor shall automatically be released from its obligations
hereunder and under the other Loan Documents and all of the Liens held by the Collateral Agent for the benefit of the Secured Parties
on the Collateral securing the Obligations shall be automatically released (and in connection with such releases, each Administrative
Agent and the Collateral Agent shall promptly execute and deliver to the relevant Loan Parties, at the Loan Parties’ expense, all
documents that such Loan Parties shall reasonably request to evidence such releases).
Section
10.23. Acknowledgement and Consent to
Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected 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 and each party hereto agrees and consents to, and acknowledges and agrees to be bound by:
(a)
the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising
hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b)
the effects of any Bail-In Action on any such liability, including, if applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial
Institution, its parent undertaking, or a bridge institution
that may
be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of
any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)
the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable
Resolution Authority.
Section
10.24. Certain ERISA Matters.
(a)
Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from
the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the
Administrative Agents and the Collateral Agent, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other
Loan Party, that at least one of the following is and will be true:
(i)
such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more
Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the
Letters of Credit, the Commitments or this Agreement,
(ii)
the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined
by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company
general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38
(a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions
determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration
of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii)
(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part
VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into,
participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements
of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a)
of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance
of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv)
such other representation, warranty and covenant as may be agreed in writing among the Administrative Agents and the Collateral
Agent, in their sole discretion, and such Lender.
(b)
In addition, unless either (1) the preceding clause (a)(i) is true with respect to a Lender or (2) a Lender has provided
another representation, warranty and covenant in accordance with the preceding clause (a)(iv), such Lender further (x) represents
and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender
party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agents and the Collateral
Agent, and not, for the avoidance of doubt, to or for the benefit of the Borrower
or any other Loan
Party, that none of the Administrative Agents nor the Collateral Agent is a fiduciary with respect to the assets of such Lender involved
in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments
and this Agreement (including in connection with the reservation or exercise of any rights by any Administrative Agent or any Collateral
Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
Section
10.25. Acknowledgement Regarding Any
Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or
any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported
QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation
under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with
the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and
QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be
stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a)
in the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to
a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and
any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported
QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under
the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in
property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate
of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that
might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted
to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported
QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the
foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event
affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(a)
As used in this Section 10.25, the following terms have the following meanings:
“BHC
Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with,
12 U.S.C. 1841(k)) of such party.
“Covered
Entity” 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, 12 C.F.R. §382.2(b).
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
(b)
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted
in accordance with, 12 U.S.C. 5390(c)(8)(D).
Section
10.26. Erroneous Payments.
(i)
If any Administrative Agent (x) notifies a Lender, Issuing Bank or Secured Party or any Person who has received funds on
behalf of a Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipient (and each of their
respective successors and assigns), a “Payment Recipient”) that such Administrative Agent has determined in its
sole discretion (whether or not after receipt of any notice under immediately succeeding clause (ii)) that any funds (as set forth in
such notice from such Administrative Agent) received by such Payment Recipient from such Administrative Agent or any of its Affiliates
were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or
not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted
or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively,
an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such
Erroneous Payment shall at all times remain the property of such Administrative Agent pending its return or repayment as contemplated
below in this Section 10.26 and held in trust for the benefit of such Administrative Agent, and such Lender, Issuing Bank or Secured
Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to)
promptly, but in no event later than two Business Days thereafter (or such later date as such Administrative Agent may, in its sole discretion,
specify in writing), return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such
a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing
by such Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received
by such Payment Recipient to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal
Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from
time to time in effect. A notice of any Administrative Agent to any Payment Recipient under this clause (i) shall be conclusive, absent
manifest error.
(ii)
Without limiting immediately preceding clause (i), each Lender, Issuing Bank, Secured Party or any Person who has received funds
on behalf of a Lender, Issuing Bank or Secured Party (and each of their respective successors and assigns), agrees that if it receives
a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution
or otherwise) from any Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date
from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by such Administrative Agent (or any of
its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment,
prepayment or repayment sent by such Administrative Agent (or any of its Affiliates), or (z) that such Lender, Issuing Bank, Secured
Party or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then
in each such case:
(A)
it acknowledges and agrees that (I) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed
to have been made (absent written confirmation from such Administrative Agent to the contrary) or (II) an error and mistake has been
made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(B)
such Lender, Issuing Bank or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf
to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in
immediately preceding clauses (x), (y) and (z)) notify such Administrative Agent of its receipt of such payment, prepayment or repayment,
the details thereof (in reasonable detail) and that it is so notifying such Administrative Agent pursuant to this Section 10.26(ii).
For the
avoidance of doubt, the failure to deliver a notice to an Administrative Agent pursuant to this Section 8(l)(ii) shall not have any effect
on a Payment Recipient’s obligations pursuant to Section 8(l)(i) or on whether or not an Erroneous Payment has been made.
(iii)
Each Lender, Issuing Bank or Secured Party hereby authorizes each Administrative Agent to set off, net and apply any and all amounts
at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by such
Administrative Agent to such Lender, Issuing Bank or Secured Party under any Loan Document with respect to any payment of principal,
interest, fees or other amounts, against any amount that such Administrative Agent has demanded to be returned under immediately preceding
clause (i).
(iv)
(1) In the event that an Erroneous Payment (or portion thereof) is not recovered by any Administrative Agent for any reason, after
demand therefor in accordance with immediately preceding clause (i), from any Lender that has received such Erroneous Payment (or portion
thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such
unrecovered amount, an “Erroneous Payment Return Deficiency”), upon such Administrative Agent’s notice to such
Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (A) such Lender
shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment
was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or
such lesser amount as such Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment
Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at
par plus any accrued and unpaid interest (with the assignment fee to be waived by such Administrative Agent in such instance)), and is
hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement
incorporating an Assignment and Assumption by reference pursuant to an approved electronic platform as to which such Administrative Agent
and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes
evidencing such Loans to the Borrower or such Administrative Agent (but the failure of such Person to deliver any such Notes shall not
affect the effectiveness of the foregoing assignment), (B) such Administrative Agent as the assignee Lender shall be deemed to have acquired
the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, such Administrative Agent as the assignee Lender shall
become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall
cease to be a Lender, as applicable,
hereunder
with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification
provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender, (D) such Administrative
Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency
Assignment, and (E) such Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous
Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of
any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(2)
Subject to Section 10.05 but excluding, in all events, any assignment consent or approval requirements (other than from the Borrower,
to the extent the Borrower would have a consent right over such assignment in accordance with the terms of Section 10.05 (such consent
not to be unreasonably withheld or delayed)), any Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an
Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing
by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and such Administrative
Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its
respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds
of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by such
Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment
(to the extent that any such Loans are then owned by such Administrative Agent) and (y) may, in the sole discretion of such Administrative
Agent, be reduced by any amount specified by such Administrative Agent in writing to the applicable Lender from time to time.
(v)
The parties hereto agree that, subject in any event to each proviso below, (x) irrespective of whether such Administrative Agent
may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient
that has received such Erroneous Payment (or portion thereof) for any reason, such Administrative Agent shall be subrogated to all the
rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender,
Issuing Bank or Secured Party, to the rights and interests of such Lender, Issuing Bank or Secured Party, as the case may be) under the
Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the
Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative
of such Obligations in respect of Loans that have been assigned to such Administrative Agent under an Erroneous Payment Deficiency Assignment
and no such subrogation shall apply to the extent an Erroneous Payment is, and with respect to the amount of such Erroneous Payment that
is, compromised of funds of the Borrower or any other Loan Party) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge
or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 10.26 shall not
be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the
Obligations of the Borrower or any other Loan Party (including indemnification obligations of the Borrower or any other Loan Party under
the Loan Documents to the extent relating to principal, interest, premium or fees or similar payment obligations under the Loan Documents)
relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been
made by such Administrative Agent; provided, further, that clauses (x) and (y) above shall not apply to the extent any
such Erroneous Payment is, and solely with
respect
to the amount of such Erroneous Payment that is, comprised of funds received by such Administrative Agent from the Borrower for the purpose
of making such Erroneous Payment.
(vi)
To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby
waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim
or counterclaim by any Administrative Agent for the return of any Erroneous Payment received, including, without limitation, any defense
based on “discharge for value” or any similar doctrine.
(vii)
Each party’s obligations, agreements and waivers under this Section 10.26 shall survive the resignation or replacement of
any Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Bank, the termination
of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(viii)
This Section 10.26 shall solely be an agreement between the Administrative Agents, the Lenders and the Issuing Banks; provided
that, the Borrower and the other Loan Parties hereby acknowledge and consent to the provisions and agreements set forth in this Section
10.26.
Section
10.27. Canadian AML and Sanctions Legislation.
(a)
If, upon the written request of any Lender, the Applicable Administrative Agent has ascertained the identity of the Borrower or
any authorized signatories of the Borrower for purposes of Canadian AML and Sanctions Legislation, then the Applicable Administrative
Agent:
(i)
shall be deemed to have done so as an agent for such Lender, and this Agreement shall constitute a “written agreement”
in such regard between such Lender and the Applicable Administrative Agent within the meaning of the applicable Canadian AML and Sanctions
Legislation; and
(ii)
shall provide to such Lender copies of all information obtained in such regard without any representation or warranty as to its
accuracy or completeness.
(b)
Notwithstanding and except as may otherwise be agreed in writing, each of the Lenders agrees that the Applicable Administrative
Agent does not have any obligation to ascertain the identity of the Borrower or any authorized signatories of the Borrower on behalf
of any Lender, or to confirm the completeness or accuracy of any information it obtains from the Borrower or any authorized signatory
in doing so.
Section
10.28. Criminal Code (Canada). Notwithstanding
any other provision of this Agreement or any other Loan Document, in no event shall any Loan Document require the payment or permit the
collection of interest or other amounts in an amount or at a rate that would result in the receipt by the Lenders or any Administrative
Agent of “interest” at a “criminal rate”, as the terms “interest” and “criminal rate”
are defined under the Criminal Code (Canada). In determining whether or not the interest paid or payable under any specified contingency
exceeds the highest lawful rate under the Criminal Code (Canada), the Loan Parties, the Applicable Administrative Agent and the
Lenders shall, to the maximum extent permitted by applicable Law, (a) characterize any non-principal payment as an expense, fee or premium
rather than as interest, (b) exclude voluntary prepayments and the effects thereof, (c) amortize, prorate, allocate and spread the total
amount of interest throughout the term of the Commitment so that interest does not exceed the maximum amount permitted by applicable
Law, and/or (d) allocate interest
between portions of
the Obligations to the end that no portion shall bear interest at a rate greater than that permitted by applicable Law. For the purposes
of the Criminal Code (Canada), the effective annual rate of interest shall be determined in accordance with generally accepted
actuarial practices and principles and if there is any dispute, the determination of a Fellow of the Canadian Institute of Actuaries
appointed by the Applicable Administrative Agent shall be conclusive.
Article
11
PARALLEL DEBT
Section
11.01. Purpose; Governing Law. This
Article 11 is included in this Agreement solely for the purpose of ensuring the validity and effect of certain security rights
governed by the laws of the Netherlands granted or to be granted pursuant to the applicable Collateral Documents and, for the avoidance
of doubt, shall not limit the rights and remedies provided to any Administrative Agent or the Collateral Agent by the other provisions
hereof and the provisions of the other Loan Documents.
Section
11.02. Parallel Debt.
(a)
Notwithstanding anything to the contrary contained in this Agreement or the Collateral Documents and for the purpose of the security
rights granted and to be granted under or pursuant to the Collateral Documents governed by the laws of The Netherlands (the “Specified
Collateral Documents”), the Borrower and each Loan Party that is a party to the Specified Collateral Documents undertake to
pay to the Collateral Agent, in its individual capacity as a creditor in their own right and not as agent, representative or trustee,
as a separate independent obligation to the Collateral Agent, the amount of its Parallel Debt. Moreover, the security rights contemplated
by the applicable Specified Collateral Documents are granted in favor of the Collateral Agent in its individual capacity and not as agent,
representative or trustee for the Secured Parties, as security for its claims under the Parallel Debt and consequently the Collateral
Agent is the sole security beneficiary of such security rights.
(b)
No person shall be obligated to pay any amount representing Parallel Debt unless and until a corresponding amount of the Underlying
Debt shall have become due and payable.
(c)
To the extent any amount is paid to and received by the Collateral Agent in payment of the Parallel Debt, the total amount due
and payable in respect of the Underlying Debt shall be decreased as if such amount were received by the Secured Parties or any of them
in payment of the corresponding Underlying Debt.
Section
11.03. Additional Parallel Debt Provisions.
In the case of any Loan Party that becomes a Loan Party after the date hereof and is organized in a jurisdiction where “parallel
debt” provisions are customary or required, the Borrower and the Collateral Agent are hereby authorized to provide for parallel
debt, in customary form (as determined by the Borrower in its sole discretion) in the Counterpart Agreement with respect to such Loan
Party. The Administrative Agent and the Parent, without the consent of any other Lender, Issuing Bank, the Swingline Lender or other
Secured Party, may also (i) incorporate into this Agreement additional “parallel debt” provisions as necessary to address
property acquired in any jurisdiction after the date hereof where no assets are pledged by a Loan Party organized therein on the date
hereof or (ii) amend the “parallel debt” provisions set forth herein in order to (A) cure omissions or defects or make changes
of a technical nature or (B) accommodate any Change in Law.
[Signature
Pages Intentionally Omitted]
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